aftermath of Owens and Whitehead--products liability and comparative fault in Tennesssee--how deep does the relationship run?, The

University of Memphis Law Review, The, Winter 2002 by McWherter, James Brandon

I. INTRODUCTION AND STATEMENT OF PURPOSES

Upon the Tennessee Supreme Court's adoption of its present comparative fault system in 1992,(1) the products liability bar undoubtedly felt an immediate impact. Notwithstanding the great pressure the bar has put on the courts for guidance, there have been but a few cases addressing the applicability of comparative fault to products liability actions.2 As such, this Note seeks to examine the extent of the doctrine's applicability to products liability cases, as well as to explore the plethora of collateral issues that sprout up like seedlings as the area is thoroughly analyzed. In doing so, this Note will track the emergence of comparative fault in products liability cases by first addressing the status of products liability law before the adoption of comparative fault in McIntyre v. Balentine, and by then focusing on the few post-McIntyre cases that examine and discuss the interaction between comparative fault and products liability. Next, this Note will probe and assess the policy and conceptual issues at play in this area. Lastly, this Note will analyze the continued viability of joint and several liability in products liability actions, particularly in the gray area of breach of the implied warranty of merchantability, which, to date, has not been addressed by a Tennessee appellate court.

II. PRE-MCINTYRE PRODUCTS LIABILITY LAW IN TENNESSEE: EVOLUTON OF PRODUCTS LIABILITY LAW IN TENNESSEE

Tennessee Products Liability Act,3 followed by a cursory perusal of relevant historic case law.

A. The Tennessee Products Liability Act

Under Tennessee law, a manufacturer or seller of a product may only be held liable for an injury caused by its product if "the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller."4 As such, the first key questions any practitioner must answer are: (1) what is the definition of "unreasonably dangerous"; and (2) what is the definition of "defective condition"?

1. Under What Circumstances Is a Product Considered "Unreasonably Dangerous"?

In answer to this question, the Tennessee Code states that a product is "unreasonably dangerous" if:

assuming that the manufacturer or seller knew of its dangerous condition.5

As literally interpreted by case law, this definition creates two separate and distinct tests for ascertaining whether a product is "unreasonably dangerous."6 First, the plaintiff may employ the consumer expectation test to prove a product is "unreasonably dangerous,"7 and second, the plaintiff may assert that the product fails the prudent manufacturer test, which requires a risk-utility balancing of factors.8

2. Under What Circumstances Is a Product Considered To Have a "Defective Condition"?

For clarity and avoidance of future controversy, the Tennessee legislature specifically defines a "defective condition" as "a condition of a product that renders it unsafe for normal or anticipatable handling and consumption."19 In applying this definition, Tennessee courts have recognized that one factor to consider is "consumer knowledge about the risks inherent in the use of [the] product."20 Further, the condition must truly be a defect. In other words, the design of the product does not have to be perfect, accident proof, or incapable of causing injury to be considered non-defective.21

B. Pre-Owens and Whitehead Products Liability Causes of Action and Corresponding Case Law

1. Basic Principles and Primary Elements of a Products Liability Action Based on Negligence

or seller may be liable for damages caused by his negligence when a reasonably foreseeable consumer is injured as a result of that negligence.27

As negligence is often a valid claim in a products liability action, many plaintiffs often take advantage of the theory. However, under pre-McIntyre law, contributory negligence was an absolute bar to a product liability action founded on negligence.28 Thus, many plaintiffs' lawyers often opted to proceed on a theory of strict liability instead because contributory negligence was not a defense to strict liability.29

2. Basic Principles and Primary Elements of Strict Liability

a. Section 402A of the Restatement (Second) of Torts

strict liability action is brought must be engaged in the manufacture, processing, sale, or distribution of the product, and, in addition, the defendant must be engaged in that activity as a part of their business.31 Moreover, the defect must have existed at the time the product was distributed by and was under the control of the defendant.32 Even if all of the above elements are satisfied, however, a prima facie case of strict liability is still not established under section 402. In fact, liability will only attach if the product is defective as marketed, and the product is unreasonably dangerous.33

b. Tennessee's Approach

Although Tennessee's requirements for strict liability are based on section 402 of the Restatement (Second) of Torts, there is one key difference. As mentioned above, section 402A requires that the product be both defective and unreasonably dangerous at the time it left the hands of the manufacturer or seller.34 The Tennessee legislature, however, has addressed the issue, and only requires that the product be defective or unreasonably dangerous, rather than requiring the fulfillment of both elements.35