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STATE OF MISSISSIPPI RETAIL COMPENDIUM OF LAW
Prepared by Michael W. Baxter
Mason S. Montgomery Copeland, Cook, Taylor & Bush, P.A.
600 Concourse, Suite 100 1076 Highland Colony Parkway
Ridgeland, MS 39157 Tel: (601) 427-1318
Email: [email protected] Email: [email protected]
2014 USLAW Retail Compendium of Law
RETAIL, RESTAURANT, AND HOSPITALITY GUIDE TO
MISSISSIPPI PREMISES LIABILITY
Copeland, Cook, Taylor & Bush, P.A.
by: Michael W. Baxter, email: [email protected], Telephone: 601-427-1318
and Mason S. Montgomery, email: [email protected]
Mississippi Judicial System 1
A. Mississippi State Court System 1
B. Mississippi Federal Court System 2
C. Venue Generally 3
D. Civil Procedure 3
E. Statute of Limitations and of Repose 4
Premises Liability Claims 5
A. Introduction 5
1. Trespasser 5
2. Licensee 6
3. Invitee 6
4. Limited Exception (“active negligence”) 7
5. Open and Obvious Not a Complete Bar 7
6. Non-owner liability 7
B. Slip and Fall Cases 8
a. Factors relevant to whether owner should have discovered condition 8
b. Particular conditions 9
1. Accumulation of water and snow 9
2. Washing/cleaning/waxing floors 9
C. Negligent/Inadequate Security Cases 9
- Factors showing foreseeability of criminal conduct 10
D. Food Poisoning 11
E. Dramshop Cases and Claims 11
A. General Rule 11
1. Social Hosts 11
2. Commercial Sellers 11
B. Exceptions 12
1. Social Hosts 12
2. Commercial Sellers 12
- Factors to consider for alcohol-related liability 12
F. Animal Cases 12
A. Dog Bites 12
1. “One Free Bite” Rule 12
2. Focus of Investigation 13
- Factors relating to the animal’s traits 14
- Factors relating to the precautionary measures 14
B. Escaped Livestock 14
- Factors which tend to rebut the presumption of negligence 14
G. Attractive Nuisance 15
H. Malicious Prosecution 16
I. Common Carrier and Handlers of Electricity 16
J. Defenses 17
A. Open and Obvious Defense Abolished 17
B. Knowledge of Owner 17
C. Independent Contractor 17
D. Slip and Fall Cases 17
Negligence and Liability Generally 17
A. Comparative Fault and Contributory Negligence 17
1. Comparative Fault 17
2. Contributory Negligence 18
B. General Common Law Duty 18
1. Reasonable Care 18
a. Duty of Children 18
C. Contractual Liability 18
1. Hold Harmless 18
2. Indemnification 19
3. Exculpatory Agreements 19
D. Multiple Tortfeasors 19
1. Contribution among joint tortfeasors 19
2. Joint and several liability 20
3. Credit from Settling Defendants 20
4. All Parties Alleged to be at Fault Considered 20
E. Vicarious Liability 20
1. General Rule 20
2. Course & Scope of Employment 20
3. Independent Contractor 21
4. Out-of-Town Trips 22
5. Negligent Hiring 22
6. Parent-Child Relationship 22
F. Assumption of Risk 22
1. Strict Liability 23
2. Negligence 23
Wrongful Death Statute 23
A. Generally (§11-7-13) 23
B. Who May Bring a Wrongful Death Action 23
C. General Venue Statute 24
D. Who May Recover 24
E. Damages in a Wrongful Death Action 24
1. General Rule 24
2. Punitive Damages 24
3. Emotional Distress 25
F. Defenses 25
G. Settlement of Wrongful Death Action 25
Damages 25
A. Punitive Damages 25
1. Punitive Damages Generally 25
2. Factors to Consider and Determine the Amount of Punitive Damages 25
3. Actual Damages Required 26
4. Actions for which Punitive Damages May be Recovered 26
a. Intentional Torts 26
b. Wanton Torts 26
c. Breach of Contract 26
d. Bad Faith Refusal to Pay legitimate Insurance Claims 26
5. Punitive Damage Computation/Caps on Damages 27
6. Definitions 27
a. Non-Economic Damages 27
b. Actual Economic Damages 28
7. Limitations 28
B. Damages Allowed in Personal Injury Case 28
C. Collateral Source Rule 28
D. Loss of Future Earnings 29
E. Income Tax 29
F. Hedonic Damages 29
Minor settlements 30
1
A. STATE COURTS
a. Supreme Court: The highest court of appellate review, the Mississippi
Supreme Court has jurisdiction over appeals from the Circuit Court (including final judgments in
the County and Justice Courts which have been appealed to the Circuit Court.) The Court is
comprised of nine justices, three elected from each of the three Supreme Court districts for eight-
year terms. Miss. Const. Art. VI, 5.145; Miss. Code Ann. §9-3-1 to 9-3-11.
b. Court of Appeals: Created in 1993 by the Mississippi Legislature, the Court of
Appeals has the authority to hear appeals as assigned from the Mississippi Supreme Court.
Decisions are final and are not subject to review by the Supreme Court except by writ of certiorari
(which is granted at the discretion of the Supreme court). The Court of Appeals is composed of ten
judges, two elected from each of the five judicial districts for eight year terms. Miss. Code Ann. §§
9-4-1.
c. Circuit Court: A court of general jurisdiction, the Circuit Court has original
jurisdiction over all matters in controversy exceeding $200,000 (unless such jurisdiction is
exclusively vested by the Mississippi Constitution elsewhere). The Circuit Court also has
jurisdiction over appeals from County and Justice courts. Jury trials are allowed and there are
twenty-two circuit court jurisdictions. Miss. Const. art. VI, §§ 147 Miss. Code Ann. §§ 9-7-81 to
9-7-95.
d. Chancery Court: Composed of twenty chancery court districts, the Chancery
Court has exclusive jurisdiction over matters in equity; divorce and alimony, matters
Testamentary and of administration; minors' business; cases of idiocy, lunacy, and person of
unsound mind; and real property matters. The Chancery Court also hears limited appeals on
matters of equity from County and Justice court. There is no right to a jury trial except for will
contests and paternity suits. Miss. Const. art. VI, §§159; Miss. Code Ann. §§ 9-5-81 to 9-5-105.
e. County Court: County Courts have jurisdiction concurrent with Justice Courts in
both civil and criminal matters, and jurisdiction concurrent with Circuit and Chancery Courts
when the amount in controversy does not exceed $200,000, exclusive of interest and costs. The
$200,000 limit is not affected by any counterclaim or cross-claim amount. County courts also
hear appeals from Justice and Municipal Courts. Miss. Code Ann. §§ 9-9-21.
1. In counties which have elected to have a County Court, that court has
exclusive jurisdiction over eminent domain, partition of personal property, and actions of
unlawful entry and detainer. Miss. Code Ann. §§ 9-9-21 to 9-9-23.
2. County Courts exists in these counties: Adams, Bolivar, Coahoma, Desoto,
Forrest, Harrison, Hinds, Jackson, Jones, Lauderdale, Lee, Leflore, Lowndes, Madison,
Pike, Rankin, Warren, Washington and Yazoo.
2
f. Justice Court: Justice Courts have civil jurisdiction over all matters involving
amounts in controversy up to $3,500, including actions for recovery of debts or damages or for
personal property. Justice Courts also have jurisdiction over all criminal matters concurrent with
Circuit and County Courts (all crimes occurring in their district for which the punishment does not
exceed a fine and imprisonment in county jail). Appeals must be made to the County Court or
Circuit Court. Miss. Code. Ann. §§ 9-11-9.
g. Municipal Court: Municipal courts exercise exclusive jurisdiction over all cases
charging violation of a municipal ordinance or a state misdemeanor law which is made an
offense against the municipality. Miss. Code Ann. § 21-23-7 (amended 2009) (amendment now
allows Municipal Judges to suspend sentences). Municipal Court judges can hear these cases
without a jury or without a record of testimony.
h. Tribal Court: In Williams v. Lee, the United States Supreme Court recognized the
authority that Indian tribes held over their tribal lands. 358 U.S. 217, 233 (1959). The Mississippi
Band of Choctaw Indians is the only federally recognized Indian tribe located in Mississippi. See
Jones v. Billy, 798 So. 2d 1238 (Miss. 2001). Where a cause of action arises between tribal
members on Mississippi Choctaw land, federal law preempts the exercise of state court jurisdiction
over the dispute. Id. at 1239 (recognizing that such disputes should be addressed by the proper
Choctaw tribal court).
