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

Torts – Weems
Spring 2007
Two part test to identify a proper tort Cause of Action
·         What interest does cause of action exist to protect?
·         What kind of conduct/action does it protect the interest from? 3 kinds of conduct:
o        Intentional conduct
o        Negligent conduct
o        Strict liability (even if not intentional or negligent)
o     History of torts is the hx of the creation of causes of action. English CL created a cause of action when it recognized an interest as being worthy of protection. Initially the interests protected were very basic fundamental rights/interests (ex. interest to be hit by somebody, not to be confined, etc.). Today study of torts consists of about 30 separate causes of action. (Lawyers think more specifically than general torts—look to batter, negligence, or products lability, etc.—It’s essential and important that the lawyer focus on the right c/a—some are very similar—imp. To get into right law). Start by answering 2 questions above.
·            Ex. Negligence—1) exists to protect person from being harmed/injury or from having their property damaged. 2) It protects the interest from Negligent conduct.
I.        WRONGFUL DEATH—an action brought by the beneficiaries of a deceased person, claiming that the deceased’s death was the result of the wrongful conduct by the D.
A.      2 Part Test
1.       Interest protected? – Interest of person not to be killed
2.       Basis of liability – any culpable conduct (negligence, intentional, Strict Liability)
B.      Common Law Treatment:
1.       Felony Merger Doctrine – All crimes involving death were felony and punishable by death. All property confiscated by/forfeited to the crown, therefore nothing remained to pursue in tort action. CL said that person whose wrongful act killed another person (either outright or death occurred at somepoint later) was not liable and action could not be brought against the wrongful actor for wrongful death (b/c of above Felony merger doctrine).
a.       Felony merger rule went away long time ago but CL rule persisted for many years probably b/c just kept doing what had been doing, or may not have allowed b/c of view that there is nothing that can be done for deceased, and also b/c courts are reluctant to allow recovery for LOSS OF LIFE (law has been reluctant to ask a juror to put value on human life (how much is human life worth?) –Policy reasons for keeping rule.
2.       Lord Campbell’s Act –1846 by English Parliament—Allowed tort C/A for dependents who could show loss of money (permitted dependents to recover material benefit of money for which they depended upon decedent to provide).
a.       This did not compensate the death but rather compensated people who depended on decedent for their support. Later dependents were able to recover for non-monetary things such as loss of companionship and loss of society (p had to be a member of family)—opened floodgates and now all states have enacted Wrongful Death Statutes.
b.       Most states wrongful death statutes are patterned generally upon Lord Campbell’s act. (every state allows coa to be brought against wrongdoer).
c.        Primary emphasis of statutes is to give coa to survivors (to dependents and statutes define who dependents are—those who depend on decedent). IF no beneficiaries (or dependents), the MAJORITY OF jurisdictions say cause of action fails.
d.       No recovery allowed if no dependents
3.       Loss to Survivors Statute – Trier of fact (Judge) determines future monetary contribution of deceased.
C.      Survival
1.       CL – Tort C/A abated w/ death of party prior to judgment
i.                     Ex. A negligently injured B in car wreck. 6 mos. later B dies of Ca/stroke/lightning (unrelated cause—nothing to do w/wreck). At CL, B’s potential coa against A abated (ceased to exist). It didn’t matter whether or not B had filed suit. (if had filed it was dismissed, if hadn’t then it couldn’t be brought). Same rule applied if A died (action ceased to exist).  This rule came over on Mayflower. People began to see it didn’t make sense and legislatures began to enact Survival Statutes (term refers to coa surviving not the person—coa no longer abates).
2.       Survival Statutes – All states have statutes that override abatement and allow C/A whether party is living or dead.
a.       Maj. – Party must be survived by statutory beneficiary or no C/A exists (Lord Campbell’s Act)
b.       Min. (MS) – Any time D’s wrongful act causes death, the wrongful death action appropriate.
·         MS § 91-7-233 – death before filed, suit can be brought as long as SOL hasn’t run—Personal representative of deceased may bring that coa.
o        Personal representative is person appointed by court to administer the affairs of the deceased (administrator/administratrix if died w/o will or if died w/will executor or executorix)
·         MS § 91-7-237 – death after filed, personal rep. can continue the suit
o        The coa belongs to the estate –personal rep. can recover any pain and suffering damages that would have been available up until time of death, lost income, medical expenses, property damages, etc—whatever B could have recovered in his coa against a, his estate can recover.
o        The money recovered in these suits is an asset of the estate—first people entitled to get money from estate of deceased persons is creditors (people who B owed money) and whatever is left would be distributed to B’s heirs at law—if w/o will statutes of intestate succession determine who one’s heirs are (if will then will determines).
o        Exceptions: Not all coa’s survive—ex. libel, slander (defamation) and intentional affliction of emotional distress do not survive in most states. (not sure about MS—no case on point). Personal actions survive (actions that are brought for injury to person, damage to property, and actions for recovery of property).
