Mississippi Code
Miss. Code Ann. § 11-1-63 (2024)
Product liability actions; conditions for liability; what constitutes a defective product
✓ Justia copy: laws through about 2024 (2025 and 2026 sessions missing)
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.
- (i)
- (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.
- (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.
Laws, 1993, ch. 302, § 1; Laws, 2002, 3rd Ex Sess, ch. 4, § 5; Laws, 2004, 1st Ex. Sess., ch. 1, § 3, eff. 9/1/2004, and applicable to all causes of action filed on or after 9/1/2004.
Amended by Laws, 2014, ch. 383, HB 680, 1, eff. 7/1/2014.
Notes of Decisions
Cited in 187
cases (28 in the last 5 years), 1993–2026 · leading case: RJ Reynolds Tobacco Co. v. King, 921 So. 2d 268 (Miss. 2006).
RJ Reynolds Tobacco Co. v. King, 921 So. 2d 268 (Miss. 2006). “On October 14, 2003, RJR filed a motion for judgment on the pleadings on behalf of all properly served defendants together with a memorandum in support thereof, thereby moving the court to dismiss the suit in its entirety based solely on the inherent characteristic defense of…”
Williams v. Bennett, 921 So. 2d 1269 (Miss. 2006). “" Miss. Code Ann. § 11-1-63 (f). Absent evidence that the new design proved even more unreliable, it cannot be argued that the older design alternative that was abandoned in part because of the frequency of accidents that it caused would by a "reasonable probability" have…”
Reggie Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). “Miss.Code Ann. § 11-1-63 (Rev.2014). 8 . Id.”
Forbes v. Gen. Motors Corp., 935 So. 2d 869 (Miss. 2006). “To meet the first part of the statutory claim, the Forbeses must show that the product either "breached an express warranty or failed to conform to other express factual representations" upon which he justifiably relied in electing to use the product.”
Wanda Williams v. Manitowoc Co., 898 F.3d 607 (5th Cir. 2018). “3 Miss. Code Ann. § 11-1-63 . 4 The jury found for Manitowoc with regard to Williams's claim that the Model 16000 lacked adequate warnings about how to safely perform tandem lifts.”
Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564 (Miss. Ct. App. 2003). “Miss.Code Ann. § 11-1-63 (Rev.2002). ¶ 15.”
3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005). “See Miss.Code Ann. § 11-1-63 (Rev.2002); Lane v.”
Forbes v. Gen. Motors Corp., 929 So. 2d 958 (Miss. Ct. App. 2005). “( Miss. Code Ann. § 11-1-63 (a)(iii)). We will discuss these issues in a similar order.”
Lawson v. Honeywell Int'l, Inc., 75 So. 3d 1024 (Miss. 2011). “Miss.Code Ann. § 11-1-63 (Rev.2002). The MPLA states: [I]n any action for damages caused by a product except for commercial damage to the product itself: (a) The manufacturer or seller of the product shall not be liable if the claimant does not prove by a preponderance of the…”
Mississippi Valley Silica Co. v. Dorothy Barnett, 227 So. 3d 1102 (Miss. Ct. App. 2016). “See Miss. Code Ann. § 11-1-63 (a) (Rev. 2014).”
Palmer v. Volkswagen of Am., Inc., 904 So. 2d 1077 (Miss. 2005). “, Volkswagenwerk Aktiengesellschaft, and Volkswagen de Mexico, alleging claims for negligence, breach of express and implied warranties, and violation of the Mississippi Product Liability Act, Miss.Code Ann. § 11-1-63 (Rev.2002). [1] ¶ 5.”
Horton v. Am. Tobacco Co., 667 So. 2d 1289 (Miss. 1995). “WHEN ALL IS SAID AND DONE The Legislature in 1993 saw fit to enact Miss. Code Ann. § 11-1-63 (Supp. 1995) setting forth the conditions under which a manufacturer could be held liable in a products liability action.”
Miss. Code Ann. § 11-1-63(a): 25 cases
Forbes v. Gen. Motors Corp., 935 So. 2d 869 (Miss. 2006). “To meet the first part of the statutory claim, the Forbeses must show that the product either "breached an express warranty or failed to conform to other express factual representations" upon which he justifiably relied in electing to use the product.”
RJ Reynolds Tobacco Co. v. King, 921 So. 2d 268 (Miss. 2006). “On October 14, 2003, RJR filed a motion for judgment on the pleadings on behalf of all properly served defendants together with a memorandum in support thereof, thereby moving the court to dismiss the suit in its entirety based solely on the inherent characteristic defense of…”
Green v. Allendale Planting Co., 954 So. 2d 1032 (Miss. 2007).
