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,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.^FN2 Despite that *12 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 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-go-lucky 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 decedent's estate “in terms of *13 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 **589 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.
 

The appellant noted an appeal of the judgment to the Court of Special Appeals. When, shortly thereafter, that court issued its opinion in Montgomery Cablevision Limited v. Beynon, 116 Md.App. 363, 696 A.2d 491 (1997), in which a substantial jury verdict for “pre-impact fright” damages was *14 reversed, the intermediate appellate court concluding that damages for pre-impact fright, mental anguish or emotional distress are not compensable, she filed in this Court a Petition for Writ of Certiorari. This Court granted the petition prior to the Court of Special Appeal's consideration of the case. Smallwood v. Bradford, 347 Md. 155, 699 A.2d 1169 (1997). We subsequently granted certiorari in Beynon, as well. Beynon v. Montgomery Cablevision, 347 Md. 683, 702 A.2d 291 (1997).

The appellant asks that we answer the following questions:

“1. Whether a person instantly killed by tortious conduct has a survival action against the tortfeasor for pre-impact fright, and mental and/or emotional pain, anguish, suffering and/or distress.

“2. Whether a person who is instantly killed has a survival action against the tortfeasor for loss of enjoyment of life.

“3. Whether the pecuniary status of the decedent or his estate is relevant evidence of pre-impact emotional pain and suffering or loss of enjoyment of life in an instantaneous death, survival action.”

We shall reverse the judgment of the Circuit Court for Worcester County with respect to pre-impact fright and affirm it in all other respects.


First, the appellant contends that the decedent experienced pre-impact emotional distress and mental anguish in the form of fright during the period in which he became aware that the appellee's automobile had crossed the center line and was on a course for a head-on collision and unsuccessfully attempted to avoid that collision. She argues that the trial court's refusal to instruct the jury as to “pre-impact” fright as an element of damages was error.

As we have seen, the Court of Special Appeals has rejected this argument. In its Beynon opinion, the intermediate appellate court exhaustively reviewed Maryland precedents in the area and concluded:

There can be no award of damages for pre-impact fright suffered by a tort victim who died instantly upon impact or who never regained consciousness after the impact, because no cause of action will lie for ‘mere fright’ without physical injury (Green v. Shoemaker) or injury capable of objective determination (Vance) resulting therefrom. Obviously, one who died instantly upon impact or at least died without recovering consciousness following impact cannot have suffered any injury capable of objective determination as a result of ‘pre-impact fright,’ i.e., fear, terror, or mental anguish or distress from anticipation of imminent injury or death.”

Green v. T.A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909).
Vance v. Vance, 286 Md. 490, 496-97, 408 A.2d 728 (1979).

 

Montgomery Cablevision Ltd. Partnership v. Beynon, 116 Md.App. at 388, 696 A.2d at 503. **590 We were not persuaded and, thus, in Beynon v. Montgomery Cablevision Limited., 351 Md. 460, 504-06, 718 A.2d 1161, 1183-84 (1998), we reversed, holding instead that damages for pre-impact fright and mental anguish may be recovered in survivorship actions. In that case, the automobile that the decedent was driving crashed, while traveling at 41 miles per hour, into the rear of a tractor-trailer that was completely stopped, at the rear of a mile long traffic back up, in the middle traffic lanes of westbound Interstate 495, killing the decedent instantly upon impact. At trial, the plaintiff established the defendant's negligence and also that the decedent “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, [the decedent] slammed on his brakes, as 71 1/2 feet of skid marks attest, and slightly veered to the right.” Id. at 465, 718 A.2d at 1163. Having extensively reviewed Maryland precedents and cases on the subject from other jurisdictions, we stated our agreement with the plaintiffs and the trial court, that the decedent should be compensated for “pre-impact fright”-the mental anguish the decedent suffered from the time he became aware of the impending crash until the actual collision.