3.       Cannot prevail in Wrongful Death C/A unless wrongful act of D actually caused the death.
i.                     Ex. Wilkes—MS case—Wilkes developed lung CA (had smoked for about 40 years) and suffered a time before he died; however his death was not related to Lung Cancer. His heirs mistakenly brought WRONGFUL DEATH action against American Tobacco Co.—claiming products liability (alleging cigs were defective). SC of MS said family didn’t have Wrongful death action b/c those actions are reserved for situations where D’s conduct caused the death.—Estate should have brought a SURVIVAL ACTION (for personal injury—which was available due to 97-7-233—see above and if elements proved could recover anything decedent could have.
ii.                    MSàpersonal rep. can bring wrongful death action but so can beneficiaries. But PERSONAL REP. of DECEDENT’S ESTATE is the only one allowed to bring a SURVIVAL action. (ex. husband or wife can bring wrongful death action but can’t bring survival action unless p.r.).
4.       Distinction—assume person injured but lingers for 9 mos. and then dies. In majority of states, family can bring Wrongful Death action but will be limited to losses the dependent sustained. What about amounts that decedent sustained such as pain and suffering for 9 mo., loss of income, med. Expenses, etc. (survival action). Some say can bring both wrongful death and survival action together –depends on state. (questions about what creditors subject to and dependents have to determine how each state handles the issue).
D.      MS § 11-7-13 – Wrongful Death Statute—1857 (amended lots)
1.     If decedent would have had a tort c/a for injury had he or she survived then a wrongful death c/a can be sustained. It doesn’t matter the cause of death, if the decedent had a c/a if he/she had not died then a wrongful death action can be brought when died.
·         Whether intentional, negligent, carried by SL (such as products liability), or breach of warranty 
2.     Who can bring a wrongful death action—MS doesn’t have Lord Campbell type statute (coa can be brought even if decedent was not supporting anyone—can be brought in name of personal rep., unborn quick child, or widow or any beneficiaries (but will be only one lawsuit—whoever files joins everyone else). In order to prevail have to prove 1) duty, 2) breach of duty, 3) cause in fact (but for the act ind. Wouldn’t have died), 4) legal/proximate cause, and 5) Damages.
        a.     Group 1 – surviving spouse and children – all in this group split damages (share      
·         If one child already dead, but has 2 kids, then they split his share (ex. spouse and 2 kids—each get 1/3)
        b.     Group 2 – parents and siblings – if no one in group 1, then all in this group split damages. (2 parents and 2 brothers and sisters—each get ¼)
·         If no one in group 1 or 2, then goes to estate (legal rep. subject to debts and legal distribution).
·         Stepchildren cannot bring suit
·         Half sibling entitled to same share as full sibling (different from intestate succession)
·         Illegitimate children can inherit from natural mother if she is killed
o        Different for father – must establish relation w/ suit to determine heirship—can recover provided heirship is proven
c.     All possible parties must be joined in suit
d.     Adopted child killed – new family takes place of natural family—wrongful death benefits belong to the adopted family, the natural family doesn’t share in wrongful death benefits; however, if the adopted child’s new father (adoptive father) dies the adopted child can share in benefits but can also share in benefits if the natural father is killed.
E. Wrongful Death c/a re: Unborn Children – Majority of states say suit can be brought provided it is viable (some states don’t allow wrongful death suit for unborn child)
·         MS Standard is now quickened (movement in womb)—some justices would agree to push back to conception but legislature stepped in and said no it’s quickened.
E.       Statute of Limitations – begins when death occurs or when sol would have begun on c/a for just injury
1.     Depends on underlying cause of action/tort which caused the death:
·         Intentional act (assault) – 1 yr.
·         Act caused by malpractice – 2 yrs.
·         Caused by defective product or general negligence – 3 yrs.
