Opinion: Compensable - Pre-Impact Fright
I>General Counsel
aryland Motor Truck Association
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It is well known that the decedent's dependents may file a wrongful death lawsuit, seeking recovery for their loss as a result of his or her death. In addition to the wrongful death suit, the decedent's estate can file a survival action. In a survival action, damages are measured in terms of the harm to the victim, whereas in a wrongful death action, damages are measured in terms of the harm to others from the loss of the victim.
Economic damages recoverable in a survival action include the decedent's lost wages and medical expenses incurred between the times of injury and death, in addition to funeral expenses up to $5,000. Recoverable non-economic damages include compensation for such emotional distress and mental anguish as can be objectively determined.
Maryland's Court of Appeals has recently recognized pre-impact fright as a legally compensable element of damages in survival actions.
According to the evidence presented at trial, Montgomery Cablevision coordinated with the Maryland State Police to have traffic on the Beltway stopped during the early morning hours of June 8. During the 30 to 45 minutes that it took to complete the repair, traffic backed up approximately one mile on each side of the Beltway. A tractor-trailer was at the rear of the congestion on the westbound side of the Beltway. The truck driver testified at the trial that his trailer was at a complete stop in one of the middle lanes.
The decedent was also traveling westbound, within in the 55-mph speed limit. According to the evidence, the decedent was approximately 192 feet from the rear of the tractor-trailer when he became aware of, and the reacted to, the impending danger of crashing into its rear. In his attempt to avoid the collision, the decedent slammed on his brakes — as 71 feet of skid marks attest — and veered slightly to the right. Despite his efforts, his vehicle collided with the rear of the tractor-trailer at a speed of 41 mph, and he was killed on impact.
The plaintiffs, individually and as personal representatives of the decedent's estate, filed a wrongful death and a survival action. At the trial, the petitioners presented evidence to support allegations that the trucking company and its driver negligently operated the tractor-trailer and also negligently maintained it, claiming the rear of the trailer was not properly illuminated and therefore was not sufficiently visible to motorists approaching from the rear.
Among the damages, the jury awarded the decedent's estate $1 million for the decedent's pre-impact fright. The award was later reduced by the trial judge to $350,000, owing to a statutory limitation.
The court of appeals upheld the reduced damages award for pre-impact fright, holding that "in survival actions, where a decedent experiences great fear and apprehension of imminent death before the fatal impact, the decedent's estate may recover for such emotional distress and mental anguish as are capable of objective determination."
In this case, the jury inferred that the decedent had suffered pre-impact fright from evidence that his van veered to the right and created 71 feet of skid marks before impact. It is certainly questionable whether such damages would be available in an accident where the decedent's fright lasted no more than 2 ½ seconds before impact.
The writer is a partner at the law firm of Franklin & Prokopik in Baltimore. This article originally appeared in the Maryland Motor Truck Association Bulletin.
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