United States Court of Appeals

Fifth Circuit



## FILED

March 1, 2004

Charles R. Fulbruge III

Clerk Revised March 16, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-60007

ELIZABETH CROWDER AUSTIN,

Individually, and as Administratrix

of the Estate of Andrew C. Austin,

Deceased; HEIDI ELIZABETH AUSTIN;

FRANK BARKSDALE AUSTIN,

Plaintiffs-Appellants,

versus

WILL-BURT COMPANY; ET AL,

Defendants,

WILL-BURT COMPANY,

Defendant.

Appeal from the United States District Court

for the Northern District of Mississippi

Before GARWOOD, JONES, and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

In this products liability diversity case, plaintiffsappellants Elizabeth Crowder Austin, et. al., (appellants), appeal

the summary judgment dismissal of their action against defendantappellee Will-Burt Co. (Will-Burt) for damages for the wrongful1 Initially, appellants filed suit against multiple

defendants. However, all defendants other than Will-Burt were

either dismissed from the case or settled their claims with the

appellants. Therefore, this opinion is limited to the only

defendant involved in this appeal, Will-Burt.

2 death of their decedent, Andrew Austin 1 . We affirm.

Facts and Proceedings Below

An drew Austin (Austin) was a twenty-four year old college

graduate in his fourth month as a production manager for television

station WABG-TV (WABG) in Greenville, Mississippi. On June 17,

1997, Austin was assigned to set up the station’s electronic news

gathering (ENG) van for a live broadcast in downtown Greenville, in

front of the City Hall. His duties typically included operating

the Will-Burt telescoping mast that was mounted on the van in order

to facilitate the broadcast. The mast, which fed through a hole in

the roof of the van, was constructed of aluminum tubes nestled

inside each other that could be extended by air pressure. On the

day in question, the van was parked by someone other than Austin

underneath power lines. When the mast was raised, it became

entangled with the power lines, sending 8,000 volt s through the

mast and electrifying the van and its appurtenances. When Austin

touched the van, he received a fatal electric shock.

No federa l or state statute or regulations or similar

requirements (such as OSHA or American National Standard Institute

standards) di ctate how telescoping masts should be constructed,

perform or operate. Will-Burt masts are used by the military,3

Border Patrol, firefighters, and the television industry. However,

each sector uses the masts for a somewhat different purpose.

The telescoping mast at issue was manufactured in 1982 by the

Ohio-based Will-Burt, and in May of that year was sold by Will-Burt

to Quality Coach, a company in Indiana that purchased c omponent

parts and integrated them into vehicles pursuant to the demands of

an end user. Will-Burt did not do business with Quality Coach

after 1984 or 1985. In December 1988 WABG purchased the mast, as

a separate item, from Alan W. Haines, Custom Co nstruction of

Monroeville, New Jersey, the invoice reflecting that it was “used”

and “completely rebuilt.” Will-Burt was unaware, until a time

after the accident in question, that WABG had acquired the mast.

In 1989 or 1990 WABG in a separate transaction or transactions

acquired from one or more sources other than Will-Burt (and other

than Haines) a pan-and-tilt and microwave antenna, neither of which

were manufactured or sold by Will-Burt (which does not make or sell

items of that kind). The pan-and-tilt and microwave antenna house

the movable camera and transmitting antenna that are to be placed

on the top of a telescoping mast.

WABG had a 1985 ENG van which it had purchased from a third

party (Will-Burt did not and does not make or sell such vans). In

1990, WABG, through its own employees, “integrate d” into its ENG

van the ma st and separate “payload components, which included a

Quick Set pan-and-tilt and a microwave antenna.” That process4

involved cutting a hole in the top of the van, affixing the mast to

the floor of the van where it could extend through that hole, and

attaching the separate “pan-and-tilt and the antenna to the top of

the mast.” The WABG employee that performed this work was at that

time “aware of the risk that the telescoping mast could be raised

into overhead power lines” and he “ therefore placed two warning

plaques on the van,” one “on the da shboard of the van” and the

other “near the lever that activated the telescoping mast,” stating

“something to the effect of ‘check around the van before raising

the mast and look for all overhea d obstructions.’” These two

plaques were in addition to the “warnings [sic] sign[s] that came

affixed to the Will-Burt telescoping mast that warned of overhead

danger as well.”

Although Wi ll-Burt originally sold the mast with a constant

pressure switch, which required an operator to continuously depress

the sw itch in order to raise or lower the mast, when WABG

integrated the mast into its EN G van, it rigged a bungee cord to

hold down the pressure switch. The bungee functioned as a crude

remote control, enabling the mast to be raised and lowered without

a person physically applying constant pressure.

