§63.1 Allocation of Fault to a Product

The Case: Owens v. Truckstops of America v. B. Michael Design. Inc , 915 S.W.2d 420 (Tenn. 1996).

The Basic Facts: Plaintiff brought a negligence claim against a restaurant after a stool he was sitting in broke, causing him to fall. The restaurant then brought a third-party complaint against the manufacturer and seller of the stool for contribution and indemnity based on negligence, strict liability and implied warranty of merchantability.

The Bottom Line:

• "Consequently, joint and several liability against parties in the chain of distribution of a product is essential to the theory of strict products liability. Since strict liability does not require proof of negligence, but only that the product was defective or unreasonably dangerous, parties in the chain of distribution must be treated as a single unit for the purpose of determining and allocating fault.^FN14

  FN14 The dissent's insistence that each defendant in an action for strict liability be liable to the plaintiff according to its separate "fault" would impose upon the plaintiff the burden of proving each defendant was negligent, thus abolishing strict liability."

  915 S.W.2d at 432.
• "This conclusion is supported by portions of the Uniform Contribution Among Tort-Feasors Act not addressed in McIntyre, which provide, '[i]f equity requires, the collective liability of some as a group shall constitute a single share' and '[p]rinciples of equity applicable to contribution generally shall apply.' Tenn. Code Ann. § 29-11-103(2) and (3)." Id.
• "When comparative fault principles are applied in a strict liability action, the plaintiff's fault is compared with the fault of the strictly liable defendants as a single unit. The fault of these defendants is measured by the injury caused by the defective or unreasonably dangerous product. When liability is found on strict liability and also negligence or other theories, the trier of fact must apportion the fault for the plaintiff's injuries or damages according to the percentage of damages caused by the plaintiff, that caused by the product, and that caused by each tortfeasor acting separately and independently.^FN17 This procedure was adopted by the Court in Whitehead...

  FN17 The following special verdict form, as adopted to the specific allegations of the case, may be used in cases where liability is predicated upon strict products liability and other theories such as negligence:
  
  Using 100 percent as the total combined harm, find from a preponderance of the evidence the percentage of the plaintiff's injuries or damages proximately caused by:

  The defective or unreasonably dangerous product

  (Defendants A and B) _____ %
  Defendant X _____ %
  Defendant Y _____ %
  Plaintiff _____ %

  (Total must equal 100%)

  _______________________
  Signature of Foreman

  
  
  The triers of fact will determine the percentage of a plaintiff's damages that is attributable to the defective or unreasonably dangerous product as well as the percentage that is attributable to the plaintiff's own fault.

  Whitehead v. Toyota Motor Corp. , 897 S.W.2d at 693 (emphasis added). See also Duncan, 665 S.W.2d at 427 (Tex. 1984). Thus, the adoption of comparative fault did not alter that products liability law under which the liability of defendants in the chain of distribution of a product, who are liable under a theory of strict liability, is joint and several. Under comparative fault principles, however, these defendants are jointly and severally liable only for that percentage of the plaintiff's damages caused by the product. For the percentage of damages caused by the product, the strictly liable defendants are treated as a single unit or share. On the other hand, when liability is based on negligence, each of the defendants is severally liable only for the percentage of damages caused by its negligence. If those defendants who can be held jointly and severally liable on a claim of strict liability are also charged with negligence, as in this case, their liability on the negligence charge will be as separate, independent tortfeasors, and their liability on the negligence charge will be several only." Id. at 433.

Other Sources of Note: General Elec. Co. v. Process Control Co. 969 S.W.2d 914, 916 (Tenn. 1998) (noting that contribution's remains applicable in: (1) cases in which prior to McIntyre the cause of action arose, the suit was filed and the parties had made irrevocable litigation decisions based on pre- McIntyre law; (2) cases in which joint and several liability continues to apply under doctrines such as the family purpose doctrine, cases in which tortfeasors act in concert or collectively with one another, cases in which the doctrine of respondeat superior permits vicarious liability due to an agency-type relationship, or in the 'appropriate' products liability case; or (3) in the 'appropriate case' in which 'fairness demands'); Wielgus v. Dover Industries, Inc., 39 S.W.3d 124, 131 (Tenn. Ct. App. 2000) (holding that Owens is not applicable as a predicate for joint and several liability between the manufacturer and seller).

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