Fowlkes v. Choudhry

Lolita D. Fowlkes v. Shabbir Ahmed Choudhry, No. 6, September Term, 2020. Opinion
by Battaglia, J.
WRONGFUL DEATH — DAMAGES — PROOF OF PECUNIARY LOSS —
The Court of Appeals held that, in order for a parent of a deceased adult to recover
pecuniary damages for household services under Maryland’s Wrongful Death Act,
Sections 3-901 to 3-904 of the Courts and Judicial Proceedings Article, the parent must
present evidence not only that they reasonably expected to receive services from the adult
child but that the adult child intended to continue providing services.
Circuit Court for Baltimore City
Case No.: 24-C-16-001919
Argued: October 1, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 6
September Term, 2020
______________________________________
LOLITA D. FOWLKES
v.
SHABBIR AHMED CHOUDHRY
______________________________________
Barbera, C.J.,
McDonald,
Hotten,
Getty,
Booth,
Biran,
Battaglia, Lynne, A.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Battaglia, J.
______________________________________
Filed: March 26, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-10-27
16:18-04:00
Suzanne C. Johnson, Clerk
This Court granted certiorari in the present case to determine what must be proven
in a wrongful death medical malpractice case in order for a parent to recover pecuniary,
also referred to as economic, damages for the alleged loss of household services rendered
by a deceased adult child to the parent, under the Wrongful Death Act, Sections 3-901 to
3-904 of the Courts and Judicial Proceedings Article, Maryland Code (1973, 2013 Repl.
Vol.).1 Fowlkes v. Choudhry, 467 Md. 712 (2020).
The Petitioner, Ms. Lolita Fowlkes, asks that we reverse a judgment of the Court
of Special Appeals that had vacated an award of $500,000 against Dr. Shabbir Choudhry,
Respondent, by a jury in the Circuit Court for Baltimore City, for loss of household
services, which she alleged she would have received from her adult daughter, Yenita
Owens, who had died after having received medical treatment by Dr. Choudhry, among
others.2 The Court of Special Appeals, in a published opinion, Choudhry v. Fowlkes, 243
1
We granted Ms. Fowlkes’s petition for a writ of certiorari, limited to the
following question:
1. Did the Court of Special Appeals err in its formulation and application of
Maryland law regarding what a wrongful death plaintiff must prove in
order to recover damages for the loss of household services that would have
been provided by the plaintiff’s deceased adult child?
Fowlkes v. Choudhry, 467 Md. 712 (2020). We denied Ms. Fowlkes’s petition as to the
following additional questions:
2. Did the circuit court err by refusing to take judicial notice of life
expectancy tables?
3. Did the circuit court err by refusing to take judicial notice of Maryland’s
minimum wage law?
2
Ms. Fowlkes, personally and in her capacity as the personal representative of the
estate of her deceased daughter, Ms. Yenita Owens, along with her deceased daughter’s
father, Mr. Derrick Owens, filed a complaint in the Circuit Court for Baltimore City,
(continued . . . )
Md. App. 75 (2019), held that in a wrongful death action, a parent could recover
economic damages for loss of household services, but that Ms. Fowlkes had not produced
sufficient evidence to have the claim submitted to a jury, pursuant to Maryland Rule 2-
519.3 In so doing, the intermediate appellate court articulated a three-part “test” to
( . . . continued)
alleging negligence on the part of nine defendants: Maryland General Hospital, Inc.,
Shabbir-Ahmed Choudhry, M.D., Dilraj Deol, M.D., Anthony & Banerjee M.D., P.A.,
University of Maryland Medical System Corporation, University of Maryland Medical
Center, LLC, University of Maryland Emergency Medicine Associates., P.A., Michael
Bond, M.D., and Nina Galluzzo, CRNP.
The complaint included three causes of action including wrongful death, survival,
and failure to obtain informed consent. On the first day of the trial, the court granted a
motion for summary judgment in favor of University of Maryland Emergency Medicine
Associates, P.A. and Michael Bond, M.D. At the close of Plaintiffs’ presentation of
evidence, the court dismissed the failure to obtain informed consent claim against all
remaining defendants and granted motions for judgment in favor of Maryland General
Hospital, Inc., University of Maryland Medical System Corporation, and University of
Maryland Medical Center, LLC. Plaintiffs’ claims against Anthony & Banerjee M.D.,
P.A. were subsequently dismissed by stipulation. Of the three remaining defendants, Dr.
Choudhry, Dr. Deol, and Ms. Galluzzo, only Dr. Choudhry was found liable for the death
of Ms. Fowlkes’ daughter. In the wrongful death claim, the jury awarded damages against
Dr. Choudhry to the plaintiffs in the amount of $1,000,000, which included $500,000 in
non-economic damages and $500,000 in economic damages for lost services; Mr. Owens
remains a plaintiff and may retain rights to a share of the non-economic damages under
the Wrongful Death Act. In the survival claim, a jury awarded $1,544 in economic
damages to the Estate of Ms. Owens for funeral expenses.
3
Maryland Rule 2-519, entitled Motion for Judgment, provides:
(a) Generally. A party may move for judgment on any or all of the
issues in any action at the close of the evidence offered by an opposing
party, and in a jury trial at the close of all the evidence. The moving party
shall state with particularity all reasons why the motion should be granted.
No objection to the motion for judgment shall be necessary. A party does
not waive the right to make the motion by introducing evidence during the
presentation of an opposing party's case.
(continued . . . )
2
evaluate claims for economic damages arising from the loss of household services
performed for a parent by an adult child prior to her death. According to the intermediate
appellate court:
[A] beneficiary must: (1) identify domestic services that have a market
value; (2) have reasonably expected the decedent to provide the identified
services, which—absent the decedent’s legal obligation to provide the
services—will typically require evidence showing that the decedent was
regularly providing the services in the past; and (3) present some evidence
concerning the duration the decedent would have likely provided the
services.
Id. at 86.
Application of the articulated “test” to the evidence presented by Ms. Fowlkes
yielded a twofold concern for our brethren: the lack of “market value” evidence for the
( . . . continued)
(b) Disposition. When a defendant moves for judgment at the close
of the evidence offered by the plaintiff in an action tried by the court, the
court may proceed, as the trier of fact, to determine the facts and to render
judgment against the plaintiff or may decline to render judgment until the
close of all the evidence. When a motion for judgment is made under any
other circumstances, the court shall consider all evidence and inferences in
the light most favorable to the party against whom the motion is made.
(c) Effect of Denial. A party who moves for judgment at the close of
the evidence offered by an opposing party may offer evidence in the event
the motion is not granted, without having reserved the right to do so and to
the same extent as if the motion had not been made. In so doing, the party
withdraws the motion.
