Potter v. Ford Motor Co.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 4, 2006 Session

BETTY POTTER, ET AL. v. FORD MOTOR COMPANY

Appeal from the Circuit Court for Cumberland County
No. CV003993 John J. Maddux, Jr., Judge

No. E2005-01578-COA-R3-CV - FILED JUNE 21, 2006

While traveling on a rain-slick road at a moderate rate of speed, Betty Potter lost control of her 1997
Ford Escort which spun around and crashed into a tree. Her seat back collapsed into the rear seat
and her spinal cord was severed. Betty Potter was rendered a paraplegic. She and her husband sued
Ford Motor Company (“Ford”) for the enhanced injuries Ms. Potter received as a result of the
collapse of her seat back. The jury found Ford to be 70% at fault, Ms. Potter to be 30% at fault, and
determined Ms. Potter’s compensatory damages to be ten million dollars. Judgment was entered for
Ms. Potter in the amount of seven million dollars. The primary issues Ford raises on this appeal are
(1) whether the trial court erred in refusing to grant Ford a judgment notwithstanding the verdict; and
(2) whether the trial court erred in refusing to instruct the jury on the doctrine of intervening cause.
We hold that Ms. Potter presented material evidence from which the jury could reasonably conclude
that the Ford Escort was defective, and that the trial court correctly found the intervening cause
doctrine inapplicable in a case such as this one, where the alleged intervening cause is the negligent
conduct of the plaintiff. We therefore affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR., J., joined.
HERSCHEL PICKENS FRANKS, P.J., filed a concurring opinion.

P. Edward Pratt and Ashley Meredith Lowe, Knoxville, Tennessee, and Fred J. Fresard and Jeffrey
T. Gorcyca, Troy, Michigan, for the Appellant, Ford Motor Company.

Andrew R. Tillman, Knoxville, Tennessee, and Clifton M. Smart, III, Springfield, Missouri, for the
Appellee, Betty Potter.
 OPINION

I. Factual and Procedural Background

On September 26, 2002, Betty Potter was driving her 1997 Ford Escort on Genesis Road
north of Crossville, Tennessee. It had been raining lightly that morning and the roads were wet. Ms.
Potter testified that she had her seat belt on and was driving between 35 and 40 miles per hour in a
40 m.p.h. zone. The rear tires on her car were excessively worn; the passenger side rear tire had bald
spots. Shortly after she rounded a curve in the road, the Ford Escort began to slide off the road,
struck two road signs, spun around approximately 180 degrees, and, traveling backwards, struck a
tree. The car was traveling approximately 30 miles per hour at the time of impact.

At the time of the accident, Ms. Potter weighed approximately 230 pounds. When the rear
of the Ford Escort struck the tree, Ms. Potter’s seat back collapsed, allowing her to “submarine”
under her seat belt and strike the rear seat back. Her collision with the rear seat fractured four
thoracic vertebrae, severed her spinal cord and paralyzed her from the chest down. Ms. Potter, who
was 42 years old at the time of the wreck, lost the ability to walk, control her bladder or bowels, and
tend to her daily needs. She is dependent on her husband and others to take care of her.

Ms. Potter and her husband sued Ford alleging that the seat back of the Ford Escort was
defective and that Ford was negligent in that, among other things, it designed, manufactured, and
distributed the Ford Escort with a seat frame of inadequate strength to prevent the seat back from
collapsing in a foreseeable rear-end collision. Ms. Potter admitted responsibility for losing control
of her car and thus causing the accident; therefore, her only claim for damages was for the enhanced
injuries she incurred because of the seat back collapse and her collision with the back seat of the car.
Ford answered, denying that the Ford Escort was defective and alleging, among other things, that
Ms. Potter’s comparative negligence was greater than Ford’s and that her conduct was an intervening
cause which superseded its own negligence, if any.