Austin’s surviving mother, individually and as Administratrix

of his estate, father, and sister, filed this wrongful death and

survival products liability action in 2000 against Will-Burt and

other defendants in Mississippi state court, alleging as to Will-2 Breach of warranty allegations were also made below, but

appellants have not raised any such claims on this appeal.

5 Burt that at the time the mast left Will-Burt’s control, it was

defective in design, and that Will-Burt failed to provide adequate

warnings or instruc tions. They further alleged respecting WillBurt that it breached its post-sale duty to warn end-users like

WABG about the dangers posed by its product , in light of its

knowledge of five or six post-1982 deaths by electrocution

involving its m asts. 2 The case was removed to federal court on

diversity grounds. The parties agree that Mississippi substantive

law governs this case.

On November 20, 2002, the district court granted Will-Burt’s

motion for summary judgme nt, dismissing all of the appellants’

claims against it. Judgment for Will-Burt was certified as final

under F ED

. R. C IV

. P. 54(b). Appellants have timely appealed.

Discussion

1. Standard of Review

We review the district court’s grant of summary judgmen t d e

novo

, applying the same legal st andards as the district court

applied to determine whether summary judg ment was appropriate.

Ramirez v. City of San Antonio

, 312 F.3d 178, 181 (5th Cir. 2002).

A summary judgment motion is properly granted only wh en, viewing

the evidence in the light most favorable to the nonmoving party,

the record indicates t hat there is no genuine issue as to any3 The Prestage Court noted that “[i]n Hall v. Mississippi

Chem. Exp., Inc. , 528 So. 2d 796 (Miss. 1988), this Court

appeared to move away from the ‘consumer expectations’ analysis

of products liability,” and also observed that Whittley v. City

of Meridian , 530 So. 2d 1341 (Miss. 1988), likewise represented

“a step away from the ‘consumer expectations’ analysis.”

6 material fact and that the moving party is entitled to judgment as

a matter of law. F E D

. R. C IV

. P. 56(c); Celotex Corp. v. Catrett

,

106 S.Ct. 2552, 2552-54 (1986). In determining whether there is a

gen uine dispute as to any material fact, we must consider all of

the evidence in the record, but we do not make credibility

determinations or weigh the evidence. R amirez

, 312 F.3d at 181.

Instead, we should draw all reasonable inferences in favor of the

nonmoving party. I d

. However, the nonmovant, to avoid summary

judgment as to an issue on which it would bear the burden of proof

at trial, may not rest on the allegations of its pleadings but must

come forward with proper summary judgment evidence su fficient to

sustain a verdict in its favor on that issue. Celotex Corp., 106

S. Ct. at 2552-53; Hypes v. First Commerce Corp

., 134 F.3d 721, 725

(5th Cir. 1998); Little v. Liquid Air Corp

. , 37 F.3d 1069, 1075

(5th Cir. 1994).

2. Mississippi Products Liability Act

In Sperry-New Holland v. Prestage , 617 So. 2d 248, 252-56

(Miss. 1993), the Mississippi Supreme Court rejected the “consumer

expectations” test which it had earlier applied in p roducts

liability cases and adopted in stead the “risk-utility” analysis. 3Prestage , 617 So. 2d at 254, 255. Prestage expressly declined to

follow decisions of this court which “held that Mississippi

employs a ‘consumer expectations’ standard in strict products

liability cases,” citing Batts v. Tow-Motor Forklift Co. , 978

F.2d 1386 (5th Cir. 1992); Toney v. Kawasaki Heavy Indus. Ltd.

, 975 F.2d 162 (5th Cir. 1992); Melton v. Deere & Co. , 887 F.2d

1241 (5th Cir. 1989); and Gray v. Manitowoc Co., Inc. , 771 F.2d

866 (5th Cir. 1985). Prestage, 617 So. 2d at 254, 256.

7 Accordingly, Prestage also rejected the “consumer expectation test”

driven doctrine that an “open and obvious danger” could not render

a product defective. P resta ge , 617 So. 2d at 256 n.4. P restage

was decided March 25, 1993. “Soon thereafter, the Legislature

passed the Products Liability Act, Miss. Code Ann. § 11-1-63.”

Smith v. Mack Trucks, Inc.

, 819 So. 2d 1258, 1261 (Miss. 2002).