B. FEDERAL COURTS:
Every state is divided into districts and a federal court sits in each district within that
state. Mississippi is divided into a Northern district, with federal offices in Oxford, Greenville,
and Aberdeen; and a Southern District with federal offices in Jackson, Biloxi/Gulfport, Natchez
and Hattiesburg. In order for a federal court to have jurisdiction over a claim, it must have
personal jurisdiction and subject matter jurisdiction.
a. Personal Jurisdiction: Personal jurisdiction refers to the ability of a court having
subject matter jurisdiction to exercise power over a particular defendant. There are several ways for a
federal court to obtain personal jurisdiction over a defendant, including where a defendant is present
in the forum state and is personally served with process; where a defendant is domiciled in the forum
state; where a defendant consents to jurisdiction; and where a defendant has committed acts
bringing him within the forum state's long arm statute. Problems arise with personal jurisdiction in
cases involving a nonresident defendant. Most states grant their courts personal jurisdiction over a
nonresident who performs or causes to be performed certain acts within the state. Personal
jurisdiction will be granted regardless of whether the defendant is served within the forum state. For
a federal court to have personal jurisdiction over a nonresident, the nonresident must have
"minimum contacts" with the forum state so as not to offend traditional notions of fair play and
substantial justice. In analyzing these contacts, courts examine the quantity and nature of the
defendant's contacts with the forum state and the connection between the cause of action and the
interest of the forum state in protecting its citizens.
3
b. Subject Matter Jurisdiction: The subject matter jurisdiction of federal courts is
authorized by the Constitution, as implemented by federal statute and is of two types: diversity of
citizenship and federal question jurisdiction. In order for a court to have diversity of citizenship
jurisdiction, each plaintiff must be of diverse state citizenship from each defendant and the amount
in controversy must exceed $75,000 exclusive of interest and costs. Therefore, no plaintiff can be
from the same state as any defendant and there must be a good faith allegation that the amount of
the damages or injuries in controversy exceeds $75,000. The purpose of this statute is to give a
neutral forum to the defendant; therefore, if any defendant is a resident of the forum state, the case
cannot be brought into federal court. 28 U.S.C.A. § 1332. A federal court can also have jurisdiction
if a federal question is presented, regardless of diversity of citizenship or the amount in
controversy. Federal courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws or treaties of the United States. 28 U. S.C.A. § 1331. The federal question must
appear as a part of the plaintiffs cause of action as set out in the complaint and not as part of a
defendant's answer or defense.
C. VENUE GENERALLY
Venue is proper:
a. Where the Defendant resides; or
b. Where the alleged act or omission occurred, or where the event
that caused injury occurred; or
c. In the case of a defective product, the county where the
Plaintiff purchased the product; or
d. If venue cannot be asserted under any other ground, the Plaintiff may only
sue in the county of their hometown. Additionally, now each Plaintiff
must establish venue independently in multi-plaintiff actions. The
amendment also established that medical malpractice actions can only be
filed in the county where the act or omission occurred.
D. CIVIL PROCEDURE
Filing an Answer:
1. State Court: A defendant shall serve his answer within thirty (30) days after the
Service of the summons and complaint upon him or within such time as is
directed Pursuant to Rule 4. MRCP 12.
2. Federal Court: Unless a different time is prescribed by statute of the United
States, a defendant shall serve
a. an answer within twenty (20) days after being served with the summons
and complaint, or
4
b. if service of the summons has been timely waived on request under Rule
4(d), within sixty (60) days after the date when the request for waiver was
sent, or within ninety (90) days after that date if the Defendant was
addressed outside any judicial district of the U.S.
c. After removal from State Court: When defendant has not answered in State
court, the defendant shall answer or present the other defenses or objections
available under these rules within twenty (20) days after receipt of through
service or otherwise of a copy of the initial pleading setting forth the claim
for relief upon which the action or proceeding is based, or within twenty (20)
days after the service of summons upon such initial pleading, then filed, or
within five (5) days after the filing of the petition for removal, whichever
period is longest.
E. STATUTE OF LIMITATIONS AND OF REPOSE
Mississippi has a general three year statute of limitations. Miss. CODE ANN. § 15-1-49.
Mississippi has a one year statute of limitations for certain torts that are considered intentional,
including assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace,
all actions for slanderous words concerning the person or title, for failure to employ, for libels,
and intentional infliction of emotional distress. Miss. CODE ANN. § 15-1-35. See also
CitiFinancial Mortg. Co., Inc. v. Washington, 967 So. 2d 16, 19 (Miss. 2007).
A) Construction. There is a six year statute of repose for construction claims.
Miss. CODE ANN. § 15-1-41. However, fraudulent concealment will toll that statute.
Windham v. Latco of Miss., Inc., 972 So. 2d 608, 614 (Miss. 2008).
B) Contracts.
1. Oral. An action on an unwritten contract, except an unwritten contract of
employment, shall be commenced within three years after the cause of action accrued.
Miss. CODE ANN. § 15-1-29.
2. Written. There is a three year statute of limitations on written contracts. Miss.
CODE ANN. § 15-1-49; USF & G Co. v. Conservatorship of Melson, 809 So. 2d 647
(Miss. 2002).
5
PREMISES LIABILITY CLAIMS:
A. INTRODUCTION
Mississippi follows the common law rule that analyzes premises liability according to the
relationship between the premises owner and the person who comes onto the property. The duty
owed by a premises owner to one who comes onto the property varies depending upon the status of
the person as a trespasser, licensee, or invitee. Set forth below is a discussion of the classes of
people wh7o come onto the property of another and the respective duties owed by the landowner.
Mississippi applies a three part process in determining premises liability: (1) the injured
party must first be classified as an invitee, licencee or trespasser; (2) once the injured party's
status is identified, the duty the business or landowner owes the injured party is determined; (3)
the last step is to determine whether the business or landowner breached this duty. Thomas v.
Columbia Group, LLC, 969 So. 2d 849 (Miss. 2007). See also Leffler v. Sharp, 891 So. 2d 152
(Miss. 2004).
1. Trespasser
A Trespasser is one who enters onto another's property without the owner's knowledge,
permission, license, invitation, or any other right to enter. Thomas v. Columbia Group, LLC, 969 So.
2d 849 (Miss. 2007). See also, Skelton ex. rel. Roden v. Twin County Rural Elec. Ass'n., 611 So. 2d
931 (Miss. 1992). If the owner becomes aware of a trespasser's presence and takes no action to
prevent the trespasser from coming onto the property, the trespasser's status can change to that of a
licensee. Archie v. Illinois Cent. Gulf R. Co., 709 F.2d 287 (5th Cir. 1983).
Factors That Indicate Trespasser Status
Owner is unaware of person's presence
Owner has no reason to anticipate person's presence
Person enters premises illegally
Person enters despite "no trespassing," "employees only," or other signs and without
owner's express or implied permission
A licensee or invitee who enters an area of owner's property under one of the
circumstances above
What Duty Does The Owner Owe A Trespasser?
The only duty a premises owner owes to a trespasser is to avoid "wilfully and wantonly"
injuring the trespasser. Massey v. Tingle, 867 So.2d 235 (Miss. 2004); Adams v. Fred's Dollar Store,
497 So. 2d 1097 (Miss. 1986); Hughes v. Star Homes, Inc., 379 So. 2d 301 (Miss. 1981). Willful
and wanton conduct is more than mere negligence. To constitute willful or wanton injury, as
required to impose liability for an injury suffered by a trespasser, there must be more than mere
inadvertence or lack of attention; there must be a more or less extreme departure from the
ordinary standards of care, and conduct must differ in quality, as well as in degree, from ordinary
negligence involving a conscious disregard of a known serious danger. Leffler v. Sharp, 891 So.
6
2d 152 (Miss. 2004). It occurs when the landowner consciously disregards a known and serious
danger. Taylor v. Mississippian Railway, Inc., 826 So. 2d 742 (Miss. 2002); Skelton, 611 So. 2d at
937 (citing Dry v. Ford, 117 So. 2d 456, 458 (Miss. 1960)). Once the owner knows the trespasser
is present, however, he must exercise reasonable care in his actions. Adams, 497 So. 2d at 1101;
Hughes, 379 So. 2d 301.
2. Licensee
A Licensee is one who comes onto another's property for his own convenience, pleasure,
or benefit pursuant to the express or implied permission of the owner. Thomas v. Columbia Group, LLC, 969 So. 2d 849 (Miss. 2007); Hudson v. Courtesy Motors, Inc., 794 So 2d 999 (Miss. 2001).
See also Skelton, 611 So. 2d 931; Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646
(Miss. 1988). This category includes invited guests where the "invitee" criteria do not apply.
Lucas, 518 So. 2d 646; Archie, 709 F.2d 287.
Factors That Indicate Licensee Status
- Claimant comes onto or is invited onto property for social purposes only -
Owner habitually acquiesces to trespass by claimant
- Claimant enters to seek favor from owner or to retrieve personal property with
owner's permission
- Claimant enters for purpose unrelated to owner's business
- Claimant trespasses in order to rescue another person
What Duty Does The Owner Owe A Licensee?
The owner owes the duty not to "wilfully and wantonly" injure the licensee. Skelton, 611 So.
2d 931. When the owner knows the person is present, he must exercise reasonable care in his
actions. Skelton, 611 So. 2d 931; Adams, 497 So. 2d 1097.
