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Wrongful Death Actions in Maryland by George Tolley, III


George S. Tolley III is a partner at Dugan, Babij & Tolley, LLC, in Timonium, Maryland. He serves on the MTLA Board of Governors and is a member of the Presidents Club as an Eagle. He practices in the areas of medical malpractice and catastrophic personal injury.


It has been nearly six years since Mary- land law concerning wrongful death actions has been reviewed in the pages of the MTLA Trial Reporter. This article will cover the basic rules pertaining to wrong- ful death actions, including classes of beneficiaries, caps on damages, statutes of limitations and ethical challenges. Historically, Maryland law has distin- guished between the wrongful death action — brought to compensate benefi- ciaries for their losses — and the survival claim — brought to compensate the es- tate for the damages and losses that the decedent might have recovered, if death had not ensued. Beynon v. Montgomery Cablevision L.P., 351 Md. 460, 474-75, 718 A.2d 1161, 1168 (1998); Stewart v. United Elec. Light & Power Co., 104 Md. 332, 65 A. 49 (1906). The survival ac- tion is governed by Md. Estates & Trusts Code Ann. § 7-401(y) and Md. Cts. & Jud. Procs. Code Ann. § 6-401. Survival actions are not within the scope of this article. Wrongful death claims are governed by


the Maryland Wrongful Death Act, Md. Cts. & Jud. Procs. Code Ann. §§ 3-901


to -904, in conjunction with Rule 15- 1001 (formerly Rules Q40 to Q44). Enacted in derogation of the common law rule that no tort action existed for the death of a human being,1


the Wrongful


Death Act is strictly construed by the Maryland courts. See, e.g., Weimer v. Hetrick, 309 Md. 536, 554, 525 A.2d 643, 652 (1997) (“The Maryland statute is in derogation of the common law and


1


This common law rule was first stated, in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (nisi prius 1808) (“in a civil court, the death of a human being cannot be com- plained of as an injury”). The rule was sim- ply stated, without citation to authority or even supportive reasoning. Legal historians have questioned whether the American Colonies ever adopted or fol- lowed that particular “rule” of common law. See, e.g., Moragne v. State Marine Lines, Inc., 398 U.S. 375, 381, 90 S. Ct. 1772, 1777- 78 (1970) (“Our analysis of the history of the common law rule indicates that it was based on a particular set of factors that had [by 1886] long since been thrown into dis-


as such, should be strictly construed”); Walker v. Essex, 318 Md. 516, 522, 569 A.2d 645, 648 (1990) (“The common law not only denied a tort recovery for injury once the tort victim had died it also re- fused to recognize any new and independent cause of action in the victim’s dependents or heirs for their own loss at his death”) (quoting Prosser & Keeton on Torts § 127, at 945 (5th ed. 1984)).


Who are the Beneficiaries? The class of potential plaintiffs in a


research@nlrg.com www.nlrg.com 1-800-727-6574 fax 434-817-6570 P.O. Box 7187 2421 Ivy Road Charlottesville,VA 22906


26 Trial Reporter


wrongful death action are enumerated in § 3-904(a)(1), which provides that a wrongful death action “shall be for the benefit of the wife, husband, parent, and child of the deceased person,” subject to certain limited exceptions (such as a statu- tory “Slayer’s Rule” in § 3-904(a)(3)). Whereas § 3-901 clarifies that the mean- ings of “parent” and child” are expanded to include relationships without the ben- efit of marriage, the Act places no limitation on the class of persons who could qualify as a primary beneficiary in a non-traditional sense. See, e.g., Monroe v. Monroe, 329 Md. 758, 776 & n.9, 621 A.2d 898, 907 & n.9 (1993) (in custody case, discussing with approval the “con- cept of ‘psychological parent’”). See also Smith v. Borello, 370 Md. 227, 804 A.2d 1151 (2002) (noting in dicta that the grandmother’s claim arising from grandchild’s death was dismissed, but not


(Continued on page 28)


card even in England, and that had never existed in this country at all”) (emphasis added). Some commentators have posited that, if the common law recognized an ac- tion for wrongful death, then wrongful death statutes actually may represent an unconsti- tutional restriction on the rights of parties to such actions. See Johnathan S. Massey and Ned Miltenberg, “Wrong ideas about wrong- ful death statutes,” TRIAL at 24 (ATLA January 1997). An analysis of early Mary- land colonial and state practices with regard to claims for wrongful death falls beyond the scope of this article.


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