SW Legal studies in Business

Pain and Suffering Damages for Drowning Victim Allowed

Maryland high court held that a jury could impose pain and suffering damages in the case of a drowning that was not witnessed. Expert testimony showed that a couple minutes of suffering likely occurred. The court also upheld the state’s cap on non-economic damages.

Topic Torts
Key Words

Pain and Suffering; Evidence; Damages; Cap

C A S E   S U M M A R Y

Connor Freed, age 5, was at a country club swimming pool with a friend’s family. At one point, he was allowed to remove his life jacket so he could use the restroom. Soon after, he was found dead in the pool. There were no witnesses to exactly how it happened. Conner’s parents sued DRD, which operated the pool, for negligence. They sought damages for pain and suffering for Connor. A doctor testified that Connor would have felt pain and suffering for two and a half minutes before losing consciousness from drowning. DRD contended that the evidence was weak and that no one saw the drowning, so there was no certainty as to the claim. The trial court rejected the pain and suffering claim, but allowed the negligence claim to proceed. The jury awarded $4 million, which was cut to $1 million under the state statutory cap on non-economic damages. Plaintiffs challenged the constitutionality of the damage cap and appealed the rejection of the pain and suffering claim. The appeals court upheld the cap but reversed the rejection of the pain and suffering claim. DRD appealed that part of the decision to the Maryland high court.


Affirmed. Ordinarily, a plaintiff must establish three elements to recover on a survivorship claim for conscious pain and suffering: (1) the defendant’s negligence was the direct and proximate cause of the accident, (2) the victim lived after the accident, and (3) between the time of the accident and the time of death, the victim suffered conscious pain. Evidence supported a reasonable inference that a five-year-old boy was conscious and suffered while he was drowning in a pool, as required for a survivorship claim for conscious pain and suffering to be submitted to a jury, even though no eyewitnesses saw the boy drown; the boy’s medical history, an autopsy report, and testimonies of two experts showed that the boy likely was conscious when he entered the water, and one of the experts also stated to a reasonable degree of medical certainty that the boy, who did not know how to swim, consciously experienced pain and suffering. The statutory cap on non-economic damages is constitutional. The legislature had a rational basis for its adoption—an insurance crisis in the state. It does not violate the equal protection clause of the Fourteenth Amendment.

Citation DRD Pool Service v. Freed, ---A.2d--- (2010 WL 3718897, Ct. App., Mary., 2010)

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