361 F.3d 862 (5th Cir. 2004), 03-60007, Austin v. Will-Burt Co.

Docket Nº:03-60007.
Citation:361 F.3d 862
Party Name:Elizabeth Crowder AUSTIN, Individually, and as Administratrix of the Estate of Andrew C. Austin, Deceased; Heidi Elizabeth Austin; Frank Barksdale Austin, Plaintiffs-Appellants, v. WILL-BURT COMPANY; et al., Defendants, Will-Burt Company, Defendant-Appellee.
Case Date:March 01, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 862

361 F.3d 862 (5th Cir. 2004)

Elizabeth Crowder AUSTIN, Individually, and as Administratrix of the Estate of Andrew C. Austin, Deceased; Heidi Elizabeth Austin; Frank Barksdale Austin, Plaintiffs-Appellants,


WILL-BURT COMPANY; et al., Defendants,

Will-Burt Company, Defendant-Appellee.

No. 03-60007.

United States Court of Appeals, Fifth Circuit

March 1, 2004

Page 863

[Copyrighted Material Omitted]

Page 864

James P. Cothren (argued), Cothrem Law Firm, Jackson, MS, Joseph G. Van Winkle, Lewis, Webster, Johnson & Van Winkle, Des Moines, IA, for Plaintiffs-Appellants.

W. Scott Welch, III, LeAnn Walber Mercer, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, MS, Kari Louise Foster (argued), Butler, Snow, O'Mara, Stevens & Cannada, Memphis, TN, for Defendant-Appellee.

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 Austin 1. 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, Border Patrol, firefighters, and

Page 865

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 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-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

Page 866

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.


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 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, 477 U.S. 317, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (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 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:

Page 867

"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

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...

To continue reading