At the conclusion of the roughly three-week trial, the trial court declined to instruct the jury
on the intervening cause doctrine, over Ford’s objection. The jury returned a verdict finding Ford
70% at fault and setting Ms. Potter’s total damages at ten million dollars. The jury did not award
Mr. Potter any damages and he did not appeal.1 Ford moved the trial court for judgment
notwithstanding the verdict or for a new trial. The trial court denied the motion and, acting as
thirteenth juror, expressly approved the verdict. The trial court entered judgment for Ms. Potter in
the amount of seven million dollars, and Ford appealed.

1
In closing argument, the Potters’ counsel stated that Mr. Potter wanted whatever money the jury would allocate
to him to go to his wife.

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 II. Issues Presented

Ford raises the following issues for our review:2

(1) Whether the trial court erred in refusing to grant Ford a judgment notwithstanding the
verdict because Ms. Potter failed to prove the Ford Escort was defective.

(2) Whether the trial court erred in refusing to instruct the jury on the doctrine of intervening
cause.

(3) Whether the verdict form and jury charge on enhanced damages were deficient under
Tennessee law.

III. Defective Product

Ford argues that the trial court erred in refusing to grant it a judgment notwithstanding the
verdict, because, it alleges, Ms. Potter failed to carry her burden of proving that the Ford Escort was
defective when it left Ford’s control. Our Supreme Court has stated the standard of review in ruling
on a motion for judgment notwithstanding the verdict, or JNOV, as follows:

The standards governing trial courts in ruling on motions for directed
verdict or JNOV in negligence cases are well established. In ruling on
the motion, the court must take the strongest legitimate view of the
evidence in favor of the non-moving party. In other words, the court
must remove any conflict in the evidence by construing it in the light
most favorable to the non-movant and discarding all countervailing
evidence. The court may grant the motion only if, after assessing the
evidence according to the foregoing standards, it determines that
reasonable minds could not differ as to the conclusions to be drawn
from the evidence. Sauls v. Evans, 635 S.W.2d 377 (Tenn.1982);
Holmes v. Wilson, 551 S.W.2d 682 (Tenn.1977). If there is any doubt
as to the proper conclusions to be drawn from the evidence, the
motion must be denied. Crosslin v. Alsup, 594 S.W.2d 379
(Tenn.1980).

Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994).

2
Ford raises a total of four issues in its brief, but at oral argument before this court, counsel for Ford stated that
it was abandoning its fourth issue on appeal.

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 In this case, we are presented not only with a ruling denying the motion for a JNOV, but also
with a duly approved jury verdict. In the case of Johnson v. Settle, No. M1999-01237-COA-R3-CV,
2001 WL 585093 at *2 (Tenn. Ct. App. M.S., June 1, 2001), the court analyzed the relationship
between the above-stated standard of review and the “material evidence” standard of review of a jury
verdict, Tenn. R. App. P. 13(d), as follows:

In Alexander v. Armentrout, our Supreme Court has recently
discussed the interplay between the standard of review for directed
verdict and the material evidence rule. In that case, the Court
determined that the Court of Appeals had correctly stated the
applicable standard of review for a motion for directed verdict, as set
out above, but had misapplied the standard when evaluating the
evidence. 24 S.W.2d at 271. The error on the part of the intermediate
court was engaging in a de novo review of the evidence “in that it
appears to have disregarded the jury's findings and to have
reevaluated the evidence in its entirety.” Id.; see also Williams v.
Brown, 860 S.W.2d 854, 857 (Tenn.1993) (on review of the grant of
a directed verdict, it is not the office of an appellate court to weigh
the evidence.) In Armentrout, the Supreme Court then proceeded to
examine the sufficiency of the evidence in the record to support the
jury's specific factual findings, reflected in a special verdict form, and
found, under the “no material evidence rule,” that there was evidence
to support those findings. 24 S.W.2d at 271, 272. Those findings of
fact determined the legal issues involved, and the Court affirmed the
trial court's denial of directed verdict. Id. at 274.

