MARSHA R. HINTON AND THOMAS F. HINTON
SPORTSMAN'S GUIDE, INC.
OF JUDGMENT: 01/12/2018
COUNTY CIRCUIT COURT HON. DAL WILLIAMSON TRIAL JUDGE
COURT ATTORNEYS: SAMUEL STEVEN McHARD LAWRENCE E. ABERNATHY,
III LESLIE D. ROUSSELL MATTHEW D. MILLER MARK D. MORRISON
BARRY B. SUTTON DORRANCE AULTMAN NICHOLAS KANE THOMPSON VICK
ATTORNEYS FOR APPELLANTS: LAWRENCE E. ABERNATHY, III SAMUEL
STEVEN McHARD LESLIE D. ROUSSELL
ATTORNEYS FOR APPELLEE: MATTHEW D. MILLER NICHOLAS KANE
KING, P.J., MAXWELL AND GRIFFIS, JJ.
The underlying facts are tragic. In 2012, Timothy Hinton was
deer hunting when he fell from his tree stand. He was using a
fall-arrest system (FAS)-a harness that he wore that was
tethered to a strap tied to a tree. But the tree strap
snapped. And Timothy plunged eighteen feet, eventually dying
from his injuries.
In 2013, Timothy's parents, Marsha and Thomas Hinton,
filed a wrongful-death suit based on Mississippi
products-liability law. The defendant manufacturer, C&S
Global Imports, Inc., defaulted and is apparently not a
source of recovery. So the litigation turned its focus on the
manufacturer's insurer, Pekin Insurance Company. After
this Court ruled Mississippi had personal jurisdiction over
the Illinois-based insurer,  Pekin successfully moved for
summary judgment based on the clear tree-stand exclusion in
C&S Global's policy.
Retailer Sportsman's Guide, which sold Timothy the tree
stand and FAS in 2009, also moved for and was granted summary
judgment, giving rise to this appeal. The trial court based its
judgment on the innocent-seller provision in the Mississippi
Products Liability Act (MPLA). Miss. Code Ann. §
11-1-63(h) (Rev. 2019). The provision states, "[i]t is
the intent of this section to immunize innocent sellers who
are not actively negligent, but instead are mere conduits of
a product." Id. And the trial court found no
evidence of active negligence by Sportsman's Guide.
Instead, the seller was a mere conduit of the tree stand and
The Hintons now challenge this ruling. First, they argue
innocent-seller immunity is an affirmative defense that
Sportsman's Guide waived. But even absent waiver, they
argue a material fact dispute exists over whether
Sportsman's Guide is an innocent seller. Alternatively,
they argue Mississippi's innocent-seller provision should
not control. And instead the trial court should have followed
Minnesota's approach-the state where Sportsman's
Guide is located. Under Minnesota's law, innocent sellers
may be liable when manufacturers are judgment proof, like
C&S Global is here.
After review, we affirm the trial court's judgment.
First, while the Hintons are correct-the innocent-seller
provision appears to be a statutory-immunity provision and
thus an affirmative defense-Sportsman's Guide did not
waive its right to pursue this defense. Second, there is no
record evidence that Sportsman's Guide, based on one of
the three statutory exceptions, was not an innocent seller
entitled to immunity. Though the Hintons strenuously argue
Sportsman's Guide was not an innocent seller because
C&S Global was not a "reputable manufacturer,"
Mississippi's statute does not contain a
reputable-manufacturer requirement. Finally, the Hintons'
choice-of-law argument lacks merit. In their amended
complaints, the Hintons sought to hold Sportsman's Guide
liable under Mississippi law. So they cannot now ask the
court to change course and ignore controlling Mississippi
law-namely, the innocent-seller provision-because Minnesota
law is more favorable to them.
For better or for worse, Mississippi law is very clear that
"innocent sellers who are not actively negligent"
cannot be liable "in any action for damages caused by a
product." Miss. Code Ann. § 11-1-63(h). That is the
law the Legislature enacted. And it is the law that the trial
court and this Court must apply. Because our review shows the
trial court did not err in holding this provision entitled
Sportsman's Guide to summary judgment, we affirm.
