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Mississippi Premises Liability
Premises liability is a theory of negligence which establishes the duty owed to someone injured on a landowner’s or occupier’s premises as a result of conditions or activities on the premises. In Mississippi, premises liability is distinguished by the classification of the complaining party between invitee, licensee and trespasser. Though the Mississippi Supreme Court has repeatedly been asked to abolish these distinctions when deciding a premises liability action and use a reasonable person standard, the Court has declined to do so and continues to follow the practice of classifying a person who enters the land of another as an invitee, a licensee, or a trespasser. See Titus v. Williams, 844 So.2d 459 (Miss. 2003); see also Pinnell v. Bates, 838 So.2d 198 (Miss. 2002). In Pinnell, the Court stated “[t]here is no compelling reason to change our time-honored law on premises liability now. The distinctions between licensee and invitee have been developed over many years and have been grounded in reality.” Id. at 199.
Mississippi Maintains the Distinctions Between Status
Invitee, Licensee and Trespasser
Slip and fall cases are analyzed under the general negligence standard of duty, breach, proximate cause and damages. However, to determine the particular duty and any breach, in a premises liability case, there is a three-step process.
Step one: Determine if injured person as an invitee, licensee, or a trespasser.
Step two: What is the duty owed to the injuries person
Step three: Was the duty breached by the landowner or occupier of the premises.
See, Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004).
When determining the status of an injured party, the facts must be examined and in particular the relationship between the injured person and landowner or occupier. The determination of whether an injured party is an invitee, licensee or trespasser can be a fact question for the jury, but if the facts are not in dispute then it becomes a question of law which may allow early resolution by summary judgment. Id. at 156.
A trespasser is “one who enters upon another’s premises without license, invitation or other right.” Hughes v. Star Homes, Inc., 379 So. 2d 301, 303 (Miss. 1980) (citing Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So. 2d 785 (1955). The Mississippi Supreme Court has added that a trespasser enters another’s property “merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.” Titus v. Williams, 844 So.2d 459 (Miss. 2003) (citing White v. Miss. Power & Light Co., 196 So.2d 343, 349 (Miss. 1967)).
A man left the lounge area of the Quarter Inn, a restaurant/lounge in Vicksburg, Mississippi, and climbed through an open window leading to an adjacent rooftop terrace. It was a small window, three feet off the ground and 24 inches by 32 inches. Further, a locked glass door with “NOT AN EXIT” stenciled on the glass was only four feet away from the window. The man fell through the rooftop approximately twenty feet to the ground. The Court noted that he was an invitee at the time he entered the Quarter Inn, however, he became a trespasser when he climbed onto the rooftop terrace. Leffler v. Sharp, 891 So.2d 152 (Miss. 2004).
The local Parent Teacher Association was holding a Winter Carnival at East Tate Elementary School in Tate County. Anthony Gammel planned on attending the Winter Carnival and parked across the street from the school in the school’s bus parking lot. Anthony was struck by a motorist and killed as he attempted to walk across the roadway to the school. The Court noted the bus parking lot was limited to bus parking only and the lot was not used as parking for the general public. The Court held that Anthony was a trespasser on the school’s property when he chose to park in the bus parking lot. Additionally, the Court noted that Anthony lost his status as a trespasser the moment he stepped off the bus parking lot onto the public roadway, and thus was unable to establish a duty owed at the time of the accident by the school. Gammel v. Tate County School District, 995 So.2d 853 (Miss.Ct.App. 2008).
“A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner…” Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (quoting Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978)).
Nunez was visiting her family and riding an ATV when she crashed into a barbed wire fence and was thrown from the ATV. She alleged that the ATV’s steering and brakes failed and that Spino was aware of the problems and failed to warn her. In finding that Nunez was a licensee, the Court noted that she was on Spino’s property riding his ATV for her own pleasure and benefit and she was clearly a social guest. The Court further noted that although Nunez on occasion does some work for Spino, she was merely visiting her family and was not performing any work on that particular day. Nunez v. Spino, 14 So.3d 82 (Miss.Ct.App. 2009).
A “social guest” is classified as a licensee, or someone who enters a landowner’s or occupier’s premises for his own benefit, pleasure or convenience and with the implied permission of the owner or occupier. Grammar v. Dollar, 911 So.2d 619 (Miss.Ct.App. 2005).
Daulton fell on a walkway and was injured while viewing a neighborhood outdoor Christmas display at the Millers’ residence. Every year the Millers decorated their property with lighting displays and other items symbolic of Christmas and allowed visitors to walk about the property and view the displays. The Millers did not charge admission or receive any form of monetary compensation from visitors to the property. In finding Daulton to be a licensee, the Court noted that the landowner did not receive any tangible form of consideration or obtain any business advantage from the visitors. Daulton v. Miller, 815 So.2d 1237 (Miss.Ct.App. 2001).
An invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978); Langford v. Mercurio, 254 Miss. 788, 183 So. 2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So. 2d 841 (1960). Mutual advantage is needed to create invitee status.
A hired housekeeper has been found to be an invitee in determining the homeowner’s duty of care owed toward the housekeeper. Vaughn v. Ambrosino, 881 So.2d 847 (Miss.Ct.App. 2003).
Church members who do not exceed the scope of the church’s invitation are invitees while attending church for church services or other related functions. Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989).
A customer who went to a laundromat as a patron and allegedly tripped and fell on a soft drink can in the parking lot would be considered a business invitee for purposes of premises liability. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).
A drive-thru restaurant patron that never placed an order because the drive-thru line was too long but instead decided to exit the drive-thru line and proceed to leave the restaurant’s premises was found to be an invitee. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279 (Miss.Ct.App. 2007).
A teenager who was visiting his uncle at his uncle’s apartment complex and drowned while swimming in complex’s swimming pool was held to be an invitee. Handy v. Nejam, No. 2010-CA-01513-COA (Miss.Ct.App. Feb. 28, 2012). The Court noted that the teenager entered the premises as his uncle’s guest and was presumed to be an invitee under the law.
Change in Status
A person’s status can change depending on the circumstances. If an injured party goes beyond the bounds of their invitation, they may lose the invitee status and rights which accompany such. Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (Miss. 1960).
An injured party who asked a garage owner to fix his truck was an invitee; however, when the injured party was allowed by the garage owner to use the facilities to fix his own truck he became a licensee. Id. at 458.
A customer enjoyed an invitation to visit a plant nursery during its operating hours and could thus be considered an invitee. However, one evening he went to the nursery while it was closed and was injured by a heating unit. The Court found that at that particular time he was at best a licensee and at worst a trespasser. Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 38 (Miss. 1989).
A daily newspaper delivery person was assumed by the Court to be an invitee when he entered an office building to deliver and leave the morning newspaper for tenants in that building. One early morning, the newspaper deliverer entered the building, the lights were off and he decided to open a closed elevator door and place the newspapers on the elevator floor. He opened the closed door and attempted to place the newspapers in the elevator, however, he fell in the elevator shaft and injured himself as the elevator was not on that floor. The Court held that he went beyond his limits of invitation by opening a closed or fastened door and was thus a licensee at the time of his injury. Selby v. McWilliams Realty Corp., 246 Miss. 568, 151 So.2d 596 (Miss. 1963).
What is the Standard of Care Once
Status is Determined?
Trespasser – Standard of Care:
The duty owed to trespassers is merely to refrain from willfully or wantonly injuring them. Little v. Bell, 719 So.2d 757 (Miss. 1998) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097 (Miss. 1986)). An owner or occupier has no duty to protect a trespasser from conditions on the premises; thus, he may not be held liable for injuries which result from passive negligence, which is defined as “the failure to do something that should have been done.” Titus v. Williams, 844 So.2d 459 (Miss. 2003)
Injured party, Bracknell, failed to present any evidence that the private property owner’s association wantonly or willfully injured him. Bracknell was the guest of a resident, however, his guest pass had expired. The association did not enforce its rules and regulations to remove guests whose guest pass had expired and it did not enforce its restriction prohibiting guest boats on the private lake. Subsequently, another guest of one of the property owners whose pass had also expired was driving his personal boat, which was prohibited, and crashed into Bracknell causing injury. The Court found that the owner’s association’s lack of attention did not differ from ordinary negligence and did not rise to wanton or willful. Green v. Dalewood, 919 So.2d 1000 (Miss.Ct.App. 2005).
Under Mississippi law, no matter how negligent a landowner or occupier is, he will not be liable to a trespasser provided that it did not amount to willful or wanton negligence. Westmoreland v. Mississippi Power & Light Co., 172 F.2d 643 (5th Cir. 1949).
A septic tank had just been installed on a lot when a young child who lived adjacent to the lot climbed into the tank. As the child was climbing out of the tank he pulled on a 100 pound concrete cover causing it to fall on his head, killing him. The boy was found to be a trespasser and the development company was found not to have violated the standard of care owed to him, to wantonly or willfully injure him. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). The Court then turned to the attractive nuisance doctrine and held that the defendants were entitled to a peremptory instruction because there was nothing inherently dangerous about the septic tank and thus the attractive nuisance doctrine did not apply. Id. at 305.
Licensee – Standard of Care:
As with a trespasser, a landowner or occupier owes a licensee a duty to refrain from willfully or wantonly injuring him. Adams, 497 So.2d at 1100.
In Doe v. Jameson Inn, Inc., a minor female who was the guest of a guest of a registered guest entered the hotel for the express purpose of the illegal activity of smoking marijuana. 56 So.3d 549 (Miss. 2011). She was subsequently raped in the hotel room. In finding that the minor child was not an invitee, the Court noted that the element of mutual benefit was lacking because the hotel received no benefit by virtue of the minor child’s presence on the premises. Id. at 555.
In Turnipseed v. McGee, the Court held that it is the landlord’s duty to exercise reasonable care to keep safe the areas of the premises over which he retains control, and if negligent, and “injury results to a tenant or to a person there in right of the tenant, he is liable in tort.” 236 Miss. 159, 109 So.2d 551, 554 (Miss. 1959).
In relying on the holding in Turnipseed, the Court in Lucas v. Miss Housing Authority No. 8 held that an invited guest of an apartment tenant was an invitee to the apartment complex when he was on the premises to use the swimming pool in the common area. 441 So.2d 101 (Miss. 1983). The Court stated that “[i]t would be unconscionable to establish a principle of law that [the apartment complex] owed to the six-year-old child of a tenant the duty to use reasonable care not to injure him and, yet, owed to his six-year-old invited guest, swimming in the same pool, only the duty not to willfully or wantonly injure him.” Id. at 103. See also Doe v. Mississippi State Fed’n of Colered Women’s Club Housing for the Elderly in Clinton, Inc. 941 So.2d 820 (Miss.Ct.App. 2006). Again, in relying on the language expressed in Turnipseed and restated in Lucas, a minor was held to be an invitee by virtue of her occasional weekend visits with her father, who was a tenant of the subject apartment complex.