Johnson v. Settle, 2001 WL 585093 at *2. In In re Estate of Brindley, No. M1999-02224-COA-R3-
CV, 2002 WL 1827578 (Tenn. Ct. App. M.S., Aug. 7, 2002), the court repeated the above-quoted
observations, which correctly note, albeit implicitly, that while the Armentrout Court cited both the
material evidence rule and the JNOV standard of review as applicable, it reviewed the record to
determine if there was any material evidence supporting the verdict. Alexander v. Armentrout, 24
S.W.3d 267 at 271-72, 273 (Tenn. 2000). As the Brindley court noted, “[i]f there is material
evidence to support the jury’s findings, then, of necessity, granting a directed verdict for the losing
party would have been improper because the evidence permitted reasonable minds to reach a
conclusion different from that asserted by the losing party.” Brindley, 2002 WL 1827578 at *2.

Under the material evidence standard, our review of a jury's factual findings in a civil action
is limited to determining whether any material evidence supported the verdict. Id.; Tenn. R. App.
P. 13(d). The appellate courts do not determine the credibility of witnesses or weigh evidence on
appeal from a jury verdict. Id.; Conatser v. Clarksville Coca Cola Bottling Co., 920 S.W.2d 646, 647
(Tenn. 1995); Benson v. Tennessee Valley Elec. Coop., 868 S.W.2d 630, 638-39 (Tenn. Ct. App.
1993). Where the record contains material evidence supporting the verdict, the judgment based on

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that verdict will not be disturbed on appeal. Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822,
823 (Tenn. 1994); Whaley v. Rheem Mfr’g Co., 900 S.W.2d 296, 300 (Tenn. Ct. App. 1995).

Keeping the above guidance in mind, based upon our review of the record, we hold the trial
court did not err in refusing to grant Ford judgment notwithstanding the verdict, and that there is
ample material evidence supporting the verdict.

Ford argues that “to establish a prima facie case, the plaintiff must prove ‘the availability of
a technologically feasible and practical alternative design that would have reduced or prevented the
plaintiff’s harm.’” Ford cites the case of Martin v. Michelin North America, Inc., 92 F. Supp.2d 745,
753 (E.D. Tenn. 2000) in support of this proposition. Ms. Potter responds by arguing that no
Tennessee state court has stated that such a showing is required to establish a prima facie case under
the Tennessee Products Liability Act. Ford does not dispute this proposition in its reply brief, nor
does our independent research on Tennessee product liability law indicate otherwise.

While Martin does make such a statement, quoting with apparent approval the Restatement
(Third) of Torts § 2, comment f, no court has subsequently cited this case for the proposition that a
showing of a technologically feasible and practical alternative design that would have reduced or
prevented the plaintiff’s harm is always required as an element of a plaintiff’s prima facie case. The
Tennessee Products Liability Act, T.C.A. § 29-28-101 et seq., governs this case and it provides in
relevant part:
(a) A manufacturer or seller of a product shall not be liable for any
injury to a person or property caused by the product unless 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.

(b) In making this determination, 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.

T.C.A. § 29-28-105. Generally, the Tennessee cases stating what a plaintiff must show to establish
a prima facie case for a defective product either quote, or closely track, the language of the statute
above. See, e.g., Baker v. Promark Products West, Inc., 692 S.W.2d 844, 849 (Tenn.
1985)(“Plaintiff of course must bear the initial burden of establishing that the product was ‘in a
defective condition or unreasonably dangerous at the time it left the control of the manufacturer or
seller’”); Brown v. Crown Equipment Corp., 181 S.W.3d 268, 281 (Tenn. 2005); Jackson v. General
Motors Corp., 60 S.W.3d 800, 805 (Tenn. 2001); Ray v. BIC Corp., 925 S.W.2d 527, 529

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(Tenn.1996); Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

Of course, evidence of a technologically feasible and practical alternative design that likely
would have reduced or prevented plaintiff’s harm will always be highly relevant and probative of
the issue of whether a product was defective or unreasonably dangerous, as the language of T.C.A.
§ 29-28-105(b) provides. Brown, 181 S.W.3d at 278; Hood v. Roadtec, Inc., 785 S.W.2d 359, 363
(Tenn. Ct. App. 1990). But while we have no quarrel with the outcome of the Martin case, we do
not believe its statement quoted and relied upon by Ford accurately reflects the current state of
Tennessee products liability law.

