Beynon v. Montgomery Cablevision Ltd. Partnership

• Decision Date: 01 September 1997
• Docket Number: No. 86,86
• Citation: 718 A.2d 1161,351 Md. 460
• Parties: Julia D. BEYNON et al. v. MONTGOMERY CABLEVISION LIMITED PARTNERSHIP et al. ,
• Court: Maryland Court of Appeals

Page 460

351 Md. 460

718 A.2d 1161

Julia D. BEYNON et al. v. MONTGOMERY CABLEVISION LIMITED PARTNERSHIP et al.

No. 86, Sept. Term, 1997.

Court of Appeals of Maryland.

Oct. 9, 1998.

[718 A.2d

1163] Thomas P. Meehan (David Barmak, Mark S. Carlin, Marc L. Caden, Sherman, Meehan, Curtin & Ain, P.C., all on brief), Washington, DC, for Petitioners.

Hugh E. Donovan (Donovan & Broderick, P.C., on brief), Silver Spring, for Respondents.

Before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

BELL, Chief Judge.

Whether "pre-impact fright," or any other form of mental and emotional disturbance or distress, suffered by an accident victim who dies instantly upon impact is a legally compensable element of damages in a survival action is an issue hitherto unaddressed by this Court, but presented in this case. In Maryland, it is well-settled that, in the absence of a physical impact or injury directly resulting in harm, mental and emotional injuries such as fright are not compensable unless there are objective manifestations of such injury. See Green v. Shoemaker, 111 Md. 69, 77-78, 73 A. 688, 691 (1909); Bowman v. Williams, 164 Md. 397, 404, 165 A. 182, 184 (1933); Vance v. Vance, 286 Md. 490, 500, 408 A.2d 728, 733 (1979). See also Matthews v. Amberwood Associates Ltd. Partnership, Inc. et al, 351 Md. 544, 571-575, 719 A.2d 119, 132-134 (1998). We now hold that, in survival actions, where a decedent experiences great fear and apprehension of imminent death before the fatal physical impact, the decedent's estate may recover for such emotional distress and mental anguish as are capable of objective determination.

I.

During the late evening hours of June 7, 1990, Montgomery Cable Vision Limited Partnership, doing business as Cable TV Montgomery ("Montgomery Cable"), discovered that one of its cables located at Interstate 495, the Capital Beltway, had either broken or fallen from a utility pole and needed repair. In order to repair the damaged cable, Montgomery Cable, pursuant a blanket permit issued to it by the Maryland State Highway Administration ("SHA"), coordinated with the Maryland State Police to have traffic on the beltway stopped during the early morning hours of June 8. This was accomplished around 2:00 a.m. with two police officers, one on each side of the Capital Beltway and Montgomery Cable employees were enabled to install a replacement cable. During the thirty to forty-five minutes that it took to complete the repair, traffic backed up approximately one mile on each side of the beltway. At the rear of the congestion on the westbound side of the beltway, James P. Kirkland ("Kirkland") was driving a tractor-trailer owned by James Lee ("Lee"), doing business as K & L Transportation. Kirkland testified, at trial, that his trailer was at a complete stop in one of the middle lanes. He also testified that he noticed that all four lanes of the beltway were occupied; he remembered that there was another tractor-trailer to his left and there may have been another truck in the right lane.

Douglas K. Beynon, Jr., ("Beynon" or the "decedent,"), also traveling westbound, was driving his employer's vehicle, within the 55 m.p.h. speed limit. According to the evidence the plaintiffs presented at trial, Beynon was approximately 192 feet from the rear of Kirkland's tractor-trailer when he became aware of, and then reacted to, the impending danger of crashing into its rear. In his attempt to avoid the collision, Beynon slammed on his brakes, as 71 1/2 feet of skid marks attest, and slightly veered to the right. Despite his efforts, Beynon's vehicle collided with the rear of the tractor-trailer at a speed of 41 m.p.h., with the result that he was killed on impact.

The petitioners, Julia D. Beynon, individually and as personal representative of her son's estate, and Douglas K. Beynon, Sr., the decedent's father, instituted two separate suits, which were later consolidated, in the Circuit Court for Montgomery County against, Kirkland, Lee and Montgomery Cable, and Lumbermens Mutual Casualty Company, the insurance provider for the tractor-trailer, intervened as a defendant (collectively, the "respondents"). The suits, both a wrongful death and a survivorship action, alleged that the respondents were negligent and were jointly and severally responsible for the crash. At trial, the petitioners presented evidence to show that Kirkland and Lee negligently operated the tractor-trailer and also negligently maintained it since the rear of the trailer was not properly illuminated and, therefore, was not sufficiently visible to motorists approaching from the rear. With respect to Montgomery Cable, the petitioners offered evidence to prove that Montgomery Cable violated specific conditions of the SHA blanket permit by failing to post advance warning signs to provide oncoming traffic with notice of the unusual and dangerous hazard that the unanticipated traffic back-up presented.