The substanti ve provisions of the Mississippi Products Liability

Act (MPLA) are inapplicable to cases filed before July 1, 1993, the

effective date of the MPLA, and such cases are governed by

Prestage

. Smith at 1261-64. All cases filed after July 1, 1993,

are fully governed by the MPLA. Because the instant suit was filed

after July 1, 1993, it is fully governed by the MPLA.

The MPLA provides that:

“In any action for damages caused by a product except for

commercial damage to the product itself:

(a) The manufacturer or seller of the

product shal l not be liable if the claimant

does not prove by the preponderance of the

evidence that at the time the product left the

control of the manufacturer or seller:

(i)1. The product was defective

because it deviated in a material way from the

manufacturer’s specifications or from

otherwise identical units manufactured to the

same manufacturing specifications, or8 2. The product was defective

because it failed to contain adequate warnings

or instructions, or

3. The product was designed in a

defective manner, or

4. The product breached an express

warranty or failed to conform to other express

factual representa tions upon which the

claimant justifiably relied in electing to use

the product; and

(ii) The defective condition rendered the

product unreasonably dangerous to the user or

consumer; and

(iii) The defective and unreasonably dangerous

condition of the product proximately caused

the damages for which recovery is sought.”

Miss. Code. Ann. § 11-1-63(a).

In this appeal, appellants do not raise any contentions under

section (i)1 (manuf acturing defect) or section (i)4 (express

warranty or representation), but rely only on claims of inadequate

warning (section (i)2) and defective design (section (i)3).

Concerning defective warning claims (section (a)(i)2) the MPLA

provides:

“(c)(i) In any action alleging that a product is

defective because it failed to contain adequate warnings

or instructions pursuant to paragraph (a)(i)2 o f this

section, the manufacturer or seller shall not be liable

if the claimant does not prove by the preponderance of

t he evidence that at the time the product le ft the

control of the manufacturer or seller, the manufacturer

or 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.

(ii) 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 ordinary9

knowledge common to an ordinary c onsumer who purchases

the product; or in the cas e of a prescription drug,

medical device or other product that is intended to be

used only under the supervision of a physician or other

licensed professional person, taking into account the

characteristics of, and the ordinary knowledge common to,

a physician or other licensed professional who prescribed

the drug, device or other product.” Miss. Code Ann. §

11-1-63(c),

and,

“(e) In any act ion alleging that a product is

defective pursuant to paragraph (a)(i)2 of this section,

t he manufacturer or seller shall not be liable if the

danger posed by the product is known or is open and

obvious to the user or consumer of the product, or should

have been known or open and obvious to the user or

consumer of the product, taking into account the

characteristics of, and the ordinary knowledge common to,

the persons who ordinarily use or consume the product.”

Miss. Code Ann. § 11-1-63(e).

As to design defect claims (section (a)(i)3) the MPLA

provides:

“( b) A product is not defective in design or

formulation if the harm for which the claimant seeks to

reco ver compensatory damages was caused by an inherent

characteristic of the product which is a generic aspect

of the product that cannot be eliminated without

substantially compromising the product’s usefulness or

desirability and which is recognized by th e ordinary

person with the ordinary knowledge common to the

community.” Miss. Code Ann. § 11-1-63(b),

and,

“(f) I f any action alleging that a product is

defective because of its design pursuant to par agraph

(a)(i)3 of this section, the manufacturer or product

seller shall not be liable if the claimant does not prove

by the preponderance of the evidence that at the time the

product left the control of the manufacturer or seller:

(i) The manufacturer or seller knew, or in

light of reasonably available knowledge or in the

exercise of reasonable care should have know, about the4 The MPLA also provides that “nothing in this section shall

be construed to eliminate any common law defense to an action for

damages caused by a product.” Miss. Code Ann. § 11-1-63(h).

5 The labels, which were yellow with red and black lettering,

were affixed to the base of the mast, and stated:

- DANGER! PLEASE READ INSTRUCTIONS BEFORE RAISING!

- DANGER. WATCH FOR WIRES. YOU CAN BE KILLED IF THIS

PRODUCT

COMES NEAR ELECTRICAL POWER LINES.

There were also warnings in product manuals which Will-Burt

supplied with its masts not to raise the mast under or near power

lines and to check for overhead obstructions in proximity to the

mast’s line of extension and maximum height.

10 danger that caused the damage for which recovery is

sought; and

(ii) The product failed to function as expected

and there ex isted a feasible design alternative that

would have to a reasonable probability prevented the

h arm. 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 pr oduct to users or consumers.”

