Opinion
Civil Action No. 2:98CV39-P-B
May 1, 2000
MEMORANDUM OPINION
This cause is before the Court on the plaintiff's Motion to Strike, Dismiss And/Or In Limine. The Court, having reviewed the motion, the response, the authorities cited and being otherwise fully advised in the premises, finds as follows, to-wit:
Plaintiff filed the instant motion and contends that the defendant's third and fourth defenses should be stricken so as to bar the defendant from asserting that the negligence of the decedent's parents, Ann Hammond and/or Nathaniel Coleman, was the sole proximate cause and/or a proximate contributing cause of the death of the minor child, Tammera Hammond. At issue is whether a defendant may assert the negligence of a statutory beneficiary as an absolute and/or partial defense to recovery in a wrongful death action. The Mississippi Supreme Court has not directly addressed the issue; as a result the Court must make an Erie determination and attempt to fathom what the state's high court would do if faced with these issues.
A. Defendant's Third Defense: The Negligence of Others As the Sole Proximate Cause of Decedent's Death
Whatever else may be true in relation to the effect of a statutory beneficiary's contributory negligence on the right of recovery, it cannot be gain said that the defendant has the right to assert as a defense the proposition that the sole proximate cause of the decedent's death was the fault of the parents without regard to the purported problems of imputing the parents' negligence to a minor child and/or concerns of parental immunity. It is an inescapable conclusion that if another's negligence is the sole cause of the injury or death sued upon, the fact finder must find in favor of the defendant. It is then immaterial whether the law affords a remedy to the offended party as against the responsible party. Plaintiff has cited no cases which expressly hold otherwise. All of the cited authorities involved situations in which the Court found insufficient evidence to support an instruction on parental negligence as the sole proximate cause of the child's injuries or death. See Lucas v. Mississippi Housing Authority No. 8, 441 So.2d 101 (Miss. 1983); Gault v. Tablada, 400 F. Supp. 136 (S.D.Miss. 1975); Delta Electric Power Association v. Burton, 126 So.2d 258 (Miss. 1961); Nosser v. Nosser, 137 So. 491 (Miss. 1931); Gordon v. Lee, 43 So.2d 665 (Miss. 1949); Hines v. McCullers, 83 So.734 (Miss. 1920). And certainly the Mississippi Supreme Court's recent decision in Hunter v. General Motors Corporation, 729 So.2d 1264 (Miss. 1999), serves as additional authority for a defense grounded on the fault of an absent tort-feasor as the sole proximate cause of a plaintiff's injuries. For all of the above and foregoing reasons, the plaintiff's motion to strike the defendant's third affirmative defense is not well-taken and should be denied.
B. Defendant's Fourth Defense: Reduction of Damages based on Percentage of Fault Attributable to Non-Defendant Third Parties
1. Case Law Prior to the Adoption of Mississippi's Apportionment Statute
Hines v. McCullers was a suit brought by John McCullers on his own behalf as well as that of his children as statutory beneficiaries for the wrongful death of his wife as a result of an accident at a railroad crossing. 83 So. 734 (Miss. 1920). The defendant railroad asserted that the contributory negligence of Beatrice McCullers (the driver of the automobile in which her mother was a passenger) barred any recovery by Beatrice or the other beneficiaries. The Court rejected the argument in view of the fact that Beatrice's contributory negligence would not have barred a suit by the mother against the railroad had she lived. This conclusion is unremarkable in view of the rule against both apportionment and contribution between joint tortfeasors at the time. Most notably, the Court was not presented with the issue of whether the damages to be awarded might be reduced in proportion to Beatrice's share of fault, either as to her or the other statutory beneficiaries.
