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Recovery Without Physical Injuries

October 18, 2022 By Mark A. Kohl

In Maryland, a plaintiff can (sometimes) recover in negligence without physical injuries.

Ordinarily, a plaintiff cannot recover for a purely emotional injury that was caused by witnessing or learning of negligently inflicted damage to the Plaintiff’s property. For example, if a plaintiff from a distance saw another driver strike his parked vehicle, that plaintiff’s recovery would be limited to economic damages for the injury to property. However, the personal safety exception provides one avenue of relief from this general rule. The exception occurs where, as a result of the defendant’s negligent actions (resulting in property damage) the plaintiff reasonably feared for his or his family members’ safety.

In Borget v. Thompson, 279 A.3d 1110 (2022) the Court of Special Appeals clarified the factual predicate necessary to invoke this exception. The plaintiffs (a father, mother, and their two daughters) were asleep in their bedrooms on the second floor of their townhouse. The defendant, who was intoxicated at the time of the incident, drove his vehicle into the first floor of the townhouse. Testimony elicited from the mother and father, at their respective depositions, indicated that both plaintiffs immediately feared for their own safety and that of their daughters. The father additionally testified that the incident triggered a recurrence of his pre-existing PTSD.

Despite the plaintiffs’ testimony, the Circuit Court granted summary judgment to the intoxicated driver. The Court of Special Appeals later reversed, noting that the plaintiffs’ own testimony, if credited, provided a sufficient basis for a jury to find that they reasonably feared for their own safety.

The Borget case clarifies the importance of assessing whether a personal safety concern is present in any claim or case where purely emotional damages are asserted.