Application of the Innocent-Seller Provision
Central to this appeal is the trial court's application
of the MPLA's innocent-seller provision to hold
Sportsman's Guide cannot be liable for selling the
allegedly defective FAS. See Miss. Code Ann. §
Adopted in 1993, the MPLA governs "any action for
damages caused by a product." Miss. Code Ann. §
11-1-63 (Rev. 2019). Section 11-1-63(a) outlines what a
claimant must prove to hold a manufacturer, designer, or
seller of a product liable. And subsection (g) entitles a
seller or designer to indemnity from the manufacturer of the
defective product unless one of three exceptions applied.
Miss. Code Ann. § 11-1-63(g)(i) (Rev.
In 2004, the Legislature amended the MPLA, adding what is now
codified as subsection (h). The language of subsection (h) is
very similar to subsection (g) and includes the exact same
three exceptions. But instead of providing indemnity to
sellers and designers, subsection (h) provides
immunity, unless one of the three exceptions
applies. So now under the MPLA
the seller of a product other than the manufacturer shall
not be liable unless
[(1)] the seller exercised substantial control over that
aspect of the design, testing, manufacture, packaging or
labeling of the product that caused the harm for which
recovery of damages is sought; or
[(2)] the seller altered or modified the product, and the
alteration or modification was a substantial factor in
causing the harm for which recovery of damages is sought; or
[(3)] the seller had actual or constructive knowledge of the
defective condition of the product at the time he supplied
Miss. Code Ann. § 11-1-63(h) (emphasis added). In adding
this provision, the Legislature made its intention clear. It
expressly stated in the provision that "[i]t is the
intent of this section to immunize innocent sellers who are
not actively negligent, but instead are mere conduits of a
product." Id.; see also Land v. Agco
Corp., No. 1:08CV012, 2008 WL 4056224, at *3 (N.D. Miss.
2008) (referring to Section 11-1-63(h) as "innocent
While many other states have innocent-seller provisions,
Mississippi's is one of the few that protects sellers
even when the product's manufacturer cannot be served
with process, is insolvent, or is otherwise
Substantive Provision versus Affirmative
While the innocent-seller provision was adopted fifteen years
ago, its application in this case raises an issue of first
impression for this Court. Is the innocent-seller provision
an affirmative defense, as the Hintons argue on appeal? Or is
the innocent-seller provision a substantive provision of the
MPLA, as the trial court ruled? Because this issue involves
statutory interpretation, it is a question of law, reviewed
de novo. Wallace v. Town of Raleigh, 815 So.2d 1203,
1206 (Miss. 2002). Unlike the trial court, we hold that the
innocent-seller provision is an affirmative defense. We base
our decision on what the provision is missing and, more
important, what the provision includes.
In contrast to other substantive parts of the MPLA, the
innocent-seller provision has no language that explicitly
places a burden on the plaintiff to "prove by a
preponderance of the evidence." Compare Miss.
Code Ann. § 11-1-63(h) with § 11-1-63(a),
(c), and (f) (Rev. 2019). The "notabl[e]" absence
of this language has led one Mississippi federal court to
conclude the innocent-seller provision is not a substantive
requirement of the MPLA but instead an affirmative defense.
Thomas v. FireRock Prods., LLC, 40 F.Supp.3d 783,
792 (N.D. Miss. 2014).
But more telling than the absent language is the language
that is present-namely the statement of intent. By adopting
Section 11-1-63(h), the Legislature expressly intended
"to immunize innocent sellers who are not actively
negligent, but instead are mere conduits of a product."
So Section 11-1-63(h) apparently is a grant of statutory
immunity. And, as this Court has recognized in
other contexts, statutory immunity is an affirmative defense.
E.g., Miss. Dep't of Human Servs. v.
D.C., No. 2018-IA-00592-SCT, 2019 WL 3820779, at *6
(Miss. Aug. 15, 2019) (Mississippi Tort Claims Act immunity);
Thomas v. Chevron U.S.A., Inc., 212 So.3d 58, 60
(Miss. 2017) (immunity from tort liability under the
Mississippi Workers' Compensation Act); Dixon v.
Singing River Hosp. Sys., 632 So.2d 951, 952 (Miss.