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IN THE COURT OF APPEALS OF MARYLAND NO. 86 SEPTEMBER TERM, 1997

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JULIA D. BEYNON et al. v. MONTGOMERY CABLEVISION LIMITED PARTNERSHIP et al.

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Bell, C. J. Eldridge Rodowsky Chasanow Raker Wilner Cathell JJ.

Opinion by Bell, C. J. Chasanow, Raker and Wilner, JJ., dissent.

FILED: October 9, 1998

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Whether "pre-impact fright," or any other form of mental and emotional disturbance or distress, suffered by an accident victim who dies instantly upon impact is a legally compensable element of damages in a survival action is an issue hitherto unaddressed by this Court, but presented in this case. In Maryland, it is well-settled that, in the absence of a physical impact or injury directly resulting in harm, mental and emotional injuries such as fright are not compensable unless there are objective manifestations of such injury. See Green v. Shoemaker, 111 Md. 69,77-78, 73 A. 688, 691 (1909); Bowman v. Williams, 164 Md. 397, 404, 165 A. 182, 184 (1933); Vance v. Vance, 286 Md. 490, 500, 408 A.2d 728, 733 (1979). See also Matthews v. Amberwood Associates Ltd. Partnership, Inc. et al, __, Md.__,__, __A.2d__,__ (1998)[slip op. at 30-33]. We now hold that, in survival actions, where a decedent experiences great fear and apprehension of imminent death before the fatal physical impact, the decedent's estate may recover for such emotional distress and mental anguish as are capable of objective determination. I. During the late evening hours of June 7, 1990, Montgomery Cable Vision Limited Partnership, doing business as Cable TV Montgomery ("Montgomery Cable"), discovered that one of its cables located at Interstate 495, the Capital Beltway, had either broken or fallen from a utility pole and needed repair. In order to repair the damaged cable, Montgomery Cable, pursuant a blanket permit issued to it by the Maryland State Highway Administration ("SHA"), coordinated with the Maryland State Police to have traffic on the beltway stopped during the early morning hours of June 8. This was accomplished around

2:00 a.m. with two police officers, one on each side of the Capital Beltway and Montgomery Cable employees were enabled to install a replacement cable. During the thirty to forty-five minutes that it took to complete the repair, traffic backed up approximately one mile on each side of the beltway. At the rear of the congestion on the westbound side of the beltway, James P. Kirkland ("Kirkland") was driving a tractor-trailer owned by James Lee ("Lee"), doing business as K&L Transportation. Kirkland testified, at trial, that his trailer was at a complete stop in one of the middle lanes. He also testified that he noticed that all four lanes of the beltway were occupied; he remembered that there was another tractor-trailer to his left and there may have been another truck in the right lane. Douglas K. Beynon, Jr., ("Beynon" or the "decedent,"), also traveling westbound, was driving his employer's vehicle, within the 55 m.p.h. speed limit. According to the evidence the plaintiffs presented at trial, Beynon was approximately 192 feet from the rear of Kirkland's tractor-trailer when he became aware of, and then reacted to, the impending danger of crashing into its rear. In his attempt to avoid the collision, Beynon slammed on his brakes, as 71

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