General Litigation

What must be established to potentially recover for personal injury? 

 

There is not one answer to this question.  Rather, it depends on the facts of your case.  Many personal injury cases, such as those resulting from automobile accidents, are based on negligence.  The elements of a negligence-based cause of action include:  (1) duty, (2) breach of duty, (3) proximate cause, and (4) damages.  Rolison v. City of Meridian, 691 So.2d 440 (Miss. 1997).  Simply put, the plaintiff must establish that the defendant(s) breached a duty, and the breach of duty was a proximate cause of the plaintiff’s damages.


Injuries that occur while on the real property of another may form the basis for premises liability (i.e., slip and fall cases).  Where an individual enters the property of another, his or her status under the common law system determines the duty owed to him or her.  Little by Little v. Bell, 719 So.2d 757, 760 (Miss. 1998).  Entrants are classified as licensees, invitees, or trespassers.  If “a person goes upon the premises of another in answer to an express or implied invitation of the owner or occupant for their mutual advantage,” such individual is an invitee.  Hoffman v. Planters Gin. Co., 358 So.2d 1008, 1011 (Miss. 1978).  A landowner or occupant owes an invitee the 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.”  Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss. 1992); Downs v. Corder, 377 So.2d 603, 605 (Miss. 1979).  Invitees fall into one of two categories:  business visitor or public invitees.  Where a person receives an invitation “to enter or remain on land as a member of the public for a purpose for which the land is held open to the public,” the individual’s status is that of a “public invitee.”  Where a person enters the premises of another, pursuant to the license or implied permission of the owner, for his or her own pleasure, benefit, or convenience, such person is a licensee.  Clark v. Moore Mem. United Meth. Church, 538 So.2d 760 (Miss. 1989).  A social guest is a licensee.  Sharp v. Odom, 743 So.2d 425, 428 (¶ 5) (Miss. Ct. App. 1999) (citing Wright v. Caffey, 123 So.2d 841, 844 (1960)); Weems, Robert A. & Robert M. Weems, Mississippi Law of Torts § 5-3 (2nd ed. 2008).  Where one enters the premises of another “without license, invitation, or other right,” the entrant is a trespasser.  Hoffman, 358 So.2d at 1011.  The general duty that a landowner owes to a licensee or  trespasser is “to refrain from willfully or wantonly injuring him.”  Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1100 (Miss. 1986).  Willful and wanton means more than “mere inadvertence or lack of attention.”  Leffler v. Sharp, 891 So.2d 152, 156 (¶ 9) (Miss. 2004).  More specifically, “there must be more or less extreme departure from ordinary standards of care, and conduct must differ in quality, as well as in degree, from ordinary negligence involving a conscious disregard of a known serious danger.”  Leffler, 891 So.2d at 159 (¶ 22).  After establishing the duty owed, one must determine whether the duty was breached, and causation and damages must be established in order to prevail.  Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1189 (Miss. 1994). 

 

Depending on the circumstances, there are various other types of causes of actions that potentially could be brought to recover for personal injury.  It is necessary to timely consult with an attorney to review the facts of your specific situation.


If an injured party is partially at fault, does it bar recovery?

 

No.  The plaintiff’s contributory negligence does not bar recovery.  Both statutory authority and case law are on point.  Mississippi Code Ann. § 11-7-15 provides:


                    In all actions hereafter brought for personal injuries, or where such injuries have resulted in death,

                    or for injury to property, the fact that the person injured, or the owner of the property, or person having

                    control over the property may have been guilty of contributory negligence shall not bar a recovery, but

                    damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person

                    injured, or the owner of the property, or the person having control over the property.


§ 11-7-15.  That is, while the “plaintiff’s own negligence may operate to reduce the plaintiff’s damages,” it is not an absolute bar.  Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1162 (Miss. 1992). 

 

What, if any, restrictions are placed on the ability to sue a governmental entity or employee thereof? 

 

Yes.  The Mississippi Torts Claim Act (hereinafter, “MTCA”), Miss. Code Ann § 11-46-1 et. seq., governs such matters.  The State of Mississippi and political subdivisions thereof are “immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract . . . by the state or its political subdivisions . . . or . . . any employee of the state or its political subdivisions.”  Miss. Code Ann. § 11-46-3.  However, Miss. Code Ann. § 11-46-5 provides plaintiffs with a means of seeking redress by waiving immunity to the extent specified in Miss. Code Ann. § 11-46-15.

 

After analyzing whether immunity bars litigation, the statute of limitations and procedural requirements must be analyzed.  Before litigation can be commenced, “all procedures within a governmental entity . . . [must] have been exhausted,” and “at least ninety (90) days before instituting suit, the person must file a notice of claim with the chief executive officer of the governmental entity” against which litigation is intended.  Miss. Code Ann. § 11-46-11(1).  The notice of claims must include the following information: 

 

                    [A] short and plain statement of the facts upon which the claim is based, including the circumstances

                    which brought about the injury, the extent of the injury, the time and place the injury occurred, the

                    names of all persons known to be involved, the amount of money damages sought, and the residence of

                    the person making the claim at the time of the injury and at the time of filing the notice.                          