We explained our reasoning as follows:

“In Green [v. T.A. Shoemaker & Co., 111 Md. 69, 73 A. 688 (1909) ], the underlying reason we required physical injury as a result of an emotional injury before emotional injuries are compensable was because ‘physical injury’ established the genuineness of the emotional harm and guarded against feigned claims. ‘Physical injury’ provided, and still provides, the objective manifestation of the alleged emotional injury and served, and still serves, as the yardstick by which a tort victim's emotional harm may be measured. ‘Such an objective determination provides reasonable assurance that the claim is not spurious.’ Belcher [v. T. Rowe Price], 329 [Md. 709,] 735, 621 A.2d [872,] 885 [ (1993)]. Here, the decedent's fright is accompanied by both physical injuries and independent objective manifestation. The physical injuries that accompanied the decedent's pre-impact fright are the fatal injuries he sustained as a result of the feared impact-the automobile accident. Moreover, the decedent's fright is capable of objective determination by the 71 1/2 feet of skid marks that the plaintiffs argued, and the jury apparently believed, resulted from the *17 decedent's apprehension of impending death, and the collision itself.

“The fact that the fright or mental anguish in this case preceded the crash that resulted in the decedent's fatal bodily injuries does not affect causation. As our cases make clear, whenever a wrongful act naturally and proximately results in harm, ‘why should not such effect be regarded by the law, even though such cause may not always, and under all conditions of things, produce like results?’ Green, 111 Md. at 77, 73 A. at 691. The actor responsible for the wrongful, negligent act is liable for all proximately caused emotional distress experienced by the tort victim. The wrongful conduct need only proximately cause the emotional distress or mental anguish, independent of the physical injuries; the mental disturbance need not result from physical injury. In the instant case, the **591 automobile crash caused decedent's fatal injures, for which a separate cause of action exists, and the respondent is responsible for the emotional disturbance resulting from the crash. Damages for ‘pre-impact fright’ are recoverable when the decedent experiences it during the ‘legitimate window of mental anxiety.’ Faya, 329 Md. at 459, 620 A.2d at 338-39. In this case, that window opened when the decedent became conscious of the fact he was in imminent danger and it closed with his death. See generally Kathleen M. Turezyn, When Circumstances Provide A Guarantee of Genuineness: Permitting Recovery for Pre-Impact Emotional Distress, 28 B.C.L.Rev. 881, 883 (1987)( “[S]ome courts have permitted recovery for the emotional distress suffered by a victim upon his or her realization of the peril to which his or her personal security has been exposed by the defendant's negligence”), and cases therein cited. To be sure, however, ‘pre-impact fright’ damages should compensate a decedent's fright, not the resultant death.

“A rule that does not permit a decedent's estate to recover pre-impact fright damages in a survival action would be illogical in view of the fact that a victim who survives an accident similar to the one in this case would be *18 entitled to recover damages for the emotional distress and mental anguish he or she suffered before the accident, independent of any physical injury that may have been sustained before, or after, the emotional injury. The purpose of survival statutes is to permit a decedent's estate to bring an action that the decedent could have instituted had he or she lived. Here, there is no question that, had he lived, the decedent would have been permitted to recover damages for the ‘pre-impact fright’ he suffered before crashing into rear of the tractor-trailer.

“Also, permitting a jury to determine pre-impact fright requires the same reasoning and common knowledge that we allow jurors to exercise in determining non-economic, pain and suffering damages in other tort actions, which, like assault, require an assessment of a victim's fear and apprehension. Direct evidence is not necessary. What is required is evidence from which a reasonable inference could be drawn that the decedent experienced fear or fright. Such evidence exists in this case, the 71 1/2 feet long skid marks made by the decedent's vehicle immediately prior to the actual crash. A jury reasonably could have inferred from that evidence that the decedent was aware of the impending peril, that he was going to crash, and attempted an evasive maneuver to avoid it. The jury equally reasonably could have concluded that the decedent suffered emotional distress or fright during that period before the crash, after he became aware of the imminent danger and began braking.”

Beynon, 351 Md. at 506-09, 718 A.2d at 1184-85.

This reasoning applies equally to the present case. Here, as in Beynon, there was sufficient evidence adduced to have permitted the jury to infer that the decedent suffered great mental anguish or emotional distress in the form of fright or fear immediately before the fatal automobile collision and that the appellee's negligence was the proximate cause of that mental anguish or emotional distress. Also, the mental anguish, “pre-impact fright,” was accompanied by both fatal *19 physical injuries and independent objective manifestation, an attempt to avoid the collision.

An eyewitness, who was driving his vehicle directly behind the decedent's, and, thus, was well-positioned to, and did, observe the entire accident, testified that he saw the appellee's vehicle “drift over” into the decedent's lane of travel, at a speed of approximately fifty-five miles per hour. “At that point,” he said, “the Volkswagen in front of me beg[a]n to veer off in an attempt to see the vehicle coming towards him. It was really a position where the oncoming vehicle had such an angle on [the decedent's] car” that “it was just impossible for him to avoid the oncoming car.” Nevertheless, the eyewitness stated that, in his attempt to “try to avoid the oncoming car,” the decedent started to accelerate and try to speed up onto the right side of the road.

