On August 31, 2012, the intermediate appellate court in Maryland, known as the Court of Special Appeals of Maryland (“Court of Special Appeals”), issued its written opinion in a case in which one of the issues was “whether the non-economic damage cap imposed by Md. Code (1974, 2006 Repl. Vol.), Courts & Judicial Proceedings Article (CJP), § 11-108 applies separately or collectively to damages awarded in a wrongful death and a survival action.” In deciding the issue, the Court of Special Appeals stated, “our conclusion [is] that the § 11-108 damage cap applies separately to damage awards in survival and wrongful death actions.”
What Is A “Survival Action” And What Is A “Wrongful Death Claim” In Maryland?
As the Court of Special Appeals stated in a previous decision, “In Maryland, two separate actions arise from a death caused by the negligence of another: a survival action and a wrongful death action. In a wrongful death action, specified persons may recover for injury to them as a result of the death of the tort victim. In a survival action, the personal representative may bring suit to recover for pain and suffering sustained by the decedent between the time of injury and death . . . . Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong.”
What Are The Facts In This Case?
On the morning of August 23, 2007, three Department of Corrections (“DOC”) inmates were driven by a correctional officer in a DOC van to pick up litter along a highway. The inmates wore bright green fluorescent safety vests. They began walking on the shoulder of the highway until they crossed an exit ramp by foot and entered into the gore area (a gore is a narrow, triangular area of land where an exit lane veers away from the travel portion of the lane and becomes an exit ramp. The triangular area is typically separated from the travel portion of the roadway by two solid white lines along its borders).
The driver of a tractor-trailer in the lane closest to the exit ramp observed a dump truck accelerate, pass him on the left, and then cut in front of him to take the exit. The dump truck driver saw the inmates walk across the exit ramp and into the gore and sounded his horn to “warn” them about 75 feet from the exit. Upon hearing the horn, the inmates in the gore turned around to see the dump truck and the tractor-trailer bearing down on them at a high rate of speed, believing that the dump truck was going to enter the gore where they were standing. Nonetheless, they remained stationary because the horn put them in a state of shock, freezing them in place. When the dump truck was about five to eight feet away from the inmates, one of the inmates ran from the gore back across the exit ramp but was struck by the dump truck. The inmate who was struck by the dump truck later died from his injuries.
A post-accident investigation conducted by the Maryland State Police determined that the dump truck weighed 78,400 pounds, in violation of the 70,000 pound weight limit, and that three of the dump truck brakes were out of adjustment. An expert for the plaintiffs determined that the two largest brakes on the dump truck were significantly out of adjustment, resulting in a loss of more than 25% of the dump truck’s braking efficiency, thereby concluding that the dump truck was not safe to operate on the day of the accident, which should have been apparent to the driver. The expert also testified that the inmate who was struck by the dump truck would have cleared the dump truck if the brakes had been in working order and the dump truck weighed 8,400 pounds less.
The Jury’s Decision
The jury awarded the plaintiffs as follows: $350,000 in noneconomic damages for the survival action and $1,675,000 in noneconomic damages for the wrongful death claim. The trial judge left the $350,000 verdict in the survival action intact but reduced the $1,675,000 awarded for the wrongful death claim to $1,020,000 (when there are two or more wrongful death beneficiaries, the $680,000 cap on noneconomic damages that was in effect on the date of the accident increases to 150% of the cap. The cap itself increases by $15,000 each year.)
The dump truck driver argued on appeal that there should be only one cap that applies to the survival action and the wrongful death claims, collectively, which would have totally eliminated the $350,000 that the jury awarded in the survival action and would have reduced the total verdict to $1,020,000. The dump truck driver argued that while the survival action and the wrongful death claims are two separate causes of action, they should result in one loss that should be subject to one cap. The Court of Special Appeals held otherwise and affirmed the total award in the amount of $1.37 million.
Source: Wayne H. Goss, et al. v. The Estate of Bertha Jennings, et al.
Nonetheless, in medical malpractice cases in Maryland, a Maryland statute provides that there is only one aggregate cap for non-economic damages in medical malpractice cases. See Annotated Code of Maryland, Courts and Judicial Proceedings Article, Section 3-2A-09(b)(2).
If you or a loved one suffered injuries as a result of medical malpractice in Maryland or in another U.S. state, you should promptly seek the advice from a Maryland medical malpractice attorney or a medical malpractice attorney in your state.
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