Smallwood v. Bradford

• Decision Date: 20 November 1998
• Docket Number: No. 76,76
• Parties: Brenda L. SMALLWOOD v. Hilton P. BRADFORD.
• Court: Maryland Court of Appeals

720 A.2d 586

352 Md. 8

Brenda L. SMALLWOOD v. Hilton P. BRADFORD.

No. 76, Sept. Term, 1997.

Court of Appeals of Maryland.

November 20, 1998.

Brian Peter Cosby (Brian Peter Cosby, P.A., on the brief), Ocean City, for petitioner.

Ernest I. Cornbrooks, III (Webb, Burnett, Jackson, Cornbrooks, Wilber, Vorhis & Douse, on brief), Salisbury, for respondent.

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

BELL, Chief Judge.

William Jerald Todd ("Todd" or "the decedent") was killed instantly in an automobile accident on Maryland Route 90, in Worcester County, Maryland, near Ocean City, and in which Hilton P. Bradford (the "appellee") was also involved. The decedent's sister,¹ Brenda L. Smallwood, Personal Representative of his estate (the "appellant"), filed a survival action against the appellee in the Circuit Court for Worcester County, alleging that the appellee's negligence caused Todd's death. She sought damages for pre-impact fright, mental and/or emotional pain, anguish, suffering and/or distress and for loss of enjoyment of life.

At the jury trial, the appellant produced an eyewitness who testified as to how the accident occurred. According to that witness, Kem Waters, the appellee's automobile, which was proceeding east on Route 90, crossed the center line and struck the decedent's vehicle traveling in the west bound lane. He testified that, immediately before the collision, he saw Todd attempt to avoid the collision by accelerating and veering his vehicle toward the highway's shoulder.² Despite that effort at evasion, given "the angle that [the appellee's] car had on [the decedent's car]," Waters stated that the appellee's car crashed into the driver's side of Todd's car and side-swiped virtually its entire length. Todd was dead, Waters said, immediately after the accident, when he checked his pulse, apparently as a result of the impact. The entire incident, according to the eyewitness, "took about fifteen or twenty seconds."

The appellant also produced undisputed evidence, in the form of her testimony, of the decedent's personality and life style, presumably as proof of damages. She testified:

"Jerry was a friendly, outgoing person. He loved life, he loved people. He just enjoyed being around people and doing things. He was a very happy-go-lucky type person. He enjoyed life to its fullest. And everybody that knew him thought the world of him.

* * *

"He enjoyed golf, bicycle riding, and he would get together those bicycle trips from Ocean City to Chincoteague.

"There was a whole group of men his age that would get together and ride their bikes from here to either Chincoteague or Crisfield and just have a grand time going to and from.

"Well, as a kid growing up he sold newspapers on the boardwalk when he was old enough.

"He was a desk clerk, a bartender, a realtor.

"I think everybody knew him. Even the day of the funeral, all of the marquees through Ocean City had, `We are going to miss you, Jerry Todd.' So, it tells me pretty well everybody in Ocean City knew him.

"Of course, growing up in Berlin, everybody knew him. He was the senior class president and on the sports, basketball, and what-have-you."

Also to prove damages, the appellant sought to offer evidence as to the status of the decedent's estate "in terms of debt versus assets" and as to the decedent's pre-death financial condition, as reflected by his debts. That evidence was not allowed, the trial judge ruling, "testimony [on those subjects] is irrelevant." The appellant was permitted to prove the funeral expenses incurred as a result of the decedent's death, and did so by introducing a funeral bill in excess of $7,000.00 into evidence.