3. Invitee
When the owner expressly or impliedly invites the claimant onto his property for his own
benefit or for his and the claimant's mutual benefit, the claimant is an invitee. This situation
usually arises when a claimant enters property open to the general public such as a business. See Massey v. Tingle, 867 So.2d 235 (Miss. 2004); Radcliff v. Georgia Pacific Corp., 916 So. 2d 546
(Miss. App. 2005); Skelton, 611 So. 2d 931; Lucas, 518 So. 2d 646; Hoffman v. Planters Gin Co., 358 So. 2d 1008 (Miss. 1978).
Factors That Indicate Invitee Status
- Property is open to the general public
- Claimant enters property for purpose connected with owner's business
("business visitor")
- Owner has economic/financial interest in claimant's presence
- Claimant is providing a service (either paid or gratuitous) at owner's request
7
What Duty Does The Owner Owe An Invitee?
The owner owes a duty to make the premises reasonably safe for invitees. See Massey v. Tingle, 867 So.2d 235 (Miss. 2004). Dickens v. Wal-Mart Stores, Inc., 841 F. Supp. 768 (S.D. Miss.
1994); Goodwin v. Derryberry Co., 553 So. 2d 40 (Miss. 1989). When not reasonably safe, the
premises owner has a duty to warn only where there is hidden danger or peril that is not in plain
or open view. Leffler v. Sharp, 891 So. 2d 152, 157 (Miss. 2004); Massey, 867 So. 2d at 239; Corley v. Evans, 835 So. 2d 30 (Miss. 2003).
4. Limited Exception to typical duties owed
The Supreme Court has made a distinction in limited circumstances to the duty owed to a
licensee when there is "active negligence" on the premises. See Hoffman v. Planters Gin Co., Inc., 358 So. 2d 1008 (Miss. 1978). The Court imposed a duty to use ordinary care instead of the typical
willful and wanton standard. The Court held that "active negligence" which subjects a licensee to
unusual danger or increases the hazard to the licensee, when their presence is known, subjects the
owner to liability. This is a narrow holding that applies only to cases involving injury resulting
from "active conduct." Moreover, based on existing case law, it applies only to the operation and
control of a business. See also Little v. Bell, 719 So. 2d 757 (Miss. 1998).
5. Open and Obvious Defense No Longer a Complete Bar to Recovery
One defense that used to preclude liability was the open and obvious doctrine. It should be
noted that the open and obvious theory is not an absolute defense in premises liability cases
anymore. The Mississippi Supreme Court abolished the open and obvious defense as a complete
bar to negligence actions. Tharp v. Bunge Corp., 641 So. 2d 20 (Miss. Miss. 1994). Mississippi is a
comparative negligence state. Therefore, when the defendant asserts that the danger or peril was
open or obvious, the jury must consider the alleged negligence of both parties and apply the
comparative negligence standard. Mayfield v. The Hairbender, 903 So.2d 733 (Miss. 2005). The
defense is merely a factor to be considered in the mitigation or reduction of plaintiff's damages. See
also King v. Kroger, 787 So.2d 677(Miss. App. 2001).
6. Non-Owner Liability
The law does not require that a person actually "own" the property in order to become liable
for injuries which occur on the property. Rather, a claimant need only show that the defendant was in
control of the premises at the time when the accident occurred. Stonecipher v. Kornhaus, 623 So. 2d
955. (Miss. 1993). An obvious example is a tenant or lessee who enjoys exclusive possession over
the property. A tenant/lessee/occupier of premises owes a duty of reasonable care to its invitees for
the property and such necessary incidental areas substantially under its control which he invites the
public to use. Albert v. Scott's Truck Plaza, Inc., 978 So. 2d 1264 (Miss. 2008).
8
B. SLIP AND FALL CASES
From a liability standpoint, slip and fall cases lie within the typical invitee-licensee-
trespasser framework. As to trespassers and licensees, an owner owes only a duty to refrain from
willfully and wantonly injuring the claimant. As for invitees, an owner or occupier of land must
"exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or warn
of dangerous conditions not readily apparent, which owner or occupant knows of, or should know
of in the exercise of reasonable care." Robinson v. Radcliff; 757 So. 2d 1098, 1101 (Miss. App.
2000). The fact that a dangerous condition may be open and obvious does not eliminate the
landowner's duty to maintain the premises in a reasonably safe condition. Mayfield v. The
Hairbender, 903 So. 2d 733 (Miss. 2005). Further, an invitee may not recover for failure to warn
of an open and obvious danger. Vaughn v. Ambrosino, 883 So. 2d 1167 (Miss. 2004).
The test that must be satisfied to recover in a slip and fall case in Mississippi was set forth
in Anderson v. B.H. Acquisitions, Inc., 771 So. 2d 914, 918 ( Miss. 2000), as follows:
Simply put, in order for a plaintiff to recover in a slip and fall case, he [or
she] must (1) show that some negligent act of the defendant caused his [or
her] injury; or (2) show that the defendant had actual knowledge of a
dangerous condition and failed to warn the plaintiff; or (3) show that the
dangerous condition existed for a sufficient amount of time to impute
constructive knowledge to the defendant, in that the defendant should have
known of the dangerous condition.
For cases discussing slip and fall accidents, see generally Miller v. R.B. Wall Oil, Co., Inc.,
970 So 2d 127 (Miss. 2007); Drennan v. Kroger Co., 672 So. 2d 1168 (Miss. 1996); Stelly v.
Barlow Woods, Inc., 830 F. Supp. 936 (S.D. Miss. 1993); Fulton v. Robinson Ind., Inc., 664 So. 2d
170 (Miss. 1995); Downs v. Choo, 656 So. 2d 84 (Miss. 1995); Caruso v. Picayune Pizza Hut, Inc.,
598 So. 2d 770 (Miss. 1992); Munford, Inc. v. Fleming, 597 So. 2d 1282 (Miss. 1992); Waller v.
Dixieland Food Stores, Inc., 492 So. 2d 283 (Miss. 1986); I.C. Penny Co. v. Sumrall, 318 So. 2d
829 (Miss. 1975).
a. Factors Relevant to Whether Owner Should Have Discovered Condition Prior to
Accident:
- Length of time between creation of danger and accident (dirty, aged, or trampled
condition suggests there was time to discover)
- Customary frequency of cleaning/inspection
- Foreseeability that dangerous condition would occur (duty to monitor more closely -
e.g., areas where water, food, oil, etc. are likely to spill)
- Prominence of dangerous condition (reasonable inspection may not detect obscure
condition)
- Prior occurrence of accidents (provides notice to owner that dangerous condition
exis1ts)
9
b. Particular Conditions
1. Accumulations of Water, Ice or Snow
The distinction between "natural" and "artificial" conditions is important. Traditionally, an
owner had no duty to remove natural accumulations while the owner did have a duty to remove
artificial accumulations. However, in light of Mississippi's recent rejection of the open and
obvious defense, an argument can be made that the owner now has a duty to warn an invitee of the
existence of natural accumulations that could cause a slip and fall. See generally Lawrence v.
Wright, 922 So. 2d 1 (Miss. App. 2004)(discussing natural versus artificial conditions).
An owner who undertakes to remove natural accumulations must use due care in doing
so. If his activity exacerbates the condition, he may be guilty of active negligence.
2. Washing/Cleaning/Waxing Floors
The question is whether the owner performed these functions negligently. Pertinent
factors include:
- Posting warnings or roping off wet area
- Presence of skid marks (indicates slipperiness causation factor)
- Timing (more reasonable to clean when fewer people present)
- Materials used (appropriate for floor type?)
- Proper application of waxes, etc.
- Negligence by claimant (running, etc.)
C. NEGLIGENT/INADEQUATE SECURITY CASES
Claims by tenants or patrons against business owners, such as apartment complexes or
hotels, based upon negligent or inadequate security are steadily increasing. These claims generally
arise out of situations where, for example, the tenant or patron was the victim of a criminal act such
as rape, robbery, or assault, and subsequently sues the premises owner for failure to provide
adequate security. Claimants attempting to prove negligent or inadequate security must meet the
traditional elements of negligence: duty, breach, causation, and damages by tenants or patrons.
Business owners owe an invitee the duty to keep their premises reasonably safe and secure.
Lyle v. Mlandinich, 584 So. 2d 397 (Miss. 1991). Although this duty traditionally applied in only
slip and fall cases, Mississippi has expanded it to cover third party criminal acts. The test is
virtually the same: to use ordinary care in protecting invitees from reasonably foreseeable
criminal conduct. Davis v. Christian Bros. Homes of Jackson, Miss., Inc., 957 So.2d 390 (Miss.
