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Reasonable Inference Required to Establish Pre-Death Pain and Suffering
(July 2009) By Gregory L. Arbogast, Summer Associate.
For more information, contact Paul Farquharson.
Freed v. D.R.D. Pool Serv., Inc., No. 2258 (Md. Ct. Spec.
App. July 6, 2009)
In Freed v. D.R.D. Pool Serv., Inc., the Maryland Court of
Special Appeals found that a plaintiff can recover for pre-death pain and
suffering in a wrongful death action when the decedent drowns. In order to
receive compensatory damages for pain and suffering, the plaintiff must show
that: (1) the defendant's negligence was the direct and proximate cause of the
accident; (2) the deceased lived after the accident; and (3) between the time of
the accident and the time of death the decedent suffered conscious pain. The
plaintiff need not produce direct evidence of the pain and suffering, but must
produce evidence sufficient from which a reasonable inference can be drawn that
the decedent experienced fear or fright. Therefore, a plaintiff does not need to
produce an eyewitness, but the plaintiff must produce an expert to testify that
the decedent suffered pre-death fear or fright. The plaintiff may not show pain
and suffering by speculation or guesswork.
This wrongful death case arose out of 5-year-old Connor
Freed's accidental drowning at the Crofton Country Club. Paul Carroll, a friend
of Connor Freed's parents, was watching Connor Freed and two other children
about his age at the pool. Mr. Carroll permitted Connor Freed to take off his
life vest so he could use the restroom. Mr. Carroll remained by the pool
watching the two other children. A brief period of time elapsed and Mr. Carroll
noticed that Connor Freed had not returned from the bathroom. That is when one
of the other children noticed Connor Freed's body floating in the water. Despite
a rescue attempt, he died of an accidental drowning.
Connor Freed's parents filed this suit and sought to recover
damages, including pre-death pain and suffering. The defendants filed a Motion
for Summary Judgment on the issue of pre-death pain and suffering. The Circuit
Court granted the defendants' motion and Mr. and Mrs. Freed timely filed this
appeal.
The Court of Special Appeals found that the plaintiffs
produced evidence sufficient to support a reasonable inference that Connor Freed
suffered pre-death pain and suffering. They produced an expert witness who
testified that a drowning victim will always feel approximately 2 minutes of
pain and suffering, unless the victim hyperventilates or suffers a blow to
render the victim unconscious. Since neither of those scenarios appeared to be
present in this case, the expert opined that it was likely that Connor Freed
suffered pain and suffering. The Court of Special Appeals found that this
opinion sufficed to defeat the defendants' Motion for Summary Judgment.
This case expands the potential damages that a plaintiff can
receive. It means that a plaintiff does not need to produce an eyewitness to
prove pre-death pain and suffering. Instead, an expert witness will suffice to
render pre-death pain and suffering damages a jury question. This case expands
defendants' liability.
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