SMALLWOOD v. BRADFORD

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:

* * *

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

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:

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:

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:

"The fact that the fright or mental anguish in this case preceded the crash that resulted in the decedent's fatal bodily injuries does not affect causation. As our cases make clear, whenever a wrongful act naturally and proximately results in harm, `why should not such effect be regarded by the law, even though such cause may not always, and under all conditions of things, produce like results?' Green, 111 Md. at 77, 73 A. at 691. The actor responsible for the wrongful, negligent act is liable for all proximately caused emotional distress experienced by the tort victim. The wrongful conduct need only proximately cause the emotional distress or mental anguish, independent of the physical injuries; the mental disturbance need not result from physical injury. In the instant case, the automobile crash caused decedent's fatal injures, for which a separate cause of action exists, and the respondent is responsible for the emotional disturbance resulting from the crash. Damages for `pre-impact fright' are recoverable when the decedent experiences it during the `legitimate window of mental anxiety.' Faya, 329 Md. at 459, 620 A.2d at 338-39. In this case, that window opened when the decedent became conscious of the fact he was in imminent danger and it closed with his death. See generally Kathleen M. Turezyn, When Circumstances Provide A Guarantee of Genuineness: Permitting Recovery for Pre-Impact Emotional Distress, 28 B.C.L.Rev. 881, 883 (1987)( "[S]ome courts have permitted recovery for the emotional distress suffered by a victim upon his or her realization of the peril to which his or her personal security has been exposed by the defendant's negligence"), and cases therein cited. To be sure, however, `pre-impact fright' damages should compensate a decedent's fright, not the resultant death.

Beynon, 351 Md. at 506-09, 718 A.2d at 1184-85.

This reasoning applies equally to the present case. Here, as in Beynon, there was sufficient evidence adduced to have permitted the jury to infer that the decedent suffered great mental anguish or emotional distress in the form of fright or fear immediately before the fatal automobile collision and that the appellee's negligence was the proximate cause of that mental anguish or emotional distress. Also, the mental anguish, "pre-impact fright," was accompanied by both fatal physical injuries and independent objective manifestation, an attempt to avoid the collision.

An eyewitness, who was driving his vehicle directly behind the decedent's, and, thus, was well-positioned to, and did, observe the entire accident, testified that he saw the appellee's vehicle "drift over" into the decedent's lane of travel, at a speed of approximately fifty-five miles per hour. "At that point," he said, "the Volkswagen in front of me beg[a]n to veer off in an attempt to see the vehicle coming towards him. It was really a position where the oncoming vehicle had such an angle on [the decedent's] car" that "it was just impossible for him to avoid the oncoming car." Nevertheless, the eyewitness stated that, in his attempt to "try to avoid the oncoming car," the decedent started to accelerate and try to speed up onto the right side of the road.

This evidence of the decedent's defensive maneuvering performs the same function as the 71½ feet of skid marks in Beynon, it provides the objective manifestation of the decedent's alleged emotional injury and it is a yardstick by which that injury may be measured. In short, it "provides reasonable assurance that the claim is not spurious." Belcher, 329 Md. at 735, 621 A.2d at 885. Thus, as in Beynon, the appellant in this case could argue that the decedent's fright could be objectively determined by reference to the defensive actions the decedent took as a result of his apprehension of impending death and by the physical impact of the collision itself. If anything, the evidence in this case is stronger than that in Beynon.

Hence, the trial court erred in not submitting the issue of pre-impact fright damages to the jury for its determination. The case must be remanded to the trial court for further proceedings in this regard.

II.

