Shared Flashcard Set


Torts 2
Ole Miss - Weems

Additional Law Flashcards




Wrongful death 2 part test

interest protected: interest of person not to be killed


liability: any culpable conduct

wrongful death common law treatment

1.     Felony Merger Doctrine – All crimes involving death were felony and punishable by death.  All property confiscated by crown, therefore nothing to pursue in tort action

2.     Lord Campbell’s Act – Allowed cause of action for ¶ who could show loss of money

a.     No recovery allowed if no dependents

3.     Loss to Survivors Statute - Trier of fact (Judge) determines future monetary contribution of deceased.


wrongful death survival

1.     Common Law – Tort C/A abated w/ death of party prior to judgment

2.     Survival Statutes – All states have statutes that override abatement and allow C/A whether party is living or dead.

a.     Maj. – Party must be survived by statutory beneficiary or no C/A exists (Lord Campbell’s Act)

b.     Min. (MS) – Any time D’s wrongful act causes death, the wrongful death action appropriate.

·      MS § 91-7-233 – death before filed, suit can be brought

o   Exceptions: libel, slander

·      MS § 91-7-237 – death after filed, suit can continue

o   Creditors paid first, then heirs

3.     Cannot prevail in Wrongful Death C/A unless wrongful act of D actually caused the death.


MS wrongful death statute

If person does an act and if P would be able to bring suit against D had act injured P, then if act kills P, P can bring wrongful death action

·      Whether intentional, negligent, carried by SL, or breach of warranty  


who can bring a wrongful death action?

Group 1 – spouse and children – all in this group split damages

·      If one child already dead, but has 2 kids, then they split his share

            b.            Group 2 – parents and siblings – if no one in group 1, then all in this group split damages.

·      If no one in group 1 or 2, then goes to estate

            c.            Half sibling entitled to same share as full sibling (different from intestate succession)

d.            All possible parties must be joined in suit – 1 and 2 must be joined? Or just 1, then 2 if no 1?

e.            Adopted child killed – new family takes place of natural family

·      Stepchildren cannot bring suit

·      Illegitimate children can inherit from natural mother and her children

o   Different for father – must establish relation w/ suit to determine heirship

f.            Unborn Children – suit can be brought provided it is viable

·      Standard is now quickness w/ movement to push back to conception


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