Miss. Code Ann. § 11-1-63(f). 4

3. Inadequate Warning Claim

The appellants claim that the mast at issue was defectively

designed and unreasonably dangerous when it left Will- Burt’s

control in May 1982 because of inadequate warnings. The district

court di smissed this claim, noting that the warning labels that

were placed on the mast specifically cautioned the operator that he

or she could be killed if the mast were raised “near” power lines. 5

In Mississippi, a warning may be held adequate as a matter of law

where the adverse effect was one that the manufacturer specifically

warned against. Cather v. Catheter Tech. Corp. , 753 F.Supp. 634,

640 (S.D. Miss. 1991).6 The mast did not need to be raised when WABG did live

shots from this location because the station’s antenna was within

the direct, unobstructed line of sight of the Greenville City

Hall.

11 The warnings on the mast clearly connected contact with power

lines and risk of death. Moreover, to the extent this danger was

not already obvious, we refer to the testimony of Donnie Reid, the

operations manager at WABG who conducted Austin’s safety training

and trained him in setting up the “live truck.” Reid warned Austin

that before raising the mast he should check that the truck was on

level ground, check for obstacles overhead such as trees and power

lines, never raise the mast if there were overhead obstacles, and

maintain a twenty-foot cleara n ce from any power lines.

Furthermore, on the day in question Reid specifically told Austin

that he did not need to raise the mast to do the shot from the City

Hall location. 6

The warnings on the mast (see note 5 above) seem clearly

adequate, particularly “taking into account

. . . the ordinary

knowledge common to an ordinary con sumer who purchases the

product.” Miss. Code Ann. 11-1-63(c)(ii). In any event, the

uncontradicted evidence establishes that Austin was adequately

warned of the danger he encountered using the mast and that that

danger was either “known” or “open and obvious” to him (and

certainly “should have been known or open and obvious” to him).

Miss. Code Ann. § 11-1-63(e) provides that with respect to claims

under paragraph (a)(i)2

– governing liability for inadequate7 In its unanimous opinion in Materials Transp. Co. v.

Newman , 656 So. 2d 1199, 1203 (Miss. 1995), the Mississippi

Supreme Court states that, in Tharp v. Bunge Corp. , 641 So. 2d

20, 25 (Miss. 1994), and Prestage , 617 So. 2d at 256 n.4, it had

held that “‘open and obvious’” or “‘patent danger’” defenses “no

longer” barred recovery in product liability cases whether based

12 “warnings or instructions”

– “the manufacturer or seller shall not

be liable if the danger

. . . is known or is open and obvious to

the user

. . . or should have been known or open and obvious.” S ee

also, e.g.

, City of Jackson v. Ball , 562 So. 2d 1267, 1270 (Miss.

1990 ) (“the dangerous product user need give no further warning

aft er the contractor . . . has actual knowledge of the danger.

Mississippi Chem. Corp. v. Rogers , 368 So. 2d [220] at 222 [Miss.

1979] (‘knowledge of danger by an independent contractor relieves

the owner from the duty of warning the independent contractor or

his employees ’)”) (emphasis by Ball ); Sprankle v. Bower Ammonia &

Chem. Co.

, 824 F.2d 409, 412 (5th Cir. 1987) (“in an action for

negligent failure to warn, there is no right to recover where the

party to be warned is already aware of the danger;” and, “‘there is

no duty to warn when the user has actual knowledge of the danger.’”

[quoting Hobart v. Sohio Petroleum Co.

, 255 F. Supp. 972, 975 (N.D.

Miss. 1966), aff’d

, 376 F.2d 1011 (5th Cir. 1967)]); Gray v.

Manitowoc

, 771 F.2d 866, 868 (5th Cir. 1985) (“‘No duty rests upon

a manufacturer or seller to warn a purchaser of a dangerous design

which is obvious,’” quoting Harrist v. Spencer-Harris Tool Co.

, 140

So. 2d 558, 562 (Miss. 1962)). 7on negligence ( Tharp ) or on strict liability ( Prestage ).

Materials Transport , however, makes the following observation,

viz:

“This Court notes that the legislature has

reestablished both the open and obvious danger doctrine

and the assumption of the risk doctrine as bars to

recovery in products liability actions if the product

allegedly fails to adequately warn a consumer of its

danger. Miss. Code Ann. § 11-1-63(d, e) (Supp. 1994)

(effective July 1, 1993).” Id . at 1203 n.1.

The Court there further notes that the MPLA was inapplicable

because the trial court’s judgment was rendered before July 1,

1993. Id . In both Tharp and Prestage the actions were filed

before July 1, 1993, and hence the substantive provisions of the

MPLA were inapplicable. Smith , 819 So. 2d at 1261-64.

