by: Brad Morris (modified from original outline by Reed Martz)
To determine the cause of action for a tort, ask:
What interest does this cause of action seek exist to protect?
What kind of conduct does the cause of action protect the interest against?
a. Negl conduct
b. Intentional conduct
c. Any kind of conduct: S/L
Wrongful Death and Survival
I Wrongful death
a. At C/L if D’s act killed another person, either outright or later from those injuries, there was no CAUSE OF ACTION because of the felony-merger doctrine (D was executed and all his property confiscated so there was nothing to be had by a suit).
b. Today it is a separate CAUSE OF ACTION because it arises entirely out of statute in all 50 states, although there is considerable variation.
c. Courts found it ridiculous that a D could be released from liability if the person died but not if they lived. It was said, only half in jest, that if no one saw the tort it was best to make sure the person did not survive.
d. Courts use wrongful death to provide support to those who are adversely affected by the tort.
e. Lord Cambell’s Act- most states are based on this. Sought to provide a cause of action for those financially dependent on decedent. It provided for support that they lost because of the death.
f. Most states have departed from Lord Cambell’s Act in that they allow recovery for loss of companionship, society, and comfort, as well as financial losses such as medical expenses and funeral costs (those are covered under Lord Cambell’s Act).
g. Statute of Limitations begins to run at time of death (b/c there is no wrongful death cause of action until P dies).
MS Wrongful death statute 11-7-13. Not a Lord Cambell’s type Act.
h. Applies to any actionable act (negl, intentional, strict liability)
i. D must settle with all Ps to end the action. Settling with only a few beneficiaries is not enough to extinguish the suit.
j. Does not require the decedent to be survived by any dependents.
k. Damages that may be recovered
i. Expenses of last illness
ii. Any conscious pain and suffering of deceased
iii. Funeral expenses
iv. Present net cash value of decedent’s work life expectancy
1. Damage Lost to the Estate Measure – determined by multiplying projected annual income from decedent’s work life expectancy, discounted to present value, and deducting decedent’s personal living
v. loss of society and companionship
vi. property damage
vii. if conduct meets required level, punitive damages
l. Who receives is defined by the law of intestate succession
i. Spouse, children
ii. If no one in (i), father, mother, siblings
m. Hedonic damages (loss of enjoyment of life) may be recovered for the time period between the injury and death, but not for the lost period of life after death.
Survival means that the cause of action survives the person’s death where it would have been extinguished at C/L.
Survival statutes do not create any cause of action, they merely preserve them. Applies to personal actions such as injury to personal property or recovery of it.
In some states, cause of action related to injuries to the personality do not survive, e.g. libel, slander, emotional distress.
MS: 91-7-233, 91-7-237
Prima facia case
a. The protected interest must be violated
b. Violation must be intentional
c. There must be proof of damage
d. The damage must be proximately caused
i. The scope of liability for intentional torts is more expansive than negligent torts
e. Maj and Rest. position
i. Intend to cause harmful or offensive contact, or
ii. Substantial certainty a harmful or offensive contact would result
1. Subst certainty= circumstances such that it will happen unless some other force prevents it
f. Mistake is not a defense but may have an effect on the award
g. Insanity is not a defense for policy reasons
h. Transferred intent
i. Jury must conclude D intended to (do the tort) to anyone
ii. Jury must find D had no right to (do the tort)
1. Doesn’t apply in negligent torts because P must be foreseeable
i. The interest protected is the right to be free from intentional contact w/ the person’s body that is harmful or offensive.
i. Harmful- contact that causes pain/discomfort or injury
ii. Offensive- person resents, is offended
1. Must offend a person of ordinary sensibilities, unless
a. D knew P had a particular sensitivity and intended to offend P, even when an ordinary person would not be.
j. Seeks to protect the dignity of the individual
k. Assumption that person wants to be free from contact w/o consent. D touches at his peril.
l. π does not have to be aware of the contact. Consciousness at the time of contact is not required.
m. The person’s body has been extended to include those things which are immediately connected with this body, eg coat, cane, hat, plate.
n. Protects right to be free from reasonable fear of imminent battery (harmful or offensive contact w/ the person)
o. P must be aware of the act. If A shoots at B and B is not aware of it, there is no assault.
p. Protects right of individual not to be intentionally confined by another
q. Barring admission to a place is not false imprisonment because there is no confinement.
r. No set period that says how long confinement must be
s. Must be aware of the confinement.
t. Must be against P’s will.
i. P is not confined if they are there voluntarily.
ii. Confinement can be satisfied by not allowing P to leave, even if P came there voluntarily.
Intentional Infliction of (Severe) Mental Distress
u. 4 elements
i. conduct must be intentional or reckless (most jurisdictions intentional)
ii. conduct must be extreme, outrageous, or beyond all c
to the misunderstanding to be liable.
d. A person is privileged to use reasonable force (commit a battery or other intentional tort) to defend himself against a threatened battery by another.
e. Once the threat is over, the privilege ends.
f. Amount of force
i. As much as reasonably necessary to protect from the threat.
ii. The law is hesitant to validate deadly force.
iii. There must be some proportionality b/w force used and force threatened.
g. Mistake allowed.
i. SD is available even if no threat actually exists as long as person reasonably believes it is present.
h. Defense of others. Same principles apply.
Defense of Property
i. A person can use force to protect their property but rarely will you be permitted to use deadly force or force sufficient to cause serious injury.
j. Amount of force is what is reasonably necessary to the situation as it appears to D.
k. Mistake allowed.
Recovery of Property
l. Apart from fresh pursuit, the owner has no privilege to use force to recover property. This is so because of the availability of a writ of replevin.
i. Fresh pursuit doctrine- if you are in fresh/hot pursuit reasonable force can be used to recover your property (not deadly force)
m. Mistake is no excuse.
i. A privilege is created to allow a merchant to question a suspected shoplifter if
1. owner/agent has reasonable grounds to believe person shoplifting and
2. the interrogation is done in a reas manner
ii. MS 97-23-95
o. Public necessity- when the public interest overrides private interest. Remember: 5th no taking without compensation.
p. Private necessity- makes a person not technically liable for an intentional tort but D is still liable for any damage. Vincent v. Lake Erie Transport Co.
Authority of Law
q. Ministerial acts- no privilege, liability exists
r. Discretionary acts- no liability, a privilege
s. MS- parent-child immunity extends to everything but car accident injuries
t. Other jurisdictions might employ a reasonableness test
u. Still other jurisdictions keep the immunity as far as ‘usual parental activities’
v. Not a defense to an intentional tort
i. However, even if P’s conduct did not give rise to a privilege, D can give evidence of P’s conduct in mitigation of damages