     Case: 14-60171        Document: 00512868288       Page: 1    Date Filed: 12/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                  FILED
                                                                            December 12, 2014
                                      No. 14-60171
                                                                               Lyle W. Cayce
                                                                                    Clerk
MARY P. AINSWORTH, Widow and Personal Representative of James T.
Ainsworth, Deceased, Individually and on Behalf of All Wrongful Death
Beneficiaries, including the Minor Children, S.A., D.A., and M.A., Mary P.
Ainsworth is Mother and Next Friend,

                Plaintiff - Appellant

v.

MOFFETT ENGINEERING, LIMITED; JOHN DOES 1-5,

                Defendants - Appellees




                     Appeal from the United States District Court
                       for the Southern District of Mississippi
                               USDC No. 2:10-CV-236


Before DAVIS, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Mary Ainsworth (“Ms. Ainsworth”) sued Moffett
Engineering, Ltd. (“Moffett”) under the Mississippi Products Liability Act
(“MPLA”), alleging a design defect in a forklift manufactured by Moffett. 1 Ms.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1   The company is now known as Cargotec Ireland.
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Ainsworth’s husband, Timothy Ainsworth (“Mr. Ainsworth”), died after he was
struck by the forklift, which was being driven forward while the driver’s view
was obscured.        The district court granted Moffett’s motion for summary
judgment, holding that Ms. Ainsworth had not submitted “evidence of a
specific, feasible design alternative that would have to a reasonable probability
prevented the accident,” as required by the MPLA. 2 Reviewing the district
court’s ruling de novo, we affirm, but on the alternative ground that Ms.
Ainsworth has failed to demonstrate that the forklift “failed to function as
expected.” 3


                         I.      FACTS AND PROCEEDINGS
      This products liability action arises from a tragic industrial accident that
occurred in October 2007 at a chicken farm in Mississippi. Mr. Ainsworth was
killed when he was run over by a forklift that was being driven by his co-
employee, Sammy Walters. At the time of the accident, Mr. Ainsworth was
walking in front of the forklift, but was not seen by Walters because his view
was obstructed by the forklift’s load.
      Ms. Ainsworth, as the surviving spouse of Mr. Ainsworth, sued Moffett
in September 2010, alleging causes of action for strict liability and negligence.
Relevant to this appeal is Ms. Ainsworth’s design defect theory of strict liability
under the MPLA. She alleges that it was foreseeable that this vehicle would
be driven forward and that its front-loading design would unreasonably
obstruct the driver’s view.             She proposed an alternative design that
incorporates an automatic forward-movement warning alarm.
      Both parties agree that, at the time of the accident, the forklift was
moving forward. They also agree that, although the forklift was equipped with


      2   See MISS. CODE ANN. § 11-1-63(f)(ii).
      3   Id.
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an automatic alarm that beeped when the vehicle was driven in reverse, it had
only a manually operated warning horn for the driver to use when the forklift
was driven forward and his front view was obstructed. Finally, neither party
alleges that Walters sounded the horn prior to striking Mr. Ainsworth.
       After extensive discovery, Moffett moved for summary judgment. The
district court granted Moffett’s motion on all of Ms. Ainsworth’s claims except
for negligent training, which was later settled. Regarding Ms. Ainsworth’s
design-defect claim, the district court held that Moffett was entitled to
summary judgment because Ms. Ainsworth had not adduced evidence
establishing that her proposed design was a feasible alternative that “would to
a reasonable certainty have prevented the harm without impairing the
forklift’s utility, usefulness, practicality, or desirability.”            Ms. Ainsworth
appeals this ruling only.


                                    II.    ANALYSIS
A.     Standard of Review
       We review de novo the district court’s grant of summary judgment. 4 A
party is entitled to summary judgment if “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law.” 5
A genuine dispute of material fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” 6
B.     Design Defect Under the Mississippi Products Liability Act
       Under the MPLA, a manufacturer is liable if (1) a product is defective,
(2) the defect renders the product unreasonably dangerous, and (3) the defect



