MISSISSIPPI LEGISLATURE
2002 Regular Session
To: Judiciary
By: Senator(s) Kirby, Hewes, Gordon, Chaney, White (29th), Canon, King, Michel, Johnson (19th), Scoper, Robertson, Moffatt, Harvey, Nunnelee, Huggins, Mettetal, Minor, Hamilton, Stogner, Hyde-Smith, Browning
AN ACT TO CREATE SECTION 11-11-61, MISSISSIPPI CODE OF 1972, TO ENACT CERTAIN LIMITATIONS ON JOINDER OF PLAINTIFFS; TO AMEND SECTION 11-1-63, MISSISSIPPI CODE OF 1972, TO REVISE PRODUCT LIABILITY OF A MANUFACTURER; TO ENACT SECTION 11-1-64, MISSISSIPPI CODE OF 1972, TO REVISE PRODUCT LIABILITY OF A PRODUCT SELLER; TO AMEND SECTION 11-1-65, MISSISSIPPI CODE OF 1972, TO REVISE THE AWARD OF PUNITIVE DAMAGES IN A CIVIL ACTION AND TO IMPOSE A LIMITATION ON THE AMOUNT THEREOF; TO CREATE SECTION 11-1-67, MISSISSIPPI CODE OF 1972, TO IMPOSE A LIMITATION ON THE AMOUNT OF NONECONOMIC DAMAGES THAT MAY BE AWARDED IN A CIVIL ACTION; TO AMEND SECTION 85-5-7, MISSISSIPPI CODE OF 1972, TO REVISE THE ASSESSMENT OF JOINT AND SEVERAL LIABILITY; TO CREATE A LIMITATION ON LIABILITY OF A PREMISES OWNER UNDER CERTAIN CIRCUMSTANCES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 11-11-61, Mississippi Code of 1972:
11-11-61. (1) In all civil actions for the recovery of damages brought in any court within the State of Mississippi by a resident or nonresident of the State of Mississippi, persons may not join as plaintiffs in one (1) action unless:
(a) They assert a common undivided interest in the claim against the defendant(s); or
(b) Their claims arose out of a single transaction or occurrence.
(2) If the application of this section, or of any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this section to other persons or circumstances which can be given effect without the invalid provision or application.
(3) This section shall apply to any civil action pending or filed on or after July 1, 2002.
SECTION 2. Section 11-1-63, Mississippi Code of 1972, is amended as follows:
11-1-63. In any action for damages caused by a product except for commercial damage to the product itself:
(a) The manufacturer * * * of the product 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 * * *:
(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, or
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 representations 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.
(b) A product is not defective in design or formulation if the harm for which the claimant seeks to recover 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 the ordinary person with the ordinary knowledge common to the community.
(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 of this section, the manufacturer * * * 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 * * *, the manufacturer * * * 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 ordinary knowledge common to an ordinary consumer who purchases the product; or in the case 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 prescribes the drug, device or other product.
(d) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer * * * shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition.
(e) In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer * * * 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.
(f) In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer * * * 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 * * *:
(i) The manufacturer * * * 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
(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. 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.
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(g) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.
SECTION 3. The following shall be codified as Section 11-1-64, Mississippi Code of 1972:
11-1-64. (1) In any civil action alleging damages caused by a defective product, a product seller other than a manufacturer shall be liable to a claimant only if the claimant establishes:
(a) The product that allegedly caused the harm that is the subject of the complaint was sold by the product seller;
(b) The product seller failed to exercise reasonable care with respect to the sale of the product; and
(c) The failure to exercise reasonable care was a proximate cause of the harm to the claimant.
(2) A product seller shall not be considered to have failed to exercise reasonable care with respect to a product based upon an alleged failure to inspect the product, if there was no reasonable opportunity to inspect the product; or the inspection, in the exercise of reasonable care, would not have revealed that the product was defective.
(3) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.
(4) If the application of this section, or of any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this section to other persons or circumstances which can be given effect without the invalid provision or application.
(5) This section shall apply to any civil action pending or filed on or after July 1, 2002.
SECTION 4. Section 11-1-65, Mississippi Code of 1972, is amended as follows:
11-1-65. (1) For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Clear and convincing evidence" is evidence that leaves no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. It is more than a preponderance of evidence, but is less than evidence beyond a reasonable doubt.
(b) "Compensatory damages" are damages intended to make an injured party whole and no more. Compensatory damages include general and special damages, but do not include nominal damages.