2.       For # of years MS SC held that statute didn’t begin to run until the person died, but in Jenkins v. Pensacola Healht Care the court overruled and said SOL BEGINS TO RUN WHIN SOL WOULD BEGIN TO RUN AN JUST AN INJURY ACTION—begin when c/a on an injury had begun to run—DISCOVERY RULE APPLIES
F.       Damages (can’t recover damages for loss of life in a wrongful death action). Jury can’t consider how much value 50 years of life is—can’t put value on human life.
1.       MS SC has said the following elements can be recovered in Wrongful Death Actions:
a.       Expense of last illness
b.       Any Conscious Pain and Suffering of the deceased
c.        Funeral Expenses
d.       Present Net-Cash Value of decedent’s work-life expectancy
                                                         i.            Determined by multiplying the projected annual future income of the deceased by his work-life expectancy, discounting it to present cash value and deducting a % for the deceased’s personal living expenses. Amounts to what decedent would have saved during his work-life expectancy
e.        Loss of Society and companionship of the deceased (but no grief)
f.        Punitive damages upon proof of willful negligence or gross misconduct
                                                      i.      If killed at work may not sue the employer—family is limited to decedents’ workers compensation benefits.    
      2. MS legislature has said in cases where survival and wrongful death causes of actions can be brought that all of the money recovered will go tot the Wrongful Death Beneficiaries except the amts. Awarded for ppty. damage (money will go to repair the ppty), funeral expenses, medical expenses (pay med. Expenses) but everything else goes to Wrongful Death Beneficiaries?
Awarded to estate – to pay off expenses
·         Medical Expenses
·         Funeral Expenses
·         Damages to personal property
Awarded to beneficiaries
·         Any conscious Pain & Suffering of the deceased
·         Loss of society & companionship
·         Support they are deprived of: Net cash value of decedent’s work life expectancy (reduce to present value)
o        Call expert economist to determine how much decedent would spend on others
o        Calculation = amt. earning at time of death + increases would have received through retirement – reduction to PV
·         Hedonic Damages (minority) – loss of enjoyment of life (not accepted by MS)
G.      Defenses
1.     Wrongful death is a derivative C/A – any defense that could be raised in original C/A can be brought in wrongful death action
II.      INTENT—7 CAUSES OF ACTION—in order for the c/a to lie the D’s conduct must have been intentional.
A.    Intent
1.     2 part Restatement test (majority)– Conduct is intentional if:
        a.     purpose of act was to invade the protected interest -OR-
b.     D knew it was “substantially certain” that the protected interest was going to be invaded (not absolute certainty)
·         “Substantially certain” means more than just likely to happen, means act will happen unless some extraneous force intervenes to stop it.
·         Subjective test based on what was substantially certain to the D
o        Garrity v. Dailey—5 yo moved chair out from under elderly lady about to sit down. (atty. Could have possibly brought negligence c/a, but might not could have brought b/c of age (5 yo not negligent)—rather atty. Brings Battery Action.
·         In order to establish intent, p has to prove either that: 1) boy moved chair for the purpose of causing her to sit on the ground or 2) apart from whatever motive of child that child knew it was SUBSTANTIALLY Certain that she would sit down on ground
·         (nobody contends he meant for her to break her hip but that is unnecessary—if meant to cause her to sit on ground or knew it was substantially certain that she would sit on ground then it’s sufficient)–p has to show that she was in process/act of sitting down when child moved the chair in order to prove that it was substantially certain to occur.
·         Subjective test—child said he didn’t know—court has authority to believe or not believe the child when making determination (fact question—probably had comprehensive dwelling ins. which would cover child).
                b. difference b/t substantial certainty and grave risk—ex. gathering and everyone was standing around and someone moves chair to sit down in it themselves or for any other purpose then might be negligence c/a but not intentional (b/c not substantial certainty). Ex. driving 125 from oxford to Batesville—grave/serious risk that wreck will occur but it’s not substantially certain to happen. Substantial certainty is more than a grave risk (will happen unless extraneous force steps in to prevent it)
2.     Florida Test (minority) – Conduct is intentional if:
        a.     D’s purpose was to cause the particular harm -OR-
        b.     D knew that it was substantially certain to cause that particular harm
·            Spivey—friendly unsolicited hug by coworker—shortly after face was paralyzed. Brought negligence and battery c/a’s. Battery sol had ran and was barred. So D claims she can’t recover for negligence b/c his act was intentional: court says she can maintain a negligence c/a. Court says b/c in order for her to sustain a batter c/a it must have been substantially certain to him that her face was going to be paralyzed. (not general rule)
o     Most jd’s would have held that she has no cause of action for negligence b/c her c/a was for Battery b/c it was intentional.
o     Ex. if minority rule was applied to Garrit (above) would have to prove that boy knew she would break her hip (wrong)—harmful or offensive touching is all that’s normally required.
