                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                            Revised March 16, 2004
                                                                       March 1, 2004
             IN THE UNITED STATES COURT OF APPEALS
                                                                  Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                             Clerk



                              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,     plaintiffs-

appellants Elizabeth Crowder Austin, et. al., (appellants), appeal

the summary judgment dismissal of their action against defendant-

appellee Will-Burt Co. (Will-Burt) for damages for the wrongful
death of their decedent, Andrew Austin1.         We affirm.

                     Facts and Proceedings Below

     Andrew 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 volts through the

mast and electrifying the van and its appurtenances.           When Austin

touched the van, he received a fatal electric shock.

     No   federal   or   state    statute   or   regulations   or   similar

requirements (such as OSHA or American National Standard Institute

standards) dictate how telescoping masts should be constructed,

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


     1
      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
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 component

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 Construction 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, “integrated” into its ENG

van the mast and separate “payload components, which included a

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



                                  3
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 dashboard 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 overhead 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 Will-Burt originally sold the mast with a constant

pressure switch, which required an operator to continuously depress

the   switch   in   order   to   raise       or   lower   the   mast,   when   WABG

integrated the mast into its ENG 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-



                                         4
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 instructions.       They further alleged respecting Will-

Burt 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 masts.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 judgment, dismissing all of the appellants’

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

under FED. R. CIV. P. 54(b).        Appellants have timely appealed.

                                   Discussion

1.   Standard of Review

     We review the district court’s grant of summary judgment de

novo, applying the same legal standards as the district court

applied to determine whether summary judgment was appropriate.

Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002).

A summary judgment motion is properly granted only when, viewing

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

the record indicates that there is no genuine issue as to any



     2
     Breach of warranty allegations were also made below, but
appellants have not raised any such claims on this appeal.

                                       5
material fact and that the moving party is entitled to judgment as

a matter of law.      FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,

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

genuine 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.            Ramirez, 312 F.3d at 181.

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

nonmoving party.      Id.    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 sufficient 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   products

liability cases and adopted instead the “risk-utility” analysis.3


      3
     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
Accordingly, Prestage also rejected the “consumer expectation test”

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

a product defective.      Prestage, 617 So. 2d at 256 n.4.           Prestage

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 substantive 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 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)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


Prestage, 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
                      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.”
            Miss. Code. Ann. § 11-1-63(a).

In this appeal, appellants do not raise any contentions under

section   (i)1   (manufacturing   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 of this
     section, the manufacturer 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 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 ordinary


                                   8
       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 prescribed
       the drug, device or other product.” Miss. Code Ann. §
       11-1-63(c),

and,

            “(e) In any action alleging that a product is
       defective pursuant to paragraph (a)(i)2 of this section,
       the 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
       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.” Miss. Code Ann. § 11-1-63(b),

and,

            “(f) If any action alleging that a product is
       defective because of its design pursuant to paragraph
       (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 the


                                      9
     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.”
     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 dismissed 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).


     4
     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
     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        clearance    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    consumer    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   inadequate

     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
“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.”   See

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

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

after 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)).7


     7
     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
       There is also the matter of proximate cause.         Under Miss. Code

Ann. § 11-1-63(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 informed of the danger, the manufacturer’s failure to warn

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

evidence that a manufacturer’s warning would have changed that

party’s conduct.    Fortenberry, 530 So. 2d at 691.          See also Id. at




on 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
691-92 (citing with approval Kirsch v. Picker Int’l, Inc., 753 F.2d

670, 672 (8th Cir. 1985) (“there is simply no evidence that 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 warned 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’ failure 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 seller’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 claimant does not prove . . . that at the time the
     product left the control of the manufacturer or seller:
     (i)1. . . ., or
     2.   The product was defective because 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 to

                                     14
claims   of   inadequate   “warnings       or   instructions    pursuant    to

paragraph (a)(i)2 . . . the manufacturer or seller shall not be

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

product left    the   control   of   the    manufacturer   or   seller,    the

manufacturer or seller knew or . . . should 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 “the plain meaning of the MPLA’s

language is that the statute imposes liability on the manufacturer

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

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

5.   Design Defect

     Appellants claim that 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.9


     8
     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
     (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 produced 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

the manufacturer either to van assembling companies, which then

sell the van 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 cost


no 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
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 use of PWDs on elevating masts was the use by the

Border Patrol, which in 1984 or 1985 first 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 insulation, the summary judgment evidence


     10
      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
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 dirty 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 with 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 non-

metallic, non-conductive telescoping mast, a prototype being first

built in 1999 or 2000, but the project was abandoned and 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-and-tilt devices,

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

     (c) Discussion



                                  18
      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

manufacturer on the basis of design defect unless the product

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

recovery is applicable even though the facts are such that design

defect recovery against the manufacturer would have been available

under the Prestage risk-utility test notwithstanding that the

product     functioned    as     expected.11         Two   other    preliminary

      11
      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
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 the control of the

manufacturer or seller.”   Id. § 11-1-63(f).12   Under the undisputed

facts here, the relevant time is accordingly May 1982, when Will-

Burt sold the elevating mast to Quality Coach.      Second, the MPLA

makes it plain that in claims of design defect the plaintiff 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 “risk-

utility” test.     See, e.g., Prestage, 617 So. 2d at 254 (“[i]n a

‘consumer expectations’ analysis, ordinarily the phrase ‘defective



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

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

omitted).   See 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).14

     14
      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 consumer-
contemplation 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
     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 struck 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 warnings 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    testimony   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 industry 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 the vintage of the 4100W equipped them with


they 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
     mirrors, television cameras or other similar devices.
     Rather, the evidence showed that there was no such
     industry custom of providing such devices.” Id. 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 or



     15
      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 risk-
utility test because it allows recovery in instances that the
court considers appropriate but which would be precluded under
the consumer-expectations test.

                                     23
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 mast 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).16


     16
      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
                           Conclusion

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

                            AFFIRMED.




that when the product left manufacturer’s control it failed to
function as expected.

                                25
