Damages in a Survival Action and Wrongful Death Suit

Damages in a Survival Action and Wrongful Death Suit

By Charles L. Simmons

The following is an excerpt from legal memoranda filed in a survival action and wrongful death suit arising out of a commercial motor vehicle accident recently defended by Gorman & Williams. On brief were Francis J. Gorman, P.C. and Charles L. Simmons, Jr.

I. The “Survival Action”

A “survival action” is a creation of statute permitting an action at law to survive the death of a party. Md. Code Ann., Cts. & Jud. Proc., : 6-401. The personal representative of an estate has the right to prosecute or defend litigation on behalf of the decedent:

(x) Prosecute or defend litigation. – He may prosecute, defend, submit to arbitration actions, claims, or proceedings in any appropriate jurisdiction for the protection or benefit of the estate, including the commencement of a personal action which the decedent might have commenced or prosecuted . . .

Md. Code Ann., Est. & Trusts : 7-401(x).

A survival action is nothing more than a claim that could have been asserted by the decedent had he or she survived. Therefore, damages are limited to those that would have been recoverable by the decedent had he or she lived:

Recovery, therefore, is limited to the damages that the decedent could have recovered himself, had he survived and brought the action. Also, the damages are limited to compensation for pain and suffering endured by the deceased, his lost time, [his funeral expenses,] and his expenses between the time of his injury and his death.

Smallwood v. Bradford, 352 Md. 8, 25 (1998) (bracketed language in original; citations omitted).

Damages claimed in a survival action case often include: (1) conscious pain and suffering; (2) pre-impact fright; (3) punitive damages; (4) future lost earnings; and (5) burial and funeral expenses.

A. Conscious Pain And Suffering

A personal representative in a survival action may not recover damages for pain and suffering if there is no evidence that the decedent experienced “conscious” pain and suffering between the time of injury and death:

Under well-settled principles of Maryland law relative to the issue of recovery for conscious pain and suffering, it was incumbent upon [plaintiff – personal representative], under count one of the declaration [survival action for conscious pain and suffering], to establish by a preponderance of the evidence (a) that the deceased Ory’s negligence was the direct and proximate cause of the accident, (b) that the deceased Holden lived after the accident, and (c) that between the time of death, Holden suffered conscious pain.

Ory v. Libersky, 40 Md. App. 151, 159-60 (1978) (emphasis added). In that case there were no verbal communications and no body movements from the decedent. Id. at 162. The court determined as a matter of law that labored breathing and gurgling, without more, was insufficient evidence of “conscious pain.” Id.

B. Pre-Impact Fright

In order for there to be recovery on a theory of pre-impact fright in a survival action, there must be evidence that the decedent experienced “fear or fright” :

Also, permitting a jury to determine pre-impact fright requires the same reasoning and common knowledge that we allow jurors to exercise in determining non-economic, pain and suffering damages in other tort actions, which, like assault, require an assessment of a victim’s fear and apprehension. Direct evidence is not necessary. What is required is evidence from which a reasonable inference could be drawn that the decedent experienced fear or fright.

Beynon v. Montgomery Cablevision Ltd. Partnership, 351 Md. 460, 508 (1998) (emphasis added). In that case, the evidence of fright was the 71 – feet of skid marks made by the decedent prior to colliding with a tractor trailer:

A jury reasonably could have inferred from that evidence that the decedent was aware of the impending peril, that he was going to crash, and attempted an evasive maneuver to avoid it. The jury equally reasonably could have concluded that the decedent suffered emotional distress or fright during that period before the crash, after he became aware of the imminent danger and began braking. This is not rank speculation.

Id. at 508-09.

C. Punitive Damages

The law in non-intentional tort cases is that punitive damage are not available unless there is evidence of “actual malice”:

In a non-intentional tort action, the trier of facts may not award punitive damages unless the plaintiff has established that the defendant’s conduct was characterized by evil motive, intent to injure, ill will, or fraud, i.e. “actual malice.”

Owens-Illinois v. Zenobia, 325 Md. 420, 460 (1992) (citations omitted). The Court of Appeals has conclusively rejected the “implied malice” standard in tort cases involving drivers under the influence of alcohol:

A rule allowing punitive damages based on driving while intoxicated or driving under the influence, per se, is inconsistent with Zenobia’s touchstone of “actual malice.”

Komornik v. Sparks, 331 Md. 720, 730 (1993).