Reggie Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). “Miss.Code Ann. § 11-1-63 (Rev.2014). 8 . Id.”
Ford Motor Co. v. Tennin, 960 So. 2d 379 (Miss. 2007).
Miss. Code Ann. § 11-1-63(a)(4)(ii): 1 case
Forbes v. Gen. Motors Corp., 929 So. 2d 958 (Miss. Ct. App. 2005). “( Miss. Code Ann. § 11-1-63 (a)(iii)). We will discuss these issues in a similar order.”
Miss. Code Ann. § 11-1-63(a)(I): 2 cases
Williams v. Bennett, 921 So. 2d 1269 (Miss. 2006). “" Miss. Code Ann. § 11-1-63 (f). Absent evidence that the new design proved even more unreliable, it cannot be argued that the older design alternative that was abandoned in part because of the frequency of accidents that it caused would by a "reasonable probability" have…”
Floyd Williams, Jr. v. Donald Bennett, No. 2005-CA-00754-SCT (Miss. Sept. 27, 2004).
Miss. Code Ann. § 11-1-63(a)(i): 8 cases
Williams v. Bennett, 921 So. 2d 1269 (Miss. 2006). “" Miss. Code Ann. § 11-1-63 (f). Absent evidence that the new design proved even more unreliable, it cannot be argued that the older design alternative that was abandoned in part because of the frequency of accidents that it caused would by a "reasonable probability" have…”
3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005). “See Miss.Code Ann. § 11-1-63 (Rev.2002); Lane v.”
Wolf v. Stanley Works, 757 So. 2d 316 (Miss. Ct. App. 2000).
Reggie Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). “Miss.Code Ann. § 11-1-63 (Rev.2014). 8 . Id.”
Johnson & Johnson, Inc. v. Brenda Fortenberry, No. 2015-CA-01369-SCT (Miss. Oct. 19, 2017).
Miss. Code Ann. § 11-1-63(a)(i)(1): 7 cases
Cooper Tire & Rubber Co. v. Tuckier, 826 So. 2d 679 (Miss. 2002).
Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564 (Miss. Ct. App. 2003). “Miss.Code Ann. § 11-1-63 (Rev.2002). ¶ 15.”
Walker v. George Koch Sons, Inc., 610 F. Supp. 2d 551 (S.D. Miss. 2009).
Dykes v. Husqvarna Outdoor Prods., N.A., Inc., 869 F. Supp. 2d 749 (S.D. Miss. 2012).
Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-cv-00026, 2019 WL 5395452 (S.D. Miss. Oct. 22, 2019).
Miss. Code Ann. § 11-1-63(a)(i)(2): 3 cases
Reggie Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). “Miss.Code Ann. § 11-1-63 (Rev.2014). 8 . Id.”
Hageney v. Jackson Furniture of Danville, 746 So. 2d 912 (Miss. Ct. App. 1999).
In re Zyprexa Prods. Liab. Litig., 671 F. Supp. 2d 397 (E.D.N.Y. 2009).
Miss. Code Ann. § 11-1-63(a)(i)(3): 3 cases
Williams v. Bennett, 921 So. 2d 1269 (Miss. 2006). “" Miss. Code Ann. § 11-1-63 (f). Absent evidence that the new design proved even more unreliable, it cannot be argued that the older design alternative that was abandoned in part because of the frequency of accidents that it caused would by a "reasonable probability" have…”
McKee v. Bowers Window & Door Co., 64 So. 3d 926 (Miss. 2011).
M. Curtiss McKee v. Bowers Window & Door Co., No. 2009-CA-01314-SCT (Miss. July 1, 2009).
Miss. Code Ann. § 11-1-63(a)(i)(4): 8 cases
Forbes v. Gen. Motors Corp., 935 So. 2d 869 (Miss. 2006). “To meet the first part of the statutory claim, the Forbeses must show that the product either "breached an express warranty or failed to conform to other express factual representations" upon which he justifiably relied in electing to use the product.”
Forbes v. Gen. Motors Corp., 929 So. 2d 958 (Miss. Ct. App. 2005). “( Miss. Code Ann. § 11-1-63 (a)(iii)). We will discuss these issues in a similar order.”
Bennett v. Madakasira, 821 So. 2d 794 (Miss. 2002).
Reggie Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). “Miss.Code Ann. § 11-1-63 (Rev.2014). 8 . Id.”