However, compare the above cases with Price v. Park Management, Inc., where the tenant of an apartment complex and his guest were attacked in the tenant’s apartment. 831 So.2d 550 (Miss.Ct.App. 2002). The Court held that the duty owed to the tenant was to keep the premises in a reasonably safe condition, but the duty owed to the guest of the tenant was that of a trespasser, to refrain from wantonly or willfully injuring him. Id. at 551. The Court noted that it is “well settled that social guests of the tenant are owed no special duty by the landlord, but merely the duty owed by the landlord to trespassers that the landlord not wantonly or willfully injure the guest.” Id. (citing Lucas v. Buddy Jones Ford Lincoln Mercury, 518 So.2d 646, 647 (Miss. 1988)).
Hoffman Exception – Duty to a Licensee when Increased Hazard Present:
The Hoffman exception applies the standard of ordinary and reasonable care to licensees when the owner operates an activity which causes an unusual danger or increases the hazards to known licensees. Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008 (Miss. 1978). In Hoffman, the Court changed the standard of care owed to a licensee, but it limited the new standard of care to cases involving injury resulting from active conduct as opposed to conditions of the premises, or passive negligence. In Hoffman, it was held that the owner or occupier is liable for injury proximately caused by the owner or occupier’s “affirmative or active negligence in the operating or control of activities which subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known.” Little by Little v. Bell, 719 So.2d 757, 761 (Miss. 1998). However, the Hoffman exception only applies to cases involving the operation or control of a business. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). “In order to fall within the Hoffman exception, the landowner must be aware of the licensee’s presence upon the premises, the landowner must engage in affirmative or active negligence in the operation or control of a business, the landowners’ conduct in regards thereto must subject the licensee or invitee to unusual danger, or increase the hazard to him, and the landowner’s active or affirmative negligence must have proximately caused the plaintiff’s injury.” Little by Little, 719 So.2d at 762.
The Mississippi Supreme Court, in Little by Little, declined to extend the Hoffman exception to situations where there is no operation or control of a business. Id. Andrea was a guest at the Bells’ home and was allowed to play on their trampoline. While either mounting or dismounting the trampoline, Andrea stepped on a milk crate below the trampoline, fell and suffered an injury. The Court found her to be a licensee since there was no mutual benefit, that is, there was no benefit flowing to the landowners by Andrea’s presence on the premises. The Court noted there was no evidence that the Bells knowingly or intentionally placed the milk crate in such a manner as to constitute a hazard. Further, the Court expressly declined to abolish the traditional classifications of injured parties and it rejected the plaintiffs’ invitation to extend the Hoffman exception outside of businesses. Id.
Traps and Hidden Objects:
A premises owner or occupier may be liable when he sets traps or exposes licensees to hidden perils. Marlon Inv. Co. v. Conner, 246 Miss. 343, 149 So.2d 312 (1963). In Marlon Inv. Co., the jury found that the landowner had placed the injured party in a trap when she fell in an unlit abandoned stairwell that was not marked or sealed off and that the landowner knew of the danger and could reasonably foresee an injury to someone else. The owner had a lighted sign with an arrow that pointed downward towards the stairwell indicating his business. The Court affirmed the jury verdict for the injured party and held that the premises owner must disclose to the licensee any concealed, dangerous condition on the premises for which the owner had knowledge in order that the licensee could exercise reasonable care. Id.
It was a fact question for the jury to determine whether a homeowner had a duty to warn a roofing contractor of a rotten spot in the roof which was concealed by pine needles. Hearn v. Brown, 876 So.2d 380 (Miss.Ct.App. 2003) (overruled on other grounds by White v. Stewman, 932 So.2d 27 (Miss. 2006)).
A landowner did not owe her eight-year-old great grandson, a licensee, a duty to specifically warn him of potential danger posed by a debris pile, as the debris pile in her yard was not a trap or hidden peril. Vaughn ex rel. Vaughn v. Estate of Worrell, 828 So.2d 780 (Miss. 2002). The Court noted that the child frequently rode his bicycle in the landowner’s yard, that he was aware of the debris pile and was able to describe it. Id.
Invitee – Standard of Care:
An invitee is owed the highest duty of care. A landowner or occupier must provide property that is reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view. A premises owner is not absolved from his duty to use reasonable care in keeping his premises in a reasonably safe condition just because he warns of a dangerous condition. See Mayfield v. Hairbender, 903 So.2d 733 (Miss. 2005). In Mayfield, the Court noted there is a two-part test requiring separate inquiries: (1) whether the owner kept the premises reasonably safe, and (2) whether the owner warned of hidden dangers of which the owner knew or, in the exercise of reasonable care, should have known. Id. at 738. Breaching either duty supports a claim of negligence. Id.
Injured party, an invitee, fell in Home Depot. However, she did not know what caused her to fall. She could only speculate that a pallet or wood piece may have caused her to slip and/or trip, and such speculation contradicted her deposition testimony that she did not know what caused her fall. The Court found that no proof was presented that the injury was the result of negligence by Home Depot and that Home Depot had no knowledge of a dangerous condition. Rod v. Home Depot USA, Inc., 931 So.2d 692 (Miss.Ct.App. 2006).
The Court held it was a question of fact for a jury whether or not Holiday Inn knew or should have known of a loose mirror in its bathroom that subsequently fell and injured the Pigg’s minor son, who was a hotel guest and thus an invitee, when he closed the bathroom door on which the mirror hung. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197 (Miss. 2008).
A hotel guest slipped on a rubber shower mat when exiting the shower. He claimed the mat twisted or slipped causing him to fall. The Court found there was no evidence of a dangerous condition or that the defendant had any knowledge of a dangerous condition. Stanley v. Boyd Tunica, Inc., 29 So.3d 95 (Miss.Ct.App. 2010). A “property owner cannot be found liable for the plaintiff’s injury where no dangerous condition exists.” Id. at 97-98 (citing Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (Miss.Ct.App. 2006)).
Skating rink did not breach a duty owed to its patron that allegedly tripped and fell over a toy while skating. She claimed the toy was thrown onto the floor from the adjacent arcade. However, no evidence was presented that the skating rink or its employees threw the toy or had any knowledge of the toy being on the skating rink floor. Sullivan v. Skate Zone, Inc., 946 So.2d 828, 832 (Miss.Ct.App. 2007). The Court rejected the argument for “mode of operation” theory of premises liability, which holds that “when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury.” Id. (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 466-67 (Miss.Ct.App. 2003)).
Foreseeability – Was the Particular Act Foreseeable?
Acts by Third Parties:
An apartment complex was renovating a unit and it deposited debris and tile in a nearby wooded area. A group of children subsequently entered the wooded area and began throwing the tile. Undoubtedly, one young boy’s eye was “put out” by a flying piece of tile. The question was raised whether the apartment complex breached a duty not to create a dangerous condition. However, the Court found that the action of plaintiff’s companion was an intervening cause between the apartment complex’s placement of debris and Plaintiff’s injury. It further noted, however, that under the principles of foreseeability a defendant may be held liable for his failure to anticipate an easily-predicted intervening cause and to properly guard against it. But, a defendant may be shielded from liability if the intervening force was a superseding cause. The Court declined to impose a duty upon the complex to reasonably foresee that the discarded scrap tile pieces would be propelled by children at a high rate of speed at the plaintiff. Southland Management Co. v. Brown, 730 So.2d 43 (Miss. 1999).
A business owner has a duty to protect an invitee from acts of third parties where such acts are reasonably foreseeable. Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss. 2002). The Mississippi Supreme Court has stated two ways an injured party can prove foreseeability for the purposes of establishing a duty in premises liability cases:
1) that the owner or occupier had actual or constructive knowledge of the assailant’s violent nature, or
2) actual or constructive knowledge an atmosphere of violence existed on the premises. Gatewood v. Sampson, 812 So.2d 212, 220 (Miss. 2002). See Criminal Conduct section below for further discussion at page 19.
Children as Trespassers – Attractive Nuisance Doctrine:
The Attractive Nuisance Doctrine applies to situations involving child trespassers who may be especially attracted to the items on the premises. The theory of attractive nuisance is that a landowner or occupier is subject to liability for injuries to children trespassing on the landowner or occupier’s premises. Keith v. Peterson, 922 So.2d 4 (Miss.Ct.App. 2005), cert. denied, 926 So.2d 922 (Miss. 2006).
The attractive nuisance doctrine balances two competing interests: first, it considers the interest in protecting children and recognizes that most children will trespass on occasion and are sometimes injured, and second, it weighs the landowner’s interest in not being unreasonably burdened to ensure his property is safe to trespassing children. Harkins v. City of Carthage, 284 So.2d 530 (Miss. 1973).
The doctrine is stated as:
“One who maintains dangerous instrumentalities or appliances on his premises easily accessible to children and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child . . . who is injured thereby, and who did not know and appreciate the danger incurred by him in playing with the instrumentality or in the vicinity of the dangerous condition, or was too young to be charged with such knowledge.” Hughes v. Star Homes, Inc., 379 So.2d 301, 304-05 (Miss. 1980) (quoting Lucas v. Hammond, 150 Miss. 369, 381, 116 So. 536, 537 (Miss. 1928).
The plaintiff must prove four elements when a child enters another’s property and is injured by a dangerous condition:
1) that the owner knew or should have known of the dangerous artificial condition,
2) that the owner knew or should have known that children frequent the area where the
dangerous condition exists,
3) that it is unlikely that the child trespasser could appreciate the risk presented, and
4) that the cost to correct the dangerous condition is minimal compared to the magnitude
of the risk.
In order for a condition on a premises to be an attractive nuisance there must be an inherently dangerous instrumentality maintained on the premises which is easily accessible to children. Hughes, 379 So.2d 304-05. The Mississippi Supreme Court has held that a railroad turntable, unexploded anti-aircraft shells, dynamite or dynamite caps, or other explosives were inherently dangerous instrumentalities. Keith v. Peterson, 922 So.2d 4, 11 (Miss.Ct.App. 2005) (citing Shemper v. Cleveland, 212 Miss. 213, 54 So.2d 215 (1951); Hercules Powder Co. v. Wolf, 145 Miss. 388, 110 So. 842 (1927); McTighe, Hughey & McTighe v. Johnson, 114 Miss. 862, 75 So. 600 (1917)).
Slip and Falls
In order for an injured “invitee” to recover in a slip and fall case, he must show:
1) some negligent act of the landowner or occupier caused his injury;
2) that the landowner or occupier had actual knowledge of a dangerous condition and failed to warn the injured party; or
3) that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the landowner or occupier, in that the landowner or occupier should have known of the dangerous condition.
Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (Miss. 2000) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss. 1995)).
Proof that the liquid’s presence on the floor for a sufficient amount of time to give reasonable notice to the owner is required in order to establish a negligence claim in a slip and fall case. Douglas v. Great Atlantic & Pacific Tea Co., 405 So.2d 107, 111 (Miss. 1981).
Gas station manager routinely inspected area around pumps approximately once every 30 minutes on evening the alleged slip and fall occurred, and he did not witness a spill or see any kind of slippery substance. Further, no one reported a spill or slippery substance. The gas station did not breach its duty of care owed to a customer who allegedly slipped and fell in a slippery substance around the gas pumps. Almond v. Flying J Gas Co., 957 So.2d 437 (Miss.Ct.App. 2007).
Court held that it was an issue of fact whether the business created an unreasonably dangerous condition by not having non-skid matting in its self-service drink area. Merritt v. Wal-Mart Stores, Inc., 911 F.Supp. 242 (S.D.Miss. 1995).
Man slipped on a banana in the produce section of the grocery store with an employee standing nearby. There was conflicting testimony regarding the appearance of the banana and thus its age. It was a jury question as to whether the store had actual or constructive knowledge that the banana peel was on the floor. Downs v. Choo, 656 So.2d 84 (1995).
An on-duty casino employee fell into a patron who was facing a slot machine causing the patron to fall to the floor and sustain injuries. In order to maintain a claim, the injured patron had to show that the employee was conscious when he fell into her. The employee testified that he fainted, and other evidence showed that he did not have a history of fainting and he did not have a medical condition that would have caused him to faint. Court upheld summary judgment in favor of casino. Webb v. Imperial Palace of Mississippi, LLC, 76 So.3d 759 (Miss.Ct.App. 2011).
Open and Obvious
In Tharp v. Bunge, 641 So.2d 20, (Miss. 1994), the Mississippi Supreme Court abolished the open and obvious defense in negligence actions and initiated the comparative negligence concept. However, the Court announced a few black letter conclusions as a result of the open and obvious nature of certain dangerous conditions and the abolishment of the defense:
1) if an invitee is injured by a natural condition on a part of the business that is immediately adjacent to its major entrance and exit, then there is a jury question as to the openness and the obviousness of the danger. Goodwin v. Derryberry Co., 553 So.2d 40 (Miss. 1989).
2) if an invitee is injured by a natural condition on a remote part of the business premises, and the danger was known and appreciated by the injured party, then there is no jury question. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646 (Miss. 1988).
3) if an invitee is injured by an artificial/man-made condition on an adjacent or internal part of the business premises, then there is a jury question as to the openness and obviousness of the danger. Tharp v. Bunge, 641 So.2d 20, (Miss. 1994); Tate v. Southern Jitney Jungle, 650 So.2d 1347 (Miss. 1995); Baptiste v. Jitney Jungle, 651 So.2d 1063 (Miss. 1995); Downs v. Choo, 656 So.2d 84 (Miss. 1995); Fulton v. Robinson, 664 So.2d 170, 175 (Miss. 1995).
“Just how open and obvious a condition may have been is a question for the jury, in all except for the clearest of cases.” Bell v. City of Bay St. Louis, 467 So.2d 657, 664 (Miss. 1985). The Mississippi Supreme Court found that Fulton was one of those clearest of cases, where the injured party fell while walking across a snow covered parking lot, and affirmed a directed verdict for the landowner. 664 So.2d at 176.
Owner Creates Condition
Perhaps the most difficult type of falls to defend occur when the evidence demonstrates a finding that the owner or occupier of the premises created the dangerous condition which caused the injury. Where an injured party who slipped and fell on a business’ premises demonstrates that the dangerous condition was created by negligence of the business or its employees, the injured party need not prove notice to the business. Miller v. R.B. Wall Oil Co., Inc., 970 So.2d 127 (Miss. 2007) (citing Drennan v. Kroger, Co., 672 So.2d 1168, 1170 (Miss. 1996)). However, if the dangerous condition was created by someone who is not associated with the business, the injured party must demonstrate that the owner or occupier had actual or constructive knowledge of the dangerous condition as well as sufficient opportunity to correct the condition. Id.
Proof of a business owner’s knowledge of a dangerous condition is unnecessary where the condition is created by his negligence or the negligence of someone under his authority. Elston v. Circus Circus Mississippi, Inc., 908 So.2d 771 (Miss.Ct.App. 2005), cert. denied, 920 So.2d 1008 (Miss. 2005). The Court in Elston reversed the grant of summary judgment for the business where the injured party slipped and fell in a puddle of water in the vicinity where plants were watered by the business’ agents. The Court noted that a jury may conclude that the business was negligent because it created the dangerous condition and/or because it had constructive notice of the puddle. Id. at 776.
A patron at Fred’s Discount Store slipped on a plastic grocery sack on the floor near the checkout stand and she suffered injuries. A Fred’s representative testified that the shopping bags are required to be kept in a bag well by the cashier and that only Fred’s employees handled the plastic bags. However, the patron did not know how the plastic bag came to be on the floor, nor did she know how long it had been there. The Court found that a reasonable inference could be drawn that Fred’s caused the shopping bags to be on the floor, and thus, the bag was on the floor due to Fred’s negligence. Fred’s Stores of Tennessee, Inc. v. Pratt, 67 So.3d 820 (Miss.Ct.App. 2011).
Unknown Person Creates the Condition – Constructive Knowledge
In contrast to a dangerous condition created by the owner or occupier of a premises, the most difficult way for an injured party to prove negligence on the part of an owner or occupier is when he must establish liability by showing constructive knowledge of the dangerous condition.
Constructive knowledge is established when the dangerous condition is shown to have existed for such a length of time that, in the exercise of reasonable care, the business operator should have known of the condition. Almond v. Flying J Gas Co., 957 So.2d 437 (Miss.Ct.App. 2007). Courts will not indulge presumptions of an injured party’s deficient evidence as to the length of time the hazard existed, but instead, an injured party must present admissible evidence as to the relevant actual length of time in order to establish the owner’s or occupier’s constructive knowledge. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 286 (1986); see also Dickens v. Wal-Mart Stores, 841 F.Supp. 768, 771 (S.D.Miss. 1994).
A gas station’s manager inspected the area around gas pumps approximately once every thirty minutes on the evening that injured party alleged she slipped and fell on slippery liquid substance near pumps. The manager did not witness a spill or see any kind of slippery substance on the ground around the pumps, and no one reported a spill or a slippery substance during the manager’s shift. The Court noted that the injured party did not offer any admissible evidence as to the length of time the alleged slippery substance was present. The Court found that the gas station did not breach its duty of care to the injured party. Almond, 957 So.2d at 440.
Injured party did not present any evidence as to how long a soft drink can, which she alleged to have tripped on and fallen, was in the parking lot of the laundromat. Thus, the owner did not have constructive knowledge of the dangerous condition and was not liable for injuries. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).
Mississippi follows the “one free bite” rule. The first bite effectively provides the land owner with notice of the dangerous propensity of the animal.
There must be proof that the domestic animal exhibited some dangerous propensity or disposition prior to the alleged injury, that the owner knew or should have known of the propensity or disposition, and that the owner should have foreseen that the animal was likely to attack someone. Poy v. Grayson, 273 So.2d 491 (Miss. 1997).
An aggressively growling dog that also chases people is enough to create a jury question of whether there was notice of its dangerous propensity. Mongeaon v. A&V Enterprises, Inc., 733 So.2d 170 (Miss. 1997).
However, the “one-free bite” rule may not apply when the type of animal involved has inherent characteristics that place the premises owner on notice of a dangerous propensity. Olier v. Bailey, 2015WL1611772 (Miss. S. Ct). Olier involved a goose who gave chase to a guest who fell when attempting to flee at attacking goose. The particular goose had not previously attacked anyone. The court, however, found that that geese in general have such a propensity such that a premises owner should have known there was some likelihood that it might attack guests.
If the injury occurs in a “common area” the court will look to who had control of the area. For example, Howell v Holiday, 2011 CA 01789-COA (Miss. Ct. App. 2013), the court found that plaintiff’s status as an invitee or licensee was jury questions. There the plaintiff tripped over an extension cord in front of defendant’s hair salon. The plaintiff was not customer of the hair salon, but parked in the parking lot after hours to attend and event unrelated to the hair salon. Here the jury must determine who had control over the common area of the premises and responsibility for the alleged dangerous condition of the property.
Raised thresholds are generally not considered unreasonably dangerous. In McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990), the Mississippi Supreme Court found that “a raised threshold was not unreasonably dangerous as a matter of law because the floor itself was at least two inches higher than the exterior walkway. See, Dickinson v. Vanderburg, 141 So.3d 455 (Miss. Ct. App, 2014)(affirming that undamaged thresholds, curbs and steps which are common architectural features are not unreasonably dangerous).
Cracks in Parking Lots and Sidewalks
Imperfections to a parking lot are generally not considered unreasonably dangerous conditions. First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 265 (Miss. 1968). Normally occurring dangers do not become hazardous simply because they contain minor imperfections. Some examples of where Mississippi Courts have found such conditions to not be unreasonably dangerous:
Differential between sidewalk sections of three to 4 inches are not unreasonably dangerous. City of Biloxi v. Schamback, 157 So.2d 386 (Miss. 1963).
Cracks on the edge of a concrete riser are not unreasonably dangerous condition. First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 465 (Miss. 1968)
One inch elevation of a sidewalk did not create a dangerous condition. Bond v. City of Long Beach, 908 So.2d 879 (Miss. Ct. App. 2005).
A crevice in the street stretching a half-inch to 3 inches by 18 inches to 2 feet was not enough to make a street unsafe. City of Greenville v. Laury, 159 So. 121 (Miss. 1936)(Cited with approval in Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).
Hole between sidewalk sections covered by grass not unreasonably dangerous. City of Meridian v. Raley, 118 So.2d 342 (Miss. 1960).
Threshold 3/4 of an inch, not unreasonably dangerous. McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990).
Three-inch depression in a sidewalk not unreasonably dangerous. City of Meridian v. Crook, 69 So. 182 (Miss. 1915)(To hold otherwise “would be equivalent to holding that sidewalks in the residence portion of our cities must not deviate three inches from a perfectly smooth surface… The practical result rendering municipalities insurers of the safety of pedestrians.” Id. at 184).
Crack in sidewalk large enough to catch the heel of a pedestrian’s shoe was not unreasonably dangerous. Rowe v. City of Winona, 159 So.2d 282 (Miss. 1964), aff’g directed verdict.
Seven and One-half inch high side walk not unreasonably dangerous. Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss. 1967).