The appellant's next contention is that, notwithstanding his death immediately upon impact, the decedent has a cause of action against the appellee for the loss of his enjoyment of life. His loss of enjoyment of life action has two aspects, she argues; the decedent suffered two compensable, "temporal losses of enjoyment of his life":

The appellant, therefore, seeks to recover for the decedent's pre-impact loss of enjoyment of life and, despite the decedent's instant death, his post-impact loss of enjoyment of life, as well. Generally, the "loss of enjoyment of life" includes the "impairment of the capacity to enjoy life, or to enjoy a particular avocation" and, in some cases, it constitutes a proper, separate element of damages. 38 Am Jur 2d. Fright, Shock and Mental Disturbances § 56 (1986, Cum.Supp.1998) (citing Aretz v. United States, 456 F.Supp. 397 (S.D.Ga.1978); Budek v. Chicago, 279 Ill.App. 410 (1935); King's Indiana Billiard Co. v. Winters, 123 Ind.App. 110, 106 N.E.2d 713 (1952); Haynes v. Waterville & O. Street R. Co., 101 Me. 335, 64 A. 614 (1906); Baker v. Manhattan R.Co., 54 N.Y. Super Ct. (22 Jones & S) 394, aff'd 118 N.Y. 533, 23 N.E. 885 (1890); Warth v. County Court, 71 W.Va. 184, 76 S.E. 420 (1912). See also Annotation, Loss of Enjoyment of life as a Distinct Element or Factor in Awarding Damages for Bodily Injury, 34 A.L.R. 4th 193 (1996); Kirk v. Washington State University, 109 Wn.2d 448, 746 P.2d 285 (1987). The cases that hold that the impairment of the capacity to enjoy life or to enjoy a particular avocation is not a proper element of damages, do so on the basis that such damages are too conjectural and speculative and too difficult of measurement to form a substantial basis for recovery. 38 Am Jur 2d. Fright, Shock and Mental Disturbances § 56; see also cases therein cited; Loth v. Truck-A-Way Corp., 60 Cal.App.4th 757, 766, 70 Cal.Rptr.2d 571, 577 (1998).8

In McAlister v. Carl, 233 Md. 446, 197 A.2d 140 (1964), this Court acknowledged both that the "[a]uthorities are divided ... as to whether loss of enjoyment of life is compensable in damages," id. at 453, 197 A.2d at 143, citing 148 Kan. 720, 85 P.2d 28, 120 A.L.R. 521, and some of the reasons several States have denied recovery for such damages: "usually that such damages are too speculative or uncertain and are incapable of measurement in monetary [ ] terms, and sometimes that such damages would overlap other elements of damage otherwise compensated for, and occasionally because of lack of causal connection." Id., 197 A.2d at 144. We also recognized that there is a difference, with respect to proof, between the loss of enjoyment of life, in its broader sense—those cases which "deal with capacity to enjoy things which involve matters of common experience with which a jury may be expected to have some familiarity, id. at 455, 197 A.2d at 145,—and in its narrower sense—those cases involving "damages for the enforced abandonment of a desired occupation which the plaintiff had not entered upon." Id. The former, we suggested, is less susceptible to the charge that proof of damages is too speculative: "[i]n cases involving loss of capacity to enjoy more or less usual or familiar things or activities of life, the element of speculation seems no greater than in disfigurement cases." Id.

The issue in McAlister v. Carl did not involve loss of enjoyment of life in its broader sense, as in this case; rather it was the narrower loss of enjoyment of a particular occupation or avocation. Id. at 449, 197 A.2d at 141. The Court addressed that issue from two perspectives. Concerning foreseeability, it observed:

Id. at 452, 197 A.2d at 143. From the standpoint of proof of damages, the Court said:

Id. at 456, 197 A.2d at 146 (footnote omitted).

Addressing the merits of the case before it, the Court held that "any damages which might have been attributable to the plaintiff's inability to become an instructor in physical education were in the realm of speculation." Id. at 457-58, 197 A.2d at 146. By way of explanation, it explained:

Id. at 457, 197 A.2d at 146.

In Beynon, 351 Md. at 506-07, 718 A.2d at 1184, we determined that evidence of the decedent's reaction to a crisis, in that case, the impending collision, was an objective and sufficient basis for a trier of fact to assess that decedent's state of mind, at least with respect to emotional or mental anguish in the form of fear, as it relates to that particular crisis, and to value the extent of the decedent's fear. Such circumstantial evidence does not require the trier of fact to engage in pure speculation either with respect to the proof of the pre-impact fear or the damages attributable to it. Common experience and legal precedents, including our own, support that conclusion.

