Mississippi Wrongful Death Statute, Miss. Code Ann. 11-7-13:
§ Those qualifying to bring W.D. suit under this act:
o Spouse and children
o Parents
o Siblings
o Personal Representative (of estate)
§ A W.D. action may be brought for ANY tort, including:
1) Negligence
2) Product liability
3) Intentional tort
4) Breach of warranty
§ Statutory W.D. definition:
Whenever the death of any person would, had death not ensued have entitled injured party to maintain an action and recover damages AND the deceased has anyone authorized to bring suit, the party D that would have been liable to deceased is liable for damages, notwithstanding the death.
§ MS does not allow for damages for loss of enjoyment of life in a WD action.
§ The suit is brought in the name of the personal representative of the deceased for the benefit of all persons entitled under law to recover.
§ Note: When death occurs, a suit is brought only for W.D. MS allows no separate survival statute action
§ However, if the deceased had another coa, at the time of his death, that is unrelated to the W.D. claim, that claim should be brought under the survival statute. It only exists as to unrelated claims.
STRICT LIABILITY
Animals
§ Trespassing Animals:
§ Wild Animals:
§ Domesticated Animals:
Abnormally Dangerous Activities
§ Rylands v. Fletcher, 1868
§ One who brings onto his land anything likely to do mischief, if it escapes
§ He keeps it at his peril, and
§ Is strictly liable for all the damage which is the natural consequence of its escape.
§ The Rylands rule has evolved into distinguishing b/t “normal” and “abnormal.”
§ Something “nonnatural” can be an instrumentality brought onto the land OR some nonnatural change in the land.
§ Types of activities held to be strictly liable:
- Blasting
- Toxic chemicals stored in urban areas
- Pile driving
- Crop dusting (Not in MS b/c “normal”)
- Poisonous gases
- Rockets
- Fireworks display
- Hazardous waste disposal
- Oil wells
§ Intervening tortfeasors: an intervening tortfeasor can sometimes be a superseding cause to damage normally held strictly liable.
§ R. § 520: Factors in determining whether or not activity was abnormally dangerous, so as to impose strict liability:
1) The risk of harm was great.
2) The harm that could ensue is great.
3) Risk unavoidable w/ due care
4) NOT a common activity.
5) Inappropriate to place (safe elsewhere)
6) Value of activity less than harm (risk/burden analysis)
520 is the most important test for the final exam.
§ The judge makes the determination if the activity is subject to strict liability. He does so by analyzing the above factors. If the activity is one that is useful and valuable, he may apply negligence, so as not to deter people from performing the activity.
§ If strict liability is imposed, the jury only decides causation.
§ Aviation: while once strict liability, now common for negligence to be applied.
§ Price-Anderson Act: nuclear reactor damage imposes strict liability.
716 – Note 2 – No ability to use comparative negligence to reduce award in a strict liability case.
Note 3 -
Limitations on Strict Liability:
a) Act of God: if the act of God can be anticipated, it is not an exception. However, a sudden unexpected tornado would likely apply negligence.
b) Intentional 3rd Party Tortfeasors: some intentional acts can be foreseen. Only unforeseeable intentional acts will limit the application of strict liability.
c) Not w/in Scope of Risk: The injury that occurs must fall w/in the scope of the risk created by the ultra hazardous activity. E.g. The risk created from blasting is NOT that mother mink will kill their young.
d) Assumption of the Risk: because comparative/contributory negligence is not a defense to strict liability, assumption of the risk is used when the injured proceeded in the face of danger. E.g. walking behind a horse that has a propensity to kick.
e) Gov’t license: activities done pursuant to a gov’t license applies negligence. This also applies to third parties hired by the licensed company. E.g. public zoos, shipping explosives.
PRODUCTS LIABILITY
§ Umbrella term for the liability of a manufacturer, seller or other supplier of chattel to one w/ whom he is NOT in privity of K who suffers harm caused by chattel.
Theories of Recovery of Products Liability:
§ Negligence
§ Express Warranty
§ Implied Warranty
§ Strict Liability
§ Strict Liability is the predominant way of obtaining damages against a manufacturer.
