Pre-Impact Fright Law and Sample Motion

Jurors have awarded our law firm millions of dollars for pre-impact fright. This is the mental and emotional distress a person suffers in the moments before an unavoidable and imminent accident occurs but before any physical impact has taken place.

The idea our lawyers have pushed to insurance adjusters and juries is that pre-impact fright (or pre-impact terror) – knowing your premature death might be imminent and the fear and dread that comes with that – deserves real compensation.

The law supports this premise. Below is a pre-impact fright motion we filed to defeat summary judgment in a wrongful death/survival action car accident lawsuit.

Pre-Impact Fright Motion

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
Civil Division

ESTATE OF STEVEN R. TURNER,
By MICHELLE TURNER,
Personal Representative,
and
MICHELLE TURNER, Individually,
– Plaintiffs,

MICHAEL F. HAMSTEAD,
– Defendant.

Case No. 03-C-07-004026

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 to it, states as follows:

Background

The above-captioned case involves the wrongful death of Steven Turner (the “Decedent Plaintiff’) as the result of a car accident that occurred on July 18, 2023. To properly evaluate the Defendant’s Motion for Summary Judgment, the Court must understand the layout of the area where the accident occurred. Please see attached as Plaintiff’s Exhibit “A”, the accident reconstruction report of investigating Police Officer Jonathan R. Strickly.

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

Objective Evidence of Pre-Impact Fright

The Defendant’s Motion for Summary Judgment as to pre-impact fright should be denied. On December 7, 2007, the deposition of Officer Jonathan R. Strickly was taken. According to Officer Strickly, 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. Strickly’s deposition, attached hereto as Plaintiff’s Exhibit “B.”

Furthermore, Officer Strickly indicated that there was a gouge mark in the roadway indicating the point of impact between the two vehicles. It is Officer Strickly’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 Strickly 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 Strickly’s opinion that the skid marks were created by Mr. Sechrist’s application of his brakes. See attached hereto Exhibit “B,” pp. 64-65. Officer Strickly 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 Strickly 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 as a cause of action in a survival claim. [What is a survival claim?] 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 experienced pre-impact fright. According to Officer Strickly’s investigation of the accident, the decedent 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, which supports Plaintiff’s claim for pre-impact fright. Steven Turner 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 from this car accident is simply wrong is wrong. There is testimony from witnesses regarding evidence to establish the pre-impact fright sustained by Steven Turner. Therefore, there is a dispute of material fact, and the Defendant is not entitled to summary judgment as a matter of law.

Ronald V. Miller, Jr.
1 South St, #2450
Baltimore, MD 21202
Attorneys for Plaintiff

Point and Authorities

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

Understanding Pre-Impact Fright

The concept of “pre-impact fright” in legal terms refers to the mental anguish and fear experienced by an individual immediately before an unavoidable and imminent impact, such as a car accident, where death or serious injury is anticipated. This legal notion addresses whether such emotional distress, experienced moments before a fatal or injurious event, is compensable under survival action laws.

Traditionally, legal systems require a physical impact or manifest injury for claims of emotional distress to be compensable. However, pre-impact fright raises unique questions because the injury (impact) occurs after the emotional distress. Courts have debated whether this emotional distress is compensable if the victim dies instantly upon impact, as there can be no physical manifestation of the distress, or if the distress can’t be objectively verified after the fact.

The key legal question is whether the distress experienced is directly attributable to the negligence or wrongful act that led to the impact and if it can be objectively verified, such as through witness statements or physical evidence like sudden braking. If courts accept pre-impact fright as compensable, they acknowledge the profound fear and suffering that can occur in the final moments before a catastrophic event, treating it similarly to other forms of pain and suffering that are routinely compensated.

Proving pre-impact fright involves demonstrating that the victim had an awareness of the impending danger and suffered emotionally as a result. This can be challenging, as it often relies on witness testimony, the circumstances of the accident, and sometimes expert testimony on the victim’s likely state of mind based on the evidence.

One thing that really helps your cause? Skid marks. Drivers make skid marks form when a driver applies the brakes suddenly and forcefully. This strongly suggests that the driver became aware of an imminent threat or hazard—such as an impending collision—and reacted in an attempt to avoid it. This alone can be enough to defeat summary judgment.

Two Big Maryland Cases on Pre-Impact Fright

Maryland appellate courts have not had much to say on pre-impact fright in recent years. There are major cases that flush out pre-impact fright law in Maryland:

Beynon v. Montgomery Cablevision Limited

The 2008 case of Beynon v. Montgomery Cablevision Limited is the seminal Maryland case on the legal question of whether pre-impact fright is compensable. The case involved a truck accident lawsuit involving the tragic death of a man who was killed instantly when his vehicle collided with a tractor-trailer that was stopped due to traffic caused by cable repairs on the interstate.

Maryland courts have historically required that for emotional injuries such as fright to be compensable, they must manifest objectively. In this instance, the pre-impact fright was evidenced by 71 1/2 feet of skid marks, demonstrating Beynon’s attempt to avoid the collision and indicating his awareness of the imminent danger. The trial court allowed the jury to consider damages for the mental anguish Beynon experienced just before the crash, and the jury awarded compensation for this emotional distress.

However, the Court of Special Appeals reversed this decision, arguing that compensation for pre-impact terror was not valid since the victim died instantly upon impact, making any injury from fright speculative and not objectively determinable.