D. Future Lost Earnings

Future lost wages are unavailable in a survival action where no wages were actually lost between the time of injury and the time of death. In a recent case, the Maryland Court of Appeals affirmed a grant of partial summary judgment for defendant on the grounds that the estate could not recover damages for future lost earnings where the decedent died instantly. Jones v. Flood, 351 Md. 120 (1998).

In Flood, plaintiff as personal representative of the estate brought a survival action seeking damages for the future lost earnings of the decedent who was killed instantly in a motor vehicle accident. Id. at 120-22. The court held, as a matter of law, that an estate is not entitled to future lost earnings when the decedent died before any lost wages were incurred:

In sum, if an injured person lives to the entry of judgment in a personal injury action, the damages may include future lost earnings based on the pre-accident life expectancy of the plaintiff. If the injured person lives for some period following the injury but dies before judgment, lost earnings in the survival action are measured only by the period from the inception of the loss of earnings to death. If, as here, the injured person is killed instantly, there are no future lost earnings damages in the survival action.

Id. at 130-31.

E. Burial Expenses are Statutorily Capped at $5,000

The maximum allowable damages available to an estate for burial and funeral expenses is governed by statute:

(2) In an action instituted by the personal representative against a tortfeasor for a wrong which resulted in the death of the decedent, the personal representative may recover the funeral expenses of the decedent up to the amount allowed under : 8-106(b) of this article in addition to other damages recoverable in the action.

Md. Code Ann., Est. & Trusts, 7-401(x). Section 8-106(b) of that article imposes a $5,000 cap on an estate’s recovery of funeral and burial expenses:

(b) Allowance. Funeral expenses shall be allowed in the discretion of the court according to the condition and circumstances of the decedent. In no event may the allowance exceed $5,000 unless the estate of the decedent is solvent and a special order of court has been obtained. . . .

Id. at 8-106(b) (1998 Supp.).

II. The Maryland Wrongful Death Act

The legal cause of action for wrongful death was created in Maryland by the adoption of “Lord Campbell’s Act” from British common law. The General Assembly first passed legislation creating the cause of action in 1852:

The General Assembly of this state, in the year 1852, finding the common law maxim, Personal actions die with the person, unsuited to the circumstances and condition of the people, enacted a law entitled An Act to compensate the families of persons killed by the wrongful act, neglect, or default of another person.

State, Use of Coughlan v. Baltimore & Ohio R.R. Co., 24 Md. 84, 100 (1866). The statute, Md. Code Ann., Cts. & Jud. Proc.,  3-904, created a new cause of action for family members of persons killed by another’s negligence, i.e. it created the right to sue for the damages which resulted from the decedent’s death. Smith v. Westinghouse Elec. Corp., 266 Md. 52 (1972).

Maryland’s Wrongful Death Act is in derogation of the common law and must, therefore be strictly construed:

Maryland, like Mississippi and Nevada, follows the doctrine that statutes in derogation of the common law are strictly construed. The common law did not recognize wrongful death actions. Therefore, our Wrongful Death Act is in derogation of the common law, and is narrowly construed.

Calhoun v. Eagan, 111 Md. App. 362, 387-88 (1996) (citations omitted). Thus, a successful plaintiff in a wrongful death action may only recover those categories of damages specifically permitted by the statute. United States v. Streidel, 329 Md. 533 (1993).

Damages claimed in a Wrongful Death suit often include: (1) non-economic damages; (2) lost services; (3) lost financial benefits; and (4) punitive damages.

A. Non-Economic Damages

Maryland’s Wrongful Death statute underwent substantial modifications in 1997. The 1997 revisions expanded the class of plaintiffs who could recover non-economic damages in a wrongful death action.

Prior to the 1997 revisions, a parent of an adult child could recover non-economic damages for the wrongful death of an adult child only if: (1) the child was 21 years of age or younger; or (2) the parent provided 50% or more of the adult child’s support. See Md. Code Ann., Cts. & Jud. Proc., 3-904(e) (1995 Repl. Vol.). Following the revisions, parents of adult children are entitled to recover non-economic damages for the wrongful death, regardless of age or the amount of support provided to the child. See 3-904(e) (1998 Supp.).

