Also, parents are easily implicated for the tort of child via a cause of action for negligent supervision. This article is designed to be a thumbnail sketch of minor negligence law in Mississippi.
Standards for negligence of a minor in Mississippi. The standards for negligence of a minor in Mississippi are extremely fact-based. Most of the Mississippi cases on this issue dealt with minors driving motor vehicles or minors participating in "adult" activities. Minors are usually held liable as adults when they perform adult activities.
As for younger children, whether a child of tender years (generally believed to be between age 4 and 12 depending on the case law) is held liable for negligence causing injury to another depends on the age and intelligence of the minor, and on the tort committed and the facts surrounding the tort itself.
Therefore, in Mississippi, infancy itself is no defense to an action in tort, provided that the child has reached the years of discretion or has the maturity to have committed a particular tort, especially one requiring specific intent.
Standards regarding negligent supervision in Mississippi. This issue is also extremely fact-based. Negligent supervision depends not only on the child's age and intelligence, but also on the parent's experience with the child before the incident; as well as the instrumentality causing the harm and whether they (the parent and the child) have experience with the instrumentality. For example, if a child is known by the parents to play with fire, and he is then allowed to play with fire to damage property or to injure another, the parents can be held liable.
There is case law wherein the parents of children who burned down buildings were held liable up to a statutory amount. There is also much case law regarding underage drivers injuring others while performing adult activities such as driving a motor vehicle. There are actually three Mississippi statutes that mandate parental responsibility in property damage situations, with youthful drivers operating motor vehicles, and with youth court and quasi-criminal activities.
Based on these factors, any analysis regarding negligent supervision on the part of the parents will presumably depend upon the answers to the following questions:
What is the age of the child? What is the experience of the child with the instrumentality that caused the harm? Who controlled the instrumentality causing the harm? Where was the instrumentality causing the harm before the child obtained it? Where was the mother and father during this time? When was last time either parent saw the children before the accident?
Using a burn case from playing with matches as an example, whether the children participated in outdoor activities such as Scouting or other camping programs (where fire is used and fire safety is taught), and whether the parents ever caught their children playing with matches before the accident could be huge factors.
Duties regarding liens when paying to settle minor negligence cases. In many minor negligence cases, the injuries are severe. Therefore, payouts can be large. However, unlike most states, Mississippi has no hospital lien statute, nor have Mississippi courts recognized a common-law lien for medical provider treatment. Mississippi Code § 43-13-125(1) does, however, provide for Medicaid liens.
Minor settlements are handled by Chancery Court in the jurisdiction where the child resides. The best practice to protect the carrier and its insured from liens is to give notice to the various medical providers with outstanding balances, of the pending Chancery Court settlement, so the claimants can appear and proffer their arguments. Copy the parents of the inured child settling, or their attorney if they are represented, on such notice so that is not a surprise.
For the Chancery Court settlement, a Guardian ad Litem (GAL) may well be appointed for the child. In some cases, the parent or parents have been appointed as Guardian ad Litem. However, many Chancery judges believe or have recognized that there is an inherent conflict of interest between parents and children if parents are appointed as the GAL, given that parents are required to pay for medical expenses in Mississippi and the minor children are not.
Communication duties to the insured regarding potential excess exposure. If the parents of an injured child or the Chancery Judge do not agree to completely release your insured in a minor settlement presented in a Chancery Court in conjunction with a tender of policy limits, then a letter regarding excess exposure may be appropriate. However, until such circumstances arise, any excess notice would be premature.
Navigating the rocks and shoals of minor negligence cases in Mississippi is challenging. The various jurisdictions and Chancery judges/courts operate in different ways. Know your venue, your judge, and treat the claimant fairly and settlements of this nature should be no problem.