At the close of the appellant's case, the appellee moved for judgment, pursuant to Maryland Rule 2-519, arguing, inter alia, the lack of legally sufficient evidence of his negligence and that damages for pre-impact fright, mental anguish and loss of enjoyment of life are not recoverable in a survival action. Although the court granted, over the appellant's objection, the motion as to the recoverability of damages for pre-impact fright, mental anguish and loss of enjoyment of life, it denied it with respect to liability. Having obtained favorable rulings on damages, the appellee rested without putting on a case. The jury rendered a verdict finding the appellee negligent and awarding the decedent's estate damages in the amount of $2,000.00, the maximum amount then allowed for funeral expenses.³

The appellant noted an appeal of the judgment to the Court of Special Appeals. When, shortly thereafter, that court issued its opinion in Montgomery Cablevision Limited v. Beynon, 116 Md.App. 363, 696 A.2d 491 (1997), in which a substantial jury verdict for "pre-impact fright"damages was reversed, the intermediate appellate court concluding that damages for pre-impact fright, mental anguish or emotional distress are not compensable, she filed in this Court a Petition for Writ of Certiorari. This Court granted the petition prior to the Court of Special Appeal's consideration of the case. Smallwood v. Bradford, 347 Md. 155, 699 A.2d 1169 (1997). We subsequently granted certiorari in Beynon, as well. Beynon v. Montgomery Cablevision, 347 Md. 683, 702 A.2d 291 (1997).

The appellant asks that we answer the following questions:

"1. Whether a person instantly killed by tortious conduct has a survival action against the tortfeasor for pre-impact fright, and mental and/or emotional pain, anguish, suffering and/or distress.

"2. Whether a person who is instantly killed has a survival action against the tortfeasor for loss of enjoyment of life.

"3. Whether the pecuniary status of the decedent or his estate is relevant evidence of pre-impact emotional pain and suffering or loss of enjoyment of life in an instantaneous death, survival action."

We shall reverse the judgment of the Circuit Court for Worcester County with respect to pre-impact fright and affirm it in all other respects.

I.

First, the appellant contends that the decedent experienced pre-impact emotional distress and mental anguish in the form of fright during the period in which he became aware that the appellee's automobile had crossed the center line and was on a course for a head-on collision and unsuccessfully attempted to avoid that collision. She argues that the trial court's refusal to instruct the jury as to "pre-impact" fright as an element of damages was error.

As we have seen, the Court of Special Appeals has rejected this argument. In its Beynon opinion, the intermediate appellate court exhaustively reviewed Maryland precedents in the area and 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)<sup>4</sup> or injury capable of objective determination (Vance)<sup>5</sup> 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., fear, terror, or mental anguish or distress from anticipation of imminent injury or death."

Montgomery Cablevision Ltd. Partnership v. Beynon, 116 Md.App. at 388, 696 A.2d at 503.

We were not persuaded and, thus, in Beynon v. Montgomery Cablevision Limited., 351 Md. 460, 504-06, 718 A.2d 1161, 1183-84 (1998), we reversed, holding instead that damages for pre-impact fright and mental anguish may be recovered in survivorship actions. In that case, the automobile that the decedent was driving crashed, while traveling at 41 miles per hour, into the rear of a tractor-trailer that was completely stopped, at the rear of a mile long traffic back up, in the middle traffic lanes of westbound Interstate 495, killing the decedent instantly upon impact. At trial, the plaintiff established the defendants's negligence⁶ and also that the decedent "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, [the decedent] slammed on his brakes, as 71½ feet of skid marks attest, and slightly veered to the right." Id. at 465, 718 A.2d at 1163. Having extensively reviewed Maryland precedents and cases on the subject from other jurisdictions, we stated our agreement with the plaintiffs and the trial court, that the decedent 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.⁷

We explained our reasoning as follows:

"In Green [v. T.A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909) ], the underlying reason we required physical injury as a result of an emotional injury before emotional injuries are compensable was because `physical injury' established the genuineness of the emotional harm and guarded against feigned claims. `Physical injury' provided, and still provides, the objective manifestation of the alleged emotional injury and served, and still serves, as the yardstick by which a tort victim's emotional harm may be measured. `Such an objective determination provides reasonable assurance that the claim is not spurious.' Belcher [v. T. Rowe Price], 329 [Md. 709,] 735, 621 A.2d [872,] 885 [(1993)]. Here, the decedent's fright is accompanied by both physical injuries and independent objective manifestation. The physical injuries that accompanied the decedent's pre-impact fright are the fatal injuries he sustained as a result of the feared impact—the automobile accident. Moreover, the decedent's fright is capable of objective determination by the 71½ feet of skid marks that the plaintiffs argued, and the jury apparently believed, resulted from the decedent's

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