Six inch high curb did not create jury question following a fall. Kroger v. Ware, 512 So.2d 1 281 (Miss. 1987).
An uneven concrete gap in parking a lot was not unreasonably dangerous. Penton v. Boss Hogg Catfish Cabin, LLC, 42 So.3d 1208 (Miss. Ct. App. 2010), Aff’g summary judgment.
Trip Over Parking Bumper
In Jones v. Imperial Palace of Mississippi, LLC, 147 So.3d 318 (Miss. 2014), the Supreme Court affirmed dismissal for the premises owners. Plaintiff alleged that a parking bumper was misaligned and jutted into his path. A casino employee testified that he had reported to his superiors that generally the parking bumpers sometimes became misaligned. However, this testimony was not specific to the particular parking bumper and there was no testimony of how long the particular bumper had been out of place. The Court specifically rejected any effort to use the general knowledge of occasional misalignment of the bumpers. The evidence must be specific to the particular dangerous condition.
The Mississippi Supreme Court has provided that as a matter of law, there is no duty owed by a convenience store owner to persons inside the store to erect barriers in order to prevent vehicles from driving through the store’s plate glass window. Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708 (Miss. 1987).
This rule has consistently been applied to injuries occurring outside the store as well. See, Heard v. Intervest Corp., 856 So.2d 708 (Miss. 1987); Blount v. The Pantry Inc., 936 So.2d 967 (Miss. Ct. App. 2006), and Stanley v. Scott Petroleum Corp., 2015 WL 148915 (Miss. Ct. App. Jan. 13, 2015)(not released for publication)(patrons at a gas station walk-up window hit by out of control vehicle).
However, in Cheeks v. AutoZone, Inc. 2014 WL 4748099 (Miss. 2014), the Mississippi Supreme Court found that AutoZone recognized the hazard by constructing and placing bollards around its entrance. The court noted that certain factual circumstances give rise to the possibility for a duty to arise, such as where the store had assumed the duty by the initial construction of the bollards.
Duty to Render Aid
A property owner who holds its property open to the public is in a special relationship with those who accept the invitation to come onto their property and owes an affirmative duty to aid the injured once learning of the injury. Spotlight Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364 (Miss. 2008). This duty includes the duty to take reasonable action to give invitees first aide and to care for them until they can be cared for by others, such as emergency medical technicians.
In 2014, the Mississippi Court of Appeals affirmed this standard and further provided that the duty to render aid does not include performing EMT-level medical rescue efforts such as CPR or using at automated external defibrillator when so trained or available. O’Gwin v. Isle of Capri-Natchez, Inc., 139 So.3d 783 (Miss. Ct. App. 2014).
Automatic doors are analyzed under the general premises liability standard. The premises owner must have actual or constructive knowledge of the particular hazard, and failed to remedy to warn its invitees. Davis v. Office Max, 131 So.3d 588 (Miss. Ct. App. 2013).
Courts have applied the res ipsa loquitur doctrine to automatic doors accidents. This doctrine provides that negligence can be inferred from the particular factual circumstances. However, courts are reluctant to infer negligence and hazard that this doctrine must be applied cautiously. The elements that an injured party must carry to establish this doctrine are:
1. The premises owner had control or management of the automatic doors;
2. The type of injury was in the ordinary course of things that would not have happened if the premises owner had used proper care; and
3. The injury was not the result of the claimant’s own voluntary act.
Gray v. BellSouth Telecomm, Inc., 11 So.3d 1269, 1272 (Miss. Ct. App. 2009).
Some automatic door cases allege both premises liability negligence claims and product liability claims. The concepts are distinct and apply different standards. This type of case usually arises in allegations against the door manufacturer or seller when the claimant believes the sensor’s were negligently manufactured or designed. See, Wolf v. The Stanley Works, 757 So.2d 316 (Miss. Ct. App. 2000).
An owner has a duty to exercise reasonable care in displaying its products so that they will not fall and injure customers. This includes a duty to display merchandise so that it will not fall as a result of the foreseeable acts of other customers. An owner may be liable for injuries sustained when improperly displayed merchandise falls on a customer, falls into an aisle where a customer stumbles over it or falls toward a customer who is injured in attempting to avoid it.
Like the general premises liability analysis, an owner is not liable for a customer’s injuries in a falling-display case unless the owner either created the condition which caused the accident or had actual or constructive notice of the condition. If merchandise is properly displayed, the storekeeper is not liable when another person knocks over the display and injures a customer. See, 293 Premises Liability 3d § 49:17 (2014 ed.)
Res ipsa loquitur
Res ipsa loquitur can apply to falling merchandise cases where the merchandise was within the owner’s exclusive control, such as where the merchandise was not readily accessible to customers and there was no evidence that customers moved the merchandise, or the product was heavy and there was no evidence of customer abuse or other unforeseeable or uncontrollable event.
Res ipsa loquitur does not apply in falling merchandise cases where the merchandise could have been disarranged by the customer or third persons, such as where the general public had unfettered access to the display or the article in question had actually been moved, thereby eliminating the owner’s exclusive control. Res ipsa loquitur is also inapplicable where there is direct evidence of the cause of the display fall or where the customer, without relying on res ipsa loquitur, has the available means of establishing the storekeeper’s negligence. See, 293 Premises Liability 3d § 49:17 (2014 ed.)
Generally criminal acts “break” the causation chain thus alleviating the premises owner from liability. However, such acts may be deemed reasonably foreseeable if the premises owner had cause to anticipate the acts.
Foreseeability for such can be established by:
1. Actual or constructive knowledge of the parties’ violent nature, or
2. Actual or constructive knowledge that an atmosphere of violence existing on the
Evidence of the existence of an atmosphere of violence may include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises as well as the frequency of criminal activity on the premises.” Lyle v. Mladninich, 584 So.2d 397, 399 (Miss. 1991).
The other crimes in the area or on the premises, must be similar in nature. In Ellis v. Gresham Service Stations, Inc., plaintiff produced numerous incidents of general criminal activity near the store. However, none involved unprovoked assaults. Most were crimes against the store itself. 55 So.3d 1123 (Miss. App. 2011).
Moreover, you can compare the similar crimes with the overall customer traffic. The Kroger Co. v. Knox, 2009-CA-01008-SCT (June 28, 2012). As a matter of law, in the context of Kroger’s more than three million customer visits over the course of three years; four incidents of criminal activity are wholly insufficient to establish as atmosphere of violence.
Importantly, even if the premises owner has such knowledge, a claimant must still prove that some security measure would have in fact prevented the incident. See, Davis v. Christian Brotherhood, 957 So.2d 390 (Miss. App. 2007).
In Christian Brotherhood, Lucius Davis was shot at Christian Brotherhood Apartments. Davis was living with this mother at the time. The complex was in a “high” crime area. Davis’ heirs claimed the apartment’s owners were aware of the high crime rate, and that the incident would not have occurred had it maintained security guards, lights, guarded entry, and other such security measures.
Despite the owner’s knowledge, the court noted that the apartment owner’s had previously hired security guards. And importantly, there was no evidence that any suggested security measure – gated access, security cameras, security guard, or lights– would have prevented the particular shooting from actually occurring.
Thus, not only must the premises owner have knowledge of the criminal conduct, but also must be a cause in fact – some corrective action from a security standpoint would have prevented the incident. See Double Quick v. Lymas, 50 So.3d 292 (Miss. 2010).
An individual may be an invitee as to one owner, but a trespasser to another owner. The injured party’s status as an invitee, licensee or trespasser should be analyzed separately as to each defendant. Thus, a different standard may apply within the same set of facts. In Corley v. Evans, 835 So.2d 30 (Miss. 2003), Stacy Evans Hamrick and her father, James, owned 1000 acres of land. Stacy owned “20%” of the land, but no specific parcel was delineated. Scott Corley was shot during a crawfish boil hosted and planned by Stacy. James knew the event was occurring but took no part in the planning or hosting.
The opinion makes note that the victim was a licensee as to James Evans because, “James derived no benefit from the crawfish boil and was not involved in its promotion or staging.”
See also Elliott v. First Security Bank, 151 So.3d 1059 (Miss. Ct. App. 2014)(finding that plaintiff was an invitee to City, but a licensee as to the Bank for a fall on city sidewalk in front of the bank).
Swimming pool owners have a duty to keep the premises reasonably safe and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view. Handy v. Nejam d/b/a Belleview Place Apartments, 2010-CA-01513-COA (Feb. 28, 2012).
Moreover, the risk of drowning in a pool is open and obvious. Howze v. Garner, 928 So.2d 900, 904 (Miss. Ct. App. 2005). Moreover, in Howze, the Court noted that the pool owner’s “failure to provide flotation devices, hire certified lifeguards, install a life-line, or [provide] brochures pertaining to pool safety does not constitute a breach of the owners’ duty to warn of hidden perils.”
The required elements of malicious prosecution are:
1) the institution of a proceeding;
2) by, or at the insistence of the defendant;
3) the termination of such proceedings in the plaintiff’s favor;
4) malice in instituting the proceedings;
5) want of probable cause for the proceedings; and
6) the suffering of injury or damage as a result of the prosecution.
All six elements must be proven by a preponderance of evidence.
Carl Williams and Willie Reed were shopping at Winn-Dixie when an employee for Winn-Dixie noticed Reed place meats in her purse. Williams and Reed were confronted by employees and were asked to allow the purse to be searched. However, Williams directed Reed to leave the store and he escorted her from the premises. The employees were able to obtain the license plate number of the vehicle in which they left. An affidavit was signed against Williams and he was subsequently arrested. Williams was later acquitted of the shoplifting charges, and he thereafter filed suit against Winn-Dixie for malicious prosecution. Williams v. Jitney Jungle, 910 So.2d 39 (Miss.Ct.App. 2005). The Court found that Winn-Dixie did not lack probable cause in pursuing the criminal proceedings since an employee witnessed Williams assisting Reed in stealing meat from the store. Additionally, Williams failed to produce any subjective evidence that Winn-Dixie maliciously brought the charges against him. Malice “connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice.” Nassar v. Concordia Rod & Gun Club, Inc., 682 So.2d 1035, 1038 (Miss. 1996). The Court affirmed the grant of summary judgment in favor of Winn-Dixie.
In addition, under Mississippi law, dismissal of the proceedings as a result of a voluntary settlement or compromise does not constitute termination in the accused’s favor. Buzz v. Moak, No. 2011-CA-00407-COA (Miss.Ct.App. Sept. 18, 2012) (citing Van v. Grand Casinos of Miss., Inc., 724 So.2d 889, 892 (Miss. 1998)).
