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Torts II
University of Mississippi School of Law
Weems, Robert A.

Professor Weems, Section 1
Spring 2012
1.      Two Part Test to Identify a Proper Cause of Action
a.       What interest does the cause of action protect?
b.      What kind of conduct does it protect the interest from (basis of liability)?
2.      3 Types of Conduct
a.       Intentional
b.      Negligent
c.       Neither intentional nor negligent – strict liability, private nuisance
1.      Defined – action brought by beneficiaries of deceased, claiming death due to wrongful conduct by D.
a.       This is a statutory c/o/a – apply rules of legislature.
b.      Applies to negligent or intentional causing death – file civil suit for WD after acquitted or guilty.
c.       Must Prove (1) duty, (2) breach of duty, (3) cause in fact, (4) legal/prox cause, and (4) damages.
2.      Two-Part Test
a.       Interest protected – interest of person not to be killed.
b.      Basis of liability – any culpable conduct (negligence, intentional, SL)
3.      Common Law Treatment
a.       Felony Merger Doctrine – all crimes involving death (either during or after) are felonies and punishable by death. All property of D confiscated by crown, so nothing to pursue in tort action.
b.      Lord Campbell’s Act – allowed c/o/a for dependents who could show loss of money – permitted dependents to recover material benefit of money they depended upon decedent to provide – didn’t compensate for the death, compensated for lost support.
c.       Loss to Survivors Statute – judge determines future monetary contributions of deceased.
4.      MS Wrongful Death Statute
a.       If decedent would’ve had a c/o/a for injury had he survived, then a WD suit can be sustained. Cause of death irrelevant.
b.      Who Can Bring Suit?
                                                   i.      All possible parties must be joined in the suit.
                                                 ii.      Group 1 – spouse and children – all in this group equally split damages.
                                               iii.      Group 2 – if no one in group 1, parents/siblings – equally split damages.
                                               iv.      If no one in either group 1 or 2, then goes to the estate.
                                                 v.      Stepchildren cannot bring suit.
                                               vi.      Half sibling entitled to same share as full sibling.
                                             vii.      Adopted child killed – new fam takes place of natural fam.
                                           viii.      Illegitimate children can inherit from natural mom and her kids.
1.      Different for dad – must establish relation to determine heirship.
c.       Unborn children
                                                   i.      Majority – suit can be brought if fetus viable.
                                                 ii.      MS – it’s “quickened” (movement in womb).
5.      Statute of Limitations – beings when death (or injury for diff c/o/a) occurs.
a.       Depends on underlying c/o/a
                                                   i.      Intentional act (assault) – 1 year
                                                 ii.      Act caused by malpractice – 2 years
                                               iii.      Caused by defective product – 3 years.
b.      MS – SOL beings when it c/o/a for injury arises (discovery rule applies).
6.      Damages (MS)
a.       Awarded to Estate – pay off expenses
                                                   i.      Medical
                                                 ii.      Funeral
                                               iii.      Damage to property
                                               iv.      Punitive – must prove willful negligence or gross misconduct.
b.      Awarded to Beneficiaries
                                                   i.      Pain & suffering of deceased
                                                 ii.      Loss of society/companionship of deceased
                                               iii.      Net value of decedent’s work life expectancy (reduce to present value)
1.      Expert economist – how much decedent would spend on others.
2.      Amount earning at time of death + increases would’ve received through retirement – reduction to present value.
                                               iv.      Hedonic Damages (minority & not MS) – loss of enjoyment of life
7.      Defenses
a.       WD is a derivative c/o/a, so any defense that could be raised in original c/o/a can be raised in WD c/o/a.
8.      Refers to c/o/a surviving parties’ death (but not just for wrongful death).
9.      Survival and WD are different, but often “come together” b/c a person was injured, lives for a while, and then dies.
a.       So could have a survival action for time lived, then WD action when he dies.
10.  CL – if party dies prior to judgment, c/o/a dies with them (abated).
11.  Survival Statutes – all state

   Transferred Intent – if D intended to injure one person w/o right, but injured another, D still liable for their injury.
a.       2 Part Test
                                                   i.      (1) D intended to injure someone
                                                 ii.      (2) D had no right to injure intended person
b.      Only applies to 5 intentional torts
                                                   i.      Battery, assault, false imprisonment, trespass to chattels, trespass to land.
                                                 ii.      Does not apply to fraud – intended to fraud A, not B, B can’t sue.
1.      2 Part Test (BOP on P)
a.       Interest Protected – right of person to be free from harmful/offensive contacts w/ the body or something attached to the body.
b.      Basis of Liability – protect against intentional conduct.
2.      Prima Facie Case
a.       D’s act caused offensive/harmful contact.
b.      D acted intentionally – had purpose or substantially certain
c.       Act was proximate cause of injuries (cause in fact and legal cause).
d.      Damages incurred.
3.      Harmful or Offensive Conduct
a.       Physical contact NOT required – battery includes touching of anything attached (to such extreme of touching car P was sitting in).
b.      P does NOT have to be aware of battery when it occurs – can be told later.
c.       Harmful/offensive motive NOT required, only contact required.
d.      Absence of consent is required.
4.      Ordinary Sensibilities Rule (OBJECTIVE)
a.       To be offensive/harmful, must be offensive/harmful to a reasonable person of ordinary sensibilities.
b.      UNLESS has special knowledge P is hypersensitive.
5.      Damages
a.       Eggshell Rule – if resulting injuries are more than a reasonable person might have anticipated, D is still liable.
b.      Emotional Distress – P does NOT have to prove a physical manifestation of emotional distress, only some degree of distress from the battery.