Suffering experienced by drowned boy may be compensated
Under what circumstances can damages be awarded for conscious pain and suffering in a survivorship action when there is no eyewitness to what the victim actually experienced just prior to his death?
That was the question addressed by a Maryland appeals court in a tragic case involving the drowning of a five-year-old boy.
Connor Freed was found floating face down in a country club swimming pool. He never regained consciousness.
Although there were approximately 40 people in the pool at the time, no one apparently saw Connor in distress before his death. An autopsy performed after the accident disclosed no evidence that the boy suffered a blow that would have rendered him unconscious after he entered the pool.
Connor’s parents filed a wrongful death suit against D.R.D. Pool Service, the company that managed the pool.
In addition, Connor’s estate filed a survivorship action seeking compensation for the conscious pain and suffering the boy experienced before his death.
The trial judge wouldn’t allow the survivorship claim to go before the jury because there was no eyewitness to the drowning.
This was despite the fact that Connor’s estate had Dr. Jerome Modell, a Florida expert who was prepared to testify that Connor experienced pain for about two minutes during the drowning process.
The doctor based his opinion on experiments with animals, a study by international experts in the “pathophysiology of drowning,” and his experience in treating more than 100 near-drowning victims.
The state court of appeals rejected the notion that there must be some “some objective factual basis” to support a conscious pain and suffering award.
Instead, the court declared that “the personal representative s of Connor’s estate were required to produce evidence from which a reasonable inference could be drawn that the decedent experienced fear or fright or conscious pain while he was in the process of drowning.”
Connor’s estate satisfied this burden at the summary judgment stage with evidence that: “1) Connor, a healthy five-year-old, entered the pool without adult supervision and without a life preserver; 2) he received no blow to the head prior to drowning, nor did he have any physical problem that would have rendered him unconscious prior to going under water; 3) as the pool company’s own expert admitted, it was more likely than not that when Connor started to drown he was conscious; and 4) once his head was under water he experienced the usual pain and suffering associated with drowning, as described by Dr. Modell when he explained the pathophysiology of drowning.” (Freed v. D.R.D. Pool Service)
— Pat Murphy
patrick.murphy@lawyersusaonline.com
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