App. 2007); Corley v. Evans, 835 So.2d 30 (Miss. 2003); Gatewood v. Sampson, 812 So. 2d 212
(Miss. 2002); Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So. 2d 1186 (Miss. 1994);
O'Cain v. Freeman & Sons, Inc. of Miss., 603 So. 2d 824 (Miss. 1991); Kelly v. Retzer, 417 So. 2d
556 (Miss. 1982). Criminal conduct is foreseeable if the owner had either: 1) actual or constructive
knowledge of a particular assailant's violent nature; or 2) actual or constructive knowledge that the
environment surrounding the business was prone to criminal activity. Grisham v. John Q. Long
10
VFW Post, 519 So. 2d 413 (Miss. 1988). See also Double Quick, Inc. v. Lymas, 50 So. 3d 292
(Miss. 2010)(for the second element, court considered whether an "atmosphere of violence"
existed).
However, under certain circumstances a business owner's liability can be negated despite an
atmosphere of violence existing on or around the property. The business owner's duty to warn
disappears when it is shown that the injured person observed and fully appreciated the peril. Titus v.
Williams, 844 So. 2d 459, 467 (Miss. 2003). In Titus, the defendant owned a convenience store that
was located in an undesirable area. Scuffles, fights and drug deals were known to take place on or
around the premises. While on the defendant's property, the plaintiff in Titus argued with and
confronted and was later killed by a person he knew possessed a gun and was not afraid to use it. The
Court held that the plaintiff created the dangerous situation when he observed and fully appreciated
the peril and still confronted an armed person. The actions of the plaintiff in confronting a known
dangerous person was an intervening cause that prevented liability from being imputed to the
defendant despite there being an atmosphere of violence around the property.
The Court in Titus also noted that "negligence which merely furnishes the condition or
occasion upon which injuries are received, but does not put in motion the agency by or through
which the injuries are inflicted, is not the proximate cause thereof" This is commonly referred to as
the doctrine of remote causation. In Titus, since the property owner merely furnished the condition
or occasion for the incident, i.e. through his ownership of the property, but the plaintiff was the one
who proximately caused his own injuries by voluntarily arguing with and confronting a known
armed person, there was no liability. Thus, a business owner's knowledge of violence or criminal
activity surrounding the property is not the only factor to be considered when determining liability.
The actions of the plaintiff must be considered to determine whether they observed and fully
appreciated the peril or participated in the crime and thus were part of the problem. See also Martin
v. Rankin Circle Apts., 941 So. 2d 854 (Miss. Ct. App. 2006)(holding no liability for business
owner where the victim observed and fully appreciated the dangers around him and even
participated in creating the atmosphere of violence complained of for a substantial period of time).
Factors Showing Foreseeability of Criminal Conduct
- Knowledge that a particular patron/assailant had a history of criminal conduct
- Past history of criminal activity in the surrounding area
- History of criminal activity on the premises
Business owners should take reasonable precautions in securing their premises. The
measure of security reasonably required increases with the level of danger in the area. Examples
of reasonable measures include:
- Adequate lighting
- Gate/fencing
- Appropriate locks
- Security personnel conducting routine patrols
- Alarms
- Warnings to patrons
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- Limited entry/exit access
A claimant must always show that the failure of the owner to take reasonable precautions
was the proximate cause of the harm. Lyle, 584 So. 2d at 400. A defense always available in this
type of case is that the criminal act was not reasonably foreseeable and the criminal act was an
intervening cause thus absolving the owner of liability. Glover ex rel. Glover v. Jackson State
University, 968 So. 2d 1267 (Miss. 2007); O'Cain, 603 So. 2d at 830.
D. FOOD POISONING
For an owner/operator of a restaurant to be held liable under a theory of negligence, a party
must show the restaurant failed to exercise the degree of care a reasonably prudent person, skilled
in the art of selecting and preparing food for human consumption, would be expected to exercise in
the selection and preparation of food for his own private table. Gallipeau v. U.S., 2013 U.S. Dist.
Lexis 111847 citing Goodwin v. Misticos, 207 Miss. 361 (1949). But see also, CEF Enters., Inc., v
Betts, 838 So. 2d 999 (Miss. Ct. App. 2003).
E. DRAMSHOP CASES AND CLAIMS
Dramshop laws impose civil liability on commercial sellers or providers of alcoholic
beverages under certain circumstances when a consumer injures another person or property due
to his intoxication from drinking alcohol sold or provided to him by the seller or provider.
A. General Rule
1. Social Hosts
Mississippi law provides that social hosts are not normally liable for acts of intoxicated guests
(e.g., driving away drunk and killing an innocent pedestrian). Miss. Code Ann. § 67-3-73; See also
Boutwell v. Sullivan, 469 So. 2d 526 (Miss. 1985). The statute states that "no social host who serves
or furnishes any intoxicating beverage to a person who may lawfully consume such intoxicating
beverage shall be liable to such person or to any other person or to the estate, or survivors of either,
for any injury suffered off such social host's premises, including wrongful death and property
damage, because of the intoxication of the person to whom the intoxicating beverages were served or
furnished." Miss. Code Ann. § 67-3-73(3).
2. Commercial Sellers
The same statute limits the liability of commercial sellers of alcohol. "[N]o holder of an
alcoholic beverage, beer or light wine permit, or any agent or employee of such holder, who
lawfully sells or serves intoxicating beverages to a person who may lawfully purchase such
intoxicating beverages, shall be liable to such person or to any other person or to the estate, or
survivors of either, for any injury suffered off the licensed premises, including wrongful death
and property damage, because of the intoxication of the person to whom the intoxicating
beverages were sold or served." Miss. Code Ann. § 67-3-73(2). See also Bridges ex rel. Bridges
v. Park Place Entertainment, 860 So. 2d 811 (Miss. 2003).
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B. Exceptions
There are, however, a few exceptions to the limitation of liability.
1. Social Hosts
A social host "who causes or contributes to the consumption of alcoholic beverages by
force or by falsely representing that a beverage contains no alcohol . . . can be civilly liable." Miss.
Code Ann. § 67-3-73(4) (1972). In addition, a social host who serves alcohol to someone who may
not lawfully consume it (e.g., a minor) can be liable. Cuevas v. Royal D'Iberville Hotel, 498 So. 2d
346 (Miss. 1986).
2. Commercial Sellers
Commercial providers of alcohol have a higher standard of care than social hosts. Under
Mississippi's "Dramshop Act" (§ 67-1-83) and under § 67-3-73(4), a commercial seller of
alcoholic beverages can be liable when the person making a purchase of an alcoholic beverage
was at the time of such purchase "visibly intoxicated." A commercial seller can also be liable
for selling alcoholic beverages to unlawful consumers such as minors. Munford, Inc. v. Peterson,
368 So. 2d 213 (Miss. 1979); Miss. Code Ann. § 67-1-81 (1972).
Factors to Consider for Alcohol-Related Liability
- Was the provider of alcohol a social host or commercial seller?
- Was the consumer a minor?
- Was the consumer forced or tricked into consuming alcohol?
- If a commercial seller, was the consumer visibly intoxicated at the time
he purchased the alcoholic beverage?
F. ACTS OF ANIMALS CASES
A. Dog Bites
Mississippi does not impose strict liability upon the owner of a dog which inflicts or
causes injuries to another. In this respect, Mississippi still follows the "one free bite" rule.
1. "One Free Bite" Rule
The owner of a dog has a duty to exercise reasonable care under the circumstances to guard
against harm. Pennyan v. Alexander, 91 So. 2d 728 (Miss. 1957); Yahoo and MV.R. Co. v. Gordon,
186 So. 631 (Miss. 1939). Since it is unreasonable to expect an owner to take extraordinary
precautions where his animal has never shown an inclination to harm anyone, a dog-bitten claimant
was required to show that the owner knew or should have known beforehand that the animal had
vicious propensities. Thus, the "one free bite."
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Determining whether the owner of the dog is liable for an injury which the animal inflicts
involves a two-part analysis:
1) Did the owner know, or have reason to know, that the dog had "vicious
propensities;" and
2) If so, did the owner take reasonable precautions to guard against harm to third
parties?
Where a dog has already exhibited vicious or dangerous traits, the dog's owner takes on a
duty to exercise reasonable care to avoid foreseeable injury to persons who come onto his
property, even where such persons are mere licensees. See Poy v. Grayson, 273 So. 2d 491
(Miss. 1973).
Since the case of Mongeon v. A & V Enterprises, Inc. ,733 So. 2d 170 (Miss. 1997),
Mississippi has strayed from the "one free bite" rule. Instead, an owner can be held liable if:
the animal has exhibited some dangerous propensity or disposition prior
to the attack complained of, and, moreover, it must be shown that the
owner knew or reasonably should have known of this propensity or
disposition and reasonably should have foreseen that the animal was
likely to attack someone.
Id.
In Mongeon, the plaintiff was attacked by defendant's two Labrador retrievers. The court
held that because the dogs had growled at the plaintiff in the past, the defendant had knowledge of
the dangerous or vicious propensity of the dogs. Id. at 173. In defining what constitutes a vicious or
dangerous propensity the court wrote:
The terms 'vicious propensities' and 'dangerous propensities' have been
defined as `(a)ny propensity on the part of the dog, which is likely to
cause injury under the circumstances in which the person controlling the
dog places in . . . and a vicious propensity does not mean only the type of
malignancy exhibited by a biting dog, that is, a propensity to attack
human beings.'
