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Smith v. Mack Trucks6/20/2002
y accepted the risk utility test. Shortly thereafter, the Mississippi Legislature passed the Products Liability Act, Miss. Code Ann. ยง 11-1-63 (Supp. 2001) codifying strict liability law. Procedural provisions of the Act became effective for all cases pending on July 1, 1993, but the substantive provisions were not effective until July 1, 1994. The Act enacted into law a somewhat hodgepodge mixture of the consumer expectations and risk utility tests.
. On July 1, 1994, plaintiffs filed an amended complaint, which changed their theory of the case claiming a design defect in the placement of the fuel tanks. Mississippi law is clear that an amended complaint relates back to the original date of the filing, thus the Act's substantive provisions should not apply. I agree with the majority that the correct law would be the risk utility test. However, I do not agree that the jury instructions given below result in reversible error. I do not believe the two given instructions are in conflict. Further, the overwhelming weight of the evidence is in favor of the verdict returned by the jury.
. There is no reversible error in instructing the jury if all the jury instructions when read together, and taken as a whole, correctly state the law, are not misleading, and adequately cover the issues supported by the evidence. Lovett v. Bradford, 676 So. 2d 893, 896-97 (Miss. 1996); O'Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526, 533 (Miss. Ct. App. 2000). In this case, Instruction D-2 does not amount to an incorrect statement of the law. While it is true that Instruction D-2 is based on the Products Liability Act, as noted above it has been generally recognized that the Act is a mixture of the two standards. The instruction at issue here predominately sets forth a risk utility standard. There is some language that contemplates foreseeability within the instruction, however, I do not believe this language is completely opposed to the law as it stood prior to adoption of the Act. As this Court has noted "Prestage not reject the consumer expectations test where no consumer could expect to be protected by an additional safety device that he obviously knew was not there." Cooper v. General Motors Corp., 702 So. 2d 428, 443 (Miss. 1997).
. The given instruction was not error. Further, even if it was error, it does not rise to the level of reversible error. As I disagree with the majority's opinion that the given instruction was an incorrect statement of law, I dissent.
WALLER, COBB AND CARLSON, JJ., JOIN THIS OPINION.
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