Select Page

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

Torts II – Weems
Originally prepared by
Two part test to identify a proper tort Cause of Action
2 Part Test
Common Law Treatment
MS § 11-7-13 – Wrongful
Statute of Limitations
1. Depends on underlying cause of action
Intentional act (assault) – 1 yr.
Act caused by malpractice – 2 yrs.
Caused by defective product – 3 yrs.
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
1. Awarded to estate – to pay off expenses
Damages to personal property
Punitive damages???
2. Awarded to beneficiaries
Pain & Suffering
Loss of society & companionship
Net cash value of decedent’s work life expectancy (reduce to present value)
Calculation = amt. earning at time of death + increases would have received through retirement – reduction to PVCall expert economist to determine how much decedent would spend on others
Hedonic Damages (minority) – loss of enjoyment of life (not accepted by MS)
– begins when death occurs Death Statute
1. If person does an act and if P would be able to bring suit against D had act injured P, then if act kills P, P can bring wrongful death action
Whether intentional, negligent, carried by SL, or breach of warranty
2. Who can bring a wrongful death action
a. Group 1 – spouse and children – all in this group split damages
If one child already dead, but has 2 kids, then they split his share
b. Group 2 – parents and siblings – if no one in group 1, then all in this group split damages.
If no one in group 1 or 2, then goes to estate
c. Half sibling entitled to same share as full sibling (different from intestate succession)
d. All possible parties must be joined in suit
e. Adopted child killed – new family takes place of natural family
Stepchildren cannot bring suit
Illegitimate children can inherit from natural mother and her children
Different for father – must establish relation w/ suit to determine heirship
f. Unborn Children – suit can be brought provided it is viable
Standard is now quickness w/ movement to push back to conception
CL – Tort C/A abated w/ death of party prior to judgment
Survival Statutes
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
Exceptions: libel, slander
MS § 91-7-237 – death after filed, suit can continue
Cannot prevail in Wrongful Death C/A unless wrongful act of D actually caused the death.
– All states have statutes that override abatement and allow C/A whether party is living or dead.
Felony Merger Doctrine
Lord Campbell’s Act
a. No recovery allowed if no dependents
Loss to Survivors Statute
– Trier of fact (Judge) determines future monetary contribution of deceased. – Allowed C/A for P’s who could show loss of money – All crimes involving death were felony and punishable by death. All property confiscated by crown, therefore nothing to pursue in tort action
Interest protected? – Interest of person not to be killed
Basis of liability – any culpable conduct (negligence, intentional, SL)
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 other force intervenes to stop it.
Subjective test based on what was substantially certain to the D
2. Florida T

al manifestation of emotional distress, only some degree of distress from the battery.
A. 2 Part Test
1. Interest Protected? Right of person to be free from reasonable (well-founded) fear of imminent battery
2. Basis of Liability? Intentional conduct.
B. Prima Facie Case
1. D’s act caused P to be in R/ fear of imminent harmful or offensive conduct
2. D acted intentionally
Intended or Substantially Certain
3. Act was the proximate cause of injuries
Cause in fact
Legal cause
4. Damages occurred – Mental Distress
C. Fear of Imminent Battery
1. Awareness – P must be aware of the conduct for an assault to occur
2. Imminent – In order to be imminent fear, must be overt act that causes P’s fear
Not imminent if D threatens to do in future
3. Reasonable – If it appeared to P that D could carry out a battery, the fear is reasonable.
Question for jury
4. Older courts require actual overt act (pulling out gun), but recent courts disagree
– If D intended to injure one person w/o right, but injured another, D is liable to the person he injures. – not a defense in negligence or intentional tort actions
Not required that D be able to carry out threat, only that it appears that he can (i.e. pointing an unloaded gun)
What interest does cause of action protect?
What kind of conduct does it protect the interest from?
Strict liability Negligent conductIntentional conduct
Ed Everitt during Spring 2004. This outline was updated and re-formatted by Brad Morris during Spring 2006.