13 There is also the matter of proximate cause. Under Miss. Code

Ann. § 11-1-6 3(a)(i)2 and (iii) the plaintiff clearly has the

burden to prove that the claimed failure to adequately warn was a

proximate cause of the accident in question. See Wolf v. Stanley

Works , 757 So. 2d 316, 323 (Miss. App. 2000) (proximate cause not

shown where “there was no evidence that desired warning would have

had any causative impact,” citing Wyeth Labs., Inc. v. Fortenberry

,

530 So. 2d 688, 691 (Miss. 1988)); Little v. Liquid Air Corp ., 37

F.3d 1069, 1076 (5th Cir. 1994) (en banc) (“plaintiff must show

that adequate warning would have altered conduct,” citing

Fortenberry

, 530 So. 2d at 691). Where the party to be warned has

been inf ormed of the danger, the manufacturer’s failure to warn

thereof is not shown to be a proximate cause, at l east absent

e vidence that a manufacturer’s warning would have changed that

party’s conduct. F ortenberry

, 530 So. 2d at 691. S ee also Id. at14

691-92 (citing with approval Kirsch v. Picker Int’l, Inc.

, 753 F.2d

6 70, 672 (8th Cir. 1985) (“there is simply no evidence tha t Dr.

Murphy did not know of the danger in using radiation therapy. On

the contrary, the only evidence is that he had such knowledge. Any

failure to warn by Picker would not have been the proximate cause

of Kirsch’s injuries”)). Here the uncontradicted evidence is that

Reid adequately warne d Austin. In light of this, and in the

absence of any contrary evidence, it cannot be assumed that any

further warning by Will-Burt would have altered Austin’s conduct.

Thus, appellants’ failur e to warn claims must also fail because

proximate cause has not been shown.

4. Post-Sale Duty to Warn

Appellants also claim a post-sale duty to warn. This claim

fails for the same reasons discussed in section 3 above.

Additionally, we conclude that the MPLA precludes imposition on a

manufacturer or seller of a post-sale duty to warn (at least where

detrimental reliance on a manufacturer’s or sel ler’s post-sale

warning is not involved). This appears to be required by the

provision of Miss. Code Ann. § 11-1-63(a) that:

“the manufacturer or seller

. . . shall not be liable if

the cl aimant does not prove . . . that a t the time the

product left the control of the manufacturer or seller :

(i)1. . . ., or

2. T he product was defective bec ause it failed to

contain adequate warnings or instructions , or

3. . . ., or

4. . . .” (emphasis added).

Similarly, section 11-1-63(c)(i) provides that with respect to8 As Palmer also observes, there is apparently no other

Mississippi decision (or case applying Mississippi law), either

before or after the MPLA, addressing the post-sale duty to warn

issue.

9 Appellants also assert that the mast’s design was defective

because it lacked a remote control device. The district court

concluded that, because the bungee cord attached to the lever

operated as remote control by overriding the constant pressure

switch and allowed Austin to raise the mast while sufficiently

outside of the truck to adequately observe the power lines above

the mast as it rose, and Austin raised the mast by using the

bungee cord while outside the truck, that accordingly there was

15 claims of inadequate “warnings or instructions pursuant to

paragraph (a)(i)2

. . . the manufacturer or seller s hall not be

liable if the claimant does not prove . . . that a t the time the

product left the control of the manufacturer or seller

, the

manufacturer or seller k new or

. . . s hould have known ” of the

danger posed by the product and that the ordinary user or consumer

would not realize its dangerous conditions (emphasis added).

We agree with the Mississippi Court of Appeal’s statement in

Palmer v. Volkswagen of Am., Inc. , 2003 WL 22006296 at *31 (Miss.

Ct. App. Aug. 26, 2003) that “t he plain meaning of the MPLA’s

language is that the statute imposes liability on the manufacturer

or seller for warnings that were inad equate at the time of sale,

not for warnings that became inadequate at some later time.” 8

5. Design Defect

Appellants claim th a t the Will-Burt mast was defectively

designed in two respects, namely that it did not have a proximity

warning device (PWD) and that it was not insulated. 9no evidence to sustain a finding that the lack of remote control

device was a proximate cause of the accident. On appeal

plaintiffs point to no evidence to the contrary and essentially

fail to address this matter. Accordingly, we reject this aspect

of appellants’ design defect claim (and need not and do not

consider whether it would otherwise have merit).