Barely more than a decade later, the state's high court decided Nosser v. Nosser, a case involving a wrongful death action by a father and son for the death of the wife/mother while riding as a guest passenger in a vehicle negligently operated by another son, Joseph. 137 So. 491 (Miss. 1931). The jury awarded a judgment for the plaintiffs and, in accordance with the trial court's instructions, reduced the entire recovery by one-third, with the remaining two-thirds awarded to the innocent father and son. Joseph's argument was two-fold: 1) his dual role as a defendant and statutory beneficiary precluded the suit; and 2) the father's alleged contributory negligence should reduce damages recoverable by all the statutory beneficiaries. The Court rejected both propositions, recognizing in the first instance that
[t]he defendant in such a suit cannot of course, profit thereby, for the reason that he himself must pay any damages awarded, but in the absence of an express or clearly implied prohibition against the recovery by the other relatives of the deceased, to whom the right of action is given, we are not justified in so interpreting the statute as to exclude them from recovering.
Id. at 492. As to the proposition that the entire recovery be reduced by the comparative fault of the father, the Court rejected the proposition and further noted that the case, as presented, did not require the Court to consider whether a particular beneficiary's recovery might be limited by his proportionate share of fault:
The claim here is not that such negligence is a bar to a recovery, but that it reduces the amount of damages recoverable, not only by the person negligent, but by the other innocent beneficiaries of the suit. It will be observed that the contributory negligence which the statute provides may be taken into consideration by the jury, in a suit for damages for the death of a person injured, is `that of the person injured.' It will not be necessary for us to decide whether the contributory negligence of a beneficiary reduces his portion of the damages recoverable that would inure to his benefit, for it seems reasonably clear that the statute does not require that the contributory negligence of one of the beneficiaries in such a suit should be imputed to the other beneficiaries.
Id. at 492 (citation omitted) (emphasis added).
The Supreme Court utilized the same approach in the 1961 wrongful death case of Delta Electric Power Assocation v. Burton, 126 So.2d 258 (Miss. 1961), when it found reversible error in an instruction which required the jury to reduce any damages awarded in proportion to the negligence attributable to the decedent's husband as a statutory beneficiary. The Court cited Nosser and stated:
In the Nosser case, the Court found it unnecessary to decide whether the contributory negligence of a beneficiary reduces his portion of the amount of damages recoverable that would inure to his benefit. Nor do we do so here, for we do not have before us any instruction which would enable the jury to return a verdict reducing the amount of the recovery inuring to the benefit of . . . [the husband] because of his contributory negligence and not imputing such contributory negligence to the other beneficiaries.
Id. at 262.
This Court located only one Mississippi case in which a court expressly considered whether a statutory beneficiary's negligence should operate to reduce the damages recoverable to him or her individually. In Hood v. Dealers Transport Company, 472 F. Supp. 250 (N.D.Miss. 1979), district judge Orma Smith addressed the proposition and rejected it. His analysis was based on two principal factors: 1) that the father would have been immune from a suit instituted by the other wrongful death beneficiaries, and 2) neither the wrongful death statute, Mississippi Code Annotated § 11-7-13, nor the comparative negligence statute, codified as Mississippi Code Annotated § 11-7-15, provide for a diminution of recovery as a result of a statutory beneficiary's contributory negligence. Id.
Although the Hood decision contains some interesting parallels which are useful in the subsequent analysis, the Court would first note that Judge Smith's decision, like the authorities cited by plaintiff concerning the effect of a statutory beneficiary's contributory negligence, pre-dates the adoption of Mississippi's apportionment statute which controls the liabilities of joint tortfeasors. Miss. Code Ann. § 85-5-7 (1972).
Lucas v. Mississippi Housing Authority No. 8, 441 So.2d 101 (Miss. 1983); Gault v. Tablada, 400 F. Supp. 136 (S.D.Miss. 1975); Delta Electric Power Association v. Burton, 126 So.2d 258 (Miss. 1961); Nosser v. Nosser, 137 So. 491 (Miss. 1931); Gordon v. Lee, 43 So.2d 665 (Miss. 1949); Hines v. McCullers, 83 So.734 (Miss. 1920).
