I. WRONGFUL DEATH
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 C/A for P’s 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.
1. CL – 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 C/A is filed, suit can be brought because SOL has not run
o Exceptions: libel, slander
o Personal representative called executor can bring C/A (or administratix if person dies without a will)
· MS § 91-7-237 – when party b had already filed and then died, 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
· 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)
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
H. The money recovered is an asset of the estate
1. creditors are the first people entitles to money of estate
2. what’s left is distributed to B’s heir at law
3. intestate succession – if there is no will, this determines heirs.
I. Only person actions survive (injury to person or property)
J. MISSISSIPPI SPECIFICS
1. Williams v. American Tobacco company – no wrongful death action because D’s conduct did not cause P’s death; should’ve brought survival act
2. In MS, wrongful death acts can be brought by many, but survival claims can only be brought by representatives of the state