16 (a) PWD

Appellants claim that the mast should have had a PWD which

would have either given a warning sound or signal, or stopped the

mast from continuing to rise, when the mast came within a certain

distance of a power line. Will-Burt has manufactured and sold such

a device, called a D-Tec, starting in 1998; it commenced attempting

to develop the D-Tec in 1996 and pr oduced a prototype which it

exhibited at the April 1997 National Association of Broadcasters

convention. Thereafter, it made some improvements to the D-Tec and

began selling it in September 1998. The only other PWD referenced

in the evidence is the Sigalarm, manufactured by another company.

It was first used in the broadcast industry in 1995 or 1996. PWDs

used in the broadcast industry or in ENG vans are and were sold by

t he manufacturer either to van assembling companies, which then

sell the va n with mast, payload, and PWD to broadcasters, or are

sold directly to the station, which does its own integration. The

PWD is a separate item, not a part of the mast itself, and is

affixed on top of the mast payload (the pan-and-tilt and antenna)

which itself sits on the top of the mast. The pan-and-tilt and

antenna are likewise items separate from the mast itself and are

manufactured by companies other than mast manufacturers. The cost10 The Border Patrol in 1983 requested the Immigration and

Naturalization Service research and development field office to

“develop a surveillance device that would get an infrared

telescope off the ground to where they could provide a wider area

of surveillance” and “[they] needed some way to warn the operator

when he was working at night that there was a power line in the

vicinity.” A Sigalarm PWD used on cranes was acquired and was

modified “by trial and error” to be suitable for a vertically

elevating mast. At the top of the elevating mast was a Quick Set

pan-and-tilt, then the infrared sighting device, and at the very

top the PWD. Further modifications to the PWD were made in 1986

and 1987 to eliminate an operator controlled off-switch and to

address the problem of “nulls” where the electromagnetic field

from two or more power lines balances out so the PWD does not

give a signal. As so modified, Sigalarm PWDs continued to be

used in these Border Patrol surveillance vehicles. Will-Burt

elevating masts were used, but Will-Burt did not furnish, or

assemble to the mast, the pan-and-tilt, the surveillance antenna,

or the PWD.

17 of a PWD is and has been approximately 28 to 30 percent of the cost

of the mast. In 1998 Will-Burt unsuccessfully attempted to sell

its D-Tec PWD to WABG, which declined to purchase it and continued

to use its van without a PWD. As early as the 1960s or 1970s

Sigalarm manufactured a form of PWD which was used on cranes

respecting the horizontal movement of the crane boom. Prior to

1995 the only u se of PWDs on elevating masts was the use by the

Border Patrol, which in 1984 or 1985 fi rst began placing of a

modified form of Sigalarm PWD on elevating masts, on top of which

the Border Patrol would mount infrared sighting devices used to

view aliens crossing the border at night. 10

(b) Insulation

With respect to insula tion, the summary judgment evidence18

showed that telescoping masts were not and never had been

insulated. The only exception to this was that commencing in 1985

Will-Burt made some telescoping masts, through not for ENG vans,

the top tube of which was of fiberglass (rather than metal, which

the rest of the mast was). This was apparently done for military

surveillance devices. Although fiberglass is nonconductive (at

least unless di rty or wet) it was not used to avoid anticipated

problems of electricity coming into the mast, or for related safety

reasons, but to avoid interference wit h separate communications

devices that were placed on top of the mast. In the late 1990s

Will-Burt began working on the development of an entirely nonmetallic, non-conductive telescoping mast, a prototype being first

built in 1999 or 2000, but the project was abandoned an d no such

masts were produced or sold. Moreover, if the pan-and-tilt and

antenna, which sit on top of the mast and extend horizontally from

it a distance considerably greater than the diameter of the mast,

came into contact with a live electrical wire the current would

pass down wires (contained in the “nycoil” that runs around the

mast and connects with the camera and antenna on the pan-and-tilt)

to the base of the mast and the van. The summary judgment evidence

showed without contradiction that neither telescoping masts used in

the broadcast industry or in ENG vans, nor pan-an d-tilt devices,

nor their cameras or antennas, were or had ever been insulated.

(c) Discussion11 In certain cases, the functioning of the product as

expected will be a factor in precluding design defect recovery as

a matter of law even under the Prestage risk-utility analysis.

See, e.g., Cooper v. General Motors Corp. , 702 So. 2d 428, 442-

444 (Miss. 1997). See also Williams v. Briggs Co. , 62 F.3d 703

19 The MPLA, section 11-1-63(f), provides with respect to a claim

“that a product is defective because of its design pursuant to

paragraph (a)(i)3” that “the manufacturer

. . . shall not be liable

if the claimant does not prove . . . that at the time the product

left the control of the manufacturer

. . . (ii) The product failed

to function as expected and there existed a feasible design

alternative that would have to a reasonable probability prevented

the harm” (emphasis added).