Use of Experts
Generally, the use of an expert to theorize as to the cause or source of hazard, such a spill is insufficient to survive summary judgment. See, Cofield v. Imperial Palace of Mississippi, No. 2013-CA-00037-COA (April 8, 20014). Cofield lacked any evidence to support the source or length of the time the spill has been on the floor. The expert attempt to testify to such was “mere speculation and not based on any evidence in the record.” The Mississippi Supreme Court granted further review so this area is subject to further review. See also, Alqasim v. Capitol City Hotel Investors, 989 So.2d 488 (Miss. Ct. App. 2008).
The Mississippi Supreme court has weighed in on the speculative nature to deciding between conflicting inferences:
while inference of negligence may be drawn from circumstantial evidence, those inferences may be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inference, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts.
McCullar v. Boyd Tunica, Inc., 50 So.3d 1009 (Miss. Ct. App. 2010).
VII. Investigation Tips
All witnesses need to be interviewed as soon as possible. Recording the interview is preferable. In these interviews all details should be obtained: details of the area, caused the fall, weather, types of shoes, clothes, what carrying, warnings, visibility. Any existing medical condition or physical limitations that may have caused the incident should be obtained. Attempt to determine the exact location of the incident. The ownership of the area or it may change the person’s status from an invitee.
Find out the names and contact information of other witnesses.
It is also helpful to obtain alternate contact information with the witness, such as their relatives who may be contacted should the witness not be found at the given address and phone number at a later time.
Obtain copies of all employment personnel files of the persons involved.
Get copies of deeds, plats, and leases, concerning the premises.
If a corporation is a party, determine if they company is properly registered and in good standing with the state.
Gather all incident reports (premises owners, policy, ambulance, security personnel).
Collect all sweep logs, bathroom inspection documents, repair records, store reports or other such -documents which may indicate timely inspections of the area.
Gather employee policy, procedures or training manuals that may be relevant.
Ask about maintenance records which may apply to the type of incident – refrigeration repair, automatic doors, and floor cleaning or waxing schedules. If a third-party vendor may some connection to the claims, obtain those records and contact information.
Collect any photographs (specifically ask if there are and images which may be saved on someone’s smart phone.)
If photos are not sufficient, request additional photographs of the area noting if any changes have occurred since the incident.
Secure surveillance video.
If case involves criminal activity gather information for criminal history of the area. Ask employees, managers or owner about crime in the area.
Local police or sheriff’s office usually have list of calls to a location and statistics. These statistics can then be mapped through software which make a compelling trial or mediation exhibit.
Identify what security measures the premises may have used in the past, and gather any documentation and names of potential witnesses to support those measures.
Obtain an official weather report for the area for the relevant date or time period. Governmental agencies are helpful in this regard, or a local TV meteorologist can be employed to prepare an expert report as to the conditions at the time.
An expert may be helpful to determine if building code or material deficiencies that are present that may not necessarily be apparent. Of course, this could work against your defense, but knowing the “bad” may be useful in deciding to be more aggressive in early settlement negotiations. At the same time, it could be beneficial to your defense. For example, you learn that the flooring meets or exceeds the National Standards Institute (ANSI) and the American Society of Safety Engineers (ASSE) (A1264.2-2001) slip resistant standards.
General Mississippi Law
Generally, Mississippi law allows for the assignment of personal claims, including injury claims. Miss. Code Ann. § 11-7-3. Wrongful death claims, however, are not assignable. Coleman Powermate, Inc. v. Rheem Manufacturing Co., 880 So. 2d 329 (Miss. 2004). Only those individuals listed in the wrongful death statute can bring a wrongful death cause of action. Id.
Hospital and Medical Liens
There is no hospital or medical lien statute in Mississippi. However, a valid assignment of a person’s right to recover for medical expenses to a medical provider is enforceable.
Mississippi enacted an amendment to the Health Insurance statutes, §§ 83-9-3, and 83-9-5, to prevent any health insurance policy from containing provisions that restrict an insured from assigning benefits to a health care provider. In addition, the statute permits an insured to provide the health insurance carrier with a written directive to pay the health care provider all or a portion of the policy benefits that have been so assigned. They appear to only be applicable to health insurance policies and not automobile or other insurance policies.
In 2014 these Health Insurance statutes were amended again (§§ 83-9-3, and 83-9-5), to insert a provision requiring insurance carriers doing business in Mississippi to honor assignments for a period of 1 year from the dates of the assignment or until the insured revokes the assignment. Again, these sections apply to health insurance and do not appear applicable to automobile insurance policies.
Punitive damages are available to the insured in addition to the amount of the claim in some cases when the insurance company wrongfully refuses to pay a claim. The jury may consider these damages only when the evidence has established that the insurer acted with (a) malice or (b) gross negligence or reckless disregard for the rights of others. Scott v Transport Indemnity Co., 513 So. 2d 889 (Miss. 1987). See also, Miss. Code Ann. § 11-1-65, regarding punitive damages.
If the insurer has a reasonable factual or legal basis (sometimes referred to as an arguable reason) for denying a claim, the insurer cannot be liable for bad faith in denying it. Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228 (Miss. 2001). See also Negligent Investigation
When a suit covered by a liability insurer is for an amount in excess of the policy limits, and an offer of settlement is made within the policy limits, the insurer has a fiduciary duty to look after the insured’s interest to the same extent as its own, and also to make a knowledgeable, honest and intelligent evaluation of the claim in consideration with its ability to do so. A failure to do this may subject the carrier to all damages, even in excess of the policy. Hartford Acc.& Indem. Co. v. Foster, 528 So. 2d 255, 265 (Miss. 1988).
Extra-contractual damages – Mistake or Clerical Errors
A carrier can be liable for certain expenses incurred by an insured even if the conduct falls short of bad faith or punitive conduct. If an insurer’s failure to pay a claim was the result of a mistake or clerical error, the insurer may be liable for extra-contractual damages caused by anxiety resulting from the delay in payment. Additional expenses including attorney’s fees which are reasonably incurred in an effort to correct the mistake may also be recovered. These kind of damages are often referred to as “Veasley damages” after the case that created the rule. Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 295-96 (Miss. 1992).
An insurer has a duty to perform an adequate and prompt investigation of an insurance claim. The denial of a claim without the proper investigation may give rise to punitive damages. Gilbert v. Infinity Ins. Co., 769 So. 2d 266, 269 (Miss. App. 2000) (citing Bankers Life & Casualty Company v. Crenshaw, 483 So. 2d 254, 276 (Miss. 1985)).
“Obviously, some delay in evaluating claims is inevitable, legitimate and socially useful. Insurers are entitled, and in fact legally obligated to investigate fully the legitimacy of claims, and some skepticism in evaluating claims is appropriate. Since an insurer has an obligation under Mississippi law to investigate claims, discharging that duty is not bad faith. However, an inadequate investigation of a claim may create a jury question on the issue of bad faith.” Pilate v. American Federated Ins. Co., 865 So. 2d 387 (Miss. App. 2004) (quoting Jeffrey Jackson, Mississippi Insurance Law § 12:5 (2001)).
At a minimum, the insurer must determine whether the policy provision at issue has been voided by state or federal court, interview its agents and employees to see if they have knowledge relevant to the claim, and make a reasonable effort to secure all relevant medical records before denying the claim. Eichenseer v. Reserve Life Insurance Co., 682 F.Supp 1355, 1366 (N.D. Miss. 1988).
See also Delay of Payment of Claim
Delay of Payment of Claim
Although Mississippi courts are skeptical of such claims, they have permitted claimants to recover damages on bad faith claims when resolution of an insurance claim is merely delayed rather than ultimately denied. See, e.g., Travelers Indem. Co. v. Wetherbee, 368 So. 2d 829, 834–35 (Miss.1979) (affirming jury award for punitive damages where insurer withheld payment for eight months); AmFed Cos., LLC v. Jordan, 34 So.3d 1177, 1191 (Miss. App.2009) (affirming trial judge’s decision to submit punitive damages issue to the jury in a delay-of-payment case); Pilate v. Am. Federated Ins. Co., 865 So.2d 387, 400 (Miss. App.2004) (“[T]here may be cases where a delay [of payment for one month] could possibly be sufficient grounds for a bad faith claim.”); see also Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d 264, 271 n.1 (5th Cir. 2008) (citation omitted) (“Inordinate delays in processing claims and a failure to make a meaningful investigation have combined to create a jury question on bad faith.”); but see Tutor v. Ranger Ins. Co., 804 F.2d 1395, 1399 (5th Cir. 1986) (per curiam) (reversing jury’s punitive damage award where payment was delayed during an ongoing dispute between insured and insurer); Caldwell v. Alfa Ins. Co., 686 So.2d 1092, 1098 (Miss. 1996)(affirming grant of summary judgment where insurance company delayed payment for three months in complex wrongful death claim, including a six-week delay after it completed its investigation).
A recent Federal Court case in the 5th Circuit analyzed a delay in payment of an uninsured motorists claim by State Farm. The court found several 3 to 6 month periods of delay in the 3 year claims history that State Farm had no arguable or legitimate basis for. Accordingly, these gaps of unjustified delay and inactivity created a jury question of bad faith against the carrier. See James v. State Farm, 743 F.3d 65 (5th Cir. 2014).
A delay is not attributable to an insurer where the insured or his counsel refuses to cooperate or provide the necessary information. If an insured’s lawyer advises the insurer to stop its investigation pending his sending medical records, the resulting delay until the lawyer sends the records is attributable to the insured. However, as the burden is on the insurer to gather all necessary medical records, if the insurer fails to inform the lawyer of critical information necessary to further its investigation, the delay in obtaining that information is not attributable to the lawyer but to the insurer. See James v. State Farm, 743 F.3d 65 (5th Cir. 2014).
Mississippi is a pure comparative fault jurisdiction. A claimant 99% at fault may recover 1% from a responsible party. Damages will be diminished by the jury in proportion to the amount of negligence attributable to the person injured. Miss. Code Ann. § 11-7-15. See also, Joint and Several Liability.
Damages for loss of consortium include conjugal rights, and a broad range of services performed by the spouse, in addition to intangible mental and emotional damages. Coho Resources, Inc. v. McCarthy, 829 So. 2d 1, 20 (Miss. 2002) (citing Tribble v. Gregory, 288 So. 2d 13, 16-17 (Miss. 1974)).
In a loss of consortium action, the plaintiff’s recovery is reduced by the relative percentage of the injured spouse’s comparative negligence. Choctaw, Inc. v. Wichner, 521 So. 2d 878 (Miss. 1988).
Losses of consortium claims are not separate occurrences under the terms of an insurance policy. The claim of the injured person as well as the spouse are payable under the same “per person” limit. Crum v. Johnson, 809 So. 2d 663, 666 (Miss. 2002).
