Howard v. Wilson
62 So. 3d 955
Miss.2011Background
- January 9, 2009, Lyshell Wilson sues Citi Trends and employee Jocelyn Howard for injuries from a December 22, 2007 attack at Citi Trends in Jackson, Mississippi.
- Plaintiff's complaint alleges Howard maliciously, recklessly, negligently, and violently attacked Wilson with scissors.
- May 26, 2009, Howard moves to dismiss asserting Wilson filed the claim beyond the one-year statute of limitations for assault and battery under Miss. Code Ann. § 15-1-35.
- Wilson responds that the claim is one of negligence, not intentional tort, and thus not time-barred.
- July 2, 2010, trial court denies Howard's motion to dismiss; Howard appeals interlocutoryly only regarding the claims against her.
- Court reverses and remands, holding the complaint cannot be characterized as negligence to circumvent the statute; Wilson's claims against Citi Trends are not before the Court in this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint is an assault-and-battery claim time-barred | Howard mislabels the claim to avoid the one-year bar | Wilson's labeling does not change the nature of the claim | No; the complaint is an intentional-tort claim and barred by the statute of limitations |
| Whether Wilson can plead negligence to evade the statute | Characterizing the act as negligence avoids time bar | There can be no negligence substitute for an intentional tort to defeat the statute | No; cannot escape the time bar by recasting as negligence |
| Whether the trial court erred by denying dismissal | denial preserves time-bar issue for appellate review | dismissing appropriate due to time-bar | Yes; trial court erred in denying dismissal and dismissal was proper |
Key Cases Cited
- Dennis v. Travelers, 234 So.2d 624 (Miss. 1970) (cannot escape intentional-tort statute by recharacterizing the claim)
- City of Mound Bayou v. Johnson, 562 So.2d 1212 (Miss. 1990) (no escape from time bar by recasting assault and battery as negligence)
- Childers v. Beaver Dam Plantation, Inc., 360 F.Supp. 331 (N.D. Miss. 1973) (federal court: negligence claims arising from intentional torts dismissed as time-barred)
- Webb v. Jackson, 583 So.2d 946 (Miss. 1991) (no such thing as a negligent assault)
- Morgan v. Greenwaldt, 786 So.2d 1037 (Miss. 2001) (assault elements; relevance to distinguishing assault and negligence)