House Bill 1152

AN ACT TO CREATE THE "RATIONAL USE OF PRODUCT ACT"; TO PROVIDE THAT A SELLER IS NOT LIABLE FOR HARM CAUSED BY AN UNREASONABLE MISUSE OF ITS PRODUCT; A MISUSED PRODUCT MAY BE CONSIDERED DEFECTIVE IN DESIGN WHEN THE REASONABLY FORESEEABLE RISKS OF HARM RELATED TO A REASONABLE MISUSE OF THE PRODUCT COULD HAVE BEEN SIGNIFICANTLY REDUCED OR AVOIDED BY THE ADOPTION OF AN ALTERNATIVE DESIGN TO PROVIDE DEFINITIONS; TO PROVIDE THAT A MISUSED PRODUCT MAY BE CONSIDERED DEFECTIVE BECAUSE OF INADEQUATE INSTRUCTIONS OR WARNINGS WHEN THE REASONABLY FORESEEABLE RISKS OF HARM POSED BY A REASONABLE MISUSE OF THE PRODUCT COULD HAVE BEEN SIGNIFICANTLY REDUCED OR AVOIDED BY PROVIDING ADDITIONAL INSTRUCTIONS OR WARNINGS; TO AMEND SECTION 11-1-63, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act shall be known and may be referred to as the "Rational Use of Product Act."

SECTION 2. (1) A seller is not liable in a civil action for harm caused by an unreasonable misuse of the seller's product.

(2) If a defendant does not qualify for an affirmative defense under subsection (1) of this act, the claimant's damages shall be reduced to the extent any reasonable misuse contributed to the injury. The trier of fact may determine that the harm was caused solely as a result of such misuse.

(3) The following words shall have the meanings described herein, unless the context indicates otherwise:

(a) "Misuse" means use of a product for a purpose or manner different from the purpose or manner for which the product was manufactured. Misuse includes, but is not limited to, uses: (i) unintended by the seller; (ii) inconsistent with a specification or standard applicable to the product; (iii) contrary to an instruction or warning provided by the seller or other person possessing knowledge or training regarding the use or maintenance of the product; or (iv) determined to be improper by a federal or state agency.

(b) "Seller" means the manufacturer, wholesaler, distributor, or retailer of the relevant product.

(c) "Unreasonable misuse" means (i) a reasonably prudent person would not have used the product in the same or similar manner or circumstances; or (ii) the product was used for a purpose or in a manner that was not reasonably foreseeable by the seller against whom liability is asserted. For purposes of subsection (1) of Section 3 of this act, the reasonableness of the conduct of a person who is a member of an occupation or profession with special training or experience in the use of a product shall be determined based on a reasonably prudent member of that occupation or profession in the same or similar manner or circumstances.

SECTION 3. (1) In addition to the requirements of Section 11-1-63, a misused product may be considered defective in design when the reasonably foreseeable risks of harm related to a reasonable misuse of the product could have been significantly reduced or avoided by the adoption of an alternative design that (a) would not have resulted in an unreasonable increase in the cost of designing and manufacturing the product for its intended use; (b) would not have reduced the efficiency, utility, or safety of the product for its intended use; and (c) was available at the time of manufacture.

(2) In addition to the requirements of Section 11-1-63, a misused product may be considered defective because of inadequate instructions or warnings when the reasonably foreseeable risks of harm posed by a reasonable misuse of the product could have been significantly reduced or avoided by providing additional instructions or warnings regarding the dangers of the misuse at issue. A product is not defective if additional instructions or warnings related to such misuses would have detracted from instructions or warnings intended to prevent more serious or likely hazards.

SECTION 4. Section 11-1-63, Mississippi Code of 1972, is amended as follows:

11-1-63. Subject to the provisions of Section 11-1-64, 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:

(a) The manufacturer, designer or seller 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, designer or seller:

(i) 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

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, designer or 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, designer or seller, the manufacturer, designer 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 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, designer or seller 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, or misused the product as described in Sections 1 through 3 of this act.

(e) In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer, designer 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.

(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, designer 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, designer or seller:

(i) The manufacturer or 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

(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.

(g) (i) The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller or designer for the costs of litigation, any reasonable expenses, reasonable attorney's fees and any damages awarded by the trier of fact unless the seller or designer 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 or designer 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 or designer had actual knowledge of the defective condition of the product at the time he supplied same; or the seller or designer made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought.

(ii) Subparagraph (i) shall not apply unless the seller or designer has given prompt notice of the suit to the manufacturer within ninety (90) days of the service of the complaint against the seller.

(h) In any action alleging that a product is defective pursuant to paragraph (a) of this section, the seller or designer of a product other than the manufacturer shall not be liable unless the seller or designer 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; or the seller or designer 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; or the seller or designer had actual or constructive knowledge of the defective condition of the product at the time he supplied the product. It is the intent of this section to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a product.

(i) Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.

SECTION 5. This act shall take effect and be in force from and after July 1, 2021.