(d) Reservation of Decision in Jury Cases. In a jury trial, if a
motion for judgment is made at the close of all the evidence, the court may
submit the case to the jury and reserve its decision on the motion until after
the verdict or discharge of the jury. For the purpose of appeal, the
reservation constitutes a denial of the motion unless a judgment
notwithstanding the verdict has been entered.
3
services, as well as the absence of proof “that Ms. Owens intended to continue providing
the identified household tasks to her mother on a regular basis in the future”, the latter
being the basis for the Court’s reversal of the judgment for the economic damages for
household services. Id. at 101.
At trial, Ms. Fowlkes testified that she was seventeen years-old when her daughter
was born and that she had raised her daughter as a single parent. Ms. Fowlkes stated that
she and her daughter had lived together during her daughter’s twenty-two years. The two
of them had engaged in a variety of activities, by which they developed a very close
bond, which, according to Ms. Fowlkes, “was more than a mother and a daughter.”
According to Ms. Fowlkes, she and her daughter were best friends.
Ms. Fowlkes also testified regarding household tasks that her daughter had
performed, which, the parties agree was offered to support her claim for pecuniary
damages related to lost household services:
Q [MS. FOWLKES’S ATTORNEY]: And as Yunita [sic] got older, was
she also -- was she helping you around the house at all?
A Yes.
Q And what type of things was she helping you with?
A She would clean the bathroom. She would wash the dishes. She would
mop the floor. She would vacuum.
Q Are you able to drive?
A No, I’m not, and she would drive me around.
Q Okay. And where would she drive you to?
A She would take me to Wal-Mart, Sam’s Club.
4
Q Did Yunita [sic] have a car?
A No, she would use my cousin’s car.
Q And how much time did she spend doing those things for you, on any
given day?
A I’m going to say like two hours a day.
Q And I don’t know if I’ve asked you this before, At the time of her
passing, who were you living with?
A Yunita [sic].
Q Okay. Throughout Yunita’s [sic] entire life, have you lived with her?
A Yes.
Q Okay. Was there ever a day in which you did not live with Yunita [sic]?
A No.
Q Did you have any expectation as to whether you were going to continue
to live with Yunita [sic]?
A If I could live with her forever, then I was going to live with her forever.
What constitutes proof of loss under the Wrongful Death Act to support a
pecuniary damage award to compensate for the loss of household services from an adult
child, now deceased, to a parent and whether Ms. Fowlkes’s testimony was sufficient to
create a jury question regarding whether the loss of her daughter’s services in the future
was compensable constitute the crux of the case before us. We shall agree with the Court
of Special Appeals that the evidence adduced by Ms. Fowlkes was insufficient to meet
her burden of proof because proof of intent on the part of the deceased adult child to
5
continue to perform household services on behalf of the parent must be adduced, in
addition to evidence of what the parent expected, to survive a directed verdict.
The Wrongful Death Act was originally enacted in 1852 in Maryland as “An Act
to compensate the families of persons killed by the wrongful act, neglect or default of
another person.” Maryland Laws (1852), Chapter 299. The Act provided:
[1] That whensoever the death of a person shall be caused by wrongful act,
neglect or default, and the act, neglect or default is such as would (if death
had not ensued), have entitled the party injured to maintain an action and
recover damages in respect thereof, then and in every such case the person
who would have been liable, if death had not ensued, shall be liable to an
action for damages, notwithstanding the death of the person injured, and
although the death shall have been caused under such circumstances as
amount in law to felony.
[2] That every such action shall be for the benefit of the wife, husband,
parent and child of the person whose death shall have been so caused and
shall be brought by and in the name of the State of Maryland, for the use of
the person entitled to damages, and in every such action the jury may give
such damages as they may think proportioned to the injury resulting from
such death to the parties respectively, for whom and for whose benefit such
action shall be brought, and the amount so recovered, after deducting the
costs not recovered from the defendant, shall be divided amongst the before
mentioned parties, in such shares as the jury by their verdict shall find and
direct; Provided, always, that no more than one action shall lie for and in
respect of the same subject matter of complaint; and that every such action
shall be commenced within twelve calendar months after the death of the
deceased person.
[3] That in every such action, the plaintiff on the record shall be required,
together with the declaration, to deliver to the defendant, or his attorney, a
full particular of the person or persons, for whom and on whose behalf such
action shall be brought, and of the nature of the claim, in respect of which,
damages shall be sought to be recovered.
6
1852 Maryland Laws, Chapter 299. The statute and its evolution were summarized by
this Court in McKeon v. State, for the Use of Conrad, 211 Md. 437, 442 (1956) as:
Prior to 1852, under the common law, Maryland permitted no
recovery for pecuniary loss suffered by a relative of one killed by the
negligence of another. In that year, the Legislature enacted Ch. 299 of the
Acts of 1852, which provided an action at law for the benefit of a wife,
husband, parent and child of a person whose death shall have been caused
by the wrongful act, neglect or default of another, against the person
wrongfully causing said death. The list of persons entitled to recover under
the then Sec. 2 of the above Act, remained the same until 1937, when it was
enlarged to permit recovery by the mother of an illegitimate child and by an
illegitimate child when the deceased person was the mother of such child.
In 1952, the Legislature again added to this list by including relatives of the
deceased who met certain dependency qualifications, but only if there were
no surviving wife, husband, parent or child.
In 1969, the General Assembly revised the Act to expand the type of damages
recoverable to include non-economic, or solatium, damages.
In the case of the death of a spouse or minor child, the damages awarded by
a jury in such cases shall not be limited or restricted to the “pecuniary loss”
or “pecuniary benefit” rule, but may include damages for mental anguish,
emotional pain and suffering, loss of society, companionship, comfort,
protection, marital care, parental care, filial care, attention, advice, counsel,
training, guidance, or education where applicable.[4]
1969 Maryland Laws, Chapter 352.
4
In Carolina Freight Carriers Corp. v. Keane, 311 Md. 335 (1988), Judge
William H. Adkins, II explained that Section 4(b) of Article 67, Maryland Code (1967
Repl. Vol., 1969 Cum. Supp) contained a “defect” that “allowed recovery only for the
death of a spouse or minor child although it included damages for loss of parental care
and other lost parental benefits.” (emphasis in original). The General Assembly
“enlarged the recovery in 1975 to allow damages for the death of the ‘parent of a minor
child’.” Carolina Freight Carriers, 311 Md. at 341 (quoting 1975 Maryland Laws,
Chapter 120).