3.     Mistake – still liable even if mistaken at to rights towards the person or property
        a.     Mistake NOT A DEFENSE
b.     Example – trespass to land – if enter land by mistake, still liable even if thought it was your land
        Ex. Ranson—hunting and kill dog thinking it was wolf. (coa is trespass to chattels). Liable to owner for costs of dog—no doubt that action harmed the p and was intentional (even though thought it was wolf). Mistake is not a defense.
b.       If invade another’s protected interest, make certain it’s appropriate b/c liable for actions caused by mistake, notwithstanding actions were made in good faith.
c.        Ex. Conversion—mistakenly take car—not a defense to say he thought he had right to take possession of it—but type of defense will have an effect on the type/amount of damages awarded
5.       Insanity – not a defense in negligence or intentional tort actions—general rule
a.     Insane people are liable for their intentional actions (same rules as negligence) (some allow defense for sudden attacks but most do not)
b.     Policy reasons? 
·         Encourage those with interest in estate to care for insane persons
·         Keep insanity determination out of tort law
·         Innocent victim should not bear damages caused by insane
·         Insane should pay their own way (not talking about putting in jail but requiring them to pay their own way)
o        Ex. same tests apply—insane guy intended to hit nurse so didn’t have to apply substantially certain test.
6.       Contributory negligence is not a defense to intentional tort (general rule).
7.       Vicarious liability for intentional torts—employer liable if employee was furthering the business of the employer or acting in scope of his employment. (ex. bill collector gets in fistfight—yes, but not when employee gets in fight w/ personal acquaintance—b/c would be a personal matter.)
8.       Most Insurance policies have Intentional act exclusion and don’t pay for intentional actions—MS tort claims act—not liable for employee’s intentional acts.
i.                     MS—some cases say that while the employee can’t sue the employer for damages that occur while on job in a negligence case (b/c of Workers’ compensation law), if employer’s actions are intentional then employee not limited to WC but can receive addlt. Damages (controversy/confusion in MS SC)
9.       Transferred Intent – If D intended to injure one person w/o right, but injured another, D is liable to the person he injures.
a.     2 Part Test – Both conditions must be met:
·         D intended to injure someone
·         D had no right to injure the person he intended to injure
o        Ex. boys of top of shed—owner threw stick at boy that was most visible but it hit another –trespass action—(today would be a battery case—at one time all intentional

ove either:
1.     D’s conduct must be willful and wanton and invoke outrage and revulsion (intentional); must be atrocious, intolerable, etc. (has to be extremely bad conduct)—can’t just allow q time someone hurts another’s feelings
2.     Mental distress resulted in illness requiring medical treatment (intentional or neg.)—requires the mental distress to be medically cognizant
3. Most jd’s require physical injury b/c of the mental distress—documented severe emotional distress usually suffices.
e. Harris v. Jones—supervisor made fun of guy for stuttering. (sues employer)—severe emotional distress couldn’t be proved but all others were probably met (1st 3)—doesn’t mean it has to amount to a physical injury but does result in SEVERE emotional distress.
g.        Ex. shopping in store and asked associate to find something for her and he says go find it herself b/c she stinks—FL court said not enough—must be really, really bad conduct.
h.       Taylor–p says she was caused severe emotional distress by seeing her father beaten up. Issue: did D’s intend to cause her severe emotional distress. D’s didn’t know she was there and therefore couldn’t intend to cause her emotional distress nor was it substantially certain that she would suffer emotional distress.
VIII.     TRESPASS TO LAND (today the term “trespass” is understood to mean trespass to land)
A.    2 Part Test
1.     Interest Protected? Right of person to exclusive use and possession of land
        **no one else has right to come on it or put something else on it.
2.     Basis of Liability? Conduct interests protected against is Intentional conduct.
        a.     Negligent act causing trespass – cause of action is negligence.
