TENNESSEE PRODUCT LIABILITY RESOURCES
- 1 Defect in Design – the feasibility of alternative designs and consumer expectations
- 2 Misuse of Products
- 3 Unanticipated, Unforeseeable, or Unintended Use of Products
- 4 Alteration of Products
- 5 Unavoidably Unsafe Products
- 6 Duty to Warn - Dangerous or Obviously Unsafe Conditions
- 7 State of the Art Defenses
- 8 Government Contractor Defense
- 9 Statutes of Limitation and of Repose
Tennessee employs both the consumer expectations and the risk/utility test for product defect. Ray by Holman v. Bic Corp., 925 S.W.2d 527 (Tenn. 1996). The Tennessee Products Liability Act of 1978 articulates the consumer expectation test by offering a definition of unreasonably dangerous condition that includes a product that “is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.” Tenn. Code Ann. § 29-28-102(8) (2015). Likewise, the Act defines the risk/utility test by explaining that a product is in an unreasonably dangerous condition if the product “because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller assuming that the manufacturer or seller knew of its dangerous condition.” Id. Tennessee’s pattern jury instruction on product defect tracks the statutory language. See T.P.I.—Civil 10.01.
Determining which test applies presents a more difficult question. Like in many other states that employ both tests, the general inquiry is whether “‘everyday experience of the product’s users permits a conclusion.’” Ray, 925 S.W.2d at 531 (quoting Soule v. Gen. Motors Corp., 882 P.2d 298, 308 (Cal. 1994)). Generally speaking, the risk/utility test is more likely to apply to complex products. “In order to be successful under the consumer expectation test, the plaintiff must present evidence that the ordinary consumer has an expectation regarding the safety of the product.” Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 804 (Tenn. 2001).
The Sixth Circuit has explored the intersection between the two defect tests more than Tennessee courts have. That court has found that the consumer expectation test applies to air bags in cars, Sigler v. Am. Honda Motor Co., 532 F.3d 469 (6th Cir. 2008) but that the risk/utility test applies to truck mounted cranes, Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 428-29 (6th Cir. 2007), and forklifts. Brown v. Raymond Corp., 432 F.3d 640, 643-47 (6th Cir. 2005). There is no bright-line rule, and, at least for products not specifically addressed by prior cases, plenty of room for zealous advocacy on the defect test.
By statute, “[i]f a product is not unreasonably dangerous at the time it leaves the control of the manufacturer or seller but was made unreasonably dangerous by subsequent unforeseeable alteration, change, improper maintenance or abnormal use, the manufacturer or seller is not liable.” Tenn. Code Ann. § 29-28-108. As with the defect tests discussed above, the model jury instruction tracks the statutory language. See T.P.I.—Civil 10.02. There is very little case law interpreting this provision, and the case law that does exist suggests that a fact-intensive, case-by-case inquiry.
Tennessee law treats abnormal use in much the same way as misuse or modification. The causation inquiry is the same in product liability as in the negligence context, so the negligence concept of proximate cause, which requires that an injury be the foreseeable result of the defect apply in product liability cases. Strict liability proximate cause has two components. “Its first requirement is that the defendant's act or, in this products liability case, the defect in the product, be a cause in fact of the injury.” Wyatt v. Winnebago Indus., 566 S.W.2d 276, 280 (Tenn. Ct. App. 1977). The second portion of the inquiry “involves much more than causation in fact. It is really a concept that attempts to define, by means of many factors, when a defendant's liability will be limited even where the fact of causation is clearly established.” Id. (citations omitted).
Tennessee law does not differentiate between modification, misuse and alteration, so the discussion in the previous two sections would apply with equal force to alteration.
Tennessee follows the approach of Section 388 of the Restatement (Second) of Torts and has adopted a duty to instruct and to warn concerning unavoidably dangerous products or conditions. “An adequate warning is one calculated to bring home to a reasonably prudent user of the product the nature and the extent of the danger involved in using the product.” Trimble v. Irwin, 441 S.W.2d 818, 822 (Tenn. Ct. App. 1968).
Because the Tennessee Products Liability Act of 1978 governs all product liability claims, there are few practical or legal differences between “defect-based” product liability claims and failure to warn claims. The Sixth Circuit has characterized Tennessee failure to warn law as “a fairly stiff standard. The plaintiff bears the burden of establishing that a product was in a defective condition or otherwise unreasonably dangerous by reason of the manufacturer's failure to provide an adequate warning informing users of the dangers of that product.” Goins v. Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991) (citations omitted).