In her amended complaint, Ms. Potter elected to abandon her theory that the Ford Escort was
“unreasonably dangerous” and proceeded upon the theories that it was in a “defective condition” and
that Ford was negligent in its design and manufacture of the car. “Defective condition” is defined
at T.C.A. § 29-28-102(b) as “a condition of a product that renders it unsafe for normal or
anticipatable handling and consumption.” The essence of Ms. Potter’s theory, as stated in her
amended complaint, was that the Ford Escort “was defective when put to a use reasonably
anticipated in that [t]he seat was designed and manufactured of inadequate strength to prevent its
collapse in a foreseeable collision.”

At trial, Ms. Potter presented the testimony of Dr. Kenneth Saczalski, a mechanical engineer
and design engineering expert. Dr. Saczalski testified as follows as to his testing and analysis of the
Ford Escort seat at issue, in addition to other, stronger seat designs that were available and in
commercial use at the time of the accident:

I examined the accident vehicle, reviewed some records of the
accident itself, medical records, and I conducted some what we call
quasi-static seat tests to look – to look at the strength of not only the
seat involved in this vehicle but other seats by Ford, made by Ford
and made by other manufacturers. So, there were some quasi-static
seat strength tests that I conducted and others that I had conducted
previously that I gathered together [to] see the comparison of strength
in what we call quasi-static measurements. That’s when we load the
seat very slowly to see what the peak strength characteristics are.

In addition to that, I ran a vehicle into a pole under conditions that
simulated the actual accident condition, that is the speed, the offsets
of impact, things of that nature with a surrogate or a dummy roughly
the same size as Mrs. Potter and in a what we call OEM, original
equipment manufactured, seat, the ‘97 Escort seat. We instrumented
that dummy in the test. We took photographs. We made videos. We
did high-speed videos. We made measurements before and after.
Measured the damage of that vehicle after the test, compared it to the
accident vehicle.

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 And then after that I ran another test. We ran a test where we took the
same conditions, moved the pole just slightly, brought the vehicle
into the pole slightly faster but with approximately the same size
surrogate, but in this case we replaced the driver’s seat with a stronger
belt integrated seat, a 1996 [Chrysler] Sebring convertible design.
And, again, the same types of measurements were made...and then
these results were put together in a table and compared side by side
to show the difference in response had someone the size of Mrs.
Potter been in an accident of this severity in a different seat other than
the one that she had.

In addition to that, I had done some other...more general tests looking
at a wider range of impact severity, that is low velocities like ten
miles per hour on up to 30 mile an hour impact changes, velocity
changes, and also with a wider spectrum of occupants during these
low velocity to high velocity...These tests were also run with a side
by side comparison so you could see for the same size occupant under
the same impact severity what the performance would be in one seat
where in this case the driver’s seat was the OEM, in this case a ‘95,
we were looking at a ‘95 Escort compared to the ‘96 Sebring belt
integrated seat.
* * *
[I]n addition to that then I reviewed a number of publications, and
articles, and learned treatises, and combined all of that data to look at
what the history was and the knowledge within the public sector on
seat design for let’s say a seat that yields versus a seat that stays
upright more or stays stronger.

Dr. Saczalski testified that the deficiency, or the unsafe aspect, of the Ford Escort seat design
was that it was unable to absorb enough energy generated by the collision to prevent it from
collapsing in an uncontrolled fashion. Dr. Saczalski stated that in the quasi-static test, the 1997 Ford
Escort seat failed at a load of “a little over 1,000 pounds,” whereas other available seat designs, some
of which had been incorporated into other Ford vehicles, failed at loads ranging from over 2,000
pounds to over 4,500 pounds. The belt integrated seat on the 1996 Sebring failed at roughly 3,300
pounds.

