Fall 2022

Recovery for Crying over Spilled Milk? Maryland’s Personal Safety Exception’s Expanded Applicability

“There’s no use crying over spilled milk” is a common saying with which most are familiar. It generally stands for the premise that there is no point in being upset over something that has already happened and cannot be changed. The logic behind this saying is the driving force of Maryland’s general rule as it relates to damages for emotional distress when there is only property damage: ordinarily, a plaintiff “cannot recover for emotional injury caused by witnessing or learning of negligently inflicted injury to the plaintiff’s property.” Dobbins v. Washington Suburban Sanitary Com’n, 338 Md. 341, 345 (1995). Under Maryland’s general rule, crying over spilled milk, i.e., seeking recovery for emotional distress resulting from damage negligently caused to one’s property, is not compensable; in the words of Willy Wonka, “You get nothing! You lose! Good day, sir!Willy Wonka & the Chocolate Factory (1971). Plaintiff was told as much by the trial court in the Bogert case discussed infra. But when is there use in crying over spilled milk under Maryland law?

There are two exceptions to Maryland’s general rule: (1) cases involving fraud, malice, or like motives, and (2) the personal safety exception. The personal safety exception provides that a plaintiff may recover for emotional damages resulting from damage to the plaintiff’s property if the emotional damages are due to the plaintiff’s reasonable fear of safety for himself/herself or members of his or her family.

The personal safety exception was reviewed in the case Bogert v. Thompson, 279 A.3d 1110 (Md. Ct. Spec. App. 2022). That case considered whether the personal safety exception was applicable in the context of a plaintiff seeking recovery for emotional damages resulting from a defendant driving under the influence of alcohol, losing control of his truck, and crashing it into the garage of the plaintiff’s home at 2:00 am. At the time of the accident, all occupants were asleep in the house. Plaintiff’s daughter also had a sleepover guest at the time, and the location where the plaintiff crashed his vehicle was directly underneath the bedrooms where the plaintiff’s daughter and her friend were sleeping. Additionally, the noise caused by the crash caused the plaintiff to experience a flashback to when he was serving in Iraq as a member of the U.S. Army in 2005, where the plaintiff survived a mortar strike on his housing unit; the plaintiff initially believed he was having a hallucination until he realized his wife had also heard the sound. Ultimately, neither the plaintiff nor anyone in the plaintiff’s home was injured, and the only injuries were to the plaintiff’s property, and the plaintiff claimed emotional damages. Defendant initially prevailed on summary judgment; on appeal, the Maryland Court of Special Appeals held that the personal safety exception did apply under these circumstances and remanded the case back to the circuit court for further proceedings.

The Bogert court specifically addressed the appellee’s contention that the personal safety exception did not apply because the plaintiff did not actually witness the accident in that case; in fact, no one witnessed the accident because everyone in the house was asleep. The court rejected this argument, finding that the plaintiff need not witness the accident in order for the personal safety exception to apply, so long as the plaintiff became aware of it immediately after the accident occurred. That awareness caused the plaintiff to reasonably fear for his/her safety or the safety of his or her family members.

In the Bogert case, the plaintiff learned of the accident by being awoken by the sound of the accident itself, which means that the plaintiff became aware of the accident (or at least that something had happened) essentially simultaneously with the happening of the accident; clearly, this is immediate, but how quickly does one need to learn of the accident to count as “immediate” under the court’s rule? Black’s Law Dictionary defines “immediate” as “occurring without delay; instant.” The court did not make a presence at the scene of the accident a requirement, but it seems that a plaintiff would need to be physically present at the scene of an accident in order to “immediately” be aware of it under this definition; alternatively, a plaintiff could, in theory, be on a telephone call with someone present at the scene of the accident when it occurs.

This is far from a bright line rule, and it will be interesting to see whether this decision results in subsequent issues stemming from this case. Clearly, the facts in the Bogert case were egregious, and few would take issue with the outcome in that case; sometimes, there is spilled milk worth crying over! But the resulting rule creates a fair amount of grey area. What if the Bogerts had not been home at the time of the accident and instead were out of town, but were informed of the accident by a babysitter via a telephone call? Surely the Bogerts would still be in reasonable fear for the safety of their daughter, but would the delay between the accident and that phone call destroy the immediacy required under the rule? Only time will tell.

For more information contact Stephen J. Marshall.