 

Miss. Code Ann. § 11-46-11(2)(b)(iii).  With respect to the statute of limitations, all litigation under the Mississippi Tort Claims Act must be “commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based.”  Miss. Code Ann. § 11-46-11(3)(a).  Provided that a notice of claim is filed within the one-year period, the statute of limitation is tolled “for ninety-five (95) days from the date the chief executive officer of the state entity or the chief executive officer or other statutorily designed official of a political subdivision receives the notice of claim.”  § 11-46-11(3)(a).  Once the tolling period elapsed or the governmental entity denies the claim, whichever occurs first, the statute of limitations resumes, and the time limitation on initiating litigation is measured by the “balance of the 365 days not used as of the date when notice was given” plus “an additional ninety (90) days.”  Page v. Univ. of S. Miss., 878 So.2d 1003, 1005 (Miss. 2004); Miss. Code Ann. § 11-46-11(3).  Of importance, a savings clause also protects those who were under the disability of infancy or unsoundness of mine when the cause of action accrued, providing additional protection for those unlikely to be in a position to initiate litigation on their behalf within the general timeframe specified.  Miss. Code Ann. § 11-46-11(4). 

 

In sum, the MTCA does not totally foreclose the possibility of initiating litigation stemming from wrongful conduct of a governmental entity or one of its employees acting within the scope of employment; however, Miss. Code Ann. §§ 11-46-5 and 11-46-15 must be analyzed on a case-by-case basis in determining whether immunity prevents initiating such litigation.  If litigation is not barred, compliance with the notice requirement and timely initiating litigation is vital.      

 

Are there time limitations that restrict the ability to initiate legal proceedings to recover for personal injury? 


Yes.  One must be mindful of the fact that the law places time limitations on your ability to initiate legal proceedings to recover for personal injury; this is referred to as the statute of limitations.  The statute of limitations varies depending on the basis for the cause action.  If cause of action is based on negligence, the statute of limitations generally is governed by Miss. Code Ann. § 15-1-49, which restricts the timeframe for initiating litigation to “three (3) years next after the cause of such action accrued.”
§ 15-1-49(1).  Miss. Code Ann. § 15-1-49 takes into account that certain injuries or diseases may be latent by providing that “the cause of action [in such situations] does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.”  § 15-1-49(2).  In other words, the discovery rule applies to personal injury actions based on negligence.      

 

The statute of limitations is substantially shorter for a number of other personal injury actions.  Examples of such actions include those based on medical negligence or intentional torts as well as those brought against a governmental entity.       

 

The statute of limitations for other actions is one (1) year.  Miss. Code Ann. § 15-1-35 provides that a number of actions “shall be commenced within one (1) year next after the cause of such action accrued, and not after.”  These actions include those for “assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels.”  § 15-1-35.  Likewise, as described above, the MTCA generally limits the time to time to initiate litigation against a governmental entity to one (1) year.  

 

Generally, the statute of limitations for initiating litigation against provider of professional medical services (i.e., licensed physician, osteopath, dentist, hospital, institution for the aged or inform, nurse, pharmacist, podiatrist, optometrist or chiropractor) for malpractice is “two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.”  Miss. Code Ann. § 15-1-36(2).  As an overall cap on time, in the absence of foreign objects left in the body or fraudulent concealment, is “seven (7) years after the alleged act, omission or neglect occurred . . .”  Special protections and time limitations apply to certain minors and those of unsound mind.  Miss. Code Ann. § 15-1-36(3)-(8).  Regardless of the period of limitation that would apply under § 15-1-36, the MTCA might govern.  That is, if a medical malpractice claim is brought against a governmental entity and/or employee thereof, the statute of limitations outlined in the MTCA applies.
                                

In some instances, the statute of limitations might be impacted by savings or tolling provisions.   To illustrate, Miss. Code Ann. § 15-1-57 provides: 


                   When any person shall be prohibited by law, or restrained or enjoined by the order, decree, or process of any

                   court in this state from commencing or prosecuting any action or remedy, the time during which such person

                   shall be so prohibited, enjoined or restrained, shall not be computed as any part of the period of time limited by

                   this chapter for the commencement of such action.                

 

§ 15-1-57.  Additionally, in certain instances, Miss. Code Ann. “§ 15-1-59 affords special protections for infants and those of unsound mind “at the time at which the cause of action accrued” by providing, “he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided  by law.  However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.”


What types of damages are recoverable? 

 

Recoverable damages are categorized as compensatory and punitive.  Compensatory damages include a wide range of damages including, but not limited to, medical expenses, lost wages, mental anguish, and pain and suffering.  That is, some damages are economic damages and others are non-economic damages.  Non-economic damages are capped via statute in medical malpractice actions.  Miss. Code Ann. § 11-1-60.               


Punitive damages “are . . . awarded only in extreme cases.”  South Cent. Bell v. Epps, 509 So.2d 886, 892 (Miss. 1987).  The purpose of punitive damages is to protect the public by punishing the wrongdoer and deterring others engaging in malicious or wanton conduct.  C & C Trucking Co. v. Smith, 612 So.2d 1092, 1105-06 (Miss. 1992).  Consistent with this purpose, “[p]unitive damages may be recovered not only for willful and intentional wrong, but for such gross and reckless negligence as is, in the eyes of the law, equivalent to willful wrong.”  Fowler Butane Gas Co. v. Varner, 141 So.2d 226, 233-34 (Miss. 1962).  The party seeking punitive damages must “prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.”  Miss. Code Ann. § 11-1-65(1)(a).  Where the trier of fact is the jury, the trial court judge makes the initial determination of “whether to submit punitive damages to the jury.”  South Cent. Bell, 509 So.2d at 893.  The Mississippi Legislature also has enacted legislation that caps punitive damages that can be awarded.  § 11-1-65(3).

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