7
Under the Act, now codified as Sections 3-901 to 3-904 of the Courts and Judicial
Proceedings Article, Maryland Code (1973, 2020 Repl. Vol.), a “wrongful act” is “an act,
neglect, or default including a felonious act which would have entitled the party injured
to maintain an action and recover damages if death had not ensued.” Section 3-901(e).
The statute allows for “an action to be maintained against a person whose wrongful act
causes the death of another.” Section 3-902(a). The statute defines a primary class of
beneficiaries as “the wife, husband, parent, and child of the deceased person.” Section 3-
904(a)(1). Ms. Fowlkes and Mr. Owens, as parents of Ms. Owens, qualified under the
statute to seek pecuniary and solatium damages.
Those provisions of the Wrongful Death Act most relevant to the present case, as
they relate to damages, include:
(c)(1) In an action under this subtitle, damages may be awarded to the
beneficiaries proportioned to the injury resulting from the wrongful death.
(2) Subject to § 11-108(d)(2) of this article, the amount recovered shall be
divided among the beneficiaries in shares directed by the verdict.
(d) The damages awarded under subsection (c) of this section are not
limited or restricted by the “pecuniary loss” or “pecuniary benefit” rule but
may include damages for mental anguish, emotional pain and suffering,
loss of society, companionship, comfort, protection, marital care, parental
care, filial care, attention, advice, counsel, training, guidance, or education
where applicable for the death of:
(1) A spouse;
(2) A minor child;
(3) A parent of a minor child; or
(4) An unmarried child who is not a minor child if:
(i) The child is 21 years old or younger; or
8
(ii) A parent contributed 50 percent or more of the child's support within
the 12-month period immediately before the date of death of the child.
(e) For the death of a child, who is not described under subsection (d) of
this section, or a parent of a child, who is not a minor child, the damages
awarded under subsection (c) of this section are not limited or restricted by
the “pecuniary loss” or “pecuniary benefit” rule but may include damages
for mental anguish, emotional pain and suffering, loss of society,
companionship, comfort, protection, care, attention, advice, counsel,
training, education, or guidance where applicable.
Sections 3-904(c-e).
The origins of the Wrongful Death Act in Maryland lie in the Fatal Accidents Act
enacted in England in 1846.5 See Baltimore & Ohio R.R. Co. v. State, Use of Kelly, 24
Md. 271, 281 (1866). The Fatal Accidents Act, more commonly known as Lord
5
Fatal Accidents Act 1846, 9 & 10 Vict. c. 93 (Eng.). The Act provided:
§ 1. Whensoever the death of a person shall be caused by wrongful act,
neglect, or default, and the act, neglect, or default is such as would (if death
had not ensued) have entitled the party injured to maintain an action and
recover damages in respect thereof, then, and in every such case, the person
who would have been liable if death had not ensued, shall be liable to an
action for damages, notwithstanding the death of the person injured, and
although the death shall have been caused under such circumstances as
amount in law to felony.
§ 2. Every such action shall be for the benefit of the wife, husband, parent,
and child of the person whose death shall have been so caused, and shall be
brought by and in the name of the executive or administrator of the person
deceased; and in every such action the jury may give such damages as they
may think proportioned to the injury resulting from such death to the parties
respectively for whom, and for whose benefit, such action shall be brought;
and the amount so recovered, after deducting the costs not recovered from
the defendant, shall be divided amongst the before mentioned parties, in
such shares as the jury, by their verdict, shall find and direct.
9
Campbell’s Act,6 provided a cause of action by which a “wife, husband, parent, and
child” could seek damages as a result of the death of a relative through the negligence of
another.
English courts had occasion to address proof of damages under Lord Campbell’s
Act for losses sustained by a parent because of the death of an adult child who had been
providing services to them. In Franklin v. South Eastern Railway Co., 3 H & N 211
(1858), parents sought recompense for the death of their son in a train accident, as a result
of the son having been giving his wages to his parents, from a second job delivering coal.
The Railroad argued that the parents’ loss of the son’s contributions was not a basis for
recovery under the statute. Franklin, 3 H & N at 212. The trial judge disagreed and had
fashioned a question for the jury regarding whether the parents had a “reasonable
expectation, if any, and what pecuniary benefit from the continuance of [the] son’s life”;
the jury had returned a verdict in the favor of the parents. Id.
On appeal, the Court of the Exchequer considered whether the parents were
“entitled to maintain the action, it being contended that it was necessary the [parents]
should shew a damage, and that [they] had shewn none.” Id. at 213. The parents asserted
that evidence of the father’s inability to work and the amount of money the son had been
providing were sufficient to prove a pecuniary loss. Id. The Railroad countered that the
6
Lord Campbell’s Act is the more common name for the Fatal Accidents Act.
David K. Rees, Note, Blind Imitation of the Past: An Analysis of Pecuniary Damages in
Wrongful Death Actions, 49 Denv. L.J. 99 (1972).
10
son’s “assistance . . . was a mere act of kindness, which might have been discontinued at
any time.” Id. According to the Railroad, because the parents had no legal right to the
money they had been receiving from their son, they had not suffered a loss that was
compensable under Lord Campbell’s Act. Id.
The Court disposed of the Railroad’s contention that recovery under the Act was
contingent on proof that the death resulted in a deprivation of a “legal right,” when Judge
Pollock stated:
damages are not to be given merely in reference to the loss of a legal right,
for they are to be distributed among relations only, and not to all
individuals sustaining such a loss, and accordingly the practice has not been
to ascertain what benefit could have been enforced by the claimants, had
the deceased lived, and give damages limited thereby.
Id. at 214. The Court held, rather, that damages could be awarded “in reference to a
reasonable expectation of pecuniary benefit, as of right or otherwise, from the
continuance of the life.” Id. (emphasis added).
The Court, turning to the evidence, considered “[w]hether the plaintiff had any
such reasonable expectation of benefit from the continuance of his son’s life, and if so, to
what extent[?]” Id. In concluding that the parents had provided sufficient proof of a
reasonable expectation of pecuniary benefit, the Court emphasized that the father was
“old and infirm,” as well as that the son, though living away from his parents, was
“earning good wages” in his two jobs and had demonstrated a commitment to caring for
his parents, noting that the son was “apparently well disposed to assist his father and, in
fact he had so assisted him to the value of 3s. 6d. a week.” Id. at 214.
