MS Torts

Special Negligence Duties

Children

Under the age of 7

• irrefutably presumed to be incapable of negligence (including contributory negligence)

Between 7 and 14

• presumed to be incapable of negligence, but the presumption may be rebutted by showing that the child in question had exceptional capacity

Good Samaritan Statutes

Protects those providing emergency assistance from civil liability

• only with regard to acts done in “good faith and in the exercise of reasonable care.”

Automated external defibrillators is broader

• any individual who uses such a device in good faith in an emergency is protected unless their actions are grossly negligent.

Personal Injury Damages

Medical Malpractice

• Award for noneconomic damages (for example, pain and suffering) cannot exceed $500,000

All other civil actions the award cannot exceed $1 million

Punitive Damages

capped on a sliding scale tied to the defendant’s net worth.

Intentional Tort Defenses

employs a pure comparative negligence system

Products Liability

Mississippi Products Liability Act codifies all products liability actions in the state.

To recover in a products liability action, the claimant must prove the following:

1. the product was defective because of (a) a material manufacturing deviation, (b) inadequate warnings or instructions, (c) a design defect, or (d) a breach of an express warranty or representation on which the consumer or user justifiably relied;

2. the defective condition made the product unreasonably dangerous to users; and

3. the defective condition was the proximate cause of the claimant’s injury

The seller of a product other than the manufacturer will not be liable unless the seller

1. exercised substantial control over that aspect of the design, manufacture, packaging, or labeling of the product that caused the harm for which recovery of damages is sought;

2. altered or modified the product, and the alteration or modification was a substantial factor in causing the harm; or

3. had actual or constructive knowledge of the defective condition of the product at the time they supplied the product. The intent of this section is to immunize innocent sellers who are mere con-duits of a product.

Products Liability

Design Defect

The manufacturer or seller is not liable for a design defect unless the claimant proves that, at the time the product left the control of the manufacturer or seller,

1. it knew or should have known about the danger that caused the damage, and

2. the product failed to function as expected and there existed a feasible design alter-native that would have prevented the harm without impairing the utility, usefulness, practicality or desirability of the product.

Products Liability

Information Defect

A warning will not be held to be inadequate unless the claimant proves that, at the time of manufacture, the manufacturer knew or should have known about the danger that caused the damage and that the ordinary user or consumer would not realize the danger

Products Liability

Defenses

Mississippi does not apply its comparative negligence rules to strict liability actions.

The manufacturer or seller will not be liable if the claimant

1. had knowledge of a condition of the product that was inconsistent with their safety;

2. appreciated the danger in the condition; and

3. deliberately and voluntarily chose to expose themselves to the danger in such a manner as to assent to the continuance of the dangerous condition (in other words, assump-tion of risk).

Also, the manufacturer or seller will not be liable if the danger posed by the product is or should have been known or open and obvious to the user or consumer of the product, tak-ing into account the ordinary knowledge common to the persons who ordinarily use or consume the product.

Coming to the Nuisance

By statute, an agricultural operation that has existed for a year or more cannot be held to be a public or private nuisance if the oper-ation complies with all applicable state and federal permits

Vicarious Liability

Automobile Owner for Driver

Mississippi does not follow the family car or permissive use doctrine.

Vicarious Liability

Parent for Child

Parents are liable for property damage maliciously done by their child (between ages 10 and 18) up to a maximum of $5,000

Joint and Several Liability

Except for concerted action cases and intentional tort cases, lia-bility for damages will be several only, with each joint tortfeasor being liable only for their percent of the fault.

Fault allocated to an immune tortfeasor or one whose liability is limited by law will not be reallocated to any other tortfeasor

Intra-Family Tort Immunities

Parent-child immunity has been eliminated in automobile accident cases

Governmental Tort Immunity

Tort immunity of the state and its political subdivisions is waived for up to $500,000 in damages (or to the limit of the governmen-tal entity’s liability insurance if higher than that amount) for any single occurrence.

Immunity is retained for certain claims, including: claims arising from

1. a governmental employee’s exercise or failure to exercise a discretionary function or duty;

2. an act or omission of a governmental employee engaged in police or fire protection activities unless the employee acted in reckless disregard of the safety of any person (other than those engaged in criminal activity at the time of the injury);

3. when the claimant was in prison; and

4. out of the administration of corporal punishment or actions to maintain control of students unless the teacher acted in bad faith, with a malicious purpose, or in wanton and willful disregard of human rights or safety