Smith v. Borello

• Decision Date: 22 August 2002
• Docket Number: Misc. No. 13 Sept. Term, 2001.
• Citation: 370 Md. 227,804 A.2d 1151
• Parties: Stacey SMITH v. Diana M. BORELLO.
• Court: Maryland Court of Appeals

804 A.2d 1151

370 Md. 227

Stacey SMITH v. Diana M. BORELLO.

Misc. No. .

Court of Appeals of Maryland.

August 22, 2002.

Dwayne A. Brown (A. Jai Bonner and Jerry Edward Jones, on brief), Baltimore, for appellant.

Alan R. Siciliano (DeCaro, Doran, Siciliano, Gallagher & DeBlasis, LLP, on brief), Lanham, for Appellee.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

WILNER, Judge.

We respond in this Opinion to a question certified to us by the United States Court of Appeals for the Fourth Circuit.

In January, 2000, Stacey Smith and Diana Borello were involved in an automobile accident in Baltimore City. Smith was 19 weeks pregnant at the time, and, as a result of the accident, suffered a miscarriage and lost the baby. She sued Borello in the Circuit Court for Baltimore City for negligence, but Ms. Borello, a New Jersey resident, removed the case to the U.S. District Court for the District of Maryland where, in due course, Ms. Smith and Frank Holliday, the alleged father of the unborn child, filed an amended complaint.

In Count I of the amended complaint, Smith repeated her claim of negligence on the part of Ms. Borello and contended, in somewhat redundant paragraphs, that, as a result of that negligence she sustained serious bodily injuries and the loss of her unborn child and that she "suffered pecuniary loss, mental anguish, severe emotional distress, and emotional pain and suffering." In Count II, Holliday averred that, as a result of Borello's negligence, he suffered "mental anguish, loss of society, companionship, comfort, protection, attention, care, advice, counsel, filial care, mental anguish, and emotional pain and suffering, among other things due to the death of his unborn child."

The District Court treated all of Count II and part of the claim made by Smith in Count I pertaining to the loss of the child as wrongful death actions which, because the fetus was neither viable nor born alive, the court held were barred under this Court's holding in Kandel v. White, 339 Md. 432, 663 A.2d 1264 (1995).¹ On that premise, it entered summary judgment for Borello on Count II and, through a partial summary judgment, evidentiary rulings, and jury instructions, precluded Smith from recovering under Count I any damages for grief and emotional distress arising from the loss of the child.

There were several such rulings regarding Smith's action. At the commencement of trial, the court made clear that, although Smith could properly claim medical expenses incurred in the delivery of the stillborn fetus and damages for the pain and suffering resulting from the injuries to her, she was not entitled to any recovery for emotional pain and grief suffered by her as a result of the loss of the fetus. It later precluded her obstetrician from testifying about Smith's grief and depression from the loss of the child. When Ms. Smith began to testify about her excitement over being pregnant and her plans for the child, the court interrupted, excused the jury, and instructed her and her attorney that her devastation over the loss of the child, her buying baby presents, her plans for the future, and the fracturing of her hopes and dreams were all irrelevant and inadmissible. It then instructed the jury that statements about her excitement and her plans for the child were inadmissible and that the law did not permit recovery for emotional pain, distress, or grief suffered as a result of the loss of the child—an instruction it repeated at the end of the case. Finally, the court precluded Ms. Smith from testifying about being unable to work because of depression.

We are not concerned here with the judgment entered on Count II; it is not clear to us whether Mr. Holliday ever appealed that judgment, but, in any event, the issue as to him is not encompassed within the certified question. As limited by the court, Count I was submitted to a jury, which found Borello negligent and returned a verdict in Smith's favor in the amount of $14,382—$1,839 for past medical expenses, $2,443 for past loss of earnings, and $10,000 for non-economic damages. Aggrieved at the limitations imposed by the court, Smith appealed to the U.S. Court of Appeals for the Fourth Circuit, contending that, despite some of the language in her pleading, her claim was not in the nature of a wrongful death action and that she was entitled to recover, as part of her personal damages, for the emotional distress over the loss of the unborn child. Though conceding that she may not recover damages for the wrongful death of her non-viable fetus, she argued that "she can recover, as personal injuries to herself, the injuries to her fetus in utero (as part of her body), as well as for the emotional distress and other mental damages caused by the miscarriage and the loss of her child."

