Recovery of pre-impact fright damages allowed in survival actions.

The Maryland Court of Appeals held in October that pre-impact fright suffered by an accident victim who dies instantly on impact is a legally compensable element of damages in a survival action. (Beynon v. Montgomery Cablevision Ltd. Partnership, 718A.2d 1161 (Md. 1998).)

The court reversed an intermediate appellate court ruling that victims can recover damages only for moments of fear that leave them emotionally scarred or physically traumatized.

Douglas Beynon, 19, died instantly when the car he was driving skidded into the back of a tractor-trailer that was stopped at an interstate highway traffic jam caused by a television cable company making repairs to its equipment. The evidence showed that Beynon was not exceeding the speed limit and that his car skidded over 71 feet before impact.

Beynon's parents brought wrongful death and survival actions against the cable company and the truck owner. In the survivorship action, they sought damages for the mental anguish Beynon suffered from the time he became aware of the impending crash until the actual collision.

A jury awarded Beynon's estate substantial damages for pre-impact fright.

Upholding the award, the Maryland high court noted that there is no uniformity in the manner in which courts treat pre-impact emotional distress or fright claims. The court pointed to eight jurisdictions in which courts have upheld these awards--many of them in cases involving air crash disasters.

Some courts have viewed pre-impact mental anguish as part of a larger, ongoing ordeal and have allowed recovery for conscious pain and suffering. Other courts have seen pre-impact fear as part of negligently inflicted emotional distress and have allowed more limited recovery of pre-impact fright damages.

The court also examined cases from four jurisdictions that have disallowed these damages for various reasons. Some are fearful of spurious claims. Others have held that pre-impact fright or emotional distress is not compensable because an actual physical injury must cause the emotional distress.

The appeals court noted that Maryland case law has rejected the physical-impact doctrine and has held that emotional distress or fright that results in physical injury or any objective manifestation is compensable. Also, damages for mental and emotional disturbances are recoverable when there has been no physical impact and injury, provided that the mental state for which recovery is sought can be determined objectively.

"A rule that does not permit a decedent's estate to recover pre-impact fright damages in a survival action would be illogical in view of the fact that a victim who survives an accident similar to the one in this case would be entitled to recover damages for the emotional distress and mental anguish he or she suffered before the accident, independent of any physical injury that may have been sustained before, or after, the emotional injury," Chief Judge Robert Bell wrote.

In this case, Beynon's fright was accompanied by both physical injuries and independent objective manifestation, the court said. The physical injuries were the fatal injuries he sustained as a result of the impact. Moreover, Beynon's fright was capable of objective determination by the 71 1/2 feet of skid marks made by his car immediately before the crash.

"This case establishes an important legal principle for Maryland," said attorney Thomas Meehan of Washington, D.C., who represented the Beynons. "It also provides excellent reasoning for the many other jurisdictions that have not yet addressed this issue."