There is, however a substantial caveat concerning the application of the 1997 revisions. The revisions (including the expansion of the class of parents entitled to recover non-economic damages for the death of an adult child) apply only to causes of action accruing after October 1, 1997:

SECTION 2 AND IT FURTHER ENACTED, THAT THIS ACT shall be construed prospectively to apply only to causes of action for wrongful death that arise on or after the effective date of this Act [October 1, 1997] and may not be applied or interpreted to have any effect on or application to causes of action for wrongful death that arise before the effective date of this Act.SECTION 3. AND BE IT FURTHER ENACTED, That this Act shall take effect October 1, 1997.

See version of House Bill 770, Chpt. 318 (attached to Motion as Exhibit 15) in the form signed by the Governor on May 8, 1997.

The applicable law for Wrongful Death Actions accruing before October 1, 1997 is as stated in the statute prior to the 1997 revisions. Parents are precluded from recovering non-economic damages for the death of an adult child unless: (1) the child was 21 years old or younger; or (2) the parents provided at least 50% of the adult child’s support:

(e) Damages if unmarried child, who is not a minor, dies. — For the death of an unmarried child, who is not a minor child, the damages awarded under subsection (c) are not limited or restricted by the “pecuniary loss” or “pecuniary benefit” rule but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, attention, advice, counsel, training, or guidance where applicable if:
(1) The child is 21 years old or younger; or
(2) A parent contributed 50 percent or more of the child’s support.

Md. Code Ann., Cts. & Jud. Proc.  3-904 (1995 Repl. Vol.).

B. Lost Services

Wrongful death plaintiffs are entitled to damages for the loss of service if it can be shown that there was a reasonable expectation of pecuniary benefit from the continuation of the life of the person killed. B&O R.R. Co. v. State, Use of Mahone, 63 Md. 135, 145-46. The expectation of the benefit must be based on more than mere speculation:

As to the two sons, John and James, there is no evidence legally sufficient to warrant the jury in finding they had sustained any pecuniary loss, actual or in expectation, from the death of their mother. The proof is that John is twenty-six years old, is married, and has one child; and James is twenty-eight years old, married, and has two children. The mother, although she made her home with her daughter Martha, was in the habit of assisting in nursing the sick members of her two sons families. How often she went, how long she remained, and what was the value of such services, nowhere appears. Nor is there any evidence to show that either of them, before or after the death of their mother, was obliged to employ some one to nurse in case of sickness. To attempt to assess damages under such circumstances would be to indulge in mere conjecture and speculation — mere guesswork at best.

Id. at 147 (emphasis added).

C. Future Pecuniary Benefit

In Maryland wrongful death cases an award of pecuniary loss can only be based on past and “probable” future economic losses:

This Court has held that in any action brought under the statute for death caused by negligence, the jury may award damages for pecuniary losses which have already been sustained by the equitable plaintiffs or for pecuniary losses which they may probably suffer in the future as the result of the death.

Baltimore Transit Co. v. State, 194 Md. 421, 436 (1950) (emphasis added).

Only “reasonably expected” future pecuniary benefits can form the basis of an award:

Legal liability alone is not the test of injury, in respect of which damages may be recovered under the statute; but that the reasonable expectation of pecuniary advantage by the relative remaining alive may be taken into account by the jury, and damages given in respect of that expectation, if it be disappointed and the probable pecuniary loss thereby occasioned. In other words, the damages to be allowed for the injuries sustained should be a compensation to the family of the deceased, or those entitled, equivalent to the pecuniary benefits which they might have reasonably expected from the continuation of his life.

Baltimore & Ohio R.R. v. State Use of Hauer, 60 Md. 440, 467 (1883).

In the instance of the death of a minor child, parents are entitled to the economic value of the future services of the minor child. However, a parent can recover for pecuniary damages for the lost services of a child only up to the date the child reaches the age of majority. Pecuniary benefits beyond the age of majority are not “reasonably foreseeable” and, therefore not subject to calculation, and therefore not awardable:

The legal right of the mother to the services of her minor son is referred to as furnishing a safe basis from which the jury may reasonably infer that she suffered a pecuniary loss by his death, and as affording her a reasonable expectation of pecuniary benefit from the continuance of his life during minority. But what a minor child may be able or willing to do for his father or mother after he becomes of age, when he has the right to leave the parental roof and set up for himself in life, and before his willingness and ability have been tested by experience, is, as we understand the court to say, a matter of conjecture, too vague to enter into an estimate of damages in such a case.

Agricultural & Mechanical Ass’n of Washington County v. State, Use of Carty, 71 Md. 86, 101-02 (1889) (emphasis added).