Jones v. Coty Inc., 362 F. Supp. 3d 1182 (U.S. Cir. Ct. 2018).
Miss. Code Ann. § 11-1-63(a)(i)(4)(ii): 1 case
Forbes v. Gen. Motors Corp., 929 So. 2d 958 (Miss. Ct. App. 2005). “( Miss. Code Ann. § 11-1-63 (a)(iii)). We will discuss these issues in a similar order.”
Miss. Code Ann. § 11-1-63(a)(ii): 5 cases
Forbes v. Gen. Motors Corp., 929 So. 2d 958 (Miss. Ct. App. 2005). “( Miss. Code Ann. § 11-1-63 (a)(iii)). We will discuss these issues in a similar order.”
In re Zyprexa Prods. Liab. Litig., 671 F. Supp. 2d 397 (E.D.N.Y. 2009).
Burroughs Diesel, Inc. v. Baker Petrolite, LLC, No. 2:18-cv-00026, 2019 WL 5395452 (S.D. Miss. Oct. 22, 2019).
Pettway v. Circle S. Irrigation, Inc., No. 3:20-cv-00010 (S.D. Miss. June 29, 2021).
Susan R. Moss v. Batesville Casket Co., No. 2005-CA-00372-SCT (Miss. Dec. 28, 2004).
Miss. Code Ann. § 11-1-63(a)(iii): 6 cases
Palmer v. Volkswagen of Am., Inc., 904 So. 2d 1077 (Miss. 2005). “, Volkswagenwerk Aktiengesellschaft, and Volkswagen de Mexico, alleging claims for negligence, breach of express and implied warranties, and violation of the Mississippi Product Liability Act, Miss.Code Ann. § 11-1-63 (Rev.2002). [1] ¶ 5.”
Forbes v. Gen. Motors Corp., 929 So. 2d 958 (Miss. Ct. App. 2005). “( Miss. Code Ann. § 11-1-63 (a)(iii)). We will discuss these issues in a similar order.”
Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564 (Miss. Ct. App. 2003). “Miss.Code Ann. § 11-1-63 (Rev.2002). ¶ 15.”
Reggie Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). “Miss.Code Ann. § 11-1-63 (Rev.2014). 8 . Id.”
Harris v. Int'l Truck & Engine Corp., 912 So. 2d 1101 (Miss. Ct. App. 2005).
Miss. Code Ann. § 11-1-63(b): 11 cases
RJ Reynolds Tobacco Co. v. King, 921 So. 2d 268 (Miss. 2006). “On October 14, 2003, RJR filed a motion for judgment on the pleadings on behalf of all properly served defendants together with a memorandum in support thereof, thereby moving the court to dismiss the suit in its entirety based solely on the inherent characteristic defense of…”
Williams v. Bennett, 921 So. 2d 1269 (Miss. 2006). “" Miss. Code Ann. § 11-1-63 (f). Absent evidence that the new design proved even more unreliable, it cannot be argued that the older design alternative that was abandoned in part because of the frequency of accidents that it caused would by a "reasonable probability" have…”
Reggie Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). “Miss.Code Ann. § 11-1-63 (Rev.2014). 8 . Id.”
Clark v. Brass Eagle, Inc., 866 So. 2d 456 (Miss. 2004).
Lane v. RJ Reynolds Tobacco Co., 853 So. 2d 1144 (Miss. 2003).
Miss. Code Ann. § 11-1-63(c): 1 case
Palmer v. Volkswagen of Am., Inc., 904 So. 2d 1077 (Miss. 2005). “, Volkswagenwerk Aktiengesellschaft, and Volkswagen de Mexico, alleging claims for negligence, breach of express and implied warranties, and violation of the Mississippi Product Liability Act, Miss.Code Ann. § 11-1-63 (Rev.2002). [1] ¶ 5.”
Miss. Code Ann. § 11-1-63(c)(I): 1 case
3M Co. v. Simeon Johnson, No. 2002-CA-01651-SCT (Miss. Jan. 30, 2002).
Miss. Code Ann. § 11-1-63(c)(i): 8 cases
O'FLYNN v. Owens-Corning Fiberglas, 759 So. 2d 526 (Miss. Ct. App. 2000).
Dependable Abrasives, Inc. v. Pierce, 156 So. 3d 891 (Miss. 2015).
Mississippi Valley Silica Co. v. Dorothy Barnett, 227 So. 3d 1102 (Miss. Ct. App. 2016). “See Miss. Code Ann. § 11-1-63 (a) (Rev. 2014).”