11
A companion case, Dalton v. South Eastern Railway Co., 4 C. B. (N. S.) 296
(1858), arose from the same train accident that resulted in the death of the son in
Franklin; it also was a claim for pecuniary benefits put forth by the parents of a deceased
adult child. At trial, the parents presented evidence that the decedent was twenty-six or
twenty-seven years old when he died and had, since moving away from them seven or
eight years earlier, visited the parents every two weeks, “and on those occasions took
them presents of tea, coffee, sugar, meat, &c., which with occasional donations of money
averaged about 20 [pounds] a year.” Dalton, 4 C. B. (N. S.) at 298. The Railroad
advanced the same argument that it had in Franklin: the parents had not sustained a
pecuniary loss by virtue of the fact that their son was under no obligation to provide
support to his parents. The trial judge had instructed the jury that “the plaintiff and his
wife had sustained a pecuniary injury from the death of their son as to entitle them to
recover damages under the statute[,]” and the jury returned an award of 120 pounds in
expectation damages, as well as 10 pounds for funeral expenses, and 15 pounds for
“mourning.” Id. at 299.
On appeal, the Railroad argued that, “[s]ince the passing of the statute, no
intelligible rule has been laid down for the computation of damages[.]” Id. at 304.
According to the Railroad, Lord Campbell’s Act “contemplates a ‘recompense’ for the
loss of profit arising from some legal obligation.” Id. at 305. As the son had been under
no legal obligation to provide goods and money to his parents, the Railroad asserted that
12
the parents had not suffered a pecuniary loss of the type that was compensable under
Lord Campbell’s Act.
In rejecting the Railroad’s argument, the Dalton Court held “that the reasonable
expectation of pecuniary advantage by the relation remaining alive may be taken into
account by the jury, and damages may be given in respect of that expectation being
disappointed, and the probable pecuniary loss thereby occasioned.” Id. at 305-06. The
Court concluded that the parents could not recover for funeral expenses and “mourning,”
but affirmed the award of expectation damages. Id. at 306. The emphasis of the Court
during argument was that the emancipated son had, for seven or eight years, “been in the
regular habit of contributing to the support of his parents.” Id. at 304. As in Franklin v.
South Eastern Railway Co., the Court emphasized the undertaking of the deceased adult
son, living on his own, in caring for his parents.
This Court has relied on Franklin and Dalton in several cases in which we
considered the award, or denial, of pecuniary damages under Maryland’s Wrongful Death
Act. In Baltimore & Ohio Railroad Co. v. State, Use of Hauer, 60 Md. 449 (1883), Mr.
Hauer was killed in a train accident and the State brought a wrongful death action against
the Railroad, on behalf of his children, two of whom were unmarried adult women living
with and being supported by their father prior to his death. Before us, the Railroad argued
that the adult daughters could not recover under the Wrongful Death Act, because, by
virtue of their age, they had no legal entitlement to their father’s support. Hauer, 60 Md.
at 466.
13
We began our analysis by noting that Maryland’s statute was based on Lord
Campbell’s Act and that the English statute made “no reference to the age or condition of
the parties, but it simply provides for damages ‘proportioned to the injury resulting from
such death to the parties’ for whom suit may be brought.” Id. (quoting Lord Campbell’s
Act). We then summarized English cases interpreting Lord Campbell’s Act:
[I]n those cases it is distinctly held that “legal liability alone is not the test
of injury, in respect of which damages may be recovered under the statute;
but that the reasonable expectation of pecuniary advantage by the relative
remaining alive may be taken into account by the jury, and damages given
in respect of that expectation, if it be disappointed and the probable
pecuniary loss thereby occasioned.”
Id. at 467 (quoting Dalton). With respect to the children’s claim in the case before it, the
Court concluded that, under the reasonable expectation of pecuniary benefit standard,
“the children may recover for the loss of education, comforts, and position in society,
which they would have enjoyed if their father had lived and retained the income which
died with him, and they had continued to form part of his family.” Id.
In Baltimore & Ohio Railroad Co. v. State, Use of Mahone, 63 Md. 135 (1885), an
adult daughter and two adult sons sued for pecuniary losses they averred had resulted
from the death of their mother in another train accident. Mahone, 63 Md. at 145.
At trial, the adult daughter established the following:
[T]he proof shows that the deceased made her permanent home with her
daughter Martha, . . . that she attended to the housework and looked after
the children while the daughter was away at work; that these services
enabled the daughter to work out constantly, and when so at work she
earned $6 a week, and that since her mother’s death she had not been able
14
to go out and work, because she had no one to take care of the house and
children.
Id. at 145-46. The two sons had asserted that they, too, had suffered pecuniary losses,
because the mother had periodically provided childcare to their children: “The[ir] mother,
although she made her home with her daughter Martha, was in the habit of assisting in
nursing the sick members of her two sons’ families.” Id. at 147.
In determining that the evidence of the daughter’s loss was sufficient to go to the
jury, we emphasized that:
• The mother, who was a widow, had moved in with her daughter and her family
more than three years before her death.7
• The mother performed domestic services for the daughter, including housework
and meal preparation.
• The mother attended to the daughter’s children while the daughter worked outside
the home to earn approximately six dollars per week.
• The daughter had not worked outside the home since her mother’s death, because
she had to assume the domestic and childcare responsibilities, which had been
previously rendered by the mother.
In determining that the sons’ evidence was insufficient, we noted that:
7
The jury instruction that had been requested by the Railroad, which is reproduced
in the opinion, Baltimore & Ohio Railroad Co. v. State, to Use of Mahone, 63 Md. 135,
139 (1885), provided, in relevant part: “the mother of the plaintiffs, . . . for more than
three years prior to the happening of the accident . . . which it is alleged caused her death,
made her home with the said Thomas R. and Martha E. Mahone[.]”
15
• The mother was “in the habit” of assisting in nursing the sick members of the
families of the two sons.
• The frequency of her visits, the length of time of the visitations, and their value
were not proven.
• The sons had not employed anyone else to take their mother’s place since her
death.
Essentially, then, evidence of the daughter’s expectation, “anchored” in proof of intent by
the acts of her mother, who moved in with the daughter and performed household
services, was sufficient to send the question of damages to the jury, but “habit” evidence
was not.
In State, for Use of Bowman v. Wooleyhan Transport Co., 192 Md. 686 (1949), we
considered a case in which the legal issue and facts were reminiscent of the daughter’s
claim in Mahone. During the trial, the daughter, who was blind, testified that:
her mother visited her home every day and when the mother was not
working at times she cleaned the house for her, cleaned windows, took care
of the children, “she took them places, when they had to go, she did
washing, ironing for me, sewing and mending, and a lot of times she
cooked for me and then she took me places, where it required going across
the street or required taking buses or street cars or anything else that
required sight.”
