Alaska

Mississippi

 

 

 

Statutes of Limitations (MISSISSIPPI)

 

Negligence - 3 yrs. [Miss. Code Ann. § 15-1-49]

Personal Injury - 3 yrs. [Miss. Code Ann. § 15-1-49]

Wrongful Death - 3 yrs. [Miss. Code Ann. § 15-1-49]

Property Damage - 3 yrs. [Miss. Code Ann. § 15-1-49]

Written Contracts - 3 yrs. [Miss. Code Ann. § 15-1-49]

Oral Contracts - 3 yrs. [Miss. Code Ann. § 15-1-29]

Contract for Sale (goods) and Breach of Warranty - 6 yrs. (from tender of delivery) [Miss. Code Ann. § 75-2-725]

 

It is well settled in Mississippi that a cause of action begins to run from the time of the injury and not from the time of its discovery [Wilson v. Retail Credit Co., 325 F.Supp. 460 (S.D. Miss 1971)]

 

 

 

 

 

 

 

 

Statute of Repose (Products) (MISSISSIPPI)

 

None.

 

 

Admissibility of Expert Testimony (MISSISSIPPI)

 

Miss. R. Evid. 702 is identical to Fed. R. Evid. 702.  The trial court is vested with a “gatekeeping responsibility.”  The trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue.  There must be a valid scientific connection to the pertinent inquiry as a precondition to admissibility. The party offering the expert’s testimony must show that the expert has based his testimony on the methods and procedures of science, not merely his subjective beliefs or unsupported speculation [Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31 (Miss. 2003)].

 

Causes of Action (MISSISSIPPI)

 

Mississippi Product Liability Act (“Act”) governs all product liability actions.

 

In any action for damages caused by a product, including, but not limited to, any action based on a theory of strict liability in tort, negligence or breach of implied warranty (except for commercial damage to the product itself) the manufacturer, designer or seller is not liable if Plaintiff does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, designer or seller: (1) the product was defective (because it deviated in a material way from the manufacturer’s or designer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications; OR because it failed to contain adequate warnings or instructions; OR because it was designed in a defective manner) or the product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and (2) the defective condition rendered the product unreasonably dangerous to the user; and (3) the defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought [Miss. Code Ann. § 11-1-63].

Breach of Express Warranty - Cause of action is available in certain cases.  

 

Definition of “Defect” (MISSISSIPPI)

 

A product is defective when it failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers [Miss. Code Ann. § 11-1-63].

A product can be “defective” because: (1) it deviated in a material way from the manufacturer’s or designer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications; (2) it failed to contain adequate warnings or instructions; or (3) it was designed in a defective manner [Miss. Code Ann. § 11-1-63].

 

Also, see discussion below re: design defects.

 

Liability of Sellers (MISSISSIPPI)

 

Sellers or designers (other than manufacturers) are not liable unless they: (1) exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product; or (2) altered or modified the product, and the alteration or modification was a substantial factor in causing the harm; or (3) had actual or constructive knowledge of the defective condition of the product at the time they supplied the product [Miss. Code Ann. § 11-1-63].

 

Defenses (MISSISSIPPI)     

Comparative Negligence – Mississippi follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [M.C.A. § 11-7-15].  Applies to strict liability cases [Pickering v. Industria Masina I Traktora, 740 So. 2d 836 (Miss. 1999)].

 

Assumption of Risk – No liability if Plaintiff: (1) had knowledge of a condition of the product that was inconsistent with his safety; (2) appreciated the danger in the condition; and (3) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition [Miss. Code Ann. § 11-1-63].

 

Product Misuse – Foreseeable misuse will no relieve a manufacturer of strict liability [Pickering v. Industria Masina I Traktora, 740 So. 2d 836 (Miss. 1999)].

 

Product Alteration/Modification – One of the elements of Plaintiff’s case is that the product was defective when it left the control of the manufacturer [Miss. Code Ann. § 11-1-63].

 

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (MISSISSIPPI)

 

ELD has been adopted by a statute (“commercial damage to the product itself” is excluded from the definition of product liability suits) [Miss. Code Ann. § 11-1-63].  Component parts are not “other property” for purposes of ELD [State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 736 So.2d 384 (Miss. App. 1999)].

 

Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (MISSISSIPPI)

 

In a strict liability in tort cause of action, expert testimony may be used, and reasonable inferences from the circumstances may be drawn. Absolute proof that injury was the result of the defect is not essential, and the burden of proof can be satisfied by showing sufficient facts to allow a jury to infer defective quality and that such defective quality was a substantial element in producing the claimant’s injury [Ford Motor Co. v. Matthews, 291 So. 2d 169 (Miss. 1974)].

 

Design Defects (MISSISSIPPI)                                                                                                

 

“Design defects” are included in the definition of the statutory cause of action.

 

In any action alleging that a product is defective because of its design, the manufacturer/seller are not liable if Plaintiff does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer: (1) the manufacturer/seller knew (or in light of reasonably available knowledge or in the exercise of reasonable care should have known) about the danger that caused the damage for which recovery is sought; and (2) the product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers [Miss. Code Ann. § 11-1-63].

 

Failure to Warn (MISSISSIPPI)

 

“Failure to warn/instruct” defects are included in the definition of the statutory cause of action.

 

In failure-to-warn-or-instruct cases, the manufacturer/seller are not be liable if the danger posed by the product: (1) is known; or (2) is open and obvious to the user; or (3) should have been known or open and obvious to the user, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use the product [Miss. Code Ann. § 11-1-63].

 

In a failure-to-warn-or-instruct cases, the manufacturer/seller are not be liable if Plaintiff does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer/seller knew (or in light of reasonably available knowledge should have known) about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition [Miss. Code Ann. § 11-1-63].

 

An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product [Miss. Code Ann. § 11-1-63].

 

If Plaintiff complains that certain warnings which were given were defective, he must have read and relied upon the defective warnings to complain of them.  The presence or absence of anything in an unread owner’s manual simply cannot proximately cause Plaintiff’s damages [Palmer v. Volkswagen of Am., Inc., 904 So. 2d 1077 (Miss. 2005)].

When faced with the exact situation in which the heeding presumption is meant to apply, Mississippi Supreme Court chose not to apply the presumption and instead explicitly placed on the plaintiff the burden of proving that the allegedly inadequate warnings had been followed [Harris v. Int'l Truck & Engine Corp., 912 So. 2d 1101 (Miss. Ct. App. 2005)].

 

Independent Cause of Action for Evidence Spoliation (MISSISSIPPI)

 

Mississippi has refused to recognize an independent cause of action for intentional spoliation of evidence against first and third party spoliators [Dowdle Butane Gas Co., Inc. v. Moore, 831 So.2d 1124 (Miss. 2002)].  Mississippi has refused to recognize a separate tort for negligent spoliation of evidence [Richardson v. Sara Lee Corp., 847 So.2d 821 (Miss. 2003)].