Id. Under this standard, "[a]ny tendency of a dog to injure persons, whether the dog acts
from a purpose to do bodily harm, from ill-temper, or only playfulness, is a dangerous propensity
for which a keeper who has reason to know of such habit will be liable." Id.
2. Focus of Investigation
When investigating a dog-bite claim, the inquiry should focus on the dog's pre-bite
history and the extent of the owner's efforts to control a dog with known vicious traits.
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Factors Relating to the Animal's Traits:
- Has the dog ever bitten before?
- Has the dog ever reacted in a threatening manner (snarling, growling, snapping)?
- Does the breed tend toward viciousness (e.g., pit bulls)?
- If the dog has vicious traits, when and under what circumstances were they manifested?
- If manifested before the owner obtained the dog, did the owner make reasonable
inquiry?
Factors Relating to the Precautionary Measures (Required Only if Owner had
Reason to Know of Vicious Propensities)
- Fences of adequate height and strength
- Controlled by chain or leash
- Verbal warning by owner, if present
- Muzzle in appropriate circumstances
- Warning sign (two edged sword - claimant can use as evidence of owner's knowledge
of dangerous traits)
- Claimant's status
B. Escaped Livestock
Miss. Code Ann. § 69-13-111 (1972, as amended) provides that where livestock escape onto
a federal or state highways and cause injury, the owner is presumed to have been negligent and is
liable for damages unless the owner rebuts this presumption. Stated differently, the burden shall
be on the owner of any such livestock to prove lack of negligence. However, this has not been
extended to county roads, where the rule is that the injured party must prove the owner was negligent
in allowing livestock to escape. See Barrett v. Parker, 757 So. 2d 182 (Miss. 2000). The owner can
rebut the presumption only by affirmatively proving either:
1) that he took reasonable precautions to keep the animal secured; or
2) that his negligence, if any, did not proximately cause the escape and/or injury.
Carpenter v. Nobile, 620 So. 2d 961 (Miss. 1993). In Carpenter, the court held that the owner must
do more than merely show that the escape "could have" or "might have" happened in some way
unrelated to negligence on his part. The owner must go further and affirmatively prove:
1. the exercise of due care or
2. the occurrence of some superseding factor or other break in the chain of causation.
Factors Which Tend to Rebut the Presumption of Negligence:
- Adequate fence or enclosure
- No history of prior escapes
- History of regular maintenance and inspection of fence or enclosure
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- Evidence that gates and other openings were properly secured at the time of the
escape
Even if there is evidence that the owner was negligent in securing his livestock, direct evidence
that the escape occurred due to some other cause can still rebut the presumption of liability. Such
evidence can include:
- Proof that the escape was proximately caused by an "act of nature" (e.g., storm blows tree
onto fence and animal escapes before owner discovers damage)
- Proof that animal was released by a trespasser (e.g., footprints, eyewitness, broken lock,
etc.)
G. ATTRACTIVE NUISANCE
Under certain circumstances, a landowner can incur liability for injuries to a child without
regard to active negligence on his part due to a condition on the premises which attracted a child of
"tender years" to the condition. This provision for liability is commonly known as the "attractive
nuisance doctrine." The attractive nuisance doctrine applies only to trespassers who are exposed
to conditions considered inherently dangerous. Keith v. Peterson, 922 So.2d 4 (Miss. App. 2005);
Hughes v. Star Homes, Inc., 379 So. 2d 301 (Miss. 1980); Harkins v. City of Carthage, 284 So. 2d 530
(Miss. 1973). Inherently dangerous means that the condition has a hidden danger or dangers which
derive from the very nature of the condition itself. Examples of inherently dangerous conditions
include: railroad turntables, unexploded anti-aircraft shells, dynamite or dynamite caps, fireworks, and
electrical conduits.
Natural conditions and "manmade duplications of natural conditions" are not attractive
nuisances. Coleman v. Associated Pipeline Contractors, Inc., 444 F.2d 737 (5th Cir. 1971). For
example, a tree, lake or creek does not constitute an attractive nuisance. Likewise, a swimming pool
does not constitute an attractive nuisance since it is a manmade duplication of a natural condition.
Ausmer v. Sliman, 336 So. 2d 730 (Miss. 1976); Gordon v. C.H.C. Corp., 236 So. 2d 733 (Miss.
1970).
The investigator should determine the circumstances which led to the encounter between the
child and the dangerous condition. In Mississippi, the old rule was that the child must actually have
been "attracted" to the condition in order for the doctrine to apply. However, Mississippi is moving
away from that standard and moving more towards the standard set forth in the Restatement of Torts.
See Restatement of Torts 2d § 339. Under the Restatement standard, an owner may face liability if
the owner knew or should have known of a dangerous artificial condition on the land, the owner
knew or should have known of children's presence, the child is unable to appreciate the risk due to his
age, and the utility of maintaining the instrumentality is slight compared to the risk to the children. Id.
Further, for a condition to be considered an attractive nuisance, there must be a dangerous condition
maintained on the premises which is easily accessible to children. See generally, Keith v. Peterson,
922 So.2d 4 (Miss. App. 2005). If, for instance, the child merely tripped over or fell into a dangerous
condition while engaged in some unrelated activity, the attractive nuisance doctrine does not apply.
Ausmer, 336 So. 2d 730.
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Factors to Consider in Determining Whether the Attractive Nuisance Doctrine
Applies
- What was the child's status while on the property? If he was an invitee or a licensee, the
doctrine will not apply
- Was the condition the child was attracted to inherently dangerous as opposed to a
natural condition or a man-made duplication of a natural condition? Did the owner
know or have reason to know that children were likely to trespass in the area where the
danger existed?
- Did the owner know or have reason to know that the condition posed an
unreasonable risk of serious bodily harm to children?
- Was the child old enough and intelligent enough to understand and appreciate what he
was doing?
H. MALICIOUS PROSECUTION
In order to succeed on a claim for malicious prosecution, a claimant must prove the
following elements by a preponderance of the evidence:
(1) the institution or continuation of original judicial proceedings, either criminal or
civil;
(2) by, or at the insistence of the defendants;
(3) the termination of such proceedings in plaintiff's favor;
(4) malice in instituting the proceeding;
(5) want of probable cause for the proceedings; and
(6) the suffering of injury or damages as a result of the action or prosecution.
Richard v. Supervalu, Inc., 974 So.2d 944, 948-49 (Ct. App. Miss. 2008) (citing Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 721 (Miss. 2001)); George v. W.W.D. Automobiles, Inc., 937 So.2d
958, 961 (Ct. App. Miss. 2006) (citing McClinton v. Delta Pride Catfish, Inc., 792 So.2d 968,
973(Miss. 2001)); Sullivan v. Boyd Tunica, Inc., 2007 WL 541619 (N.D.Miss.); Perkins v. Wal-Mart Stores, Inc., 46 So. 3d 839 (Miss. Ct. App. 2010). "The failure to prove any one of these elements
by a preponderance of the evidence is fatal to the claim." Perkins, 46 So. 3d 839 (Miss. Ct. App.
2010) (citing Robinson v. Hill City Oil Co., Inc., 2 So.3d 661, 665 (Miss. Ct. App. 2008).
I. COMMON CARRIER AND HANDLERS OF ELECTRICITY
a. Common Carriers: A common carrier owes its passengers the highest degree of
care. They are not, however, the insurers of the public's safety. Therefore, a bus
company is required to exercise the highest degree of care and diligence for the
safety of its passengers. Goodwin v. Gulf transport, 453 So.2d 1035 (Miss. 1984).
b. Handlers of Electricity: Handlers of electricity are also under a higher degree of
care. A power company which dispenses and sells electricity is under a duty to use
17
the highest degree of care for the protection of the public, but there is no duty to a
person with respect to electrical lines not under its control. Upton v. Magnolia Elec. Power Assn., 511 So.2d 939 (Miss. 1987).
J. DEFENSES
A. Open and Obvious Defense Abolished: A danger which is "open and obvious" is
one that a person should be able to easily detect and thereby have warning of its
presence and not be allowed to recover damages if injured due to the danger.
Tharp v. Bunge Corp., 641 So.2d 20 (Miss. 1994); Mississippi, a pure comparative
negligence state, no longer recognizes the "open and obvious" defense as a
complete bar to recovery and Mississippi courts have held that it is only a factor to
consider in determining whether an owner used reasonable care. King. v. Kroger,
787 So.2d 677 (Miss. App. 2001).
B. Knowledge of Owner: Where the defendant's manager invited some friends to a
private party at defendant's place of business after he had closed for the night,
defendant was not liable for injuries plaintiff received at the party by virtue of the
master-servant relationship because the party was without the defendant's knowledge
and was in no way in furtherance of the defendant's
business. The plaintiff, at most, is a licensee to whom the defendant only owed the
duty to not willfully or wantonly injure the plaintiff. Holliday v. Pizza Inn, Inc.,
659 So.2d 860 (Miss. 1995).
C. Independent Contractor: In 2003, Miss. Code Ann. § 11-1-66 was amended to
state that owners or occupiers of land would not be held liable for injuries or death
of an independent contractor due to dangers of which the independent contractor
knew or should have known about.
