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

Torts – 2nd semester
Prof. Weems
Introduction
II. Two questions distinguish one COA from another:
            A. What interest does the COA exist to protect?
            B. What kind of conduct is the interest protected from?
 
Wrongful Death and Survival
I. Distinctions:
            A. Protected interest: interest of survivors’ support/loss of any kind to any person
            B. Protected against: any kind of conduct – N, intentional, Strict Liability, etc.
II. Common Law Treatment
A.    Felony Merger Doctrine – No distinction between N and intentional killing. 
If the killing was wrongful, the tort merged into the felony. All property was taken by the crown/state as punishment for the felony, so there was nothing left to pursue in a tort COA.
1. Primary purpose of tort law is to compensate, but cannot do this if person to compensated is dead.
B. Abatement – X injured Y. If either died before the court rendered a final judgment, the COA was abated (terminated).
                        1. Tort COA did not survive the death of P or D.
                        2. The cause of death did not matter, if either died, so did the COA.
C. Lord Campbell’s Act – Began the shift away from the abatement rule.
1. Gave a COA to the dependents of the deceased for what the death had cost them financially.
2. If no dependents, Lord Campbell’s Act was not applicable and no recovery was        available for wrongful death.
III. Survival of a Tort COA
A. Common law rule – The tort died with the P. (abatement).
1. Some tort COAs (those based on intangible interests) still do not survive.
a. Defamation, intentional infliction of emotional distress, and privacy in some jurisdictions
B. Wrongful Death Statutes – Every state has enacted wrongful death statutes which override abatement and allow a COA against D for tortious conduct to P whether D or P are living or dead.
1. Majority – Savings to the Beneficiary Rule/Benefit to the Beneficiary Rule
a. Person must be survived by statutory beneficiary or no COA exists (remnants of Lord Campbell’s Act).
i.   Many states also allow recovery for loss of society and companionship.
2.   Minority (MS) – Benefit to the Estate Rule
a.   Permits a Wrongful Death coa regardless of whether decedent was supporting anyone financially.
b.   Allows executor to sue for any cause of action the testate could have commenced.
IV. Damages
A. Awarded to Beneficiaries:
1. Primary item of damage – present net c

S – goes to the estate
                                    b. Many states – no recovery.
                        4. You look to Group 1 first, then Group 2, then heirs at law.
a. If anyone is in a higher group, then the lower groups are excluded completely.
B. Who can bring the suit?
                        1. Personal (legal) representative
                        2. Any statutory beneficiary (spouse, child, parents, siblings).
                                    a. Can only be 1, all beneficiaries must join.
VI. Statute of Limitations
            A. Begins to run when death occurs, rather than at the time of injury.
B. Use the SOL that pertains to the COA that would have been used if no death occurred.
                        1. N – 3 years (Mississippi)
                        2. Intentional tort (battery) – 1 year
VII. When to bring a “Survival” COA rather than “Wrongful Death” COA in MS:
            A. If D’s act caused the death; WD is the proper action to file