2. Effect of the Adoption of the 1989 Apportionment Statute
a. The Statute and Interpretive Case Law
As mentioned previously, Mississippi's comparative negligence statute speaks only in terms of reducing recovery in proportion to the fault of the injured party. The statute makes no mention of the propriety of reducing the recovery of one or all wrongful death beneficiaries based on the contributing fault of a beneficiary, thereby engendering the instant controversy. However, in 1989 the Mississippi legislature adopted a statute which altered the law regarding contribution between joint tortfeasors. Title 85, chapter 7, section 7 of the Code provides:
(1) As used in the section "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including but not limited to negligence. . ..
(2) Except as may be otherwise provided . . . in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages.
(3) Except as otherwise provided in subsections (2) and (6) of this section, in any civil action based on fault, the liability for damages caused by two (2)or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault.
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(7) In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.
Miss. Code Ann. § 85-5-7 (1972). As interpreted by the Mississippi Supreme Court, the new law requires that a fact finder determine on a percentage basis the fault of all whose actions otherwise contribute to proximately cause injury or death to another person, including those who are not joined as defendants in the suit. Hunter v. General Motors Corporation, 729 So.2d 1264 (Miss. 1999). The Court finds Hunter persuasive on the issue of whether the fact finder should be permitted to consider the alleged negligence of the parents in arriving at an assessment of fault. When read together the comparative negligence statute and the apportionment statute reveal a clear legislative intent that a fact finder consider all conduct which in any way contributes to cause an injury or death in determining liability. This Court can fathom no reason why either a decedent's parents or the other statutory wrongful death beneficiaries as a class should benefit from the parents' peculiar position as alleged joint tort-feasors and wrongful death beneficiaries.
The authorities cited by plaintiff in support of his argument that allowing defendant to argue and to offer evidence of the parents' contributory negligence is to be equated with an imputation of the parents' negligence to the child are inapposite. By and large, the authorities distinguish between cases in which the parents seek to recover their own damages and instances in which the suit is brought for the benefit of the injured child. Westbrook v. Mobile O.R. Co., 6 So.321 (Miss. 1889). And compare Bunch v. Shaw, 355 So.2d 1383 (Miss. 1978) (holding it was error for trial court to grant an instruction concerning parental negligence where suit was brought on behalf of a child who suffered injury when a set of lockers in a bowling alley fell on her) with Wright v. Standard Oil Company, Inc., 470 F.2d 1280 (5th Cir. 1972) (father's damages reduced pro rata by his proportionate share of negligence in a suit by parents to recover consequential damages for medical expenses and loss of the child's services as a result of injury)(Louisville, N.O. T. Ry. Co. v. Hirsch, 13 So. 244 (Miss. 1891).
The more recent case of Lucas v. Mississippi House Authority No. 8, 441 So.2d 101, is distinguishable. Lucas arguably extended the rule against imputing the parent's negligence to the child to suits over wrongful death. However, the Court failed to address any contrary authority. Nor did the Court consider any decisions dealing with the contributory negligence of statutory beneficiaries in the context of a wrongful death action. Furthermore, Judge Lee's concurring opinion was founded on a finding that the instruction was not supported by the evidence. Id. at 105. The only subsequent case which treats the Lucas decision supports the latter interpretation. Lloyd Wood Construction Co. v. Little, 623 So.2d 968 (Miss. 1993). Had the evidence supported an instruction on parental negligence, he would have applied the comparative negligence rule, codified at Miss. Code Ann. § 11-7-15 (1972). Lucas at 105. The most important distinguishing factor, of course, is the Mississippi legislature's subsequent adoption of the apportionment statute, which necessarily affects the weight to be accorded the Lucas decision.