The right of contribution exists between those held jointly liable in a judgment. A defendant will be liable for contribution to other joint defendants only for the percentage of fault assessed to him. Miss. Code Ann. § 85-5-7(4). The right of contribution exists between those held joint and severally liable due to defendants acting in concert. Miss. Code Ann. § 85-5-7(6).
Cooperation and Assistance
A breach of the cooperation clause in an insurance contract is considered a material breach if prejudicial to the defense and relieves the insurer of the duty to defend or indemnify its insured under the policy. State Farm Mut. Auto. Ins. Co. v. Commercial Union Ins. Co., 394 So. 2d 890, 893 (Miss. 1981). However, non-prejudicial misrepresentations will be considered immaterial. Id.
The insurer bears the burden of showing both attempted diligence in securing the insured’s cooperation, and failure of the insured to cooperate in a material matter. Nationwide Mut. Ins. Co. v. Tillman, 161 So. 2d 604, 616 (Miss. 1964).
The insured may also breach the cooperation clause by misrepresenting facts surrounding the accident or by collusively assuming liability for the accident. Employers Mut. Cas. Co. v. Ainsworth, 164 So. 2d 412, 418 (Miss. 1964). However, unintentional misrepresentations do not establish a breach of the duty to cooperate, especially if the insured promptly corrects the misrepresentations. Id.
Mississippi has a two-tier appellate court system, the Mississippi Supreme Court and the Mississippi Court of Appeals. Decisions of the Chancery, Circuit, and Court of Appeals may be appealed to the Supreme Court. Supreme Court: 9 judges, Court of Appeals: 10 judges. Circuit Court has a jurisdictional minimum of $200 and no maximum. Miss. Code Ann. § 9-7-81. County Court has a jurisdictional limit of $200,000. Miss. Code Ann. § 9-9-21. Justice Court has jurisdiction over small claims of $3,500 or less. Miss. Code Ann. § 9-11-9.
Mississippi has a cap on non-economic damages (i.e. pain and suffering, etc.) of $1,000,000 for all actions other than medical malpractice. Miss. Code Ann. § 11-1-60.
Medical malpractice claims have a non-economic damage cap of $500,000. Miss. Code Ann. § 11-1-60.
There are no limits to economic damages (past, present or future medicals, lost wages, etc).
There are punitive damage caps based on the defendant’s net worth, as follows:
Net Worth Cap
Over $1 Billion $20,000,000
$750 M – $1 Billion $15,000,000
$500 M – $750 M $5,000,000
$100 M – $500 M $3,750,000
$50 M – $100 M $2,500,000
$50 M or Less 2% of Net Worth
Miss. Code Ann. § 11-1-65.
Collateral Source Rule
The Collateral Source Rule is a general rule that prohibits the admission of evidence that the claimant received compensation for a source other than the damages sought against the defendant. Thus, a defendant may not show that a portion of the medical bills claimant seeks to recover have been paid by others. Eaton v. Gilliland, 537 So. 2d 405 (Miss. 1989).
However, if a claimant has assigned the right of recovery to certain payments (i.e. medical bills, insurance payments, etc.) he may not attempt to collect them or claim them as part of his damages. They are no longer his claim and the assignee “own[s] absolutely the right to recover for damages.” In other words, if a claimant has legally transferred his right to collect portions of his damages, then he can no longer claim them as damages. McDonald v. Southeastern Fidelity Insurance Co., 606 So. 2d 1061 (Miss. 1992).
The plaintiff must show by clear and convincing evidence that the defendant acted with actual malice; acted with gross negligence that shows willful, wanton, or reckless disregard for the safety of others; or committed actual fraud in order to recover punitive damages. Miss. Code Ann. § 11-1-65.
The obligation to pay punitive damages may be excluded by appropriate language in the policy. Shelter Mut. Ins. Co. v. Dale, 914 So. 2d 698 (Miss. 2005). If the policy does not exclude punitive damages, Mississippi courts have held that it is not against public policy to insure against such damages, and a policy will be held to cover them.
The United States Supreme Court has placed some additional restrictions on the size of punitive damage awards as they relate to actual damages. The Court has held that rarely will anything more than a 1:1 ratio be reasonable and almost certainly nothing more than 9 times the actual damages will be held constitutional. There are exceptions to exceptionally egregious conduct or cases with extremely minimal actual damages. State Farm Mut. Auto . Ins. Co. v. Campbell, 538 U.S. 1513, 1524 (2003).
See also Bad Faith.
The emotional distress must always be a reasonably foreseeable result of the defendant’s conduct. Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736 (Miss. 1999).
Mississippi law is unclear as to whether a physical manifestation of harm is required for negligent infliction of emotional distress. The court has applied a permissive view which permits recovery solely based on evidence of mental injury and a restrictive view requiring some sort of physical manifestation or demonstrable harm. See Edmonds v. Beneficial Mississippi, Inc., 212 Fed.Appx. 334, 337-38 (5th Cir. 2007) for a discussion of Mississippi law on this topic.
What is clear is that a claimant must offer “substantial proof” of emotional harm, Ill. Cent. R.R. Co. v. Hawkins, 830 So. 2d 1162, 1174 (Miss. 2002), and the emotional injuries must be reasonably foreseeable from the defendant’s actions. Adams, 744 So. 2d at 742-43.
The Mississippi Supreme Court has held that vague complaints of sleeplessness, nightmares, worry and multiple visits to a doctor were insufficient to prove emotional harm. Ill. Cent. R.R. Co., 830 So. 2d at 1174.
There is no direct action allowed by third parties in Mississippi, except to contest a coverage issue. Kaplan v. Harco Nat. Ins. Co., 716 So. 2d 673, 677 (Miss. Ct. App. 1998).
Duty to Defend
The obligation of a liability insurer to defend is determined by the allegations of the complaint or declaration. Farmland Mut. Ins. Co. v. Scruggs, 866 So. 2d 714, 719 (Miss. 2004). If the allegations made against the insured bring the action within the coverage of the policy he is entitled to a defense, even though the actual facts later reveal that the claims as presented were not within coverage. Cullop v. Sphere Drake Ins. Co., 129 F. Supp 2d 981, 982 (S.D. Miss. 2001).
An insurer also has a duty to defend where a complaint fails to state a cause of action covered by the policy but the insurer is informed that the true facts are inconsistent with the complaint, or where the insurer learns from an independent investigation that the true facts present the potential liability of the insured. Farmland, 866 So. 2d at fn. 2. (citing Mavar Shrimp & Oyster Co. v. U.S. Fidelity & Guar. Co., 187 So.2d 871, 875 (Miss. 1966).
An insurer has a duty to defend only claims within coverage. An insurer that defends claims under a reservation of rights is required to permit the insured to select counsel of his choice, paid for by the carrier. Moeller v. American Guar. And Liability Ins. Co., 707 So. 2d 1062, 1069 (Miss. 1996).
Inter-spousal immunity has been abolished in Mississippi. Burns v. Burns, 518 So. 2d 1205 (Miss. 1998).
Parent-unemancipated child immunity has been abolished in negligent operation of automobile cases. Smith v. Holmes, 921 So. 2d 283, 285 (Miss. 2005). Parents may maintain suits against their children and vice versa. Ales v. Ales, 650 So. 2d 482, 487 (Miss. 1995).
The court may order a party, his attorney, or both to pay the opposing party’s expenses, including attorney’s fees, if the court determines a motion or pleading is frivolous or filed in order to harass or delay. Miss. R. Civ. P. 11(b). See also, Litigation Accountability Act. Miss. Code Ann. § 11-55-5.
Homeowners’ Bill of Rights
In 2009, the Mississippi Insurance Department (MID) created a Policyholder Bill of Rights regarding personal lines homeowner insurance. All homeowner policies since 2009 have been required to include the Policyholder Bill of Rights in the issuance and delivery of the policy. The MID identified 19 rights, including the selected excerpts highlighted below:
9. Policyholders shall have the right to receive in writing from their
insurance company the reason for any cancellation or nonrenewal of coverage.
The written statement from the insurance company must provide an adequate
explanation for the cancellation or nonrenewal of coverage.
12. Policyholders shall have the right to receive a written explanation of why a
claim is denied, in whole or in part.
13. Policyholders shall have the right to request and receive from the
insurance company any adjuster reports, engineer reports, contractor reports,
statements or documents which are not legally privileged documents that the
insurance company prepared, had prepared, or used during its adjustment of the
policyholder’s claim. A company may keep confidential any documents they
prepare in conjunction with a fraud investigation.
15. Policyholders shall have the right to prevent an insurance company, agent,
adjuster or financial institution from disclosing their personal financial
information to companies or entities that are not affiliated with the insurance
company or financial institution. Insurance companies must comply with the
provisions set out in Mississippi Department of Insurance Regulation 2001-1,
“Privacy of Consumer Financial and Health Information Regulation”.
17. Policyholders shall have the right to be treated fairly and honestly when
making a claim.
There is no restriction on the ability of a landlord’s insurer to pursue the tenant for subrogation as a result of damages paid by the insurer that were caused by the tenant. Paramount Ins. Co. v. Parker, 112 So. 2d 560 (Miss. 1959).
The obligation to indemnify may result from a contractual relationship, implied contractual relationship, or liability imposed by law. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1216 (Miss. 2001).
The general rule governing implied indemnity (common law indemnity) for tort liability is that a joint tortfeasor, whose liability is secondary as opposed to primary, or is based upon imputed or passive negligence, as opposed to active negligence, may be entitled, upon an equitable consideration, to shift his responsibility to another joint tortfeasor. Strickland v. Rossini, 589 So.2d 1268, 1276 (Miss. 1991).
Mississippi follows the general rule that in order to be entitled to proceeds from an insurance policy, the purchaser of the policy must have an insurable interest in the property or life insured. See, e.g., Southeastern Fidelity Ins. Co. v. Gann, 340 So.2d 429 (Miss. 1976); National Life & Accident Ins. Co. v. Ball, 157 Miss. 163, 127 So. 268 (1930); see also Am.Jur.2d Automobile Insurance § 41 (1980). An insurable interest must exist in an insured when the contract is entered for it to be effective. Mississippi Farm Bureau Mut. Ins. Co. v. Todd, 492 So. 2d 919, 931 (Miss. 1986) (citing Gann, 340 So. 2d 429 (Miss. 1976)). Obviously, a party who holds legal title has the requisite insurable interest. However, the Mississippi Supreme Court has found an insurable interest in property even though legal title was elsewhere. All that Mississippi requires in order to have an insurable interest is that a person derive a benefit from the property’s existence or would suffer loss from its destruction. Southeastern Fidelity Ins. Co. v. Gann, 340 So.2d 429 (Miss. 1976).
