Mississippi Insurance Law – Part 7

Mississippi Insurance Law – Part 7 MISSISSIPPI Insurance-Related Law  — An A to Z Guide Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call. Negligence Children 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 claims that a defendant violated a particular statute.  In order to determine if the statute provides the necessary standard of care, a plaintiff must prove that he or she is 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).   Notice of Insurance Claim 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. App.  2006). Owner’s Liability Without some special relationship, an owner of an automobile, merely by virtue of his ownership interest, is not liable for injuries negligently caused by a permissive driver.  Wood v. Nichols, 416 So. 2d 659 (Miss. 1982).  See also, Vicarious Liability. Parental Liability 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 several liability between a minor and the person who signed the minor’s application for a driver’s license for the willful or negligent acts of a minor under 17 while operating motor vehicle. M.C.A. § 63-1-25. Parents are liable for their minor child who willfully defaces or damages a sign, device, signal, bridge, underpass or overpass up to $200.  Miss. Code Ann. § 97-15-1. See also, Minors, Parental Liability for Medical Expenses Premises Liability Generally The duty which a landowner owes to another is determined by the common law statuses: trespasser, invitee, and licensee.  Little v Bell, 719 So.2d 757 (Miss. 1998).  A three-step process is applied to determine premises liability:  determining the status of the injured person; the duty that is owed based on the status; and whether the duty was breached by the landowner.  Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004). Trespasser A trespasser is someone who enters the property of another without permission.  Hughes v. Star Homes, Inc., 379 So. 2d 301, 303 (Miss 1980).  A landowner owes the trespasser the duty not to willfully or wantonly injure him.  Id. at 304. The Attractive Nuisance Doctrine applies to situations involving child trespassers.  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.  It should be noted that the plaintiff is NOT required to show that the child was actually attracted by the dangerous condition.  Keith v. Peterson, 922 So. 2d 4 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922 (Miss. 2006). Mississippi codified the definition and duty owed to a trespasser in the 2016 legislative session.  See, Miss. Code Ann. § 95-5-31.  It maintained the common law duty to avoid willful and wanton injury, but established several situations with respect to children or adults who are in a “position of peril.”  The law created a duty of reasonable care to a trespasser if the owner discovers the trespasser in a position of peril on the property.  The law also contains a final paragraph which appears to maintain the common law defenses and immunities.  It is unclear exactly how this statute will be applied and what, if any, effect it will have on the ultimate outcome of a case other than perhaps broadening the “attractive nuisance” doctrine. Licensee A licensee is someone who enters the property of another for his own benefit with the express or implied permission of the owner.  Little, 719 So. 2d at 76

Source: Holcomb Dunbar Mississippi Insurance Law – Part 7 – Holcomb Dunbar

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