Tennessee has two different, but not necessarily inconsistent, jury instructions on failure to warn. In the negligence realm, the jury is instructed that “[a] supplier who knows or reasonably should know that a product is likely to be dangerous for its intended use or foreseeable misuse has a duty to use reasonable care to warn of the product's danger or to reveal its unsafe condition. Warnings should be given to those persons whom the supplier should reasonably expect to use or to handle the product or be endangered by its use or handling, if the supplier reasonably should believe those persons would not realize the danger without the warnings. The failure to fulfill this duty is negligence.” T.P.I—Civil 10.12.
The strict liability failure to warn jury instruction reads as follows:
Where proper instructions for use and an adequate warning of hazards are given, the seller may reasonably assume that they will be read and followed. Thus, a product is not in a defective condition, nor is it unreasonably dangerous, if:
1. The manufacturer or seller has given proper instructions for the use of a product and an adequate warning of the dangers associated with the use or misuse of the product; and
2. The product is safe for use if the instructions and warning are read and followed.
Adequate and proper instructions establish procedures for efficient use and for avoiding danger. An adequate warning is one calculated to call to the attention of a reasonably careful person the nature and extent of the danger involved in using or misusing the product.
In preparing instructions and warnings, manufacturers and sellers must take into account, among other things, the intended or reasonably expected users or consumers of the product. Where a danger or hazard is apparent to the ordinary user, a product is not unreasonably dangerous or defective even if no warning is given.
Compliance with the state of the art is not a defense per se in Tennessee. Nonetheless, when determining whether a product is defective or unreasonably dangerous, “the state of scientific and technological knowledge available to the manufacturer or seller at the time the product was placed on the market, rather than at the time of injury, is applicable. Consideration is given also to the customary designs, methods, standards and techniques of manufacturing, inspecting and testing by other manufacturers or sellers of similar products.” Tenn. Code Ann. § 29-28-105(b) (2015).
Compliance with a federal or state government standard provides product liability defendants with “a rebuttable presumption that the product is not in an unreasonably dangerous condition in regard to matters covered by the standards.” Tenn. Code Ann. § 29-28-104(a) (2015). Practically, this is not a high bar, and plaintiffs can typically overcome it with any expert testimony at all on defect. Lay witness testimony may even be enough in some cases. But, compliance with applicable government standards does bar a punitive damages award with limited exceptions. Tenn. Code Ann. § 29-28-104(b)(2) (2015).
Tennessee does not have a specific state government contract test, but the federal government contractor defense set out in Boyle v. United Techs. Corp., 487 U.S. 500 (1988), bars product liability claims brought under Tennessee law. Morgan v. Brush Wellman, Inc., 165 F. Supp. 2d 704, 716-18 (E.D. Tenn. 2001)
Generally, product liability actions are subject to the same statutes of limitation as similar actions outside the product liability context. Tenn. Code Ann. § 29-28-103(a) (2015). This means that personal injury actions are subject to a one-year statute of limitation, Tenn. Code Ann. § 28-3-104(a)(1) (2015), and property damage actions are subject to a three-year statute of limitations. Tenn. Code Ann. § 28-3-105(1) (2015).
One unusual aspect of Tennessee law is that all breach of warranty actions, regardless of whether the plaintiff claims personal injury, property damage or economic loss, are subject to the UCC’s four-year statute of limitation, which runs from the date of the sale of the product. Tenn. Code Ann. § 47-2-725 (2015); Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 773 (Tenn. 1979). Thus, if a plaintiff brings suit more than four years after delivery of the product but within one year of his injury, he generally may recover under theories of strict liability and negligence but may not recover under breach of warranty theories. Minority and incompetency toll all statutes of limitation. Tenn. Code Ann. § 28-1-106 (2015).
The Tennessee Products Liability Act of 1978 contains a ten year statute of repose for all products except asbestos (no repose period) and silicone gel breast implants (25 year repose period). Tenn. Code Ann. § 29-28-103(a) (2015). The statute of repose does not apply to claims brought by minors, who must bring suit by their nineteenth birthday (the same time that the statute of limitation on a personal injury action runs). Id. The practical effect of this rule is that in cases with a product more than 10 years old with adult and minor plaintiffs, the adults would not be able to bring suit for their damages but the minors would.