D. Slip and Fall Cases: In order to recover in a slip and fall case the plaintiff must
prove (1) some negligent act of the defendant that caused him to fall, or (2) the
defendant's actual knowledge of a dangerous condition combined with the
defendant's failure to warn, or (3) that the dangerous condition existed for a
sufficient amount of time to impute constructive knowledge to the defendant in
that he should have known of the dangerous condition. Downs v. Choo, 636 So.2d
84 (Miss. 1995); Merritt v. Wal-Mart Stores, Inc., 911 F. Supp. 242 (S. D. Miss.
1995).
NEGLIGENCE AND LIABILITY GENERALLY
A. COMPARATIVE FAULT/COMPARATIVE NEGLIGENCE
1. Comparative fault. Mississippi is a pure comparative negligence state. Bradford
v. Barnett, 615 So. 2d 580, 582 (Miss. 1993) (trial court erred in failing to
adequately instruct jury under comparative negligence doctrine). Under the
relevant statute, "damages shall be diminished by the jury in proportion to the
18
23
amount of negligence attributable to the person injured, or the owner of the
property, or the person having control over the property." MISS. CODE ANN. §
11-7-15.
The state legislature subsequently expanded the doctrine to one of pure comparative fault,
thus requiring an appropriate percent allocation for each party alleged to be responsible, both with
respect to the plaintiff's damages and to contribution among joint tortfeasors, in a wide range of
actions, including negligence, personal injury or death, and strict liability. Miss. CODE ANN. § 85-
5-7.
2. Contributory Negligence. Mississippi's comparative negligence statute does not
create any degrees of liability, and even where a defendant's negligence is slight
compared to the contributory negligence of the injured, the plaintiff is entitled to
recovery, though damages will be diminished accordingly. See Bradford, 615 So.
2d at 582 (stating defendant still entitled to recover 10% of damages despite being
90% negligent). B. GENERAL COMMON LAW DUTY:
1. Reasonable Care: A reasonable care standard generally applies in negligence cases
with some narrow modifications:
a. Duty of Children: Unless engaged in an adult activity, Mississippi
recognizes three age groups:
i. 0-7 years: In Mississippi, a child under the age of seven is legally
incapable of negligence.
ii. 7-14 years: A child between the ages of seven and fourteen is presumed to
be incapable of negligence, but the presumption may be rebutted by
showing that the child in question had exceptional capacity.
iii. Above the age of 14: Children over the age of Fourteen are presumed to be
capable of negligence, and within this class the duty is to do what a person of
like age, intelligence, and experience would do under similar circumstances.
Steel v. Holiday Inns, Inc., 626 So.2d 593 (Miss. 1982).
C. CONTRACTUAL LIABILITY:
1. "Hold Harmless": A hold harmless agreement is a contractual agreement whereby one
party assumes the liability inherent in a situation, thereby relieving the other party of
responsibility. Hold harmless clauses in construction contracts are void and unenforceable
as against public policy; however, this section does not apply to construction bonds or
insurance contracts. Miss. Code Ann. § 31-5-41.
Miss. Code Ann. § 31-5-41 is known as the "Anti-indemnity Statute." Stated differently,
19
Mississippi law is clear that any agreement in a construction contract by one party to
indemnify another party for that party's own negligence, is against public policy and is void
and unenforceable pursuant to Mississippi's anti-indemnity statute.
2. Indemnification: Indemnification is an undertaking by which one agrees to restore the
victim of a loss, in whole or in part, by payment, to restore the victim of a loss, in whole
or in part, by payment, repair, replacement. Several Federal Court cases have upheld
indemnity clauses where the agreement did not involve a construction contract:
a. A licensing agreement is not a construction contract and therefore an
indemnity clause is valid. Heritage Cablevision v. New Albany Elec. Power
System, 646 So.2d 1305 (Miss 1994).
b. Indemnity Agreement upheld in a contract between a cable TV company and a
telephone company. Lorenzon v. South Central Bell Tel. Co., 546 F. Supp. 694
(S.D. Miss. 1982), affirmed 701 F. 2d 408 (5th Cir.1983).
c. Mississippi statute invalidating agreements to indemnify or hold harmless another
person from that person's own negligence in the case of all contracts for
construction did not apply to an agreement between a business corporation and a
city where the corporation granted the city an easement. The easement was not an
agreement for or dealing with construction. City of Jackson v. Filtrol Corp.,624
F.2d 1384 (5th Cir.1980).
d. Mississippi law did not invalidate a paper company's agreement to indemnify the
railroad for any loss where the paper company was solely responsible for the
negligence and no construction was involved. Illinois Central Gulf v. International
Paper Co. ,824 F.2d 403 (5th Cir. 1987).
3. Exculpatory agreements
For an express agreement exempting the defendant from liability for negligence to be
enforceable, it must appear that its terms were explained to plaintiff and that the express terms of
the agreement apply to the particular negligence. Aerial Agric. Serv. of Montana v. Richard, 264
F.2d 341 (5th Cir. 1959).
D. MULTIPLE TORTFEASOR LIABILITY
1. Contribution Among Joint Tortfeasors
A jointly liable defendant does have the right to contribution against other joint tortfeasors.
Miss. Code Ann.§ 85-5-7(4).
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2. Joint and Several Liability
(Miss. Code Ann.§ 85-5-7(2)) Effective January 1, 2003, Mississippi abolished joint and
several liability, such that a joint tortfeasor is liable only for the amount of damages allocated in
direct proportion to a percentage of fault. Joint and several liability still exists for those "who
consciously and deliberately pursue a common plan or design to commit a tortious act, or
actively take part in it." Miss. Code Ann.§ 85-5-7(4)
3. Credit from Settling Defendants
§ 85-5-7 also dramatically altered the effect of settling defendants upon non-settling
defendants. The law prior to Miss. Code Ann. § 85-5-7 provided that when a party settled with one
defendant, any remaining defendant received a credit for the settlement amount received from the
released defendant. Recently, in Krieser v. Hobbs, 166 F.3d 736 (5th Circuit 1999), the Fifth Circuit
held that under§ 85-5-7, the amount of damages apportioned to a non-settling defendant is not
reduced by the settlement amount paid by another defendant. The non-settling defendant remains
liable for the amount of damages allocated to him in direct proportion to his percentage of fault.
However, fault can be allocated to the settling defendant and when a non-settling defendant paid
more than the jury's apportioned fault, that defendant can seek contribution from the settling
defendant.
4. All Parties Alleged to Be At Fault Considered
In Re Hunter v. General Motors,729 So.2d 1264 (Miss. 1999), the Mississippi Supreme
Court clarified 85-5-7. The Court concluded that the language of the statute gave a tortfeasor the
right to have a jury consider the fault of each person or entity alleged to be at fault, not just the
parties named by the plaintiff in the suit. This means that the trier of fact should consider the
fault of all parties who may have contributed to the plaintiffs injuries, including absent parties or
"phantom defendants".
E. VICARIOUS LIABILITY:
Vicarious liability is the imposition of liability on one person for the actionable conduct
of another based on the relationship between the two persons. Mississippi follows the general
rules concerning respond at superior.
1. General Rule
One who acts through another is, in law, himself the actor. Fruchter v. Lynch Oil Co., 522
So.2d 195 (Miss. 1998) citing Slaughter v. Holsomback, 147 So.318 (Miss. 1933). In claiming an
agency relationship the burden of proving such a relationship is upon the party asserting it. U.S.
Fidelity & Guar. Co. v. Arrington, 255 So.2d 652(Miss. 1971).
2. Course and Scope of Employment
Under Mississippi law, an employer is liable for the tortious conduct of his employee if that
employee was acting within the course and scope of his employment when the tortious conduct
21
occurred. However, a master is not responsible for the injuries caused by his servant if the servant
had abandoned his employment and was about some purpose of his own not incident to his
employment. Smith v. Gardner, 998 F. Supp. 708 (S. D. Miss. 1998).
a. The test of an employer's liability for the action of an employee who departs who
departs from the employer's business for the purpose of his own is whether he was
engaged in his employer's business at the time of the accident, and not whether he
intended to resume it. Seedkem South, Inc. v. Lee, 391 So.2d 990 (Miss 1980).
b. Where the accident arises out of or in connection with work activities and the
master had a de jure (as a matter of law) right or a de facto (existing in fact only)
power to control, the master should be held vicariously liable for the servant's
defaults Colvin v. Ellis Const. Co., Inc., 840 F. Supp. 59 (N. D. Miss. 1993).
c. Conduct of a servant is within the course and scope of employment if, and only if:
i. The conduct is of the kind he is employed to perform;
ii. The conduct occurs substantially within the authorized
time and space limits;
iii. The conduct is actuated, at least in part, by a purpose to
serve the master, and
iv. If force is intentionally used by the servant against
another, the use of force is not unexpected by the master.
