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IN THE COURT OF APPEALS OF MARYLAND NO. 76 SEPTEMBER TERM, 1997

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BRENDA L. SMALLWOOD v. HILTON P. BRADFORD

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Bell, C. J. Eldridge Rodowsky Chasanow Raker Wilner Cathell JJ. _________________________________________ Opinion by Bell, C. J. Chasanow and Raker, JJ., concur and dissent. Wilner, J., dissents. _________________________________________

FILED: November 20, 1998

William Jerald Todd ("Todd" or "the decedent") was killed instantly in an automobile accident on Maryland Route 90, in Worcester County, Maryland, near Ocean City, and in which Hilton P. Bradford (the "appellee") was also involved. The decedent's sister,1 Brenda L. Smallwood, Personal Representative of his estate (the "appellant"), filed a survival action against the appellee in the Circuit Court for Worcester County, alleging that the appellee's negligence caused Todd's death. She sought damages for pre-impact fright, mental and/or emotional pain, anguish, suffering and/or distress and for loss of enjoyment of life. At the jury trial, the appellant produced an eyewitness who testified as to how the accident occurred. According to that witness, Kem Waters, the appellee's automobile, which was proceeding east on Route 90, crossed the center line and struck the decedent's vehicle traveling in the west bound lane. He testified that, immediately before the collision, he saw Todd attempt to avoid the collision by accelerating and veering his vehicle toward the highway's shoulder.2 Despite that effort at evasion, given "the angle that [the appellee's] car had on [the decedent's car]," Waters stated that the appellee's car crashed into the

Although he had been married twice, the decedent, who was 43 years old at death, was survived only by his sister and his father, who lived out of State. The record does not reflect that either of them was dependent on the decedent for support, which, perhaps explains why no wrongful death action was pursued.
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Specifically, Mr. Waters testified: "The yellow Volkswagen tried everything it could possibly do to avoid the collision. If he had stayed on the road, he [the appellee's car] would have probably hit him head on, but because he veered to the side, it hit him on his driver's side."

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driver's side of Todd's car and side-swiped virtually its entire length. Todd was dead, Waters said, immediately after the accident, when he checked his pulse, apparently as a result of the impact. The entire incident, according to the eyewitness, "took about fifteen or twenty seconds." The appellant also produced undisputed evidence, in the form of her testimony, of the decedent's personality and life style, presumably as proof of damages. She testified: "Jerry was a friendly, outgoing person. He loved life, he loved people. He just enjoyed being around people and doing things. He was a very happy-golucky type person. He enjoyed life to its fullest. And everybody that knew him thought the world of him. * * *

"He enjoyed golf, bicycle riding, and he would get together those bicycle trips from Ocean City to Chincoteague. "There was a whole group of men his age that would get together and ride their bikes from here to either Chincoteague or Crisfield and just have a grand time going to and from. "Well, as a kid growing up he sold newspapers on the boardwalk when he was old enough. "He was a desk clerk, a bartender, a realtor. "I think everybody knew him. Even the day of the funeral, all of the marquees through Ocean City had, `We are going to miss you, Jerry Todd.' So, it tells me pretty well everybody in Ocean City knew him. "Of course, growing up in Berlin, everybody knew him. He was the senior class president and on the sports, basketball, and what-have-you."

Also to prove damages, the appellant sought to offer evidence as to the status of the

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decedent's estate "in terms of debt versus assets" and as to the decedent's pre-death financial condition, as reflected by his debts. That evidence was not allowed, the trial judge ruling, "testimony [on those subjects] is irrelevant." The appellant was permitted to prove the

funeral expenses incurred as a result of the decedent's death, and did so by introducing a funeral bill in excess of $7,000.00 into evidence. At the close of the appellant's case, the appellee moved for judgment, pursuant to Maryland Rule 2-519, arguing, inter alia, the lack of legally sufficient evidence of his negligence and that damages for pre-impact fright, mental anguish and loss of enjoyment of life are not recoverable in a survival action. Although the court granted, over the appellant's objection, the motion as to the recoverability of damages for pre-impact fright, mental anguish and loss of enjoyment of life, it denied it with respect to liability. Having obtained favorable rulings on damages, the appellee rested without putting on a case. The jury rendered a verdict finding the appellee negligent and awarding the decedent's estate damages in the amount of $2,000.00, the maximum amount then allowed for funeral expenses.3

Maryland Code (1974, 1991 Repl. Vol.)

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