§ Each of the above theories will be separate counts in a complaint against a manufacturer. Each must be proven separately.
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Negligence:
§ D, B, C, and D.
§ Prove that manufacturer was in some way negligent in constructing, manufacturing, or inspecting the product.
§ Privity Rule: If a reasonable person would have foreseen that the product would create a risk of harm to human life or limb if not carefully made or supplied, then the manufacturer and supplier are under a duty to all foreseeable users to exercise reasonable care in the manufacture and supply of the product.
§ Manufacturers have a duty to inspect and construct appropriately.
§ General rule is to impose negligence liability on all sellers of chattel, whether damage was to person or property, whether manufacturer produced the whole product or a significant component part, whether injured was the immediate purchaser or not.
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Warranty:
§ Another count is “breach of warranty.”
§ There are three types of warranties:
o Express Warranty
o Implied Warranty of Merchantability
o Implied Warranty of Fitness for a Particular Purpose
§ Many states, including MS, do not allow disclaimers of warranties b/c void against public policy.
§ Privity Requirement: Three alternatives of how states deal w/ privity requirement and express and implied warranties:
o Only the purchaser and his household or guests are in privity.
o Any natural persons who may reasonably be expected to use, consume, or be affected by the goods, and who is personally injured is in privity.
o Any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured (personal and property damage).
§ Notice: UCC requires injured to give notice to manufacturer within a reasonable time.
§ Magnuson-Moss Warranty: Fed’l act not requiring that a warranty be given; rather, it regulates the scope of warranties that are provided.
§ Consumer Protection Safety Act: provides a federal tort remedy for persons injured as a result of a knowing violation of a safety standard or rule. So, to sue under fed’l law, must find a violation of the fed’l act. If no fed’l violation, sue under state law. This adds another claim to the mix.
§ Safety Acts that do NOT create civil tort remedies, but may be adopted by a court as negligence per se if violated:
o OSHA
o Fed’l Hazardous Substances Act
o Poison Prevention Packaging Act
o Flammable Fabrics Act
Express Warranty: an affirmation of fact or promise made by the seller about the product sold, which acts as an inducement to the purchaser to buy the product.
§ Elements:
o Express warranty made
o Breach of that express warranty
o Reliance on that warranty (not always an element, depends on jurisdiction)
§ Notes: Most cts require reliance to be shown (MS). However, trend is towards not requiring a showing of reliance.
o Damages occurred.
§ UCC 2-313: Express Warranty
§ Miss. Code Ann. § 75-2-313 adopted the UCC provision: “Any affirmation of fact made by seller to buyer which relates to the goods and becomes part of the basis of the bargain.”
§ E.g. Baxter v. Ford Motor Co.- Advertisements made that windshields of cars were non-shattering glass, were later found false, and a breach of express warranty.
Implied Warranty of Merchantability: product is reasonably fit for the general purpose for which it was manufactured or sold.
§ UCC 2-315 Elements:
o Sale must be made by merchant who deals in goods of that kind.
o Goods must pass w/in trade.
o Goods must be fit for ordinary purpose.
o Consumer expectations, not personal preference.
Implied Warranty of Fitness for a Particular Purpose: requires knowledge of particular purpose.
§ UCC 2-314 Elements:
o Seller must have knowledge of particular purpose
o Buyer must have relied on seller’s skill and judgment
o Not required that merchant involved.
o Not that goods are defective, just not what buyer needed.
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Strict Liability:
§ Liability w/out fault. The seller is held liable for injuries caused irrespective of seller’s negligence or even his exercise of all possible care.
§ Policy:
o D is considered better able to assume the risk of loss through insurance or price of products.
o Too difficult to prove negligence b/c manufacturer will always claim due care was used.
o SL is incentive for manufacturer to be more careful [inspection]
o Res ipsa is frequently used anyway.
o Will cause manufacturers to increase research and development to prevent accidents.
§ Most states that have strict liability in tort law have adopted R. 402A
§ Restatement (2d) Torts § 402 A:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm (damages to person or property) thereby caused to the ultimate consumer or user if:
(a) the seller is engaged in the business of selling such a product.