Bowman, 192 Md. at 690. Additionally, the daughter testified that after her mother’s
death, she had employed a “servant to perform the services the mother performed.” Id. at
16
691. The trial court granted a demurrer,8 on the grounds that the plaintiff had provided
“no legally sufficient evidence . . . to warrant the Jury in finding that she had sustained
any pecuniary loss, actual or in expectation, from the death of her mother, and the
verdict, therefore, must be for the defendant.” Id. at 688-89. In affirming the trial court’s
grant of the demurrer, we began our analysis by noting:
In this case we find that the mother did not live in the home with her
daughter, as in the case of B. & O. v. Mahone, supra, but was employed a
great part of the time elsewhere. The services rendered were those naturally
rendered by an affectionate employed mother to her daughter.
Id. at 694. In concluding that the loss of the mother’s services did not constitute a
pecuniary loss to the daughter, we emphasized evidence that suggested reciprocity
8
In Maryland-National Capital Park and Planning Commission v. Town of
Washington Grove, 408 Md. 37, 94 n. 28 (2009), we explained a demurrer and its
modern-day incarnation:
At common law, the demurrer was a procedural pleading filed by
defendants seeking to have a plaintiff’s complaint dismissed for some legal
deficiency affirmatively appearing in the complaint. . . . Maryland Rule 2-
322(b)(2), providing for the defense by motion to dismiss for failure to state
a claim upon which relief can be granted, is the modern equivalent of the
demurrer.
(citations omitted). Maryland Rule 2-322(b) provides:
The following defenses may be made by motion to dismiss filed before the
answer, if an answer is required: (1) lack of jurisdiction over the subject
matter, (2) failure to state a claim upon which relief can be granted, (3)
failure to join a party under Rule 2-211, (4) discharge in bankruptcy, and
(5) governmental immunity. If not so made, these defenses and objections
may be made in the answer, or in any other appropriate manner after
answer is filed.
17
between daughter and her mother, namely, that the daughter had periodically provided to
her mother benefits, in the form of “meals, money, food, and payment of rent[.]” Id. at
695.
In support of her interpretation of the concept of “reasonable expectation of
pecuniary benefit” Ms. Fowlkes appears to be suggesting that her expectation coupled
with evidence of “habit” on the part of the child are sufficient to establish proof of
pecuniary damages under the Wrongful Death Act. According to Ms. Fowlkes, the Court
of Special Appeals was incorrect in requiring evidence of a decedent’s intent, because,
according to her, recovery under the reasonable expectation standard is determined by
evidence of the beneficiary’s expectation. Ms. Fowlkes argues that requiring evidence of
a decedent’s intent “will likely be impossible for plaintiffs to satisfy in many cases.”
Dr. Choudhry, apparently, suggests that a claimant under the Wrongful Death Act
must provide evidence that is “clear” that services rendered by a decedent were not done
so gratuitously, hinting that, in the context of pecuniary damage claims for lost household
services, “reasonable certainty” requires more than proof by a preponderance of the
evidence. Dr. Choudhry also asks that we hold that proving damages with “reasonable
certainty” necessarily requires a plaintiff to present expert testimony on the value of the
decedent’s services.9 From both perspectives of the law, we demure.
9
This Court, in Fennel v. Southern Maryland Hospital Center, Inc., 320 Md. 776,
791 (1990), explained that damages in tort cases “must be proven by a preponderance of
the evidence.” We decline Dr. Choudhry’s request to apply a heightened evidentiary
(continued . . . )
18
We review a lower court’s interpretation of the law under a de novo standard of
review, by which “we accord no deference to the lower [court’s] decisions here.” Beall v.
Holloway-Johnson, 446 Md. 48, 76 (2016). The judge’s ruling on a motion for judgment
requires that we review all evidence and inferences made in the light most favorable to
the party against whom the motion was made. Maryland Rule 2-519(b).
Contract principles of expectation damages generally emphasize “the realization
of reasonable expectations that have been induced by the making of a promise.” Arthur
Corbin, CORBIN ON CONTRACTS § 1.1 (rev. ed. 1993). As we explained in Sloane v.
Stanley G. House & Assocs., Inc., 311 Md. 36, 42 (1987), a party injured by a breach of
contract “has a right to damages based on his expectation interest[.]” (quoting
Restatement (Second) of Contracts, § 347 (Am. Law Inst. 1981)). Proof of expectation
damages or “pecuniary loss” in the future, in a contract case, thus, would require proof
that the injured party suffered a loss, which was caused by the other party’s failure to
perform its obligation under the contract. Id.
In various areas of the law, the concept of “expectation” has had a complicated
and checkered development, such as in products liability cases, where the consumer
expectation test has been an “utter failure.” See David G. Owen, Expectations in Tort, 43
Ariz. St. L.J. 1287, 1306 (2011). In corporate law, in order “to determine whether a
( . . . continued)
standard to a pecuniary damage claim for lost household services in a wrongful death
claim.
19
majority shareholder's misconduct vis-a-vis a minority shareholder has been so severe as
to trigger the possible demise of the corporation, a court measures that conduct against
the ‘reasonable expectations’ of the minority shareholder when the minority shareholder
obtained his or her interest in the company.” Bontempo v. Lare, 444 Md. 344, 365 (2015).
In criminal law, cases are legion that explore the reasonable expectation of privacy issue.
See, e.g., Laney v. State, 379 Md. 522 (2004). In real property, a tenant’s liability in a
subrogation action is determined by examining “the lease as a whole, along with any
other relevant and admissible evidence,” to determine the reasonable expectations of
parties to the lease. Rausch v. Allstate Ins. Co., 388 Md. 690, 713 (2005).
Rather than go down the “rabbit hole” of trying to reconcile the various
“reasonable expectation” standards, we need only look at the English antecedents and our
case law to interpret “reasonable expectations of pecuniary benefits” as well as cases
from other states with similar wrongful death statutes.
What we have distilled from our review of the cases is that any pecuniary loss
claim involving reasonable expectation damages begins with the question of what a
beneficiary could reasonably expect from the decedent.10 In State, Use of Coughlan v.
10
We, of course, agree with the Court of Special Appeals that to award pecuniary
damages, the household services under scrutiny must be capable of valuation. In United
States v. Searle, 322 Md. 1, 7 (1991), we had occasion to explore the nature of household
services, which may be subject to a claim for pecuniary damages in a wrongful death
action:
(continued . . . )
20
Baltimore & Ohio Rail Road Co., 24 Md. 84 (1866), the widowed mother of a twelve-
year-old boy, who was killed in a train accident, sought damages under the Wrongful
Death Act. At trial, the mother, who operated a grocery store, presented evidence that her
son “t[ook] care of the store when she went away.” Coughlan, 24 Md. at 87, and that the
value of the son’s services was “$5 to $6 per month.” Id. at 88.
