By Pamela C. Maloney, J.D.
The innocent-seller defense immunized the retail seller of a tree stand’s fall arrest system from liability for the death of a hunter because there was no evidence that the seller, who had raised the defense in a timely manner, had knowledge of a defect in the system.
In a case of first impression, the Mississippi Supreme Court held that the Mississippi Products Liability Act’s innocent-seller provision was an affirmative defense rather than a substantive provision, and that the defense applied to retail sellers even when product manufacturers were judgment proof. As applied to the case at bar, the Mississippi high court concluded that the sporting goods store that sold a tree stand and an allegedly defective fall arrest system (FAS) had raised the innocent-seller defense in a timely manner and that there was no evidence of active negligence by the seller that would negate application of the defense (Hinton v. Sportsman’s Guide, Inc.,November 14, 2019, Maxwell, J.).
A deer hunter who fell from a tree stand and plunged 18 feet to the ground when the tree strap component of the 2009 Hunter Elite tree stand and fall arrest system (FAS) he was using snapped. The hunter eventually died from his injuries and his parents filed a wrongful death action based on Mississippi products liability law against a number of defendants, including: (1) C&S Global Imports, Inc., the manufacturer of the tree stand and the FAS, who defaulted and was judgment-proof due to bankruptcy; (2) Pekin Insurance Co., the manufacturer’s insurer, who was granted summary judgment based on the tree stand exclusion in the manufacturer’s policy; and (3) Sportsman’s Guide, Inc., the retailer that sold the tree stand to the hunter. Sportsman’s Guide was granted summary judgment based on the trial court’s finding that it was immune from liability under the innocent-seller provision of the Mississippi Products Liability Act (MPLA). The parents appealed, arguing among other things that Sportsman’s Guide had not raised innocent-seller immunity as an affirmative defense, that there was a material issue of fact as to whether Sportsman’s Guide was an innocent seller, and that Minnesota law, the place where Sportsman’s Guide was located, governed the application of the innocent seller’s doctrine.
Affirmative defense. Declaring this a case of first impression, the court ruled that given the effect of the innocent-seller provision, which created a statutory immunity for sellers who were not actively negligent but, instead, were mere conduits of a product, this provision gave rise to an affirmative defense. Under the provision, even if a plaintiff could prove allegations of product defectiveness under the MPLA, the seller would still prevail by virtue of being a non-manufacturing seller unless the plaintiff could prove that one of three exceptions applied.
Because the innocent-seller provision was an affirmative defense, the sporting goods store that sold the tree stand and FAS was required to raise the defense in a timely and reasonable manner. Despite the parents’ arguments to the contrary, the court found that any delay on the part of the sporting goods store in raising the defense was not unreasonable given the litigation’s initial focus on insurance coverage issues, especially when combined with the multiple amended complaints filed by the parents and the need for discovery to determine whether the immunity provision applied.
Reputable manufacturer exception. The court rejected the parents’ argument that the sporting goods store was not an innocent seller because it knew that C&S Global was not a reputable manufacturer. In support of this contention, the parents had alleged that the tree stand and defective FAS had been manufactured by C&S Global under the Hunter’s View brand. Hunter’s View—another manufacturer that had gone into bankruptcy shortly before C&S Global was formed, had recalled all 2004 and 2005 model-year FAS products. As a retailer of Hunter’s View products, the sporting goods store would have been notified about the recalls and the record did show that the store had notified its customers of the recall. The parents further argued that the sporting goods store could not be an innocent seller because it knew that C&S Global was merely a reboot of Hunter’s View, selling the same designs and products under a new corporate structure and name. As a stand-in for Hunter’s View, C&S Global was not a reputable manufacturer and thus, the sporting goods store was not an innocent seller.
According to the Mississippi high court, there was no "reputable manufacturer" requirement in the state’s innocent-seller provision. The fact that the term "reputable manufacturer" was used in the title of the 2004 amendment that added the innocent-seller provision to the MPLA had no impact on the scope of the provision because the statutory language was clear and unambiguous in its application to all sellers unless one of three exceptions applied.
Knowledge of defect exception. The court also rejected the parents’ argument that the known connection between C&S Global and Hunter’s View and the 2004 and 2005 recalls was sufficient to raise a genuine issue of material fact as to whether the sporting goods store had actual or constructive knowledge of the alleged defective condition of the 2009 tree stand and FAS when it supplied the product to the hunter. The court explained that the actual-or-constructive-knowledge exception focused solely on the allegedly defective product that caused the damages. Thus, evidence about the voluntary recall of Hunter’s View 2004 and 2005 model-year FAS was too tenuous to create a material fact issue about whether the store knew or should have known that an FAS manufactured in 2009 by a different, albeit related, manufacturer was defective. Furthermore, even though the store did not have a copy of a laboratory report showing the results of tests conducted on the 2009 stand, the record clearly showed when the 2009 Hunter Elite tree stand FAS was sold to the hunter, it had passed safety testing and had not been recalled.
Choice of law. The court also rejected the parents’ final argument—that because the sporting goods store was based in Minnesota, Minnesota law, which provided that a non-manufacturing seller was responsible for a judgment, regardless of fault, if the manufacturer was judgment proof, applied in this case. The parents had invoked Mississippi substantive law as controlling in this case and had alleged in their amended complaints that the sporting goods store’s actions or inactions had violated Mississippi products liability law. If they intended to invoke the law of another jurisdiction, they should have advised the trial court earlier in the course of the litigation. Furthermore, the parents did not argue that Minnesota substantive law governing products liability should apply in toto. Instead, they only asked the court to apply Minnesota’s approach to innocent sellers. The court admonished that they could not mix and match favorable pieces of two different states’ approaches to products liability to create a law that best suited their claims. Mississippi law was the governing law in this case and under Mississippi law, it was clear that innocent sellers who were not actively negligent could not be held liable in any action for damages caused by a product.
The case is No. 2018-CA-00043-SCT.
Attorneys: Lawrence E. Abernathy, III (Law Office of Lawrence E. Abernathy, III) for Marsha R. Hinton. Matthew D. Miller (Copeland Cook Taylor & Bush, PA) for Sportsman’s Guide, Inc.
Companies: Sportsman’s Guide, Inc.
MainStory: TopStory DefensesLiabilityNews SCLIssuesNews SportsandRecEquipmentNews MississippiNews
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