There is no “legal rate of interest” in Mississippi for judgments. Miss. Code Ann. § 75-17-7 allows the recovery of both prejudgment and post-judgment interest. If there is a contractual rate of interest, the contract rate will be applied. If not, the judge is given the discretion to determine the appropriate rate of interest.
Miss. Code Ann. § 75-17-7 gives courts the discretion to award simple or compound interest. In re Guardianship of Duckett, 991 So. 2d 1165, 1182 (Miss. 2008). The Mississippi Supreme Court has held that awarding post-judgment interest at the rate of one percent above the prime rate was within the chancellor’s discretion in tort suit against as underinsured motorist carrier. U.S. Fidelity & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So. 2d 38, 50 (Miss. 2002).
Subject to certain exceptions, the legal rate for “notes, accounts and contracts” is 8% per annum, calculated according to the actuarial method. Miss. Code Ann. § 75-17-1. See also § 87-7-3 (1% per month on unpaid construction contracts).
Prejudgment interest is only available if damages are fixed and liquidated. Falkner v. Stubbs, No. 2010 CT 01664 (Miss. August 22, 2013).
Joint and Several Liability
Since 2004, simple negligence actions apply only several liability. A party is only responsible for his share/percentage of apportioned fault.
Joint and several liability only exists in Mississippi when individuals knowingly pursue a common plan or design to commit a tortious act. Fellow defendants acting in concert have a right of contribution between one another. Miss. Code Ann. § 85-5-7.
All participants to the occurrence, including any absent tortfeasors, must be considered in the apportionment of fault. Estate of Hunter v. General Motors Corp, 729 So. 2d 1264, 1272-73 (Miss. 1999). See also Contribution.
Mississippi has a statute that provides immunity from liability of those who lawfully sell or supply intoxicating beverages by permit. However, this liability limitation does not extend to the holder of an alcoholic beverage permit, his agent, or employee who sells to a visibly intoxicated person. Miss. Code Ann. § 67-3-73.
Social hosts are also immune from liability for serving or furnishing alcoholic beverages to persons who may lawfully consume such beverages. Further a social host is not liable for those that consume alcohol on his premises and in his absence. These immunities do not apply if the alcohol consumption is forced by the host or he falsely represents that the beverage contains no alcohol. Miss. Code Ann. § 67-3-73.
Medicaid has a statutory right of recovery from the beneficiary and from third persons or entities that a beneficiary has a right to sue. Miss. Code Ann. § 43-13-125(1) and § 43-13-305. Effective 2014, the Mississippi Division of Medicaid has contracted with Health Management Systems, Inc. (HMS) to be the primary contact for all casualty recovery inquiries. Contact information: HMS Mississippi Casualty Recovery, P.O. Box 1350, Jackson, MS 39201-9820; 855-547-4984; firstname.lastname@example.org.
New legislations effecting in July of 2015, requires that HMS receive notice of representation by an attorney of a Medicaid recipient, and if a complaint is filed of a recipient, HMS is to receive a copy. Failure to cooperate may result in a loss of benefits and/or fines.
Federal law controls Medicare. See 42 U.S.C. § 1395y(b). Medicare claims to have a superior right of reimbursement, which may be helpful to think of as a “super lien.” This means that Medicare is not required to notify anyone of its right to reimbursement, nor is it required to make a request for reimbursement in order to enforce its right to recovery. Instead, the parties to a liability claim must notify Medicare of the claim, take action to determine the amount of the reimbursement and make payment accordingly. This includes reimbursement for past treatment as well as protection of Medicare’s interests when future treatment will be necessary. the amount of the reimbursement and
Mississippi law allows only for a transfer of benefits for medical costs by assignment. Unlike some other states, Mississippi has no statutory provision for a “hospital’s lien,” “physician’s lien” or anything synonymous, nor does there appear to be any case law creating a medical provider’s equitable lien on insurance benefits because of medical services rendered. Memorial Hospital at Gulfport v. Guardianship of Proulx, No. 2012-CA-01714-SCT (Miss. September 12, 2013). See also Assignments.
Made Whole Rule
The “made whole rule” is a general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated. Hare v. State, 733 So. 2d 277 (Miss. 1999); United Services Auto. Ass’n v. Stewart, 919 So. 2d 24 (Miss. 2005). This equitable right to be made whole cannot be superseded by contrary contract language. 5 MS Prac. Encyclopedia MS Law § 40:97. So far, this rule applies only to insurance carriers and not to actual healthcare providers. Memorial Hospital at Gulfport v. Guardianship of Proulx, No. 2012-CA-01714-SCT (Miss. September 12, 2013).
The age of majority in Mississippi is 21. Miss. Code Ann. § 1-3-27.
All persons 18 or older, if not otherwise disabled, have the capacity to enter into binding contractual relationships affecting personal property. Miss. Code Ann. § 93-19-13. Accordingly, this section removes the disability of minority of all persons 18 years of age or older for the purpose of entering into contracts affecting personal property, including the right to settle a claim, and accept money in the settlement of a claim. Garret v. Gay, 394 So. 2d 321, 323 (Miss. 1981).
A minor age 15 or older may contract for life, health and accident insurance. Miss. Code Ann. § 83-7-19.
Mississippi applies the common law “rule of sevens.” A child under the age of seven is irrefutably presumed to be incapable of negligence. Children between the ages of 7 and 14 are
presumed incapable of negligence, but the presumption may be rebutted by showing that the child had elevated capacity. Children above the age of 14 are presumed to be capable of negligence. Steele v. Holiday Inn, 626 So. 2d 593 (Miss. 1993).
The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. Miss. Code Ann. § 93-13-1. Because of this, when settling a minor’s claim, both parents must petition the Court for authority to settle or one must be a petitioner and the other parent join in the petition for all relief requested. As the natural parents and guardians of their children, the mother and father can accept settlements of $25,000.00 or less before the Court without being appointed as guardian. Miss. Code Ann. § 93-13-211. When a total settlement is greater than $25,000.00, or personal property exceeding the value of that sum, a guardian is required to be appointed to accept the settlement.
A minor under guardianship is a ward of the Chancery Court. Carpenter v. Berry, 58 So. 3d 1158 (Miss. 2011). As such, it must take all necessary steps to conserve and protect the best interest of these wards of the court. Id. And all persons who deal with guardians or with the courts in respect to the rights of minors are charged with this knowledge. Id. See also Union Chevrolet Co. v. Arrington, 138 So. 593 (Miss. 1932).
It is incumbent upon a defendant, in an action seeking to settle a claim of a minor under guardianship, to assure that all of the procedures set out by the Supreme Court are followed or risk a set-aside of the settlement. Carpenter v. Berry, 58 So. 3d 1158 (Miss. 2011).
Every petition for authority to compromise and settle a minor’s claim shall set forth the facts in relation thereto and the reason for such compromise and settlement and the amount thereof. See Unif. Chanc. Ct. R. 6.10. According to the Uniform Rule, the material witnesses concerning the injury and damages shall also be produced before the Chancellor for examination. Id. Where counsel representing the minor has investigated the matter and advised settlement, he or she shall give testimony to the Court regarding the result of the investigation. Id.
It is incumbent upon those paying money to a guardian to make certain that the chancellor’s decree is faithfully executed in every respect. Joyce v. Brown, 304 So. 2d 634 (Miss. 1974).
In practice, we have found that an increasing number of chancellors are requiring the minor be represented by an attorney at the settlement hearing.
Parental Liability for Medical Expenses
Mississippi law requires parents to pay for their child’s reasonable medical expenses. This is a legal duty of both the father and the mother. The minor child is not legally responsible for these expenses. McLain v. West Side Bone and Joint Center, 656 So. 2d 119 (Miss. 1995); Lane v. Webb, 220 So. 2d 281 (Miss. 1969); Alexander v. Alexander, 494 So. 2d 365 (Miss. 1986). Haver v. Hinson, 385 So. 2d 605 (Miss. 1980). Accordingly, the medical, surgical, hospital and nursing expenses incurred by curing or relieving a minor child’s injuries are recoverable, if at all, by his parent, and not by him (unless he is emancipated). These are separate claims owned by the parents of the minor. However, if the parents bring suit on behalf of the minor “as next friend” (as provided for under the rules), the courts have held that parents waives their separate claim for such damages in favor of the child and permits all damages to be included in one case. Lane v. Webb, 220 So. 2d 281 (Miss. 1969). Double recovery for such expenses is not allowed. Cook v. Children’s Medical Group, P.A., 756 So. 2d 734 (Miss. 1999).
An insurer may cancel or void a policy from its inception and treat as if it never existed upon proof that the misrepresentation of a material fact is in the application. Casualty Reciprocal Exchange v. Wooley, 217 So. 2d 632, 635-36 (Miss. 1969).
Warranty v. Representations
A distinction is made as to whether the misrepresentations are warranties or representations. Sanford v. Federated Guaranty Ins. Co., 522 So. 2d 214, 216-18 (Miss. 1988).
The insurer only has to show that the information is literally not true in the case of a warranty because the materiality of the statement will be presumed. Colonial Life & Acc. Ins. Co. v. Cook, 374 So. 2d 1288, 1291 (Miss. 1979).
In the case of representations, the insurer must show that the information is not substantially true and was a material to the risk assumed by the insurer. National Cas. Co. v. Johnson, 67 So. 2d 865, 867 (Miss. 1953). Materiality is determined by the probable and reasonable effect which truthful answers would have on the insurer. Sanford, 522 So. 2d at 217. If the information helps determine whether or not to accept the risk then it is material. Wooley, 217 So. 2d at 635-36. Intent does not determine misrepresentation, and a policy may be voided even if there is an innocent and good faith belief the statements are true. Fidelity Mut. Life Ins. Co. v. Miazza, 46 So. 817, 819 (Miss. 1908).
The terms of the application control whether a question is a warranty or a representation. The terms must clearly indicate that the terms will be treated as warranties, and any ambiguity will favor treating the statements as representations. Sanford, 522 So. 2d at 216-17.
Mississippi applies the common law “rule of sevens.” A child under the age of seven is irrefutably deemed to be incapable of negligence. Children between the ages of 7 and 14 are presumed to be incapable of negligence, but the presumption may be rebutted by showing that the child had elevated capacity. Children above the age of 14 are presumed to be capable of negligence. Steele v. Holiday Inn, 626 So. 2d 593 (Miss. 1993).
Statutory Standards of Care
Negligence per se, or a presumption of negligence, is the general rule in Mississippi if the plaintiff was in the class that the statute was designed to protect and the harm was of the type that the statute was designed to prevent. See Byrd v. McGill, 478 So. 2d 302 (Miss. 1985).
The duty to defend presupposes the duty to notify the insurer of any proceedings instituted against them. Without notice the insurer cannot be expected to provide a defense. Mimmitt v. Allstate County Mut. Ins. Co., Inc., 928 So. 2d 203, 207 (Miss. Ct. App. 2006).