Reggie Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). “Miss.Code Ann. § 11-1-63 (Rev.2014). 8 . Id.”
Union Carbide Corp. v. Nix, 142 So. 3d 374 (Miss. 2014).
Miss. Code Ann. § 11-1-63(c)(ii): 7 cases
3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005). “See Miss.Code Ann. § 11-1-63 (Rev.2002); Lane v.”
Union Carbide Corp. v. Nix, 142 So. 3d 374 (Miss. 2014).
Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564 (Miss. Ct. App. 2003). “Miss.Code Ann. § 11-1-63 (Rev.2002). ¶ 15.”
State ex rel. Johnson & Johnson Corp. v. Karl, 647 S.E.2d 899 (W. Va. 2007).
Reggie Elliott v. El Paso Corp., 181 So. 3d 263 (Miss. 2015). “Miss.Code Ann. § 11-1-63 (Rev.2014). 8 . Id.”
Miss. Code Ann. § 11-1-63(d): 2 cases
Green v. Allendale Planting Co., 954 So. 2d 1032 (Miss. 2007).
Clark v. Brass Eagle, Inc., 866 So. 2d 456 (Miss. 2004).
Miss. Code Ann. § 11-1-63(e): 4 cases
Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564 (Miss. Ct. App. 2003). “Miss.Code Ann. § 11-1-63 (Rev.2002). ¶ 15.”
Hageney v. Jackson Furniture of Danville, 746 So. 2d 912 (Miss. Ct. App. 1999).
Walker v. George Koch Sons, Inc., 610 F. Supp. 2d 551 (S.D. Miss. 2009).
Satcher v. Honda Motor Co., 855 F. Supp. 886 (S.D. Miss. 1994).
Miss. Code Ann. § 11-1-63(f): 5 cases
Wolf v. Stanley Works, 757 So. 2d 316 (Miss. Ct. App. 2000).
3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005). “See Miss.Code Ann. § 11-1-63 (Rev.2002); Lane v.”
Jones v. Coty Inc., 362 F. Supp. 3d 1182 (U.S. Cir. Ct. 2018).
Glenn v. Overhead Door Corp., 935 So. 2d 1074 (Miss. Ct. App. 2006).
Barnett v. Boston Sci. Corp., No. N20C-12-076 PEL (Del. Super. Ct. May 13, 2021).
Miss. Code Ann. § 11-1-63(f)(2003): 1 case
Williams v. Bennett, 921 So. 2d 1269 (Miss. 2006). “" Miss. Code Ann. § 11-1-63 (f). Absent evidence that the new design proved even more unreliable, it cannot be argued that the older design alternative that was abandoned in part because of the frequency of accidents that it caused would by a "reasonable probability" have…”
Miss. Code Ann. § 11-1-63(f)(i): 2 cases
Glidden v. State, 74 So. 3d 342 (Miss. 2011).
Leslie Terry Singley v. Trinity High. Prods., LLC, No. 2013-CA-01944-COA (Miss. Ct. App. May 26, 2015).
Miss. Code Ann. § 11-1-63(f)(ii): 5 cases
Williams v. Bennett, 921 So. 2d 1269 (Miss. 2006). “" Miss. Code Ann. § 11-1-63 (f). Absent evidence that the new design proved even more unreliable, it cannot be argued that the older design alternative that was abandoned in part because of the frequency of accidents that it caused would by a "reasonable probability" have…”
Glenn v. Overhead Door Corp., 935 So. 2d 1074 (Miss. Ct. App. 2006).
Wolf v. Stanley Works, 757 So. 2d 316 (Miss. Ct. App. 2000).
A.K.W. v. Easton-Bell Sports, Inc., 454 F. App'x 244 (5th Cir. 2011).
Floyd Williams, Jr. v. Donald Bennett, No. 2005-CA-00754-SCT (Miss. Sept. 27, 2004).
Miss. Code Ann. § 11-1-63(h): 4 cases
McKee v. Bowers Window & Door Co., 64 So. 3d 926 (Miss. 2011).
Prisock v. Tempur-Sealy Int'l, Inc., No. 1:19-cv-00187 (N.D. Miss. May 12, 2020).
Braswell v. Invacare Corp., 760 F. Supp. 2d 679 (S.D. Miss. 2010).
Goodwin v. Premier Ford Lincoln Mercury, Inc., No. 1:19-cv-00182 (N.D. Miss. July 2, 2020).
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