b. Issues of Parental Immunity Affecting the Application of the Apportionment Statute in the Present Case
However, the context of the inquiry changes somewhat when one considers whether the defendant may tout the mother's alleged negligence before the fact finder in order to diminish the damages award of the other statutory wrongful death beneficiaries. This inquiry requires the consideration of a recent Mississippi Court of Appeals decision which restricts Hunter's application where certain tort immunities come into play. In Accu-Fab Construction, Inc. v. Ladner, 2000 WL 274291 (March 14, 2000), the Court of Appeals, sitting en banc, affirmed the trial court's refusal to grant an instruction which permitted the jury to consider the fault of the decedent's employer in apportioning liability. Id. at *2. The distinction, the Court said, arose out of the fact that "the representative for the estate of Ladner was not vested with the discretion to pursue any other course for compensation other than workers' compensation benefits." Id. The pivotal factor, then, is whether the plaintiff would have been precluded from bringing a lawsuit against the non-defendant tort-feasor. Id. This is in keeping with the statute's admonishment in subsections (5) and (8) concerning issues of immunity:
(5) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.
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(8) Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person.
Miss. Code Ann. § 85-5-7 (1972).
Therefore, before a conclusion may be reached on this issue, it is necessary for the Court to consider the doctrine of parental immunity and its particular application in a wrongful death action. It is undisputed that the current state of Mississippi law would have precluded a suit by Tammera Hammond against her parents had she lived. Hewlett v. George, 9 So. 885 (Miss. 1891). But see Glaskox v. Glaskox, 614 So.2d 906 (Miss. 1992) (abrogating the doctrine of parental immunity in the context of automobile negligence suits); Ales v. Ales, 650 So.2d 482 (Miss. 1995) (recognizing the partial abrogation of parent-unemancipated child immunity and extending the abrogation to suits by parent against an unemancipated child). However, immunity running between the decedent and the alleged tort-feasor is not the determinative issue.
Rather, in suits brought under the wrongful death statute, the "sole test therein contained of the right to maintain such an action is the right of the person injured to have maintained an action therefor had death not ensued." Hines v. McCullers, 83 So.734 (Miss. 1920). The appellant in the case of Deposit Guaranty Bank Trust Company v. Nelson argued that this requirement extended "both to (a) the nature of the wrongful act, and (b) the person entitled to recover. . . ." 54 So.2d 476, 477 (Miss. 1951) (emphasis added). Nelson involved a suit brought by a woman for the death of her mother; the mother's death was inflicted by the husband, the statutory beneficiary's step-father. Defendant Nelson urged that the suit was barred because the doctrine of spousal immunity would have precluded his wife from maintaining an action against him had she lived.
The Court summarily rejected his argument:
. . . [T]his position is not sustainable. First, the disability of the wife to sue is one personal to her, and does not inhere in the tort itself. The assault upon her is wrongful even though she is under a personal disability to sue. The reasons for the rule of immunity between husband and wife do not exist where the husband kills his wife and thus destroys the marital relationship. Second, the statutory beneficiary has a new cause of action, independent of that of the deceased if she had survived, provided the defendant is chargeable with a wrongful act. The suit is derived from the tortious act not from the person of deceased. And third, the stated condition in the statute has no reference to the person entitled to sue but only to the sufficiency of the circumstances attending the injury and the nature of the wrongful act. That is, the defendant must be chargeable with a wrongful act.
Id. The Court further concluded: "To extend the tort-feasor's immunity to a new cause of action by the survivors of the deceased wife would apply the immunity rule to a situation never contemplated in its creation and wholly irrelevant to its reasons. The immunity must be confined to cases where its purposes can practically operate. Id. at 480.
In the subsequent case of Durham v. Durham, 85 So.2d 807 (1956), the Supreme Court further explained its holding in Nelson. Durham involved a suit by an unemancipated daughter against her father for the death of the mother in an automobile accident. The Court noted that the mother could not have sued the father for her injuries had she survived. Id. Relying on Nelson though, the Court reasoned: "But that relationship does not preclude this action if there is no impediment to the suit arising from the relationship between the plaintiff and defendant." Id. The Court ultimately concluded that the doctrine of parental immunity precluded the daughter from maintaining a wrongful death action against her father. Id. at 809.
