Maryland Court of Special Appeals (Now Called the Appellate Court of Maryland) Clarifies When Damages for Emotional Distress May be Awarded in Cases Involving Property Damage
December 12, 2022
By: Stephen B. Stern
In Bogert v. Thompson, 255 Md. App. 307, 279 A.3d 1110 (2022), the Maryland Court of Special Appeals (now called the Appellate Court of Maryland) was asked to clarify when emotional damages may be awarded in cases involving damage to property. In this particular case, the court concluded that the trial court erred in granting summary judgment to the defendant when there was evidence that a jury could rely on to award damages for emotional distress to the plaintiffs.
In Bogert, the defendant (Thomas A. Thompson, Jr.) crashed his truck into the home of the plaintiffs (David P. Bogert, Holyn R. Bogert, and A.A. Bogert, a minor child) without causing any physical injuries. The plaintiffs, however, claimed they suffered emotional injuries and filed suit seeking such relief.
At approximately 2:00 a.m. on September 22, 2019, Thompson, while under the influence of alcohol, crashed his truck into the Bogert’s home while everyone was asleep. According to Mr. Bogert, it sounded like an explosion, akin to a “mortar round hitting [the] house,” when the crash occurred. He thought his house was under attack. It reminded Mr. Bogert of an incident that occurred in 2005 when he was serving in Iraq as a member of the U.S. Army and survived a mortar strike on a housing unit that killed a fellow soldier and close friend. According to Mrs. Bogert, the crash sounded like “crumbling metal and a big boom.” Mr. and Mrs. Bogert both jumped out of bed when they heard the crash to check on their child and her friend who was staying over that evening. According to the Bogerts, both girls were terrified when they found them after the crash. When Mr. Bogert went outside, he found Thompson staggering and not appearing to be in full control of his mental faculties. Mrs. Bogert called 9-1-1. After the firemen and police arrived, the breaker box in the garage exploded and one of the I-beams from the garage was lying on the floor.
The trial court granted summary judgment to the defendant, finding that there were no disputes of material fact that could lead to a damages award for emotional distress to the plaintiffs. The plaintiffs in turn appealed.
The appellate court started its analysis by noting that a plaintiff ordinarily “cannot recover for emotional injury caused by witnessing or learning of negligently inflicted injury to the plaintiff’s property[,]” but there are two exceptions to this general rule. One exception involves cases where property damage was caused by fraud, malice, or like motives. The other exception is referred to as the personal safety exception, which allows for recovery of emotional damages when “the defendant’s negligence causes property damage that results in emotional injuries that are due to the plaintiff’s reasonable fear of safety for himself/herself or for members of his or her family.” This case concerned the application of the personal safety exception, as the appellate court determined that the trial court misapplied the personal safety exception because there was sufficient evidence for a fact-finder to invoke the personal safety exception and find that the emotional distress damages were reasonably foreseeable.
On appeal, the primary dispute concerned Thompson’s contention that Mr. and Mrs. Bogert knew they were not in any danger after hearing the crash. The court noted that Mr. Borgert had testified that he thought his house was under attack, but he also testified that he was discombobulated and thought he might be hallucinating, but he then realized he was not hallucinating, which led him to run to the front of the house to find out what caused the explosion. Likewise, Mrs. Bogert testified that she and her husband had jumped out of bed, ran toward the girls’ room, and, when she opened the garage door, she saw smoke or dust or fog, as well as flashing red lights. The court found that these facts gave rise to a dispute of material fact as to whether Mr. and Mrs. Bogert realized they were not in actual danger after hearing the crash and, thus, a fact-finder could legitimately find that they feared for their safety.
The court also found that there was a dispute of material fact as to whether the Bogerts feared for the safety of their child. In this regard, although neither one was asked whether they feared for the safety of their child, the court found it could be inferred from the facts. To this end, the court noted that the Bogerts jumped out of bed and ran to the girls’ room to check on them, and Mr. Bogert expressed fear that his entire family was under attack.
The fact that the plaintiffs did not witness the accident was of no consequence to the court and the court found that it was not necessary for a plaintiff to actually witness an accident in order to recover damages for emotional distress when the plaintiff suffered property damage. The court explained further that “[a] tortious act that causes what sounds like a loud explosion and also causes damages to personal property in a plaintiff’s home, would likely cause a plaintiff to be just as afraid for his safety and the safety of family members if he hears the explosion but does not see what caused it, as a plaintiff who sees the cause by witnessing the negligent act or acts unfold.”
The court’s decision in Bogert is significant because it clarifies the instances in which damages for emotional distress may be awarded in cases where there was no physical harm to the plaintiff(s). While the court corrected what it believed was a misapplication of facts to existing law, it also clarified that it is not necessary for a plaintiff to witness the actual negligent act(s) in order to recover emotional distress damages under the personal safety exception.