(c) "Malice" is either conduct that is specifically intended to cause tangible or intangible serious injury to a plaintiff or conduct that is carried out by the defendant with a flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result in tangible serious injury.
(d) "Nominal damages" are damages that are not designed to compensate a plaintiff and are less than Five Hundred Dollars ($500.00).
(e) "Punitive damages" are exemplary or vindicating damages that are awarded against a party in a civil action to penalize that party and to deter others from similar conduct in the future. Punitive damages do not include compensatory damages or nominal damages.
(2) The following general provisions apply to any award of punitive damages in the State of Mississippi:
(a) An award of punitive damages must be specifically requested in the complaint.
(b) Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice or gross negligence that evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.
(c) In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
(d) If, but only if, an award of compensatory damages has been made against a party, and the court finds that there is sufficient evidence to proceed, then the court may promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.
(e) After hearing any additional evidence that may support an award of punitive damages, the court shall then again determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount.
(f) In all cases involving an award of punitive damages, no evidence of or relating to the financial condition or size of the defendant shall be admissible before the trier of fact unless and until the defendant elects to offer evidence on these issues in mitigation of the size of any punitive damages award.
(g) In all cases involving an award of punitive damages, the fact finder, in determining the amount of punitive damages, may consider, to the extent relevant, the following:
(i) * * * The nature and reprehensibility of the defendant's wrongdoing at the time and under the circumstances when it was committed, for example, the impact of the defendant's conduct on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant's awareness of the amount of harm being caused and the defendant's motivation in causing such harm; the duration of the defendant's misconduct and whether the defendant attempted to conceal such misconduct;
(ii) Whether the defendant's conduct was found to have caused harm to the plaintiff is at present continuing with respect to the plaintiff or other individuals;
(iii) The severity of the harm caused by the defendant;
(iv) The extent to which the plaintiff’s own conduct contributed to the harm;
(v) The profitability of the conduct to the defendant;
(vi) Prior awards of compensatory and punitive damages to persons similarly situated to the plaintiff; and
(vii) * * * Any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages.
(h) The trier of fact shall be instructed that the sole purpose of punitive damages is to punish the wrongdoer and to deter possible similar misconduct in the future by the defendant and no amount should be awarded to compensate the plaintiff * * *.
(i) * * * If a verdict is rendered awarding punitive damages, the trial court shall ascertain whether the award is reasonable in its amount and rationally related to any harm actually caused, and the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others, and then enter judgment, reduce the award, or set the award aside, as appropriate.
(j) In determining whether the award is appropriate, the court shall take into consideration the * * * factors set forth in subsection (g) above in addition to the financial condition and net worth of the defendant, even if not admitted before the trier of fact.
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(k) The seller of a product other than the manufacturer shall not be liable for punitive damages unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same; or the seller made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.
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(l) Punitive damages shall not exceed the greater of three (3) times the amount of the total compensatory damages awarded to the plaintiff or Five Hundred Thousand Dollars ($500,000.00), whichever is greater; and, if the defendant is an individual or a business with less than fifty (50) full-time employees, no award of punitive damages shall exceed three (3) times the amount of the plaintiff’s compensatory damages or Five Hundred Thousand Dollars ($500,000.00), whichever is less, unless the finder of fact and court find by clear and convincing evidence that the defendant acted with criminal intent to cause serious physical bodily injury. This restriction shall not be disclosed to the trier of fact but shall be applied by the court to any punitive damages awarded.
(m) Only one (1) award for punitive damages may be made against a defendant for the same act, decision, omission or course of conduct. Punitive damages may not be awarded against a defendant if punitive damages have been awarded in any prior action against that defendant for the same act, decision, omission, or course of conduct. For purposes of this section, identical defects in individual units of a manufacturer's products shall be deemed to be the same act, decision, omission or course of conduct.
(n) Punitive damages shall not be awarded against a defendant for any activity that is subject to regulation by any agency of the United States or the State of Mississippi, if the regulated activity was in compliance with applicable regulations of the United States and this state.
(o) Punitive damages shall not be awarded against a manufacturer or product seller if the aspect of the product's manufacture, design, formulation, inspection, testing, packaging, labeling or warning which caused the claimant's harm complied with:
(i) Any federal statute in effect at the time the product was produced;
(ii) Any administrative regulation in effect at the time the product was produced that was promulgated by an agency of the federal government which had responsibility to regulate the safety of the product or to establish safety standards for the product pursuant to a federal statute;
(iii) Any approval or certification made by an agency of the federal government before the product was marketed; or
(iv) Any state or local statute, ordinance, agency regulation, agency certification applicable to the place where the harm to the plaintiff allegedly occurred.