·         No such thing as negligence trespass
3.     No damage required for trespass action – only nominal damages can be awarded
a. Assume someone drives to fast and comes to sharp curve and runs up in p’s yard—not trespass b/c D did not intend to do it nor was it substantially certain that it was going to happen. (maybe a negligence c/a provided there was some damage done)
b. Dougherty v. Stepp—when protected right is invaded then nominal damages can be awarded. (often disputes rise as to who owns land or disputes re: ppty. lines—can litigate who in fact owns by bringing trespass action. Also if D has done something to invade your protect interest and have reason to believe it will happen again then may want to bring c/a for trespass even though only will recover nominal damages, but if happens again in future much more likely to be awarded damages in 2nd suit—bring c/a to prevent D from doing it again or make it more costly to D if he/she does.
B.    Environmental Trespass – must be committed by a tangible thing coming onto land
1.     Particles are tangible if they leave residue
2.     Can only recover if actual damages are shown (minority)
        a. Bradley v. American—microscopic particles floating onto land of another—didn’t mean to do it but they know it’s substantially certain b/c they know it’s happening (p’s have previously notified them)—have intent.
        b. Traditionally, in order to have a trespass you had to cause something tangible to go on the p’s ppty. Intangible things such as light, noise, vibrations, and microscopic particles did not constitute a c/a for trespass. Not as clear as to what is tangible v. non-tangible as in the case of light (quanta—is it tangible or intangible???). To say don’t have c/a for trespass doesn’t mean they didn’t have c/a—instead they could bring a NUISANCE Cause of action (this was private nuisance—interest protected was person’s right not to have the use or enjoyment of his/her ppty. interfered with). IF intangible, some courts say have to bring nuisance c/a. This jd says look at type of interest being invaded (if exclusive possession is being invaded then trespass and if use and enjoyment is being invaded then nuisance). (Exclusive possession in this case b/c particles don’t dissipate. (also have to show it’s causing some type of actual and substantial damage.
o        Most courts would say this is not a trespass action but rather a nuisance action
o        Court says even if do prove it’s a trespass we’re not going to let you recover unless there is actual and substantial damage (goes against trad. View)—this is not the majority but may be the trend of the future.
C.    Change in status – A person or thing’s status on the land can change (go from nontrespass to trespass based on time or place)
D.    Areas above and below land
1.     Airspace – Trespass protects airspace within the “immediate reaches” of the land
·         Actual portion that can be made use of
·         Herrin—D sued for trespass b/c he shot over p’s land at migratory birds. Court says can maintain c/a for trespass of air space above ground. Law says can have trespass for causing something to go in the air near the ground. (before airplanes and balloons used to be it extended to heavens, but now (b/c many cases of people bringing who lived close to airports, etc—the US SC has said can sustain trespass action provided the plane comes w/in “immediate reach” of the land—the portion that p could make some use of. (rare that plane gets that close to someone’s ppty.
o           Most of these actions are brought as private nuisance actions (substantially damaging p’s rights to use and enjoyment of his/her ppty.)
2.     Some states require nuisance action to be brought (if above “immediate reaches”)
3.     Underground protected as well
·         Ex. cave or excavation up under ppty.
E.    Cutting Timber in MS (most common trespass action)
1.     Can recover if:
·         Your land
·         Never gave permission
2.       Entitled to recover double value + cost of reforestation
·         If can show willful and wanton, then can recover $55/Tree
Ø       Rogers—p gave permission to supervisors to put snow fence on his ppty; however, evidence showed that agreement was to only do this in snow season and understanding was that they would take it down (pull it up) when snow season was over—they failed to do it and p was injured when hit post riding on lawnmower. Talking about owner being able to recover against trespasser. COA exists for trespass in this case.
o           §160—“a trespass, actionable under rule stated in §158, may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor or his predecessor in legal interest therein has placed.”
IX.          TRESPASS TO CHATTELS – (very few of these cases brought b/c most had rather bring action for conversion)
A.    2 Part Test
1.     Interests Protected? 
·         Right of person not to have his personal property damaged or to be deprived of use or possession of the chattel for any substantial amount of time
2.     Basis of Liability? Intentional conduct.
B.    Prima Facie Case – liable for trespass to chattels if:
1.     Dispossess other of the chattel
2.     Chattel is damaged
3.     Deprived of use for substantial amount of time, or
4.     Bodily harm is caused to the possessor or harm is caused to some person or thing in which possessor has a legally protected interest
C.    Other Elements
1.     P must show/prove actual damages (mere intermeddling is not enough)
        Ex. guy drives motorcycle to school and parks it—another guy walks by and admires it, pats it and gets up on seat and bounces and makes noises; owner comes out and tells him to get off of it and then he does it again. Owner doesn’t have a c/a for trespass to chattels b/c cycle isn’t harmed and owner not deprived of its use.