Although the mother sought damages for loss of services beyond the son’s age of
majority, the trial court had instructed the jury that it could award “adequate
compensation for the loss of her son’s services from the time of his death to the period
when, if he had lived, he would have attained the age of twenty-one years.” Id. at 95. On
appeal, we affirmed the trial court’s limitation of damages to the period of the son’s
minority, explaining that, “[t]he law entitles the mother to the services of her child during
minority only[.]” Id. at 107. We have affirmed repeatedly the premise of our holding in
Coughlan, that a parent, being entitled to the services of a deceased minor child, does not
have a legally cognizable interest under the Wrongful Death Act, based solely on the
assumption that the child would have continued to provide the services after reaching
( . . . continued)
The element of damages referred to as “household services” can have both
pecuniary and nonpecuniary aspects. Where a claim is made for the
nonpecuniary aspect of household services, the award may overlap the
claim for solatium damages. But where an award for household services is
compensation for the loss of domestic services and is based on the market
value of those lost services, the award is pecuniary and is not duplicative of
the solatium damages. These are services that can be performed by
domestic workers and their replacement value is measured by prevailing
wage rates for such services.
21
adulthood, because under the statute the parents were entitled only to the son’s services
during his minority. See Agricultural & Mechanical Ass’n of Washington Cty v. State, to
Use of Carty, 71 Md. 86 (1889); State, For Use of Strepay v. Cohen, 166 Md. 682 (1934);
see also Emp’rs Liab. Assurance Corp., For Its Own Use and to Use of Jones, 173 Md.
238 (1937).
Thus, assumptions of continuation, especially in the case of the death of an adult
child, may be idealistic but not legally cognizable. As Chief Judge Richard Bowie said in
Coughlan, albeit harshly, when addressing this issue:
According to the appellant’s theory, the mother and son are supposed to
live on together to an indefinite age; the one craving sympathy and support,
the other rendering reverence, obedience and protection. Such pictures of
filial piety are inestimable moral examples, beautiful to contemplate, but
the law has no standard by which to measure their loss.
Coughlan, 24 Md. at 107-08. Expectations held by a beneficiary, thus, must be
reasonable in light of the context of the case, rather than based on assumption of
continuation.
Reasonableness of the beneficiary’s expectation, though, is not only limited to that
which is legally cognizable, but also must be “anchored” by proof that the adult child had
intended to continue providing the services under scrutiny. An adult child’s intent may be
proven by legal obligation, but may also be satisfied by evidence of a written or verbal
promise to provide services or by evidence of actions taken by the decedent from which
their intent may be inferred.
22
Under the Wrongful Death Act, evidence of entitlement to the decedent’s services
or support has been held sufficient to sustain a claim for damages. The fact that the
beneficiary is legally entitled to the decedent’s support satisfies the need to provide
evidence of the decedent’s intent to continue such support. In Hauer, the jury was
instructed, at the request of the Railroad, that the two adult daughters of a man who died
in another railroad accident were not entitled to damages “unless the jury shall further
find that said adult plaintiffs were dependent upon their said father for support and
maintenance by reason of some want of ability to support and maintain themselves.”11
Hauer, 60 Md. at 457. On appeal, the Railroad renewed its argument that the adult
children were not entitled to damages under the Wrongful Death Act. In rejecting the
Railroad’s argument, we reviewed English precedent related to Lord Campbell’s Act and
concluded that “the children may recover for the loss of education, comforts, and position
11
The proffered jury instruction, in its entirety, provided:
That a father is under no legal obligation to support and maintain his
children, who are above the age of twenty-one years, and if, under the
instructions of the court, they shall find for the plaintiffs, and shall also find
from the evidence that Willimina and Henrietta Hauer, two of said
equitable plaintiffs, at the time of their father's death, were above the age of
twenty-one years, then in estimating the damages sustained by the equitable
plaintiffs by the death of their father, Luther M. Hauer, the jury must
exclude from their consideration any claim for damages on the part of said
adult plaintiffs, unless the jury shall further find that said adult plaintiffs
were dependent upon their said father for support and maintenance by
reason of some want of ability to support and maintain themselves.
Baltimore & Ohio R.R. Co. v. State, to Use of Hauer, 60 Md. 449, 456-57 (1883).
23
in society, which they would have enjoyed if their father had lived and retained the
income which died with him, and they had continued to form part of his family.” Id. at
467 (emphasis added). Thus, the father’s legal obligation to provide support due to the
financial dependency of his adult daughters presaged the award of pecuniary damages.
In Baltimore & Ohio Railroad Co. v. State, to Use of Chambers, 81 Md. 371(1895), the family of a man killed in a train accident recovered under the Wrongful Death
Act. The man had been estranged from his wife who “testified that she had not seen or
held any communication with him for a period of from two to three years prior to his
death.” Chambers, 81 Md. at 372. The Railroad argued that the man’s family was entitled
to nominal damages only, due to the fact that evidence had been produced that suggested
the man “had been separated from his family for a period of about 12 years immediately
preceding his death, and that he had contributed nothing to the support of his wife or
infant child during that period[.]” Id. at 375. We rejected the Railroad’s argument based
on the fact that the wife was legally entitled to support:
The marital relation still continued to exist between the parties at the time
of the death of the husband, and while they had not, for the period stated,
lived together as man and wife, her legal rights had suffered no change or
impairment. It is very clear from the testimony in the record that the wife
had not by her own wrong forfeited her right to a decent support from her
husband in accordance with her station in life. The marital relation created
this right, and it continued to exist in law to the death of the husband, and
this, too, without reference to the will or wishes of the husband.
Id. Similarly, in Davidson Transfer & Storage Co. v. State, for Use of Brown, 180 Md. 63(1941), this Court, citing Chambers, 81 Md. 371, held that the fact that the mother of a
24
minor child had not “furnished her infant son any support or maintenance” in the four-
months prior to her death, did not diminish the child’s legal entitlement to support from
the mother and ergo, to a pecuniary damage award under the Wrongful Death Act.
Brown, 180 Md. at 73.