The petitioners conceded that the decedent suffered no conscious pain and suffering following the crash. Rather, they contended that the decedent suffered, and should be compensated for, "pre-impact fright"--the mental anguish the decedent suffered from the time he became aware of the impending crash until the actual collision. Agreeing that the petitioners had presented sufficient evidence of "pre-impact fright," the trial court instructed the jury that it could consider and make an award for "pain, suffering and mental anguish" that the decedent experienced before the crash. The jury returned a verdict for the petitioners. The jury verdict awarded the decedent's father and mother $212,000.00 and $165,000.00, respectively, in economic losses, and each was awarded $500,000.00 for past mental pain and suffering and $750,000.00 for future pain and suffering. In addition, the jury awarded the decedent's estate $ 2,000.00 for funeral expenses ¹ and $1,000,000.00 for "preimpact fright." The trial court reduced the latter award, pursuant to Maryland Code (1974, 1995 Repl.Vol.) § 11-108(b) of the Courts and Judicial Proceedings Article ² and with the consent of the petitioners, to $350,000.00. The respondents appealed the judgment to the Court of Special Appeals. The intermediate appellate court reversed the judgment for pre-impact fright. Montgomery Cablevision Limited v. Beynon, 116 Md.App. 363, 696 A.2d 491 (1997).

On appeal, the respondents did not challenge the reasonableness or excessiveness of the jury award. They contended, instead, inter alia, that the trial court "erred in failing to rule as a matter of law that there could be no recovery for 'pre-impact fright.' " Id. at 372-73, 696 A.2d at 495. This is so, they argued, because Maryland Code (1974, 1991 Repl.Vol.) § 7-401(x) of the Estates and Trust Article, ³ is in derogation of the common law, and its provisions do not recognize a cause of action for pre-impact fright, and because a claim for pre-impact fright is, in reality, an action for negligent infliction of emotional distress, a cause of action not recognized in Maryland. The Court of Special Appeals rejected both of these arguments. First, the court remarked that the common law does not necessarily establish the limitations on legal theories that warrant judicial recognition. In other words, "[t]hat there has not previously been any recovery for pre-impact fright in a survival action is not a basis for concluding that there can never be an appropriate set of facts and circumstances that would permit a tort victim to recover damages for such emotional distress." Montgomery Cablevision, 116 Md.App. at 375, 696 A.2d at 496. Second, with respect to the analogy between pre-impact fright and a cause of action for negligent infliction of emotional distress, the court correctly stated that such an analogy simply "confuses the concept of allowance of damages for emotional distress as a consequence of a negligent tort with the refusal to recognize the existence of a separate tort of negligent infliction of emotional distress." Id.

Observing that there are no Maryland cases addressing the recoverability of damages for a decedent's pre-impact fright, the Court of Special Appeals was not persuaded by the pre-impact fright caselaw that it reviewed. See Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45 (2nd Cir.1984)(applying New York law); Haley v. Pan American World Airways, 746 F.2d 311 (5th Cir.1984)(applying Louisiana law); Platt v. McDonnell Douglas Corp., 554 F.Supp. 360 (E.D.Mich.1983)(applying Michigan law); Solomon v. Warren, 540 F.2d 777 (5th Cir.1976)(applying Florida law); D'Angelo v. United States, 456 F.Supp. 127 (D.Del.1978), aff'd, 605 F.2d 1194 (3rd Cir.1979)(applying Maryland law). It noted that most of the cases involved airplane crashes and were decided by federal courts "purporting" to apply state law. 116 Md.App. at 377, 696 A.2d at 497. The intermediate court looked instead to, and exhaustively analyzed, beginning with Green v. T.A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909) and ending with Dobbins v. Washington Suburban Sanitary Comm'n, 338 Md. 341, 658 A.2d 675 (1995), this Court's cases in which we addressed whether damages are recoverable for fright or emotional distress where there is no physical impact. Id. at 379-388, 696 A.2d at 498-503. Based on that analysis, the court concluded "[T]here can be no award of damages for pre-impact fright suffered by a tort victim who died instantly upon impact or who never regained consciousness after the impact, because no cause of action will lie for 'mere fright' without physical injury (Green v. Shoemaker ) or injury capable of objective determination (Vance v. Vance, 286 Md. 490, 408 A.2d 728 (1979) ) resulting therefrom. Obviously, one who died instantly upon impact or at least died without recovering consciousness following impact cannot have suffered any injury capable of objective determination as a result of pre-impact fright,[ ] i.e.,...