Partridge v. Harvey, 805 So.2d 668 (Miss. 2002)
d. Conduct of a servant is not within the scope of employment if it is different
in kind from the authorized time or space limits, or if it is not relevant to the
purpose of serving the master. Sears, Roebuck & Co., v. Creekmore 199 Miss. 48
(1945); See also, Restatement §228 (Second) of Agency (1958).
3. Independent Contractor
Independent contractor is defined as one not under the master's right to control. Generally,
such a person promises a certain result in exchange for the contract price and the master is concerned
with the finished product alone. Where the master may not supervise the input into this performance,
he is not in a good position to prevent the contractor's torts and should not, under the law, be held
liable for those torts absent independent negligence. Richardson v. APAC-MS, Inc., 631 So.2d 143
(Miss. 1994). Furthermore, the beneficiary of an independent contractor's work is not liable for the
acts or omissions of the independent contractor. Duggins v. Washington, 632 So.2d 420 (Miss. 1993).
In determining whether one is acting for another is an independent contractor, the following matters
of fact, among others, are considered:
a. The extent of control which, by the agreement, the master may exercise over the
details of the work;
b. Whether or not the one employed is engaged in a distinct occupation or business;
22
c. The kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the employer or by a specialist without
supervision;
d. The skill required in the particular occupation;
e. Whether the employer or the workman supplies the instrumentalities, tools, and
the place of work for the person doing the work;
f. The length of time for which the person is employed;
g. The method of payment, whether by time or by the job;
h. Whether or not the work is part of the regular business of the employer;
I. Whether or not the parties believe they are creating the relation of master and
servant; and
j. Whether the principal is or is not in business. Wade v. Traxler, 100 So.2d
103 (Miss. 1958).
4. Out- of-Town Trips
Where an employee is required to travel out-of-town on an employer-sponsored
trip, any and all acts the employee might undertake on said trip would not necessarily occur
within the course and scope of his employment. Smith v. Gardner, 998 F. Supp. 708 (S.D. Miss.
1998).
5. Negligent Hiring
An employer may be held liable for injuries if the employer knew or should have known of a
servant's incompetence or propensity to commit certain acts, however, generally, a master cannot be
liable for the negligence of an employee hired with due care. Jones, v. Toy, 476 So.2d 30, 31 (Miss.
1992); American Guar. & Liab. Ins. Co., v. The 1906 Co., Etc. 273 F. 3d 605 (5th Cir. 2001).
6. Parent-Child Relationship
Vicarious liability is inapplicable concerning parent-child relationships except when the
minor child (under the age of 17) is negligently driving a motor vehicle and the parent signed the
child's application for a driver's license. In this situation, the parent will be jointly and severally
liable with the minor. Miss. Code Ann. § 63-1-25.
a. Malicious property damage by a child ages 10 to 18 incurs parental liability up to
$2000 for causes accruing before July 1, 1999. For causes arising after July 1, 1999,
the amount of liability increases to $5000. § 93-13-2.
b. Parents are liable where their negligence made it possible for the child to cause
injury. Williamson v. Daniels, 748 So.2d 754 (Miss. 1999).
F. ASSUMPTION OF RISK:
Assumption of risk prohibits a plaintiff from recovering damages from an injury for
which he voluntarily exposed himself to a known and appreciated danger.
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1. Strict Liability and Products Liability
The elements of a valid defense in strict liability an products liability cases are:
a. Knowledge on the part of the injured party of a condition inconsistent with his
safety;
b. Appreciation by the injured party of the danger of the condition;
c. A deliberate and voluntary choice on the part of the injured party to expose his
person to that danger in such a manner as to register assent on the continuance of
the dangerous condition. Nichols v. Western Auto Supply Co., 477 So.2d 261
(Miss. 1985).
2. Negligence
Assumption of risk serves as a defense to negligence cases, but where assumption of risk
and contributory negligence defenses overlap, contributory negligence rules will apply.
WRONGFUL DEATH STATUE
A. §11-7-13
§11-7-13 of the Miss. Code Ann. applies whenever the death of any person is caused by:
1. Any real, wrongful, or negligent act or omission;
2. Such unsafe machinery, way, or appliance;
3. The breach of any warranty (express of implied) of the purity or fitness of any
foods, drugs, medicines, beverages, tobacco, or any and all other articles or
commodities intended for human consumption.
B. WHO MAY BRING A WRONGFUL DEATH ACTION
A wrongful death action may be brought by:
1. The personal representative of the deceased person for the benefit of all persons
entitled under the law to recover;
2. The spouse for the death of a spouse;
3. The parent for the death of a child;
4. A child for the death of a parent;
5. A sibling for the death of another sibling; or
6. Interested parties who may all join in the suit.
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C. GENERAL VENUE STATUTE
The general venue statute states that a wrongful death action may be filed in any county
where the defendant may be found or where the cause of action occurred or accrued. A cause of
action does not accrue until a death occurs. Therefore, venue could be where the defendant may
be found, where the plaintiff dies, or where the acts of negligence that caused the death occurred.
McMillian v. Puckett, 678 So.2d 652 (Miss. 1996).
D. WHO MAY RECOVER:
Generally, the hierarchy of recovery under the wrongful death statute is as follows:
a. Surviving spouse and children;
b. Surviving spouse, no children;
c. Children, no surviving spouse;
d. Surviving parents and siblings;
e. Legal representative of decedent on behalf of all persons entitled under
the law to recover.
Adopted Children: Although an adopted child can inherit from his adoptive
parents, he can still inherit from or through his natural parents and blood relatives. Natural parents
and siblings right to inherit from adopted children has been statutorily abolished. This does not,
however, expressly take away the right of an adopted child to inherit from the natural parents or to
bring a wrongful death action for the natural parents. Estate of Jones v. Howell, 687 So.2d 1171
(Miss. 1996).
E. DAMAGES IN A WRONGFUL DEATH ACTION
1. General Rule
The party or parties suing shall recover such damages allowable by law as the jury may
determine to be just, taking into consideration all the damages of every kind to the decedent and all
damages of every kind to any and all parties interested in the suit. Miss. Code Ann.§ 11-7-13. This
includes the present net cash value of the life expectancy of the deceased, the loss of companionship,
the pain and suffering of the decedent between the time of injury and death, and punitive damages, if
warranted.
2. Punitive Damages:
Punitive damages are allowable in appropriate cases for wrongful death. However, a
punitive damage instruction will only be given upon proof of gross negligence or willful
misconduct. Lewis v. Hiatt, 683 So.2d 937 (Miss. 1996).
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3. Emotional Distress
A plaintiff may not recover emotional distress damages resulting from ordinary negligence,
without proving some sort of physical manifestation of injury or demonstrable physical harm.
Therefore, mental anguish unaccompanied by demonstrable physical or mental injury" unless the
defendant's conduct was "malicious, intentional, willful, wanton, grossly careless, indifferent or
reckless is not recoverable. Summers ex rel. Dawson v. St. Andrew's Episcopal Sch., Inc., 759 So.2d
1203, 1211-12 (Miss.2000)
F. DEFENSES:
An action for wrongful death is conditioned upon proving that the decedent would have
been entitled to recover from the tortfeasor had he lived. Miss. Code Ann.§ 11-7-13.
Statute of limitations: The statute of limitations does not begin to run until the cause of
action occurs or accrues. This is not measured at the time of the negligent act, but at the time of
the actual death. Sarris v. Smith, 782 So.2d 721 (Miss. 2001). G. SETTLEMENT OF WRONGFUL DEATH ACTION
If one settles a wrongful death action with individuals whom he believes to be wrongful
death beneficiaries, he may still be subject to another lawsuit by a beneficiary whom he did not
know about and who did not participate in the settlement. Miss. Code Ann.§ 11-7-13. Therefore,
court approval through the estate is strongly recommended or an action to determine heirs if no
estate is of record.
DAMAGES GENERALLY
A. Punitive Damages
1. Punitive Damages Generally
Under Mississippi law, punitive damages may be awarded when the plaintiff proves, by
clear and convincing evidence, that the defendant acted with actual malice or gross negligence,
evidencing a willful, wanton, or reckless disregard for the safety of others and the plaintiff is
intentionally or maliciously injured. Miss. Code Ann.§ 11-1-65. Punitive Damages are also awarded
for the protection of society through punishment of the wrongdoer. Note that Miss. Code Ann. § 11-
1-65 does not apply to contracts, libel and slander, or causes of actions for persons and property
arising out of asbestos. Thomas v. Harrah's Vicksburg Corp., 734 So.2d 312 (Miss. 1999).
