Maryland’s Intermediate Appellate Court Expands Scope of Personal Safety Exception
09/23/2022
David P. Bogert, et al. v. Thomas A.
Thompson, Jr., et al., No. 1171, Sept. Term, 2021.
Under most circumstances,
a plaintiff cannot recover for pain and suffering when the damage caused by a
defendant’s negligence is limited to property only. A person seeking to recover
for emotional pain in tort usually must also show an accompanying bodily
injury. However, in a recent case Maryland’s Court of Special Appeals (“COSA”)
expanded the scope of one exception to this general rule.
At issue in Bogert v.
Thompson was the application of the personal safety exception. Under this
rule, there may be recovery when the defendant’s negligence causes property
damage that results in emotional injuries that are due to the plaintiff’s
reasonable fear for the safety of himself or for the members of his family.
The facts of the case are
as follows: On September 22, 2019, during the early morning hours Thomas A.
Thompson, Jr. crashed his truck into the house where David P. Bogert and his
family resided. Mr. Thompson was driving under the influence of alcohol, lost
control of his truck, and crashed it through the Bogerts’ garage. Directly
above the garage were the bedrooms of Mr. Bogert’s minor children. At the time,
everyone was asleep but were immediately awakened by the sound of the truck’s
impact. The noise caused Mr. Bogert to experience a flashback to an incident in
2005 while he was serving in Iraq. As a result, Mr. Bogert immediately believed
his house was under attack and he rushed to his children’s bedrooms.
Counsel for the
Defendant, Mr. Thompson, moved for summary judgment and argued that, since the
only damage caused by the Defendant was to the Bogerts’ property (which
occurred while the Bogerts were sleeping), there could be no recovery for
emotional injuries. To support this position, the defense distinguished the
current case with the facts of Bowman v. Williams, 164 Md. 397 (1933), which
allowed the plaintiff to recover for mental injuries after he witnessed a truck
collide into the side of his house nearby his children’s bedroom. In Bowman,
the plaintiff actually witnessed the negligent damage to his property while in
the current case the Bogerts did not. The circuit court agreed that Bowman
was distinguishable and granted summary judgment.
On appeal, counsel for
the Bogerts argued that the personal safety exception was applicable because
Mr. Bogert was placed in reasonable fear for the safety of his children due to
Mr. Thompson’s negligence, and this fear caused Mr. Bogert to incur measurable
emotional injuries. In response, counsel for the Defendant argued that the
cases applying the personal safety exception all involve situations where the
plaintiff witnessed the accident giving rise to their mental injury. As such,
observing the act of negligence is necessary before the exception will apply.
In rejecting this
contention, the COSA stated that a tortious act damaging a plaintiff’s property
and causes what sounds like a loud explosion would likely cause a plaintiff to
be just as afraid for his safety and the safety of his family if he hears the
explosion, but does not see what caused it, as a plaintiff who sees the cause
by witnessing the negligent act unfold. Therefore, when applying the personal
safety exception the plaintiff need not witness the accident so long as (1) he
was aware of it immediately after the accident occurred, and (2) that awareness
caused the plaintiff to reasonably fear for his own safety or the safety of his
family members.