In the absence of legal entitlement, proof of a decedent’s intent to provide services
in the future could be adduced through evidence of a written or oral promise to do so. In
Ory v. Libersky, 40 Md. App. 151 (1978), the Court of Special Appeals considered an
appeal of a pecuniary damage award, under the Wrongful Death Act, to the children of a
deceased man that was based, in part, on evidence that the man, who had been divorced
from the children’s mother, had agreed, in a separation agreement, to contribute to the
children’s future expenses. The separation agreement provided that, “the father would
contribute $15 per week as child support and share the medical expenses until each child
attained the age of 21 years.” Ory, 40 Md. App. at 157. The agreement also provided:
“The parties hereto further agree that they will share equally in expenses of higher
education of any of said three children in the event they desire to continue their education
beyond high school.” Id.
In rejecting the Appellant’s argument that the separation agreement was not
probative that the children had a reasonable expectation of the father’s contribution to
their education, our intermediate appellate court explained that, “the test of the propriety
of an award of damages for loss of educational benefits is . . . the existence or not of a
reasonable expectation on the part of the child or children[.]” Id. The court concluded that
25
the trial judge had correctly instructed the jury that the separation agreement was “a piece
of evidence for you to consider as to what the father would have done, or was likely to
do, or would probably do for his three children had he lived.” Id.
With respect to oral promises, courts in our sister jurisdictions have affirmed the
admissibility of such to prove intent on the part of a decedent in Wrongful Death cases.
In Pennsylvania Railroad Co. v. Adams, 55 Pa. 499 (1867), the parents of their deceased
adult son sought to prove that their son had told a third party that he intended a $500
bounty for his enlistment in the army to go to them. Adams, 55 Pa. at 503. The Supreme
Court of Pennsylvania upheld the trial court’s admission of the witness’s testimony,
explaining that “[t]he arrangement which the deceased had made to send his bounty-
money to his father was evidence on the question of the continuance of the relation
between the son and his parents, and the expectancy of support by them in the future
from him.” Id.In Medi-Stat, Inc. v. Kusturin, 303 Ark. 45 (1990), the Supreme Court of Arkansas
considered whether the mother of an adult man, who died as a result of medical
negligence, could recover damages under that State’s Wrongful Death Statute, which
according to the Court, recognized a parent’s right to recover based on “a reasonable
expectation of pecuniary benefit from the continued life of the child.” Kusturin, 303 Ark.
at 50 (citing Fordyce v. McCants, 51 Ark. 509 (1889)). Prior to his death, the son had
entered into an oral agreement with his mother that, “[w]hen the mother enrolled in
college, . . . he would work to contribute to the family income to enable her to finish her
26
education.” Id. According to the Court, evidence of the son’s agreement with his mother,
contributed to the “substantial evidence from which the jury could have found a
reasonable expectation.” Id.In Lang v. Bouju, 245 A.D.2d 1000 (1997), a New York appellate Court affirmed
a damage award to the parents of a deceased twenty-two-year-old man, who had resided
with them. Evidence not only reflected extensive work that the decedent had undertaken
on the family’s property but that the family was aware of the son’s intent to go into the
farming business with his father. Lang, 245 A.D.2d at 1002. Based on this evidence, the
Supreme Court, Appellate Division, concluded that “it was not unreasonable for the jury
to infer that he would stay in the area and continue providing for his parents in the
future.” Id.
Intent of a decedent also may be proven by evidence of their actions. In Mahone
we emphasized that the mother’s acts of moving in with and making her permanent
residence with her daughter and then undertaking housekeeping and childcare services
gave rise to the daughter’s reasonable expectation of pecuniary benefit from the
continuation of her mother’s life. Mahone, 63 Md. at 146. Although the mother had also
provided services to her two sons, we concluded that evidence that the mother “was in the
habit of assisting in nursing the sick members of her two son’s families” was insufficient
to prove a pecuniary loss. Id. at 147.
Our brethren in other jurisdictions have held that evidence of a decedent’s acts
was sufficient to prove intent in Wrongful Death cases so as to support a reasonable
27
expectation of pecuniary benefit. In yet another Pennsylvania case, Schnatz v.
Philadelphia & Reading Railroad Co., 160 Pa. 602 (1894), three adult daughters of a
deceased woman sought damages for the loss of their mother’s support under that State’s
Wrongful Death Statute. Schnatz, 160 Pa. at 607 (citing Adams, 55 Pa. 499 (1867)). At
trial, the daughters, each of whom had left home and were living apart from their mother,
presented evidence that their mother had not charged them for providing them room and
succor, as well as food, when they needed them:
[One daughter] generally went to her mother's home, about three months,
during the summer, and while there paid no board[. T]here was evidence
that for some years [that a second daughter] had suffered from a pulmonary
disease, and had each summer gone to the mother, . . . for the benefit of her
health, and remained there for two or three months; that at times, in the
winter, when ill, her mother had come to Philadelphia, and stayed with her,
doing such household work as was required for her sick daughter; further,
that she charged nothing for boarding this daughter at Phoenix Park, or for
the service rendered her in Philadelphia. [F]or 16 years before her death,
the mother, in autumn and spring, had given [a third daughter] potatoes for
consumption in the house, and had nursed her at times during illness, and
had made no charge for either.
Schnatz, 160 Pa. at 605.
A jury rendered a verdict in favor of the daughters, and the Railroad appealed. On
appeal, the Railroad argued that the contributions of the mother to the daughters
amounted to “occasional gifts and favors, and therefore there could be no reasonable
expectation of pecuniary advantage.” Id. at 609. In affirming the judgment, the
Pennsylvania Court concluded that the daughters had provided sufficient evidence to
prove that they had a reasonable expectation of pecuniary benefit from the continuance of
28
their mother’s life, because the daughters’ evidence “tended to show a persistent
regularity of contribution for many years,–so regular and unvarying as to justify a
reasonable expectation of continuance.” Id. at 608-609. Additionally, the Court found
persuasive the nature of the mother’s contributions to her daughters: “Nor were these
gifts and services, in view of the ability of the mother, and the necessities of the children,
of trifling value. They must have very appreciably contributed to the comfort and health
of those who were favored by them.” Id. at 609. The acts of the mother in committing to
the care of the daughters, to whom, as adults, she had no legal duty, without recompense
constituted sufficient proof of a reasonable expectation.
In St. Louis & Santa Fe Railway Co. v. French, 56 Kan. 584 (1896), the Supreme
Court of Kansas concluded that a widow, who was the mother of a deceased man, could
recover damages under that State’s Wrongful Death Statute, based on evidence that the
man returned home to care for his mother for ten years. The Kansas Court summarized
the evidence on which the award was based: “At the date of his death, Frank French was
34 years of age, . . . and was a single man, earning $60 to $75 per month, and he had
resided with and wholly supported his mother for 10 years.” French, 56 Kan. at 586.