(b) it is expected and does reach the user without substantial change in the condition in which it was sold.
(2) The rule in subsection (1) above applies even though:
(a) the seller has exercised all possible care in the preparation and sale of the product; and
(b) the user has NOT bought the product from or entered into any contractual relationship w/ the seller. Privity is not required.
§ 402A is the predominant rule. However, many courts have moved to the Restatement 3d (see below).
§ Three theories have been used to define “defective condition unreasonably dangerous.”
o Manufacturing Defect: only type of defect to which strict liability applies.
o Design Defect: a negligence type standard- “knew or should have known”
o Warning Defect: a negligence type standard- “knew or should have known”
§ Containers are part of the product.
Manufacturing Defects:
§ Must only prove that the product in question is different/varies in design and purpose of all other products manufactured.
§ P has burden of proving that defect came from the manufacturer.
Design Defects:
§ 4 different ways to prove a design defect [depending on jurisdiction]:
o Negligence: prove manufacturer breached his duty to use reasonable care in manufacturing the product, and that breach caused damage.
o Risk/Utility analysis: compare the risk w/ the utility of the product at the time of trial. Majority test.
o Consumer Expectations: determine if design was up to par with the reasonable consumer’s expectations. Minority test.
o Combined risk/utility and consumer expectations test. Minority test using consumer expectations as a factor in considering risk/utility.
§ On exam, if design defect problem is given, analyze under all tests.
§ Factors relevant in risk/utility analysis:
o Usefulness of product (utility)- to both user and society
o Risk of injury
o Seriousness of injury risked
o Availability of a safer substitute product
o Feasibility of safety improvements.
o User’s ability to avoid danger by exercising due care in using the product
o The user’s awareness of the product’s dangers (obviousness of risk)
o Manufacturer’s ability to spread the loss (price and insurance)
o The state of the art at the time of manufacture.
§ Above factors must be weighed to determine if strict liability should be imposed.
§ P must prove:
1. The product was defective (see above tests)
2. The defect existed when the D released it into commerce
3. The defect caused injury to a reasonably foreseeable user
§ Most jurisdictions hold that if there is no alternative feasible design, there can be no design defect.
§ State of the Art: does not imply custom, but means the design is the most advanced technological design in the industry. Even a design that meets the state of the art may not be sufficient b/c the product may be so dangerous, and it’s utility so small, that it should not be on the market. O’Brien v. Muskin Corp (above ground swimming pool)
§ Prescription Drugs: Most jurisdictions have declined to apply strict liability to prescription drugs, following §402A.
§ However, courts have held drug manufacturers liable where a risk was known or knowable and failed to warn.
§ Drug manufacturers are held to a high standard of care for testing, preparing and warning, but are usually not held liable for unforeseeable harm.
§ R. 3d imposes liability for prescription drugs only when drugs have no viable use. So, as long as one viable use can be found, SL isn’t applied.
§ Food: Apply strict liability, only if it’s food w/ non-natural substances in it. If something natural to food, apply negligence.
o E.g. Shells, pits, bones: negligence; glass, nail, semen: strict liability.
§ For clarification, see Notes, pp. 752-55.
Warnings Defects:
Rule: Duty to warn ONLY APPLIES to dangers that were known or knowable at the time the product was made, NOT at the time of injury.
Prove: There was a failure to warn when a reasonable manufacturer knew or should have known of his duty to warn of the risk.
§ Adequate warning cannot cure a design defect.
§ There is no duty to warn of obvious dangers/risks. E.g. risk of smoking, diving in shallow water of above ground swimming pool.
§ Jury decides what is an open/obvious danger.
§ Most jurisdictions impose a duty to warn if ingredients of product include one which many people are allergic to.
§ Experts are used to prove/disprove adequacy of warnings.
§ Sophisticated Users: No need to warn. This can be a defense in a failure to warn case.
§ Learned Intermediary Rule: someone between manufacturer and consumer who is responsible for passing on warnings. Prevents consumer from suing manufacturer.