The appellant maintains that the proof of the decedent's loss of enjoyment of life is the same evidence that we have held sufficient to establish his pre-impact fright. With respect to the claim for "pre-impact" loss of capacity to enjoy life, the appellant acknowledges that it is provable by reference to the decedent's pre-impact fear. Both "pre-impact fright" and "pre-impact loss of enjoyment of life," seek recovery for the emotional distress and mental anguish decedent experienced during the brief moments after decedent became aware of the impending danger and before the fatal impact. Thus, those damages overlap, if they are not identical to, any "pre-impact fright" damages she might prove. See supra at 506-07, 718 A.2d at 1184. Duplicative or overlapping recoveries in a tort action are not permissible. See Monias v. Endal, 330 Md. 274, 287, 623 A.2d 656, 662 (1993); Montgomery Ward & Co. v. Cliser, 267 Md. 406, 424-25, 298 A.2d 16, 26 (1972); Restatement (Second) of Judgments § 46(2)(b) (1982).

The appellant asserts that proof, the objective manifestation, of the decedent's post-impact loss of the enjoyment of the rest of his life is also provided by the evidence of how the decedent reacted to the impending crisis and subsequent collision. That he increased his speed and veered to avoid the collision constitutes, according to the appellant, the objective manifestation of the tortious impact on the decedent and provides the basis for the trier of fact to infer his post-impact damages. From the evidence that we have held sufficient to permit a trier of fact to infer compensable pre-impact fright, in short, the appellant urges that the trier of fact also be permitted to infer compensable post-impact loss of enjoyment of life.

As we have seen in connection with pre-impact fright, the circumstantial evidence of the decedent's reaction to the crisis served two functions: it established the existence of the decedent's injury and it formed the basis for its valuation. In order for the appellant to recover, that evidence must also perform the same function with respect to the proof of the decedent's post-death loss of enjoyment of life.

The instant case is brought under the Maryland survivorship statute, Maryland Code (1974, 1991 Repl.Vol.) § 7-401(x) of the Estates and Trust Article. That section provides that the personal representative of a decedent's estate may bring "a personal action which the decedent might have commenced or prosecuted ... against a tortfeasor for a wrong which resulted in the death of the decedent." Recovery, therefore, is limited to damages that the decedent could have recovered himself, had he survived and brought the action. Also, "the damages are limited to compensation for pain and suffering endured by the deceased, his lost time, [his funeral expenses,] and his expenses between the time of his injury and his death." Stewart v. United Electric Light & Power Co., 104 Md. 332, 343, 65 A. 49, 53 (1906); see also Tri-State Poultry Co-op., Inc. v. Carey, 190 Md. 116, 57 A.2d 812 (1948). Because the decedent did not survive the fatal impact with the appellee's vehicle, he suffered no "post-impact" or "postdeath" loss of enjoyment of life10 and, thus, is not entitled to any "post-impact," or "post-death" damages. Indeed, this Court has just recently held that when "the injured person is killed instantly, there are no future lost earnings damages in the survival action." Shirley Jones, Personal Rep. v. Flood, 351 Md. 120, 131, 716 A.2d 285, 290 (1998).

III.

The appellant's final argument, that the trial court erred in excluding evidence and testimony related to the pecuniary condition of the decedent's estate, is related to the previous two. In connection with the claim for loss of enjoyment of life, the appellant proffered the bills reflecting the debt of the decedent's estate as proof of "the extent to which [the decedent's] loss of enjoyment of life was increased by his knowledge that he had insufficient assets to pay his Estate's bills were he to be killed by [the appellee]'s automobile." And, because "pecuniary status is a matter of great practical concern to an ordinary person, and the desire to depart this life being thought well of by one's creditors is probative of one's loss of enjoyment of life when faced with imminent death," the appellant maintains that "the admission of evidence related to the pecuniary status of the Estate has a `tendency to make the existence' of [the decedent's] loss of enjoyment of life for a few seconds prior to his death, after the tortious impact on his nervous system, `more probable ... than it would be without the evidence' and it should have been admitted."

