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

Torts II
Spring 2011
Two part test to identify a proper tort Cause of Action
·         What interest does cause of action protect?
·         What kind of conduct does it protect the interest from?
o   Intentional conduct
o   Negligent conduct
o   Strict liability
A.    2 Part Test
1.      Interest protected? – Interest of person not to be killed
2.      Basis of liability – any culpable conduct (negligence, intentional, SL)
B.     Common Law Treatment
1.      Felony Merger Doctrine – All crimes involving death were felony and punishable by death.  All property confiscated by crown, therefore nothing to pursue in tort action
2.      Lord Campbell’s Act – Allowed cause of action for ¶ who could show loss of money
a.       No recovery allowed if no dependents
3.      Loss to Survivors Statute – Trier of fact (Judge) determines future monetary contribution of deceased.
C.     Survival
1.      Common Law – Tort C/A abated w/ death of party prior to judgment
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
o   Exceptions: libel, slander
·         MS § 91-7-237 – death after filed, suit can continue
3.      Cannot prevail in Wrongful Death C/A unless wrongful act of D actually caused the death.
D.    MS § 11-7-13 – Wrongful 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
o   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
E.     Statute of Limitations – begins when death occurs
1.   Depends on underlying cause of action
·         Intentional act (assault) – 1 yr.
·         Act caused by malpractice – 2 yrs.
·         Caused by defective product – 3 yrs.
F.      Damages
1.   Awarded to estate – to pay off expenses
·          Medical
·         Funeral
·         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)
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
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 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
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
4.      Insanity – not a defense in negligence or intentional tort actions
a.   Insane people are liable for their intentional actions (same rules as negligence)
b.   Policy reasons? 
·         Encourage those with interest in estate to care for insane persons
·         Keep i

t he can (i.e. pointing an unloaded gun)
A.  2 Part Test
1.   Interest Protected?  Right of person to be free from confinement against ones will
2.   Basis of Liability?  Intentional conduct.
B.  Prima Facie Case
1.   D’s act caused P to be confined
2.   D acted intentionally
·         Intended or Substantially Certain
3.   Act was the proximate cause of injuries
4.   Damages occurred – Mental Distress
C.  Confinement – restricting a person from leaving a certain area (does not include preventing a person from going in a particular direction)
1.   P must be aware of confinement
2.   Must be against person’s will, cannot be voluntary
·         Voluntary can change to involuntary if person is not allowed to leave
·         Refusal of means to leave is False Imprisonment
3.   Physical force not required, threats are enough
4.   Can restrain someone physically, by threat, or by keeping his or her personal property
5.      False arrest falls under false imprisonment – must be arrested for a valid legal justification
A.  2 Part Test
1.   Interest Protected?  Right of person to be free from severe emotional distress
2.   Basis of Liability?  Intentional conduct.
B.  Prima Facie Case – § 46 Restatement – 4 elements necessary to impose liability:
1.   Conduct must be intentional or reckless
·         Intentional – Purpose or Substantially Certain
2.   Conduct must be extreme and outrageous – “exceeding all bounds which could be tolerated by society”
3.   Causal connection b/w wrongful conduct and emotional distress
4.   Distress must be severe
C.  Ordinary Sensibilities Rule – Must cause severe emotional distress to a person of ordinary sensibilities.
1.   If D has knowledge of P’s special sensitivity, use subjective test
D.  MS Rule – In order to recover, must prove either:
1.   D’s conduct outrage or avulsion (intentional)
2.   Mental distress resulted in illness requiring medical treatment (intentional or neg.)