(p) Punitive damages shall not be awarded if a drug, device, food, food additive or a combination of these items caused the claimant’s harm if:
(i) The item was subject to premarket approval or licensure by the Federal Food and Drug Administration under the "Federal Food, Drug, and Cosmetic Act," 21 USC Section 301, et seq.,or the "Public Health Service Act," 42 USC Section 201, et seq., and was approved or licensed; or
(ii) Is generally recognized as safe and effective pursuant to conditions established by the Federal Food and Drug Administration and applicable regulation, including packaging and labeling regulations.
(q) The prohibition against awarding punitive damages in the circumstances described in paragraph (o) of this subsection (1) shall not apply when the plaintiff proves by clear and convincing evidence that the defendant:
(i) Knowingly and in violation of applicable state or federal agency regulations withheld or misrepresented information required to be submitted to the agency, which information was material and relevant to the harm in question; or
(ii) Made an illegal payment to an official of the federal agency for the purpose of securing approval of the activity or product as described in paragraph (l)(iii).
(2) If the application of this section, or of any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this section to other persons or circumstances which can be given effect without the invalid provision or application.
(3) This section shall apply to any civil action pending or filed on or after July 1, 2002.
SECTION 5. The following shall be codified as Section 11-1-67, Mississippi Code of 1972:
11-1-67. (1) This section shall be known and may be cited as the "Noneconomic Damages Awards Act."
(2) For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Noneconomic Damages" means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, injury to reputation, humiliation, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness, or injury.
(b) "Actual Economic Damages" means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair of replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses.
(3) In any civil action, any compensatory damages award to a prevailing plaintiff is limited to:
(a) Compensation for actual economic damages suffered by the injured plaintiff; and
(b) Compensation for the noneconomic damages suffered by the injured plaintiff not to exceed the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) or the amount awarded in actual economic damages, whichever amount is greater.
(4) If liability is found, then the trier of fact, in addition to other appropriate findings, shall make separate findings specifying the total amount of noneconomic damages and the total amount of actual economic damages for each separate claimant in a manner that the court may apply the restrictions of this section.
(5) The trier of fact shall not be advised of the limitations imposed by this section.
SECTION 6. Section 85-5-7, Mississippi Code of 1972, is amended as follows:
85-5-7. (1) As used in this section "fault" means an act or omission of a person which is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, strict liability, absolute liability or failure to warn. "Fault" shall not include any tort which results from an act or omission committed with a specific wrongful intent and the damages addressed by this section do not include punitive damages.
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(2) * * * In any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several, and each defendant shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault, and a separate judgment shall be rendered against each defendant for that amount. To determine the amount of judgment to be entered against each defendant, the court, with regard to each defendant, shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant's fault and that amount shall be the maximum recoverable against said defendant. In assessing percentages of fault an employer and the employer's employee or a principal and the principal's agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.
(3) In assessing percentages of fault, the trier of fact shall consider the fault of all persons who contributed to the alleged injury or death or damage to property, tangible or intangible, regardless of whether said person was or could have been named as a party to suit. Negligence or fault of a nonparty shall be considered even if such nonparty has settled or is immune from liability.
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(4) Nothing in this section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly noted herein.
(5) Joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Any person held jointly and severally liable under this section shall have a right of contribution from his fellow defendants acting in concert.
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(6) Nothing in this section shall be construed to create a cause of action. Nothing in this section shall be construed, in any way, to alter the immunity of any person.
(7) If the application of this section, or of any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this section to other persons or circumstances which can be given effect without the invalid provision or application.
(8) This section shall apply to any civil action pending or filed on or after July 1, 2002.
SECTION 7. (1) No owner, lessee, or person in control of any property or premises shall be held liable for failing to prevent or failing to deter any act or omission committed by another person upon such property or premises that is a reckless, wanton, intentionally wrongful, illegal or criminal act.
(2) If the application of this act, or of any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this act to other persons or circumstances which can be given effect without the invalid provision or application.
(3) This act shall apply to any civil action pending or filed after on or after July 1, 2002.
SECTION 8. This act shall take effect and be in force from and after July 1, 2002.