Friday, September 23, 2022

Maryland’s Intermediate Appellate Court Expands Scope of Personal Safety Exception


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.

             -- John Thompson, Associate


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