Analysis: Tort reform discussion, long silent, rears head at Mississippi Capitol

Published 9:16 am Monday, February 11, 2019

Tort reform is back at the Mississippi Capitol.

That term is the shorthand for a yearslong, multistate campaign by business groups to reduce lawsuit verdicts. In Mississippi, it climaxed in a 2004 special legislative session in which lawmakers limited pain-and-suffering damage awards to $1 million in most lawsuits and limited such damages to $500,000 in medical malpractice cases.

In recent years, the titanic political battle had grown quiet. Republican dominance guaranteed no rollback of Mississippi’s previous changes, but there seemed to be little left on the agenda.

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But business groups have something they still want — to make it harder for people to collect damages for injuries caused by a third party on business property.
In the legal world, this is called premises liability.

“It’s an easy way to get some easy money,” Ron Aldridge, executive director of the Mississippi chapter of the National Federation of Independent Businesses, said of such lawsuits.
Aldridge said businesses had originally sought changes in the 2004 package, but dropped the demand in exchange for other things they wanted.

Mississippi appeals courts have already been skeptical of people suing businesses, finding at least three times since 2002 that a business wasn’t responsible for someone else’s criminal conduct. But Aldridge and others claim some judges aren’t following those decisions, and that insurers are paying up rather than risk big verdicts, driving up insurance rates.

Supporters of the bill have repeatedly said businesses have left Mississippi because of the problem, but have yet to respond to requests by The Associated Press to identify them.

Those who want a change say current law is unfair because it’s written to prohibit judges or jurors from assigning part of the fault for an action to the criminal or other third party who performed the action. The two identical versions of what’s called the Landowners Protection Act (House Bill 337 and Senate Bill 2901 ) would change that by saying jurors or judges could divide up shares of fault.

That alone is likely to be a boon to businesses, because when someone sues a business, they can argue that most of the fault belongs to the third party who assaulted someone in a parking lot. While the business has money and insurance coverage, in many cases the individual does not. A jury decides someone suffered $100,000 in harm, but the business is at fault for only 10 percent.

But bills go further than that one change.

Most importantly, the bills say a property owner is exempt from a lawsuit unless someone can prove they “affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party.” A woman who sues after being attacked in a dark parking lot without security would have to prove that the business knew about the potential harm and let it happen.

They also exempt property owners from liability even if they knew about the violent nature of the third party, and doesn’t allow a plaintiff to establish that there was an atmosphere of violence at a location unless there was similar violent conduct that resulted in three felony convictions on the property within the three prior years. So a nightclub where the police are called to break up fights but people aren’t charged and convicted of felonies could be exempt, for example, if someone was hurt there later.

Ole Miss law school Professor Farish Percy, who teaches tort law, said the bill could make it nearly impossible to prove a property owner bears any responsibility for any injury caused by a third party. That’s unlike current law, which would say a property owner is responsible if they didn’t take reasonable precautions.

“I think this is much greater protection,” Percy said Thursday.

Jeff Amy has covered politics and government for The Associated Press in Mississippi since 2011.