2. Factors to Consider in Determining the Amount of Punitive Damages
In all cases involving the award of punitive damages, the fact finder shall consider the
following:
a. the defendant's financial condition and net worth;
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b. the nature and reprehensibility of the defendant's wrongdoing;
c. the defendant's awareness of the amount of harm being caused and the defendant's
motivation in causing such harm;
d. the duration of the defendant's misconduct and whether the defendant attempted to
conceal such misconduct; and
e. any other circumstances shown by the evidence to bear on determining a proper
amount of punitive damages. Miss. Code Ann.§ 11-1-65; Thomas v. Harrah's
Vicksburg Corp., 734 So.2d 312 (Miss. 1999).
3. Actual Damage Required
Without actual damage, punitive damages are not recoverable since a claimant has no
right to maintain an action merely to inflict punishment upon some wrongdoer. If the claimant
has no cause of action independent to the supposed right to recover punitive damages, no
punitive damages will be awarded. Temple-Inland Mort. Corp. v. Jones, 749 So.2d 1161 (Miss.
1999).
4. Actions for which Punitive Damages may be Recovered:
Generally, punitive damages may be sought in the following actions:
a. Intentional Torts
a wrong perpetrated by one who intends to do that which the law has
declared wrong (as contrasted with negligence in which the tortfeasor fails to
exercise that degree of care in doing what is otherwise permissible) may allow for
recovery of punitive damages.
b. Wanton Torts
Where the defendant's conduct was willful, wanton, gross or in reckless
disregard for the plaintiff, courts have allowed punitive damages to be assessed.
c. Breach of Contract
Although punitive damages are not ordinarily recoverable in cases involving
breach of contract, they are recoverable where the breach results from an intentional
wrong, insult or abuse as well as from such gross negligence that constitutes an
independent tort; however, punitive damages are allowed only with caution and
within narrow limits. Hurst v. Southwest Legal Services, 708 So.2d 1347 (Miss.
1998).
d. Bad Faith Refusal to Pay Legitimate Insurance Claims
Punitive damages are recoverable for the bad faith refusal to pay an
insurance claim based on a breach of contract theory in which the breach was
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attended by such intentional wrong, insult, abuse or such gross negligence as to
constitute an independent tort.
5. Punitive Damage Computation/Caps on Damages
a. Evidence presented by the injured party regarding the defendant's bank statement
and amount of money the defendant receives (dues, amounts, etc.) is sufficient
proof to show that the defendant is capable of paying a punitive damage award.
Beta Beta Chapter of Beta Theta Pi Fraternity v. May, 611 So.2d 889 (Miss.
1992).
b. All proof of assets, liabilities, income, accounting procedures that tend to
diminish or expand any of those figures, and access to or denial of funds or
properties may be considered if properly admitted into evidence.
c. A computation of net worth (assets minus liabilities) is now required. An
amendment to§ 11-1-65 places caps on punitive damages awards, which are tied to
the defendant's net worth. The cap is lowered as the net worth diminishes.
i. The highest cap is twenty million dollars ($20,000,000), which can be awarded
against a defendant with a net worth in excess of one billion dollars.
ii. The lowest cap was four percent of the defendant's net worth, which applies to
defendants whose net worth is fifty million dollars or less, however, after September
1, 2004, the lowest cap became two percent of the defendant's net worth.
iii. The jury shall not be told about these caps, and the fact that punitive damage
award is less than the applicable cap does not relieve the court from determining
whether it is excessive or not.
In 2003 and 2004, Mississippi, through much litigation and tort reform, has come to
recognize caps on non-economic damages. Miss. Code Ann.§ 11-1-60.
6. Definitions
a. Non-economic Damages
Non-economic damages are defined as subjective, nonpecuniary damage arising from death,
pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and
companionship, loss of consortium, bystander injury, physical impairment, injury to reputation,
humiliation, embarrassment, loss of enjoyment of life, hedonic damages, other nonpecuniary
damages, and any other theory of damages such as fear of loss, illness, or injury. The term
"noneconomic damages" shall not include damages for disfigurement, nor does it include punitive or
exemplary damage.
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b. Actual Economic Damages
Actual economic damages are defined as objectively verifiable pecuniary damages arising
from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of
earnings and earning capacity, loss of income, burial costs, loss of use of property, costs or repair
or replacement of property, costs of obtaining substitute domestic services, loss of employment,
loss of business or employment opportunities, and other objectively verifiable monetary losses.
7. Limitations
In any action for injury based on malpractice or breach of standard of care against a
provider of health care, including institutions for the aged or infirm, in the event the trier of fact
finds the defendant liable, they shall not award the plaintiff more than the following for
noneconomic damages:
a. For claims for causes of action filed on or after September 1, 2004, the sum of
five hundred thousand dollars ($500,000);
b. It is the intent of this section to limit all non-economic damages to the above,
notwithstanding punitive damages or damages for disfigurement or actual
economic damages.
c. For all other actions filed after September 1, 2004, non-economic damages are
capped at One Million Dollars.
B. DAMAGES ALLOWED IN PERSONAL INJURY CASE
In a personal injury case, damages may be awarded based on the following factors:
1. Lost income the injured party would otherwise have received;
2. Decrease in future earning capacity;
3. Expenses for medical services (past, present and future);
4. Compensation for pain and suffering (past, present and future); and
5. Miscellaneous elements:
a. ill health;
b. physical disability;
c. shortening of life expectancy;
d. incapacity to pursue an established course of life; and
e. disfigurement.
C. THE COLLATERAL SOURCE RULE
Generally, courts have held that benefits received by the plaintiff from a source wholly
independent of and collateral to a wrongdoer will not diminish the damages otherwise
Recoverable from the wrongdoer. Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611 (Miss. 2001).
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As a general rule, the fact that the plaintiff received gratuitous medical care, continued salary
or wage payments, proceeds from insurance policies, or welfare and pension benefits, will not be
taken into account when computing damages.
This does not include any settlement which the plaintiff may have already received in
response to threat of litigation on the same issue. Such settlement amounts are taken into account.
Cortez v. Brown, 408 So.2d 464 (Miss. 1981).
Since the collateral source rule excludes all evidence of monies or compensation received
by an injured person from sources independent from a defendant tortfeasor, a tort defendant may
not introduce impeachment evidence during cross-examination of a plaintiff where the evidence
would violate the collateral source rule. Thornton v. Sanders, 756 So.2d 15 (Miss. App. 1999).
D. LOSS OF FUTURE EARNINGS
Future earnings must be reduced to present day value by the jury. Young v Robinson, 538
So.2d 781 (Miss. 1989).
E. INCOME TAX
Under Mississippi law, in a wrongful death action, a damage award is subject to reduction
by income taxes that the decedent would have paid on future earnings. Smith v. Ind.
Constructors, Inc.,783 F.2d 1249 (5th Cir. 1986).
F. HEDONIC DAMAGES
The loss of one's enjoyment of life continues to be an area of confusion in the State of
Mississippi. The issue to be decided here is whether our state will or will not organize This type
of recovery in a personal injury action, and if so, to what extent? Mississippi has answered this
through the Civil Justice Reform Act:
In actions filed prior to January 1, 2003, "Loss of Enjoyment of Life", should
be recoverable as a separate element of damages and fully compensated in personal injury
actions, and expert testimony as to the dollar value is admissible. Kansas City Southern Ry. Co.
v. Johnson, 798 So.2d 374 (Miss. 2001)(superseded by statute on other grounds). This case
would still be proper for cases filed before January 1, 2003. It has since been overruled by statute
and case law.
In actions filed on or after January 1, 2003, the Civil Justice Reform Act Section 10
provides that in any civil action for personal injury there may be recovery for pain and suffering
and loss of enjoyment of life. However, there shall be no recovery for loss of enjoyment of life as
a separate element of damages apart from damages from pain and suffering.
In actions filed on or after January 1, 2003, the Civil Justice Reform Act Section 10
provides that in any wrongful death action, there shall be no recovery for loss of enjoyment of
life caused by death.
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MINOR SETTLEMENTS
All minor's settlements: Any settlement with a minor in Mississippi must be approved by the
chancery court in the county of residence of the minor. The Court is required to fully investigate the
matter, provide a hearing with all parties present, and receive evidence to support its decision. Miss.
Code Aim. § 93-13-59. See also In Re Guardianship of Lane, 994 So. 2d 775, 780 (Miss. Ct. App.
2008).
Small Claims Settlement: If the amount of the minor's settlement is less than $25,000.00, a
guardianship is not necessary and a shortened procedure under the Small Claims Settlement Act is
allowed through the Chancery Court. Miss. Code Ann.§ 93-13-211.
Settlements in Excess of $25,000.00: If the amount of the settlement exceeds $25,000.00,
a guardianship must be opened before the court will approve the settlement. Miss. Code Ann. §
93-13-211.
Assignment of Rights: No parent or other representative of a minor may assign rights to
the proceeds of a minor's settlement to another party, including a medical provider, absent prior
court approval. Cooper Tire & Rubber Co. v. Striplin, 652 So.2d 1102 (Miss. 1995).