In Wolf v. Stanley Works

, 757 So . 2d 316, 321 (Miss. App.

2000), the court observed that “the risk-utility test for

determining whether a product contains a design defect” set out in

Prestage “has probably been replaced by the statutory command that

there is no liability unless the product ‘failed to perform as

expected.’” (citing § 11-1-63(f)(ii)). We conclude that the MPLA,

in section 11-1-63(f), unambiguously precludes recovery against the

manufact urer on the basis of design defect unless the product

“failed to function as expected,” and that this precl usion of

recovery is applicable even though the facts are such that design

defect recovery against the manufacturer would have been available

under th e P restage risk-utility test notwithstanding that the

product functioned as expected. 11 Two other preliminary(5th Cir. 1995).

12 See also § 11-1-63(a) (precluding recovery unless one of

the four specified defects or conditions exists “at the time the

product left the control of the manufacturer or seller”).

13 See also § 11-1-63(a) (manufacturer “shall not be liable if

the claimant does not prove . . . that at the time the product

left the control of the manufacturer” it was defective in one of

four specified ways).

20 observations are appropriate in this regard. First, the MPLA makes

plain that the “failed to function as expected” requirement is to

be applied as of “the time the product left t he control of the

manufacturer or seller.” I d

. § 11-1-63(f). 12 Under the undisputed

facts here, the relevant time is accordingly May 1982, when WillBurt sold the elevating mast to Quality Coach. Second, the MPLA

make s it plain that in claims of design defect the p laintiff has

the burden to prove that the product failed to function as expected

when it left the manufacturer’s control. § 11-1-63(f) (manufacturer

“shall not be liable if the claimant does not prove . . . that at

the time the product left the control of the manufacturer

. . .

[t]he product failed to function as expected”). 13

The “failed to function as expected ” requirement of section

11-1-63(f) appears to largely reinstate for design defect cases a

frequently expressed requirement of the “consumer expectations

test” which Prestage had abrogated in favor of the broader “riskutility” test. S ee, e.g.

, Prestage

, 617 So. 2d at 254 (“[i]n a

‘consumer expectations’ analysis, ordinarily the phrase ‘defective14 In Todd the Seventh Circuit applied Illinois law to hold

that as a matter of law there could be no recovery against the

manufacturer of a disposable cigarette lighter for damages

resulting from a fire caused by the purchaser’s four year old

child using the lighter to ignite some papers on the floor which

resulted in a serious home fire. The claim was that the lighter

was defectively designed because it had no child-resistant

features, it concededly being feasible to make a lighter with

such features. The court held that the lighter was not for that

reason (or any other) defective under the “consumer

contemplation” test of section 402A Restatement (2nd) Torts and

its comment i because the lighter did not fail to function as

expected, notwithstanding that the home fire which it caused was

not expected. The court stated “[t]he consumer contemplation

test separates defective products from the universe of ordinary

products which may be involved in causing injury. Under the

test, a product is only considered defective or unreasonably

dangerous if it fails to perform in a manner the ordinary

consumer would expect .” Id . at 1406-07 (emphasis added). The

court further noted that while the lighter might be defective in

design under the risk-utility test, Illinois would not apply that

test to a simple product such as the lighter. Id . at 1409-12.

In Hernandez v. Tokai Corp. , 2 S.W. 3d 251 (Tex. 1999), another

non-child-resistant lighter case, the Texas Supreme Court held

that whether the lighter was unreasonably dangerous should be

determined under the “risk-utility” test, not the consumercontemplation test, noting that risk-utility factors are set out

in the Texas statute (Tex. Civ. Prac. & Rem. Code § 82.005) and

that the Texas statute (unlike the MPLA) does not contain a

“consumer expectation test” other than for firearms and

ammunition (Tex. Civ. Prac. & Rem. Code § 82.006, which precludes

design defect liability unless the design defect caused the

firearm or ammunition “not to function in a manner reasonably

expected”). Id . at 260-62. Tokai goes on to note “Courts in

jurisdictions that employ a consumer-expectation test for

determining defect have mostly held that disposable lighters

without childproof features are not defectively designed because

21 condition’ means that the article has something wrong with it, that

it did not function as expected;” internal quotations and citations

omitted). S ee also

, e.g., Todd v. Societe Bic S.A.