Parents may be found liable for property damage up to $5,000 caused by the willful or malicious acts of their minor children between age 10 and 18. Miss. Code Ann. § 93-13-2.
Parents have a duty to take reasonable measures to supervise their children in order to protect others from acts of their children which are reasonably foreseeable. Williamson v. Daniel, 748 So. 2d 754, 759 (Miss. 1999).
There is joint and severally liability for the willful or negligent acts of a minor under 17 while operating motor vehicle between minor and person who signed application for license or permit. M.C.A. § 63-1-25.
There is no statute in Mississippi governing “other insurance” provisions, other than a provision which states that “any motor vehicle liability policy may provide for the prorating of the insurance thereunder with other valid and collectible insurance.” See Miss. Code Ann. 63-15-43(9). There is no case law that has invalidated “excess” policy provisions as contrary to public policy or based on the statute mentioned.
Nevertheless, there are some situations that will arise that will create a conflict between a carrier’s attempt at designating its policy as excess, and the “other” insurance company’s attempts to do the same. Under Mississippi case law, when two (or more) policies present competing ‘other insurance clauses’ (such that, if both literally read, would leave no primary coverage), the courts will disregard both provisions, and deem the policy for the accident vehicle as the primary. Travelers Indemnity Company v. Chappell, 246 So. 2d 498 (Miss.1971); USF&G v. John Deere Insurance Co., 830 So. 2d 1145 (Miss. 2002).
In other words, when two ‘other insurance’ clauses conflict such that neither insurer purports to carry the primary policy of coverage, the two ‘other insurance’ clauses cancel each other out. This common law invention is known as “The Rule of Repugnancy.” Once the rule is applied, “the policy of the owner of the vehicle involved in the accident is ordinarily considered to be the ‘primary policy.’” Chappell, at 505.
Where there are two conflicting ‘other insurance’ clauses, a carrier still should examine the language of the policies to see if in fact they conflict. As it stands right now, however, this basic rule of contract construction comes with a caveat in Mississippi, for even where the policies do not conflict, the appellate courts have shown a tendency to apply the “primary” rule anyway. As a result, it is becoming more and more “universal” (as one Mississippi opinion put it) to make the “primary” insurer the one with coverage of the automobile involved, conceivably in the face of policy language to the contrary. Recently, the Mississippi Supreme Court summarily held “[t]he long-standing law in Mississippi is that the insurance policy issued to the owner of the vehicle is the primary policy . . . .” See Guidant Mut. Ins. Co. v. Indemnity Ins. Co. of North America, 13 So. 3d 1270 (Miss. 2009). That “primary” insurer will be required to exhaust the limits of the policy before the other, excess policy will be invoked. Assuming a court can be reminded to look at the policy language first, in a case in which the other policy announces itself to be the primary policy or provides that coverage is to be pro rated between the insurers, the company’s excess provision would not be in conflict, and would in fact be excess.
A similar issue arises when insurance carriers dispute which company will be able to take the offset of other available insurance (such as the tortfeasor’s liability policy). The only Mississippi case to have addressed the question of priority of a set-off is Dixie Insurance Company v. State Farm Mut. Auto. Ins. Co., 614 So.2d 918 (Miss. 1992). In Dixie, the court appeared to create the rule that the primary carrier is entitled to the offset. The court stated, “[t]he trial court correctly held that the primary insurer was entitled to offset first.” Id. See also Strickland v. Hill, 2002 WL 31654961(E.D. La.) (unpublished opinion) (noting that the offset doctrine “appears to be tailored based on the ranking of insurance companies”). However, this “rule” may be an overstatement of Mississippi law as the court strayed from policy interpretation in this decision and the announcement of this rule was unnecessary.
In order to obtain a valid and binding release, certain situations call for court or other government agency approval:
1) Minors (under 18) – need Chancery Court approval
2) Incompetent Adults – need Chancery Court approval
3) Estates/Wrongful Death Claims – need Chancery or Circuit Court approval
– optional method for Estates less than $50,000 via affidavit by heir (§ 91-7-322)
4) Workers Compensation claimants – need Circuit Court or Workers Comp
Commission approval for liability payments, however, UM payments are exempt.
Spoliation of Evidence
Spoliation of evidence is not an independent cause of action in Mississippi. Richardson v. Sara Lee Corp., 847 So. 2d 821, 824 (Miss. 2003).
Mississippi case law holds that the destruction of evidence results in a negative presumption or inference against the party who destroys the evidence. Thomas v. Isle of Capri Casino, 781 So.2d 125, 133-34 (Miss. 2001). The Mississippi Supreme Court has held that where a (medical) record required by law to be kept is unavailable due to negligence, an inference arises that the record contained information unfavorable to the defendant, and the jury should be so instructed. Delaughter v. Lawrence County Hosp., 601 So.2d 818, 822 (Miss. 1992). See also, Estate of Perry ex rel. Rayburn v. Mariner Health Care, Inc., 927 So.2d 762 (Miss.Ct.App. 2006).
Statutes of Limitation
Most negligence actions are governed by a 3 year statutes of limitations which runs from date of accident/injury. Miss. Code Ann. § 15-1-49.
The statute provides for a “discovery rule” but only for latent injuries and diseases. If a person has such a latent injury or disease, then the statute does not start to run until the person discovers, or by reasonable diligence, should have discovered, the injury. Miss. Code Ann. § 15-1-49 (2).
The Mississippi Supreme Court recently ruled that statute of limitations cannot be lengthened by agreement. This prohibition against tolling agreements applies to any statute of limitations in Chapter 15, but not to limitations in other chapters of the code. However, the courts will look to determine whether a party is equitably estopped from asserting the statute of limitations under the circumstances. Miss. Code Ann. § 15-1-5. Townes v. Rusty Ellis Builder, Inc., No. 2011-CA-164-SCT (Miss. October 4, 2012).
Continued promises of payment can create a situation where the court will find that a carrier waived the statute. See Douglas v. Parker Elec. v. Mississippi Design and Devel. Corp., 949 So.2d 874 (Miss. 2007). However, simply continuing to negotiate has been held insufficient to toll or waive statute.
Many intentional torts, including intentional infliction of emotional distress, are governed by a 1-year statute of limitations. Miss. Code Ann. § 15-1-35.
Statute does not start running on minors until they turn 21 (even if they are emancipated), then it starts to run for the applicable statute of limitations for that injury. Miss. Code Ann. § 15-1-59.
Statute runs from underlying event that caused injury. The statute applicable to the particular injury controls (i.e. medical malpractice claims have 2 years from injury, intentional torts have 1 year from injury, general negligence claims have 3 years from injury). This is a change in the law since 2006. See Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923 (Miss. 2006) (previous law applied a 3-year statute from the date of death).
The wrongful death statute, Miss. Code Ann. 11-7-13, encompasses both survival claims and wrongful death claims. The Mississippi Supreme Court has recently clarified the confusion in this area and held that the statute begins to run from the underlying tort that caused the death in a survival claim; however, the statute begins to run from the time of death in a wrongful death claim. Caves v. Yarbrough, M.D., 991 So. 2d 142, 149-50 (Miss. 2008).
Survival claims are claims in which if death had not ensued, the injured party could have maintained an action and recovered damages. A true wrongful death claim belongs solely to the decedent’s beneficiaries and is a claim brought to recover damages one person’s death causes to another (i.e. loss of love, society and companionship). Id. at 149. See also, Wrongful Death.
Mississippi has adopted the “made whole” rule in that the insurer is not entitled to subrogation until the insured has been completely compensated. The made whole rule cannot be overridden by contractual language. Hare v. State, 733 So. 2d 277, 284 (Miss. 1999).
An employer is vicariously liable for intentional torts committed in the course and scope of employment, or for those it authorized, or for those it ratified. Jones v. B.L. Development Corp., 940 So.2d 961 (Miss. Ct. App. 2006).
Kerri Parmenter and her cousin, Dana Churchill, ordered food at the drive-thru window of McDonald’s in Holly Springs, Mississippi. Because their order was taking longer than they expected, Parmenter and Churchill entered the establishment to inquire about the status of their food. At some point, a verbal altercation occurred in the lobby between Parmenter and Kesha Jones, a cashier. After this verbal altercation occurred, Jones left the lobby and returned to the kitchen, where she retrieved a spatula. Jones then returned to the lobby and proceeded to beat Parmenter with the spatula. Parmenter v. J & B Enterprises, Inc., 99 So. 3d 207, 210 (Miss. Ct. App. 2012)
In affirming summary judgment the court noted that Byrd Management, Inc. is a franchise of the McDonald’s Corp. And that McDonald’s has no right to hire or fire; to direct the franchise how to conduct its day-to-day business; to direct the hours the employees work; to direct who should be or should not be hired; to prescribed the details of the kind and character of the work to be completed by the individual employees, nor to direct the details of the manner in which the day-to-day work of each employee was completed. Id. at 211-12. In short, McDonald’s had no control over Jones and thus could not be variously liable for her actions.
To determine control, the courts use the following non-exclusive list for determining whether a party is a master of another:
(1) Whether the principal master has the power to terminate the contract at will;
(2) whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment;
(3) whether he furnishes the means and appliances for the work;
(4) whether he has control of the premises;
(5) whether he furnishes the material upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output;
(6) whether he has the right to prescribe and furnish the details of the kind and character of work to be done;
(7) whether he has the right to supervise and inspect the work during the course of the employment;
(8) whether he has the right to direct the details of the manner in which the work is to be done;
(9) whether he has the right to employ and discharge the sub-employees and to fix their compensation; and
(10) whether he is obliged to pay the wages of said employees.
Allen v. Choice Hotels Int’l, 942 So.2d 817, 821 (¶ 6) (Miss.Ct.App.2006)(quoting Kisner v. Jackson, 159 Miss. 424, 428–29, 132 So. 90, 91 (1931)).
Parmenter v. J & B Enterprises, Inc., 99 So. 3d 207, 214 (Miss. Ct. App. 2012)
Brought by a beneficiary or personal representative, the following damages can be recovered in a wrongful death action: expenses of last illness, any conscious pain and suffering of the deceased, funeral expenses, the present net cash value of the deceased’s work life expectancy (i.e. the total earnings the deceased would have realized throughout his lifetime, based on the average life expectancy) reduced to the present value and further reduced by the amount which the decedent would have spent on himself, and loss of society and companionship of the deceased (does not include ‘grief’). Miss. Code Ann. § 11-7-13.
The information contained in publication is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report. Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services. As such, it should not be used as a substitute for consultation with legal or other competent advisers. Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your in-house counsel or the attorneys at Holcomb Dunbar.