The Maryland Supreme Court thankfully disagreed with the lower court’s decision. The court reasoned that since the man could have brought a claim for his emotional distress had he survived, his estate could similarly pursue such a claim after his death. The court clarified that emotional distress immediately preceding physical impact, which results in death, is compensable, provided there is objective evidence—such as the skid marks—to support the claim. Thus, the court reinstated the trial court’s decision to compensate his estate for his pre-impact fright.

Freed v. D.R.D. Pool Serv

In the case of Connor Freed’s Estate v. D.R.D. Pool Service, Inc., the main issue was whether the estate of a five-year-old boy who tragically drowned at the Crofton Country Club swimming pool managed by D.R.D. Pool Service, Inc., could recover damages for the child’s conscious pain and suffering preceding his death.

The pool company argued that the estate could not establish that the child experienced conscious pain and suffering and moved for summary judgment based on the lack of direct eyewitness evidence regarding the child’s state prior to drowning. The court initially granted summary judgment in favor of the pool company, effectively excluding the claim for conscious pain and suffering.

The case was appealed, and the appellate court was tasked with determining whether the trial court erred in granting summary judgment by requiring direct evidence of Connor’s conscious pain and suffering. The appellate court noted that in Maryland, direct evidence is not necessary to prove pain and suffering; rather, evidence from which a reasonable inference of pain and suffering can be drawn is sufficient. The court found that the expert testimony regarding the typical conscious pain experienced during drowning provided a reasonable basis for a jury to conclude that Connor experienced similar pain.

The take-home message is that even without direct eyewitness testimony, expert testimony, and circumstantial evidence can be sufficient to establish a claim for conscious pain and suffering.

Pre-Impact Fright Law in Other Jurisdictions

Illinois

In Illinois, the law allows for the recovery of damages for pre-impact emotional distress under both the Survival Act and Wrongful Death Act, provided that the distress can be proven at trial. The legal principle is that plaintiffs may recover damages for the emotional distress suffered by decedents prior to physical injury if it can be established that the distress was a proximate result of the event leading to death. This approach recognizes emotional distress as legitimate damage even when not immediately accompanied by physical injury. The courts require evidence that can reasonably support an inference that the decedent experienced significant emotional distress during the events leading up to the impact or death.

California recognizes the recovery for pre-impact fright if the plaintiff can demonstrate that the fright was caused by a defendant’s negligent or intentional conduct leading to a subsequent injury. The California Supreme Court has held that recovery for emotional distress is possible if it is proximately caused by an incident, even if the physical harm follows the emotional distress.

Georgia

In Georgia, the law allows for the recovery of damages for pre-impact fright. Georgia recognizes that pre-impact fright and emotional distress can be considered when awarding damages, provided there is evidence that the decedent was conscious of the imminent danger before the impact. The legal basis for such compensation is that the mental anguish experienced due to anticipation of physical harm is a compensable injury.

For example, in cases involving Georgia motor vehicle accidents, if evidence suggests that the deceased was aware of an impending collision and experienced fear or emotional distress before the actual impact, compensation for that pre-impact fright can be awarded. This is based on the premise that the decedent suffered from the realization or anticipation of the imminent impact, which leads to mental suffering.

The critical aspect in these cases is the presence of evidence suggesting the decedent’s awareness of the danger. Courts typically look for indications in the moments leading up to the impact—such as the decedent’s actions or any video evidence that might show the decedent’s reaction to the impending collision. The testimony of witnesses or any form of credible evidence indicating that the decedent attempted to avoid the collision or showed signs of fright can also support a claim for pre-impact fright.

Overall, Georgia law does not require that physical injury precedes mental pain and suffering for compensation to be awarded. Instead, what is crucial is the evidence of the decedent’s mental state and awareness of the impending peril, which can be inferred from the circumstances immediately before the impact.

New York

In New York, pre-impact fright damages are recognized as a sub-category of conscious pain and suffering, and compensation is awarded to the decedent’s estate for the fear experienced during the interval between the moment the decedent appreciated the danger that resulted in death and the moment physical injury occurred due to that danger. This specific category of damages aims to address the emotional distress experienced before any physical impact, reflecting the state’s acknowledgment of the misery of the fear and anticipation of awful harm that can precede a fatal injury.

Similar to other states that recognize pre-impact fright, cognitive awareness is essential for recovery in such cases.

Missouri

Pre-impact terror encompasses the emotions and sensations experienced by an individual who perceives an imminent threat of death. Such terror, when experienced by a decedent before an impending aircraft crash, is compensable under a wrongful death action, according to Mo. Rev. Stat. § 537.090.

Pennsylvania

Pennsylvania law is confusing. At first glance, Pennsylvania does not generally allow for recovery for pre-impact fright unless it results in a physical impact or injury. The courts have seemed to require clear evidence that the emotional distress had a substantial effect on physical health or was linked to a physical injury. But this case would seem to suggest otherwise.

Delaware

In Delaware, the law seems to require that any claim for damages based on pre-impact fright or emotional distress must be accompanied by a physical injury resulting from that fright or distress.

The Delaware Superior Court has stated that physiological responses alone, such as an adrenaline rush causing tachycardia and other notable symptoms, do not suffice to sustain a claim for pre-impact mental distress unless they manifest as a physical injury. The court emphasized that there must be a physical consequence significant enough to be considered an injury; mere transitory physiological responses to fear or apprehension are not adequate to establish a claim.