Carty involved an emancipated minor child who was killed by a falling pole erected at a county fair that the boy was attending. The father brought suit under the Wrongful Death Act existing at the time of the occurrence. The father claimed that he was entitled to future pecuniary losses based on the son’s promise to provide future benefit to the father:

That the deceased had said that after he got of age he would help to fix up the property…

Carty, 71 Md. at 88. The court held that such a promise was insufficient to submit to the jury a claim for future pecuniary losses:

But a vague declaration or promise like this, made by a minor, has no probative force what-ever, and, a narrow opinion, this evidence is altogether too slight and insufficient to enable a jury to find from it a ground for the reasonable expectation which the law requires.

Id. at 104.

Other cases have held that to permit damages for future pecuniary benefits to parents beyond the age of majority of a child would be to engage in speculation:

To submit to a jury the value of a life without limit as to years, would have been to leave them to speculate upon its duration, without any basis of the calculation. The law entitled the mother to the services of her child during his minority only, the father being dead; beyond this, the chances of survivorship, his ability or willingness to support her, are matters of conjecture too vague to enter into an estimate of damages merely compensatory.

State, Use of Coughlan v. Baltimore & Ohio R.R. Co., 24 Md. 84, 107-08 (1866) (emphasis added).

A similar result was reached in the case of Mahone, supra. There the court had before it claims by adult children for the wrongful death of their mother. The only evidence at trial of a pecuniary loss to the mother’s two sons was testimony that she occasionally assisted in nursing sick family members. Mahone, 63 Md. at 147. There was no evidence of the number of times she performed these services, how long she remained when she did attend to the families, or what the value of the services were. Id. Further, the sons failed to prove that they were obligated to hire a replacement to provide the services of the deceased mother. Id. The court found this evidence insufficient to form a foundation of an award of future pecuniary loss:

There is no proof, then, of pecuniary benefit or pecuniary loss. To attempt to assess damages under such circumstances would be to indulge in mere conjecture and speculation — mere guesswork at the best.


Maryland courts have held in certain circumstances that even where a pecuniary benefit was provided to the wrongful death plaintiff prior to death, there can still be no allowance for future pecuniary benefits. See State, Use of Elder v. Baltimore & Ohio R.R. Co., 126 Md. 497 (1915). In that case, the father of adult children was killed by an act of negligence of the part of the B&O Railroad Company. Testimony was offered at trial that the father gave his daughters each year “a sow or two shouts.” Id. at 499. The declared value of this livestock was said to be between $15 or $20 per year. Id. The court held that the occasional gifts were insufficient to form the basis of a reasonable belief of future pecuniary benefits by the daughters:

To enable the plaintiffs to maintain this action it was incumbent upon them to show that they had in the life of their father a pecuniary interest, which they could have reasonably expected to continue so long as he lived, and which was lost by them by his death, caused by the negligence of the defendant.It is because of these alleged gifts from the father to the daughters, and upon the reasonable expectation of their continuance so long as he lived, that they claim a pecuniary interest in the life of the father, of which they were deprived by his death.The three daughters, who were plaintiffs in this case, were married a number of years prior to the death of the father, and during their married life had lived apart from him. They were not in any sense dependent upon the father for support or maintenance, but were living with, and we may assume from the evidence were cared for and supported by, their respective husbands. The alleged occasional gifts made by him to them do not, we think, under the facts and circumstances of the case, show that the daughters had in the life of the father such a pecuniary interest as will enable them to maintain this action.

Id. at 503-04 (emphasis added). In short, even provable pecuniary benefits provided prior to the death of the decedent will not necessarily provide the basis for “reasonable expectation” of future pecuniary benefit.

D. Punitive Damages

Maryland’s wrongful death act is in derogation of the common law. See discussion above. As such, the statute is subject to strict construction. Calhoun, 111 Md. at 387-88. Only those categories of damages specifically authorized in the statute are available to wrongful death plaintiffs. Streidel, 329 Md. at 552.

Punitive damages are not a category of damages authorized by the statute and are, therefore unavailable in a wrongful death action:

This Court has previously refused to expand the type of damages available in a wrongful death action unless expressly authorized by the General Assembly. For example, in Smith v. Gray Concrete Pipe Co., overruled on other grounds by Owens-Illinois, Inc. v. Zenobia, we restated the rule that punitive damages are not recoverable in a wrongful death action. The rationale for this holding was that the statute creating the cause of action for wrongful death expressly sets forth the type of damages recoverable in such an action.

Id. (emphasis added) (citations omitted).