In Rival v. Atchison, Topeka & Santa Fe Railway Co., 62 N.M. 159 (1957), the
mother of a deceased twenty-six-year-old man, who died while working for a railroad,
recovered pecuniary damages for the loss of her son. The man, who had previously
served in the military, had lived in his parents’ home for approximately six months before
29
his death and had committed to contributing to the family’s welfare. Rival, 62 N.M. at
161. According to the Court,
It was decedent's common practice to turn over his earnings to his mother
for family use. . . . From his earnings, a car had been purchased and the title
was in the names of both his mother and himself. He had purchased a part
of the furniture in his parents’ home, and a small business had been
established with money earned by him.
Id. The claim, brought under the Federal Employer’s Liability Act,12 was evaluated under
the “reasonable expectation of pecuniary benefit” standard, by which the New Mexico
12
The Federal Employers’ Liability Act provided:
Every common carrier by railroad while engaging in commerce between
any of the several States or Territories, or between any of the States and
Territories, or between the District of Columbia and any of the States or
Territories, or between the District of Columbia or any of the States or
Territories and any foreign nation or nations, shall be liable in damages to
any person suffering injury while he is employed by such carrier in such
commerce, or, in case of the death of such employee, to his or her personal
representative, for the benefit of the surviving widow or husband and
children of such employee; and, if none, then of such employee's parents;
and, if none, then of the next of kin dependent upon such employee, for
such injury or death resulting in whole or in part from the negligence of any
of the officers, agents, or employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in its cars, engines,
appliances, machinery, track, roadbed, works, boats, wharves, or other
equipment.
Any employee of a carrier, any part of whose duties as such
employee shall be the furtherance of interstate or foreign commerce; or
shall, in any way directly or closely and substantially, affect such
commerce as above set forth shall, for the purposes of this chapter, be
considered as being employed by such carrier in such commerce and shall
be considered as entitled to the benefits of this chapter.
45 U.S.C. § 51 (1952).
(continued . . . )
30
Court concluded that the parents had a reasonable expectation of their son continuing to
provide all of his wages to his parents. Id. at 168.
In Terveer v. Baschnagel, 3 Ohio App.3d 312 (1982), the Court of Appeals of
Ohio considered an appeal of the denial of pecuniary damages on behalf of the family of
a deceased twenty-two-year-old woman. The evidence had shown that the decedent not
only had promised to purchase real estate with her sister, with whom she lived, but had
provided money and services to the family with whom she did not reside:
At the time of her death, decedent . . . helped her parents with their rental
properties, regularly cut her brother’s hair, [and] regularly cleaned the
family’s teeth[.] Her sister also testified that the decedent was saving
money to pay back her parents for loans they had given her for school and
for her car.
Terveer, 3 Ohio App. at 312. The Ohio Court, in vacating the judgment, concluded that
the evidence presented by the family was sufficient to prove that the decedent intended to
continue providing services to her family and sharing living expenses with her sister. Id.
at 313. Additionally, the Ohio Court concluded that the evidence was sufficient to prove
that the decedent intended to pay back the loans her parents made to her. Id.
( . . . continued)
In Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59 (1913), the Supreme
Court of the United States explained: “The [Federal Employers’ Liability Act], in giving
an action for the benefit of certain members of the family of the decedent, is essentially
identical with the first act which ever provided for a cause of action arising out of the
death of a human being,–that of 9 and 10 Vict. Chap. 93, known as Lord Campbell’s
Act.” Vreeland, 227 U.S. at 69. To recover damages under the statute, “[t]here must, . . .
appear some reasonable expectation of pecuniary assistance or support of which
[beneficiaries] have been deprived.” Id.31
In Medi-Stat, Inc. v. Kusturin, 303 Ark. 45 (1990), the mother of an adult man,
who died while undergoing medical treatment, was awarded pecuniary damages for her
loss of the son’s services, which the evidence showed included that the son “had assisted
his mother with the care of his sister, who suffer[ed] from cerebral palsy, which enabled
the mother to keep that child in the home instead of an institution.” Kusturin, 303 Ark. at
50. On appeal, the Supreme Court of Arkansas concluded that the mother had presented
“substantial evidence” demonstrating that she had “a reasonable expectation of a
pecuniary benefit in the continued life of the decedent.” Id. In addition to the son’s
commitment to caring for his sister, the Arkansas Court highlighted additional acts of
commitment by the son, including his contributions of “past earnings to his mother and
sisters” and his commitment to continue supporting his family while his mother
continued her education. Id.Distillation of the reasonable expectation of pecuniary benefit cases reflects that
recovery of pecuniary damages is based not only on the reasonable expectation of the
parent but also must be anchored in proof of intent on the part of the deceased adult child,
which can be adduced in the form of evidence of legal duty, promise, or acts of intent.
We differ from our intermediate appellate court in its emphasis on duration of services
because, in our view, proof of the decedent’s intent is not necessarily wholly dependent
on evidence of duration, but rather can be developed through proof of a legal duty,
promise, or acts of the decedent that reflects a continuing intent to serve or provide, of
which evidence of duration may be a part.
32
Although we have expanded the quantum and quality of proof of the decedent’s
intent, we do agree with the Court of Special Appeals that Ms. Fowlkes failed to adduce
sufficient evidence that Ms. Owens intended to provide household services in the future,
absent her death. There was no proof adduced that Ms. Owens had a legal duty to provide
services to her mother. There was also no evidence adduced of any promise, written or
oral, by Ms. Owens to Ms. Fowlkes or provided to a third party, that the daughter
intended to continue offering her services for any period of time.
In terms of acts of the daughter, while there was proof that she was “in the habit”
of providing household services to her mother, with whom she had lived her entire life,
and that Ms. Fowlkes wanted to live with her daughter forever, those pieces of evidence,
without more, were insufficient to go to the jury. The proof that Ms. Fowlkes adduced
was akin to the evidence adduced by the sons in Mahone, where being in the habit of
acting was insufficient proof of pecuniary loss. See Mahone, 63 Md. at 147.
To permit a pecuniary damage award based solely on evidence of a symbiotic
relationship of mother and daughter in the present case would be to allow a jury to
engage in “speculation” about Ms. Owens’s intent. See Bowman, 192 Md. at 695. To the
extent that Ms. Fowlkes argues that proof of a deceased adult child’s intent would be hard
to come by, we disagree, as we have not seen that as an impediment in our review of the
cases.
33
As a result, we affirm the judgment of the Court of Special Appeals, reversing the
judgment of the Circuit Court for Baltimore City for $500,000 in economic damages to
Ms. Fowlkes.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED. COSTS
TO BE PAID BY PETITIONER.
34