This being an issue of Maryland law in the case, unsettled by this Court, the Federal appellate court, invoking the Maryland Uniform Certification of Questions of Law Act (Maryland Code, §§ 12-601 to 12-613 of the Courts and Judicial Proceedings Article), certified to us the following question:

"Whether, and to what extent, the injured mother of a previable fetus, miscarried as a result of a defendant's negligence can recover as damages for medical expenses, lost wages, pain and suffering, emotional distress, emotional trauma, anguish, depression and/or grief resulting from the loss of her fetus?"

It may be helpful, in introducing our answer to that question, to point out that, when tortious conduct causes injury or death to one or more persons, three different causes of action may arise, depending on the circumstances. If a person is injured but not killed, the person may sue for his or her own economic and non-economic damages—loss of wages, medical and other expenses, disfigurement, and physical and emotional pain and suffering caused by the tortious conduct. If a person is killed, two causes of action may arise. In what has been referred to as a "survival" action, the personal representative of the victim may sue to recover, for the estate of the victim, damages for the economic and non-economic losses suffered by the victim prior to his or her death— the damages that the victim would have been able to recover had he or she survived. See Maryland Code, § 6-401 of the Courts and Judicial Proceedings Article; Jones v. Flood, 351 Md. 120, 122-23, 716 A.2d 285, 286 (1998); Beynon v. Montgomery Cablevision, 351 Md. 460, 474-75, 718 A.2d 1161, 1168 (1998). By reversing the common law rule that abated actions for personal injuries on the death of the injured party § 6-401 simply preserves the common law action that the decedent would have had.

In addition, if the deceased victim left a parent, spouse, or child (or, in the absence of such a person, any other person related to the victim by blood or marriage and who was substantially dependent on the victim), that person may sue, on his or her own behalf, for certain losses the person suffered by reason of the wrongful death of the victim. See Md.Code, §§ 3-901 to 3-904 of the Courts and Judicial Proceedings Article. That is the "wrongful death" or "Lord Campbell's" action. As presently codified, it permits the defined class of persons to maintain an action against a person whose "wrongful act" causes the death of another. The term "wrongful act" is defined to mean "an act, neglect, or default ... which would have entitled the party injured to maintain an action and recover damages if death had not ensued." Id. § 3-901(e).

Many of the cases in which we have examined the relationship between these various actions have involved survival and wrongful death actions, as those two often coexist and are prosecuted together. As we pointed out in Stewart v. United Elec. L. & P. Co., 104 Md. 332, 339, 65 A. 49, 52 (1906), although those actions grow out of the same wrongful conduct, they are distinct: "[they] are by different persons, the damages go into different channels, and are recovered upon different grounds...." See also Jones v. Flood, supra, 351 Md. at 126-27, 716 A.2d at 288

and cases cited therein. Here, it is clear that no survival action was filed, but because the physical trauma inflicted upon Ms. Smith also caused the death of her unborn fetus, for which she seeks emotional damages that, in Borello's view, are recoverable, if at all, only in a wrongful death action, the relationship at issue is between her common law action for injuries to herself and the cause of action for the wrongful death of her unborn child. It is a different mix.

The issue underlying the certified question arises from the conclusion by the District Court, no longer contested by Ms. Smith, that Kandel v. White, supra, 339 Md. 432, 663 A.2d 1264, precludes a wrongful death action based on the prenatal death of a non-viable fetus. The point sought to be made by Borello is that a recovery for grief over the wrongful death of a child is allowable only in a wrongful death action and that, if such an action is not allowed under the circumstance at issue, the mother cannot be permitted to avoid the effect of Kandel by recovering those damages in her own personal injury action.

Kandel built on and discussed three earlier cases. In Damasiewicz v. Gorsuch, 197 Md. 417, 438, 79 A.2d 550, 559 (1951), we held that a child who was born alive with injuries sustained while still in his mother's womb could recover for those injuries. Damasiewicz was obviously neither a wrongful death nor a survival action but simply recognized the right of a live person to sue for injuries caused to him or her, even though those injuries were inflicted prior to birth. In State v. Sherman, 234 Md. 179, 182, 198 A.2d 71, 72 (1964), a woman in her ninth month of pregnancy was in an automobile accident, as a result of which the baby, clearly viable, was delivered stillborn. Both survival and wrongful death actions were brought, and the issue was whether...