This evidence of the decedent's defensive maneuvering performs the same function as **592 the 71 1/2 feet of skid marks in Beynon, it provides the objective manifestation of the decedent's alleged emotional injury and it is a yardstick by which that injury may be measured. In short, it “provides reasonable assurance that the claim is not spurious.” Belcher, 329 Md. at 735, 621 A.2d at 885. Thus, as in Beynon, the appellant in this case could argue that the decedent's fright could be objectively determined by reference to the defensive actions the decedent took as a result of his apprehension of impending death and by the physical impact of the collision itself. If anything, the evidence in this case is stronger than that in Beynon.

Hence, the trial court erred in not submitting the issue of pre-impact fright damages to the jury for its determination. The case must be remanded to the trial court for further proceedings in this regard.

The appellant's next contention is that, notwithstanding his death immediately upon impact, the decedent has a cause of action against the appellee for the loss of his enjoyment*20 of life. His loss of enjoyment of life action has two aspects, she argues; the decedent suffered two compensable, “temporal losses of enjoyment of his life”:

“[The decedent] lost the actual, subjective and conscious enjoyment of his life for a few seconds as he suffered pre-impact fear and the resultant debilitating affect [sic] upon his nervous system (including inferentially, ‘heart palpitations'), and he then objectively lost the enjoyment of the rest of his life post-impact, after he was instantly killed. The objective manifestation of tortious impact upon [the decedent]'s nervous system is that he increased his speed and veered. As a direct result of the tortious impact upon his nervous system (the infliction of fear), [the decedent] subjectively and consciously lost the enjoyment of the final seconds of his life.”

The appellant, therefore, seeks to recover for the decedent's pre-impact loss of enjoyment of life and, despite the decedent's instant death, his post-impact loss of enjoyment of life, as well. Generally, the “loss of enjoyment of life” includes the “impairment of the capacity to enjoy life, or to enjoy a particular avocation” and, in some cases, it constitutes a proper, separate element of damages. 38 Am Jur 2d. Fright, Shock and Mental Disturbances § 56 (1986, Cum.Supp.1998) (citing Aretz v. United States, 456 F.Supp. 397 (S.D.Ga.1978); Budek v. Chicago, 279 Ill.App. 410 (1935); King's Indiana Billiard Co. v. Winters, 123 Ind.App. 110, 106 N.E.2d 713 (1952); Haynes v. Waterville & O. Street R. Co., 101 Me. 335, 64 A. 614 (1906); Baker v. Manhattan R.Co., 54 N.Y. Super Ct. (22 Jones & S) 394, aff'd 118 N.Y. 533, 23 N.E. 885 (1890); Warth v. County Court, 71 W.Va. 184, 76 S.E. 420 (1912). See also Annotation, Loss of Enjoyment of life as a Distinct Element or Factor in Awarding Damages for Bodily Injury, 34 A.L.R. 4th 193 (1996); Kirk v. Washington State University, 109 Wash.2d 448, 746 P.2d 285 (1987). The cases that hold that the impairment of the capacity to enjoy life or to enjoy a particular avocation is not a proper element of damages, do so on the basis that such damages are too conjectural and speculative and too difficult of measurement to form a substantial basis *21 for recovery. 38 Am Jur 2d. Fright, Shock and Mental Disturbances § 56; see also cases therein cited; Loth v. Truck-A-Way Corp., 60 Cal.App.4th 757, 766, 70 Cal.Rptr.2d 571, 577 (1998).
 

“Case law from jurisdictions in which courts have considered issues related to loss of enjoyment of life generally falls into four categories: (1) cases that have totally rejected loss of enjoyment of life as a consideration in awarding damages; (2) cases that hold loss of enjoyment of life is not a separate element of damages; (3) cases that recognize loss of enjoyment of life can be considered by the jury, but do not address the issue of whether it can be considered as a separate element of damages; and (4) cases that recognize loss enjoyment of life can be considered as a separate element of damages under particular circumstances.” Pamela J. Hermes, Loss of Enjoyment of Life-Duplication of Damages Versus Full Compensation, 63 N.D.L.Rev. 561, 565 (1987).