• Reasonable Inference Required to Establish Pre-Death Pain and Suffering
  • August 10, 2009 | Author: Paul N. Farquharson
  • Law Firm: Semmes, Bowen & Semmes, A Professional Corporation - Baltimore Office
  • 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.