IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
CASE NO.: 02-C-03-094857 NGPlaintiff’s Memorandum of Law in Support of Her Opposition to Defendant’s Motion for Summary Judgment
Plaintiff, by and through her attorneys, Ronald V. Miller, Jr., Laura G. Zois and Miller & Zois, LLC, opposes Defendant’s Motion for Partial Summary Judgment, and in opposition thereto, states as follows.
The above-captioned case involves the wrongful death of David F. Smith (the “Decedent Plaintiff’) as the result of a car accident which occurred on July 18, 2006. In order to properly evaluate the Defendant’s Motion for Summary Judgment, it is necessary for the Court to understand the layout of the area where the accident occurred. Please see attached hereto as Plaintiff’s Exhibit “A”, the accident reconstruction report of investigating Police Officer Jonathan R. Chantell.
The area where the accident took place is a one-way road in each direction heading northbound and southbound. David F. Smith was heading northbound and the Defendant, Michael Francis Hembling, was traveling southbound just before the accident occurred. It is the Plaintiff’s contention that the accident took place as determined by Officer Chantell, when the Defendant crossed over the double yellow lines and struck the David F. Smith head-on while he was entirely within his lane of travel.
Objective Evidence of Pre-Impact Fright
Defendant’s Motion for Summary Judgment as to pre-impact fright should be denied. On December 7, 2007, the deposition of Officer Jonathan R. Chantell was taken. According to Officer Chantell, he is of the opinion that, within a reasonable degree of accident reconstruction expertise, that the point of impact between the two vehicles was in the northbound lane, the lane in which the Decedent Plaintiff was traveling. See p. 60 of Officer Jonathan R. Chantell’s deposition, attached hereto as Plaintiff’s Exhibit “B.” Furthermore, Officer Chantell indicated that there was a gouge mark in the roadway indicating the point of impact between the two vehicles. It is Officer Chantell’s opinion, within a reasonable degree of accident reconstruction expertise, that the point of impact between the two vehicles occurred entirely in the center of the northbound lane. See pp. 61 and 62 of Plaintiff’s Exhibit “B.”
Officer Chantell is also of the opinion that the Decedent Plaintiff’s vehicle left skid marks before the gouge mark and that those skid marks came from the Decedent Plaintiff’s left front tire. It is Officer Chantell’s opinion that the skid marks were created by Mr. Smith’s application of his brakes. See attached hereto Exhibit “B,” pp. 64-65. Officer Chantell opined that the left front tire of the Decedent Plaintiff’s vehicle was in the center of his northbound lane, which could be an indication that the Decedent Plaintiff began moving over to the right pre-impact in an attempt to avoid the collision. See Plaintiff’s Exhibit “B,” at p. 66. Officer Chantell also opined that, based on his examination of the objective evidence at the scene of the accident, the Decedent Plaintiff was braking and was taking some sort of evasive action to avoid the collision by moving to the right hand side of his lane. See Plaintiff’s Exhibit “B,” at pp. 69-70.
Maryland Pattern Jury Instruction Number 10:10 Recognizes Pre-Impact Fright As a Proper Claim
Maryland law does recognize pre-impact fright. See Beynon v. Montgomery Cablevision Ltd. P’ship, 351 Md. 460 (1998). Maryland Pattern Jury Instruction Number 10:10, Compensation for Pre-Impact Fright, indicates that “a jury shall consider” what damages should be awarded to the Plaintiff for the “emotional distress and mental anguish that the Plaintiff suffered from between the time the Plaintiff first realized that there would be an accident and the actual accident. This element of damages is known as pre-impact fright.” Clearly, in this case, according to objective evidence found at the scene of the accident, the Decedent Plaintiff experienced pre-impact fright. According to Officer Chantell’s investigation of the accident, Decedent Plaintiff began to move his vehicle off onto the right-hand side of the roadway before beginning to apply his brakes. There is a reasonable inference to be drawn from the fact that the Decedent Plaintiff, after moving his vehicle over to the right, applied his brakes for some period of time, that supports Plaintiff’s claim for pre-impact fright. David F. Smith was fully aware of the oncoming vehicle which ultimately struck him head-on and killed him.
Defendant’s allegation of no evidence that the Decedent Plaintiff experienced pre-impact fright is wrong. There is testimony from witnesses regarding evidence to establish the pre-impact fright sustained by David F. Smith. Therefore, there is a dispute of material fact and the Defendant is not entitled to summary judgment as a matter of law.
MILLER & ZOIS, LLC
Laura G. Zois
1 South St, #2450
Baltimore, MD 21202
(410) 760-8922 (facsimile)
Attorney for Plaintiff
POINT AND AUTHORITIES
Maryland Pattern Jury Instruction Number 10:10
Beynon v. Montgomery Cablevision Ltd. P’ship, 351 Md. 460 (1998)
Back to Sample Motions (more sample motions)