       4 Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013).
       5 Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (citing FED.
R. CIV. P. 56(a)).
       6 Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (internal

quotation marks omitted).
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proximately caused the injury. 7 The MPLA recognizes liability for several
classes of defects, including design defects. 8 A plaintiff asserting a design
defect must show that “(1) the manufacturer knew, or should have known,
about the danger that caused the injury; (2) ‘[t]he product failed to function as
expected’; and (3) ‘there existed a feasible design alternative that would have
to a reasonable probability prevented the harm.’” 9
       In its motion for summary judgment, Moffett contended that Ms.
Ainsworth failed to produce evidence supporting either the second or third of
those elements. The district court based its decision on the “feasible design
alternative” element and did not address whether the forklift “failed to
function as expected.”
       On appeal, Moffett reiterates its original contentions. As we may “affirm
on any grounds supported by the record,” 10 we first consider whether the
forklift “failed to function as expected” as defined by the MPLA.
C.     Failure to Function as Expected
       “Pursuant to the MPLA’s plain language, our court has held that, for
design defect claims, the MPLA ‘unambiguously precludes recovery against the
manufacturer on the basis of design defect unless the product failed to function
as expected.’” 11     In Austin v. Will-Burt Co., we considered whether an



       7 See Guy v. Crown Equip. Corp., 394 F.3d 320, 324 (5th Cir. 2004) (citing § 11-1-63).
       8 See id.
       9 Id. (emphases omitted) (quoting § 11-1-63(f)).
       10 Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).
       11 Guy, 394 F.3d at 330 n.* (quoting Austin v. Will–Burt Co., 361 F.3d 862, 872 (5th

Cir. 2004)). Demonstrating that the product failed to function as expected is normally a
standalone element of the plaintiff’s design defect claim. “Proving the existence of a ‘feasible
design alternative’ is [the same as] proof of failing to perform as expected” only when the
product “is designed primarily to prevent injuries.” A.K.W. ex rel. Stewart v. Easton Bell
Sports, Inc., 454 F. App’x 244, 248 (5th Cir. 2011) (per curiam) (unpublished). For example,
if the product at issue were a safety helmet, and the plaintiff alleged that it is defective
because it failed to protect the wearer from head trauma, then “proof as to each of the three
components [of the design defect claim] overlaps.” Id. That is not the case here.
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uninsulated telescoping mast, mounted on top of a news van, failed to function
as expected when it came into contact with an overhead power line,
electrocuting the plaintiffs’ decedent. 12 We concluded that the accident did not
result from any “unusual or unexpected” behavior of the mast. 13 The danger
posed by extending the mast to the height of the power line was well known by
those in the industry, including the decedent. 14 As aptly noted in Austin, “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.” 15
       We apply a similar analysis in this case.                  Both Walters and Mr.
Ainsworth were aware that the forklift had a blind spot when moving forward
under load. Moffett had warned its employees of the danger posed by operating
a front-loaded forklift in the forward direction. Mr. Ainsworth’s death as a
result of the forklift’s blind spot is tragic, but the accident did not arise from
anything “unusual or unexpected.” As there is simply no evidence that the
forklift “failed to function as expected,” recovery against Moffett for design
defect is precluded by section 11-1-63(f)(ii). 16 We therefore need not address




       12   Austin, 361 F.3d at 874.
       13   Id.
         14 See id.
         15 Id. The Austin court discussed with approval Gray v. Manitowoc Co., Inc., 771 F.2d

866 (5th Cir. 1985), which contained a similar analysis of the “failure to function as expected”
element. In fact, the injury in Gray also resulted from operating industrial machinery that
had a blind spot. We found in Gray that the existence of that blind spot was “common
knowledge” and concluded that “no reasonable jury could have found that the blind
spot . . . was not open and obvious.” Id. at 871. Although Gray predates the MPLA, we noted
in Austin that Gray was “highly instructive.” Austin, 361 F.3d at 874.
         16 We note that Ms. Ainsworth has never addressed the “failed to function as expected”

element of her MPLA claim. Nowhere in her initial brief or reply brief, or in her brief
opposing Moffett’s motion for summary judgment before the district court, does she even
mention this element. As plaintiff, however, Ms. Ainsworth must bear the burden of proof
on every element of her claim that was raised by Moffett’s summary judgment motion.
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whether Ms. Ainsworth’s proposed design was a feasible alternative that, to a
reasonable probability, would have prevented the accident. 17


                                 III.    CONCLUSION
       Under the MPLA, a plaintiff alleging a design defect must prove, inter
alia, that “[t]he product failed to function as expected.” 18 Ms. Ainsworth has
not produced any evidence that the forklift “failed to function as expected,” so
Moffett was entitled to summary judgment as a matter of law. The district
court’s judgment is AFFIRMED.




       17 We also decline to address Moffett’s evidentiary challenges to the testimony of
several of Ms. Ainsworth’s witnesses. None of the disputed testimony concerns the “failure
to function as expected” element.
       18 Guy v. Crown Equip. Corp., 394 F.3d 320, 324 (5th Cir. 2004) (alteration in original)

(quoting § 11-1-63(f)).
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