From the context of the Durham case, it appears that the father was the sole tortfeasor. The Court noted the father's unique position as a defendant and statutory beneficiary, but concluded that "where there is no impediment otherwise denying the other distributee from maintaining the suit, the action may be maintained by the distributee other than the tortfeasor." Id. at 808 (citing Nosser v. Nosser, 137 So. 491 (Miss. 1931).
These cases require that the Court undertake to examine the relationship between Ann Hammond, Nathaniel Coleman and each of the decedent's other statutory beneficiaries individually. In addition to the parents, the statutory beneficiaries in the present case are Jerliss Hammond, Napoleon Hammond and Scopria Hammond, decedent's three siblings who are the minor children of Ann Hammond and Nathaniel Coleman. Under the Durham case cited above, the minors are precluded from pursuing a wrongful death action against their parents under the facts presented in this case. Accordingly, the Court of Appeals' decision in Accu-Fab does not permit any purported fault on the part of Ann Hammond and/or Nathaniel Coleman to reduce the damages recoverable by decedent's surviving siblings who are minors.
Although Ann Hammond alone brought this action, it is inarguable that the action is for the benefit of all the statutory beneficiaries. Thames v. Mississippi, 117 F.2d 949 (5th Cir. 1941) (regardless of which statutory beneficiary brings an action for wrongful death, the proceeds belong to those entitled as if they had all been named as plaintiffs). Therefore, the Court finds it appropriate to accord individual consideration to the effect of Ann Hammond's alleged negligence on each of the statutory beneficiaries right to recovery. It would be anomalous to permit such an important question to be determined on the mere accident of the person bringing suit, when the statute permits the suit to be brought by either one or all interested parties and expressly forbids the maintenance of more than one suit. See Miss Code Ann. § 11-7-13.
The Court is well aware that either a decision by Mississippi's Supreme Court which reverses the Court of Appeals' holding in Accu-Fab, or a subsequent Supreme Court decision which extends the abolition of parental immunity to all actions sounding in tort, would require a different result. Should such a change in the law occur, the parties should bring the matter to the Court's attention immediately.
The same conclusion does not follow when one considers the relationship of the decedent's father, Napoleon Coleman, to Ann Hammond. Coleman is an adult not under any disability to sue; he is not married to Ms. Hammond nor would it matter if he were, considering that Mississippi completely abolished the doctrine of inter-spousal tort immunity in the case of Burns v. Burns, 518 So.2d 1205 (Miss. 1988). Because there is no impediment to Coleman's maintaining an action against Ms. Hammond, Accu-Fab is inapplicable and Hunter requires that the fact finder reduce the damages recoverable by Coleman by the percentage of fault allocable to Ann Hammond. The same analysis is true in reverse fashion: to the extent that Nathaniel Coleman engaged in negligent conduct which proximately contributed to the death of Tammara Hammond, Ann Hammond's recovery is to be reduced accordingly.
CONCLUSION
Based on the foregoing authorities and analysis, the Court concludes that the Mississippi Supreme Court would apply principles of comparative negligence to reduce the recovery of the parents as statutory beneficiaries by the proportionate share of negligence, if any, attributable to them. By contrast, the other statutory beneficiaries who are unemancipated minors may not have their recovery reduced in proportion to their parent's negligence, inasmuch as principles of parent-child immunity preclude the children from suing their parents in tort under the present facts. Accu-Fab Construction, Inc. v. Ladner, 2000 WL 274291 (March 14, 2000). In short, the plaintiff is not entitled to have the defendant's fourth defense stricken; although the defendant may not assert the parents' alleged negligence in an effort to diminish any damages recoverable by decedent's unemancipated minor siblings. A separate order will issue forthwith.