in the court of appeals of the state - Mississippi Supreme Court

there was no record evidence to support any warranty’s existence so the instruction assumed
facts not in evidence.
27. Jury Instruction No. 7 reads in full:
You are instructed that a manufacturer or seller of a product is liable for
damages caused by that product, other than commercial damages to the
product itself, if you find from a preponderance of the evidence:
1. That Kelly Springfield/Goodyear Tire & Rubber Co.
was in the business of selling automobile tires and did in fact
sell a Charger SR tire; and
2. That at the time the Charger SR tire left the control of
Kelly Springfield/Goodyear Tire & Rubber Co., the defendant
represented that the tire would be safe at speeds up to 112 miles
per hour for 50,000 miles and that the defendants’ claims
amounted to an express warranty or other express factual
representation upon which the purchaser relied in selecting the
use of the Charger SR tire; and
3. That the warranty or other expressed factual
representation was breached or false, which made the product
defective; and
4. The defective condition rendered the product
unreasonably dangerous to the user or consumer; and
5. The defective and unreasonable and dangerous
condition of the product was the proximate cause of the
plaintiffs’ damages;
then your verdict shall be for the plaintiff.
However, if the plaintiff has failed to prove any of these elements by
a preponderance of the evidence in this case, then your verdict shall be for the
defendant.
28. The Kirby plaintiffs argue that Goodyear failed to preserve the issue of jury
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