Plaintiff at the time of the accident was in her 30’s, married, had 3 children and was 7 months pregnant with a viable fetus. Both mother and fetus died as a result of the accident.
Medical expenses were minimal. Plaintiff worked 2 jobs. In addition there were funeral expenses.
When a victim dies because of the tortious conduct of someone else, two entirely different types of claim may arise. One is a survival action commenced or continued by the personal representative of the deceased victim, seeking recovery for the injuries suffered by the victim and prosecuted just as if the victim were still alive. It is called a ‘survival action’ in the sense that the claim has survived the death of the claimant.
The other is a wrongful death action, brought by the relatives of the victim and seeking recovery for their loss by virtue of the victim’s death. In the first, damages are measured in terms of harm to the victim; in the second, damages are measured in terms of harm to others from the loss of the victim. In the first, the personal representative serves as the posthumous agent of the victim; in the second, his surviving relatives do not serve as his agent at all. They act in their own behalf.
Damages for the survival action are collected by the personal representative of the estate and include emotional distress due to the loss of a fetus, conscious pain and suffering of the deceased prior to her death, pre impact fright, medical and funeral expenses of the deceased, as well as any loss of wages incurred prior to the death of the deceased.
The purpose of survival statutes is to permit a decedent’s estate to bring an action that the decedent could have instituted had he or she lived. Here, there is no question that, had she lived, the decedent would have been permitted to recover damages for the “pre-impact fright” she suffered before crashing into rear of the tractor-trailer. Beynon v. Montgomery Cablevision Ltd. Partnership 351 Md. 460, 718 A.2d 116.
Pursuant to the principle that damages for “pre-impact fright” are recoverable when the decedent experiences it during the legitimate window of mental anxiety, that window opened when the decedent became conscious of the fact she was in imminent danger, and it closed with her death in a car crash; as a result of the feared impact-the car accident- decedent’s fright was capable of objective determination that resulted from the decedent’s apprehension of impending death and the collision itself. Beynon v.
Montgomery Cablevision Ltd. Partnership 351 Md. 460, 718 A.2d 116. …evidence of “pre-impact fright,” the trial court instructed the jury that it could consider and make an award for “pain, suffering and mental anguish” that the decedent experienced before the crash. Beynon v. Montgomery Cablevision Ltd. Partnership351 Md. 460, 718 A.2d 1161
With regard to the wrongful death action, automatic standing is given in § 3-904(a) only to a spouse, child, or parent of the deceased person. Section 3-904(b) provides that, if there are no such persons, any person related to the deceased by blood or marriage “who was substantially dependent upon the deceased” may file the action.
In the wrongful death action, “Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered *** shall be divided among the above mentioned parties, in such shares as the jury by their verdict shall find and direct; provided that not more than one action shall lie for and in respect of the same subject-matter of complaint,” etc. .
STEWART v. UNITED ELECTRIC LIGHT & POWER CO. 104 Md. 332, Because Plaintiff was married to and had two children and had one living parent , the wrongful death action accrues to all of the above.
The damages for wrongful death include pecuniary loss or benefit as well as“… damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education, where applicable.”
In Daley v. United Services Automobile Assoc., 312 Md. 550, 553 n. 2, 541 A.2d 632, 633 n. 2 (1988), we referred to those kinds of damages as “solatium damages.” A husband and wife jointly may recover for injury to one spouse which causes a loss of society, affection, and conjugal fellowship, including the loss or impairment of sexual relations between them.
Because deceased was seven months pregnant at the time of the accident, the plaintiffs have two wrongful death claims and two survival action claims. In State v. Sherman, 234 Md. 179, 198 A.2d 71 (1964), the court created a cause of action on behalf of a viable fetus who was stillborn. In Sherman, the mother of a viable child suffered serious bodily injury as a result of an automobile accident. The child, who was a viable fetus in the ninth month of development, was delivered stillborn shortly after the accident.
The Court of Appeals held that a cause of action could be maintained on behalf of the viable fetus to recover for its prenatal injuries. Later in Group Health Ass’n v. Blumenthal, 295 Md. 104, the Court of Appeals affirmed that a cause of action lies for prenatal injuries to a viable child who is either stillborn or born alive and to a nonviable child who is born alive.
The cause of action includes a wrongful death action as well as a survival action. Smith v. Borello, 370 Md. 227