Pre-Impact Freight Motion

Pre-impact fright claim is the emotional distress—the terror— experienced in the moments before an accident or fatal injury. This type of claim recognizes that the individual likely suffered significant fear or distress before the fatal incident occurred, even though they ultimately died from the injuries sustained.

For example, if a person sees an impending car crash or falls from a great height and realizes their life is in immediate danger, they might experience severe emotional distress during those moments leading up to the impact.

The estate can pursue compensation for the terror and emotional suffering endured by the decedent in those final moments before the fatal incident. In survival action lawsuits, which are legal actions brought by the estate of a deceased person for injuries the decedent suffered before death, pre-impact fright can be an important factor, particularly in states like Maryland were there is a second cap for a survival action.

How to Prove Pre-Impact Fright

Proving a pre-impact fright claim in a survival action can be quite feasible with the right evidence, and there are several effective methods to establish the emotional distress a decedent experienced before an accident or fatal injury.

1. Eyewitness Testimony: One of the strongest forms of evidence is witness testimony from people who saw the accident happen. Witnesses can describe the decedent’s behavior in the moments leading up to the accident, such as visible expressions of fear, attempts to avoid the danger, or vocal indications of distress (e.g., screaming or shouting).  But you do not have this in most cases. So you need to dig deeper.
2. Physical Evidence from the Scene: Tire marks, skid marks, or other signs of sudden evasive maneuvers can show that the decedent was aware of the impending danger and tried to avoid it. For example, if a driver slammed on the brakes or swerved, it indicates they recognized the threat and likely experienced fear or panic before impact.
3. Expert Testimony: Accident reconstruction experts can be invaluable in proving pre-impact fright. By analyzing physical evidence such as vehicle positions, tire marks, and the speed of the vehicles involved, experts can paint a clear picture of how long the decedent was aware of the impending crash. For instance, if the expert can show that the person had a few seconds to realize the danger before impact, it strengthens the claim of pre-impact fright.
4. Forensic Evidence: In some cases, forensic evidence such as the decedent’s physical reactions (like clenching or bracing for impact) can be used to support a claim. The position of the body or the way seat belts were engaged can sometimes suggest that the individual was aware of the impending harm and prepared themselves for it, reinforcing the argument that they experienced fear.
5. Vehicle Data: Many modern vehicles are equipped with black box technology, which records data such as speed, braking, and deceleration. This data can provide evidence of evasive actions taken by the decedent, indicating that they were aware of the impending accident and reacted accordingly, likely in fear.

Sample Preimpact Fright Motion

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

SHARON SMITH
– Plaintiff,

DAVID DENNIS
– Defendant,

CASE NO.: 02-C-03-094857 NG

Plaintiff’s Memorandum of Law in Support of Her Opposition to Defendant’s Motion for Summary Judgment

Plaintiff, by and through her attorneys, Ronald V. Miller, Jr., Laura G. Zois and Miller & Zois, LLC, opposes Defendant’s Motion for Partial Summary Judgment, and in opposition thereto, states as follows.

1. Background

The above-captioned case involves the wrongful death of David F. Smith (the “Decedent Plaintiff’) as the result of a car accident which occurred on July 18, 2023. In order to properly evaluate the Defendant’s Motion for Summary Judgment, it is necessary for the Court to understand the layout of the area where the accident occurred. Please see attached hereto as Plaintiff’s Exhibit “A”, the accident reconstruction report of investigating Police Officer Jonathan R. Chantell.

The area where the accident took place is a one-way road in each direction heading northbound and southbound. David F. Smith was heading northbound and the Defendant, Michael Francis Hembling, was traveling southbound just before the accident occurred. It is the Plaintiff’s contention that the accident took place as determined by Officer Chantell, when the Defendant crossed over the double yellow lines and struck the David F. Smith head-on while he was entirely within his lane of travel.

Objective Evidence of Pre-Impact Fright

Defendant’s Motion for Summary Judgment as to pre-impact fright should be denied. On December 7, 2007, the deposition of Officer Jonathan R. Chantell was taken. According to Officer Chantell, he is of the opinion that, within a reasonable degree of accident reconstruction expertise, that the point of impact between the two vehicles was in the northbound lane, the lane in which the Decedent Plaintiff was traveling. See p. 60 of Officer Jonathan R. Chantell’s deposition, attached hereto as Plaintiff’s Exhibit “B.”

Furthermore, Officer Chantell indicated that there was a gouge mark in the roadway indicating the point of impact between the two vehicles. It is Officer Chantell’s opinion, within a reasonable degree of accident reconstruction expertise, that the point of impact between the two vehicles occurred entirely in the center of the northbound lane. See pp. 61 and 62 of Plaintiff’s Exhibit “B.”

Officer Chantell is also of the opinion that the Decedent Plaintiff’s vehicle left skid marks before the gouge mark and that those skid marks came from the Decedent Plaintiff’s left front tire. It is Officer Chantell’s opinion that the skid marks were created by Mr. Smith’s application of his brakes. See attached hereto Exhibit “B,” pp. 64-65.

Officer Chantell opined that the left front tire of the Decedent Plaintiff’s vehicle was in the center of his northbound lane, which could be an indication that the Decedent Plaintiff began moving over to the right pre-impact in an attempt to avoid the collision. See Plaintiff’s Exhibit “B,” at p. 66. Officer Chantell also opined that, based on his examination of the objective evidence at the scene of the accident, the Decedent Plaintiff was braking and was taking some sort of evasive action to avoid the collision by moving to the right hand side of his lane. See Plaintiff’s Exhibit “B,” at pp. 69-70.

Maryland Pattern Jury Instruction Number 10:10 Recognizes Pre-Impact Fright As a Proper Claim

Maryland law does recognize pre-impact fright. See Beynon v. Montgomery Cablevision Ltd. P’ship, 351 Md. 460 (1998). Maryland Pattern Jury Instruction Number 10:10, Compensation for Pre-Impact Fright, indicates that “a jury shall consider” what damages should be awarded to the Plaintiff for the “emotional distress and mental anguish that the Plaintiff suffered from between the time the Plaintiff first realized that there would be an accident and the actual accident. This element of damages is known as pre-impact fright.”

Clearly, in this case, according to objective evidence found at the scene of the accident, the Decedent Plaintiff experienced pre-impact fright. According to Officer Chantell’s investigation of the accident, Decedent Plaintiff began to move his vehicle off onto the right-hand side of the roadway before beginning to apply his brakes.

There is a reasonable inference to be drawn from the fact that the Decedent Plaintiff, after moving his vehicle over to the right, applied his brakes for some period of time, that supports Plaintiff’s claim for pre-impact fright. David F. Smith was fully aware of the oncoming vehicle which ultimately struck him head-on and killed him.

Conclusion

Defendant’s allegation of no evidence that the Decedent Plaintiff experienced pre-impact fright is wrong. There is testimony from witnesses regarding evidence to establish the pre-impact fright sustained by David F. Smith. Therefore, there is a dispute of material fact and the Defendant is not entitled to summary judgment as a matter of law.

Respectfully submitted,
Miller & Zois, LLC

Ronald V. Miller, Jr.
1 South St, #2450
Baltimore, MD 21202
(410) 779-4600
(410) 760-8922 (facsimile)
Attorney for Plaintiff

POINT AND AUTHORITIES

Maryland Pattern Jury Instruction Number 10:10
Beynon v. Montgomery Cablevision Ltd. P’ship, 351 Md. 460 (1998)

Back to Sample Motions (more sample motions)