, 21 F.3d 1402,

1406-07 (7th Cir. 1994) (en banc); Hernandez v. Tokai Corp

., 2

S.W.3d 251, 260-62 (Tex. 1999). 14they function in the manner expected by the intended adult

consumers . But courts in jurisdictions employing a risk-utility

analysis have mostly concluded that the determinative

considerations are usually matters for the jury.” Id . at 262.

22 In Gray v. Manitowoc Co., Inc.

, 771 F.2d 866 (5th Cir. 1985),

a products liability case governed by Mississippi law, we applied

the “consumer expectations” or “consumer contemplation” test, id

.

at 869, to hold as a matter of law that the plaintiff, Gray, a

construction employee injured when str u ck by the horizontally

moving boom of the “4100W” crane his employer was using on the job,

could not recover under strict products liability (or negligence)

from the manufacturer of the crane. The crane was in the “boom

down” position which obscured the crane operator’s field of vision

to the left of the boom, where Gray was standing when struck. Gray

claimed the crane lacked adequate war nings and was defectively

designed because it lacked “mirrors, closed circuit television

cameras or other devices to enable the operator to see to the left

side of the crane when

. . . operated in the ‘boom down’ position.”

Id

. at 867. We held that, as a matter of law, there could be no

recovery, notwithstanding the tes t imony of Gray and an

inexperienced co-worker that they were unaware of the blind spot,

because the evidence:

“. . . demonstrated a common awareness in the

construction i n dustry of both the limitation on the

operator’s field of vision inherent in the design of such

cranes and the dangers posed by this limitation.

Plaintiff adduced no evidence that manufacturers of other

cranes of th e vintage of the 4100W equipped them with15 We recognize and respect, of course, that in Prestage the

Mississippi Supreme Court said it would not follow such cases as

Gray (and other decisions of this Court) insofar as they hold the

“consumer expectations” test, rather than the “risk-utility”

test, to be controlling for purposes of Mississippi strict

products liability law. Prestage , 617 So.2d at 254, 256.

However, Prestage does not suggest that Gray (or the other there

cited decisions of this Court) constitutes an erroneous or

improper application of the consumer-expectations test; if

anything it suggests the contrary. Prestage adopts the riskutility test because it allows recovery in instances that the

court considers appropriate but which would be precluded under

the consumer-expectations test.

23 mirrors, television cameras or other similar devices.

Rather, the evidence showed that there was no such

industry custom of providing such devices.” I d

. at 870-

71.

We also noted that the crane functioned properly for its intended

purpose. Id. at 862, 871 n.9.

We find Gray

highly instructive here. 15

Here, the evidence is that at the relevant time – May 1982,

when the mast left Will-Burt’s control – no telescoping masts (or

their “payloads”), whether in the broadcast industry or any other,

were insulated so as not to conduct electricity or were either

equipped or used with any sort of PWD , and the danger of

electrocution if the mast was raised so that it or its “payload”

came into contact with an overhead power line was well recognized.

There is no contrary evidence. This not only continued to be the

case in the broadcast industry until the tragic 1997 accident in

question but apparently still continues to be the case. There is

no evidence that anyone in the industry ever – in 1982 or 1997 or16 Except as stated in note 9 above, we do not address whether

design defect recovery would be available against the

manufacturer apart from the requirement that the plaintiff prove

24 at any other time

– did not realize that a telescoping mast such as

this, if raised when under a power line, would not extend to the

height of the power line so that the “payload” on top of the mast

(or even the mast itself) would come into contact with the power

line with serious resultant electric shock, or that any device on

or used with the mast, or any characteristic of the mast or of any

such device, would prevent such a result or give a prior warning

signal of it. The evidence is that Austin had been made aware of

these dangers, and there is no contrary evidence. There is simply

no evidence that the mast “failed to function as expected.” That

a truly tragic accident occurred in using the mast does not mean

that the mast failed to function as expected. The m ast did nothing

unusual or unexpected. An ordinary revolver functions as expected

if, when loaded and off-safety, the trigger is normally pulled and

a bullet is expelled, and this is no less so because, quite

unintentionally, someone is struck by the bullet. So also with a

cigarette lighter normally ignited and applied to flammable

material, notwithstanding that a tragic fire results, or an intact

hatchet which strikes a hand placed or left on the target wood.

Because there is no evidence that the mast “failed to function

as expected,” recovery against Will-Burt for design defect is

precluded by section 11-1-63(f)(ii). 16that when the product left manufacturer’s control it failed to

function as expected.

25 Conclusion

For the reasons stated, the judgment of the district court is

AFFIRMED.