Maryland Evidence Rule 5-402 provides "Except as otherwise provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with these rules, all relevant evidence is admissible. Evidence that is not relevant is not admissible." Rule 5-401 defines relevant as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See Williams v. State, 342 Md. 724, 736, 679 A.2d 1106, 1112 (1996). It is well settled that the admission of evidence, including the determination of its relevance, Merzbacher v. State, 346 Md. 391, 404, 697 A.2d 432, 439 (1997), is committed to the considerable and sound discretion of the trial court. Id.; North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 89-90, 680 A.2d 480, 508 (1996); Armstead v. State, 342 Md. 38, 66, 673 A.2d 221, 235 (1996); Lubinski v. State, 180 Md. 1, 8, 22 A.2d 455, 459 (1941). Although a finding of relevancy does not guarantee admissibility, its prejudicial effect sometimes outweighing its probative value, Merzbacher, 346 Md. at 404, 697 A.2d at 439; Williams, 342 Md. at 737, 679 A.2d at 1113; Rule 5-403, where such a finding has been made, and the only challenge is to its appropriateness, the trial court's determination in that regard will not be reversed unless the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion. White v. State, 324 Md. 626, 637, 598 A.2d 187, 192 (1991); Thomas v. State, 301 Md. 294, 317, 483 A.2d 6, 18 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985).

The trial court did not abuse its discretion in excluding evidence of the pecuniary status of the decedent's estate on the ground of relevance. See Rules 5-401 and 5-402; Merzbacher v. State, 346 Md. 391, 697 A.2d 432 (1997); State v. Broberg, 342 Md. 544, 677 A.2d 602 (1996). We are unable to discern how that evidence tended to prove the decedent's loss of enjoyment of life or even the extent of the damages attributed thereto. In fact, we agree with the appellee on this point:

JUDGMENT REVERSED IN PART AND AFFIRMED IN PART. CASE REMANDED TO THE CIRCUIT COURT FOR WORCESTER COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE APPELLEE.

CHASANOW and RAKER, JJ., concur and dissent.

RAKER, Judge, concurring in part and dissenting in part:

The appeal presented three questions.1 The Court correctly decided that the decedent did not have a cause of action against the Appellee for the loss of enjoyment of his life. The Court also correctly decided that the trial court did not err in excluding evidence of the pecuniary status of the decedent's estate on the ground of relevance. I therefore join Parts II and III of the Court's opinion.

I dissent, however, from Part I of the Court's opinion, in which the Court ruled that the trial court erred in not submitting the issue of pre-impact fright damages to the jury. In my view, pre-impact fright is not recoverable under Maryland law and the trial judge properly granted Appellant's motion to dismiss on this basis. The rationale supporting the view that pre-impact fright should not be recoverable was well stated by Judge Bloom for the Court of Special Appeals in Montgomery Cablevision v. Beynon, 116 Md.App. 363, 372-89, 696 A.2d 491, 495-503 (1997), rev'd 351 Md. 460, 718 A.2d 1161 (1998). I agreed with his well reasoned opinion in that case, see Beynon v. Montgomery Cablevision, 351 Md. 460, 463-64, 718 A.2d 1161, 1163 (1998), Chasanow and Raker, JJ., dissenting), and believe it is equally applicable in this case. Accordingly, I would affirm the judgment of the Circuit Court for Worcester County dismissing Appellant's claim for pre-impact fright.

Judge Chasanow has authorized me to state that he joins in the views expressed herein.

WILNER, J., dissents.

WILNER, Judge, dissenting.

For the reasons noted in my dissent in Beynon v. Montgomery Cablevision Limited Partnership, 351 Md. 460, 718 A.2d 1161 (1998), I respectfully dissent from the conclusions reached in Part I of this Opinion and from the judgment. The Majority's allowance of pre-impact damages is based entirely on the evidence that the decedent accelerated and turned his wheel. This evidence does not speak to the decedent's final thoughts before impact. Indeed, as in Beynon, it is very likely that his only thought for those few seconds was averting the crash. Decedent's fright cannot be objectively determined or even reasonably inferred.