Dr. Saczalski’s pole-crash tests yielded the conclusion that, using a 232-pound dummy
surrogate, the risk of an AIS (Abbreviated Injury Scale) 3+ neck injury, or an injury involving the
tearing of soft tissue, with the Ford Escort seat design was approximately 73.31%, compared to
approximately 3.58% with the Sebring seat design. The risk of an AIS 4+ head injury, described as
a “very severe head injury,” with the Ford Escort seat was approximately 52%, compared with a risk
of less than 2% with the stronger Sebring design. Based on the results of his testing and analysis,
Dr. Saczalski testified that his conclusion was “that had Mrs. Potter had the benefit of the stronger
design which was available, commercially available, she would not have received her injuries based

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on what you saw visually of the kinematics of the dummy and based on what we measured
electronically comparing the two side by side.”

After testifying for more than a full day at trial, Dr. Saczalski’s direct testimony concluded
as follows:

Q: We started yesterday afternoon, Dr. Saczalski, with these five
questions; was the seat in the 1997 Ford Escort unsafe when
manufactured. Was it?

A: It was, yes.

Q: Were there feasible and economical design alternative[s] to correct
any such design defects?

A: Yes, there were.

* * *

Q: Number four, did the unsafe condition in the Escort seat cause
Betty Potter’s paralysis based on your testing?

A: Yes. Based on the results we showed you, the comparative results
from our first two pole impact tests it did.

Q: Would Betty Potter have been catastrophically injured in a belt
integrated seat like the Sebring convertible seat in this wreck?

A: The answer is no, as long as it was properly mounted to the
vehicle interior. Even without that optimum headrest.

In his testimony, Dr. Saczalski described several and various seat designs that were feasible
and in commercial use at the time of the 1997 Ford Escort’s manufacture, that were engineered to
withstand and absorb significantly more energy in a rear-end collision and thus be less likely to
collapse uncontrollably. Dr. Saczalski testified that the estimated cost to Ford of incorporating a
stronger seat design “would be roughly four and a half to maybe seven dollars, depending on the
volume.” He stated that he was familiar with a study by Ford in the early 1990s doing a product
cost analysis of incorporating a seat-integrated restraint system, such as was in the Sebring, that
concluded the additional manufacturing cost to be $6.64 per vehicle.

Ford’s attack on Dr. Saczalski’s analysis stems from the fact that in some of the tests, his data
showed a slightly increased risk of injury with the Sebring seat design as compared with the Ford
Escort design. For instance, in a test using a 176-pound dummy, rear impact, change of velocity 10
m.p.h., the approximate risk of an AIS 3+ (soft tissue) neck injury was 3.15% for the Ford Escort

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and 4.41% for the Sebring. In a similar test conducted with a 30 m.p.h. change of velocity, the
approximate risk of an AIS 3+ neck injury was 5.00% for the Ford Escort and 7.23% for the Sebring;
but at the same time, the approximate percentage of the population at risk of an AIS 4+ (severe) head
injury was 40% for the Ford Escort and less than 2% for the Sebring. A chart of data averaged in
a pair of tests with a 238-pound dummy and impact resulting in a change of velocity of 30 m.p.h.
showed a risk of severe head injury of 80% with the Ford Escort seat and less than 2% with the
Sebring seat.

Dr. Saczalski testified as follows regarding the test data:

Q: And so if one if the reasons given by a manufacturer is we’re
afraid we’re going to have a lot more whiplash injuries if we go to the
twice as strong belt integrated seat, anything in your test that would
validate that?

A: No. No. Now, like I said, some cases that – the 175 pound I think
we were 4.81 percent risk of a whiplash injury versus 3.8 on the OEM
seat, but that one percent difference between the two seats certainly
can’t justify not putting the stronger seat in when you see the
devastating results at the higher velocity for the people that are really
seriously injured, and permanently injured, and fatally injured.
* * *
Q: In terms of the ten mile per hour low speed test that you ran, any
significant difference, any significant risk of injury between the two
kinds of seats?

A: No, they’re usually very close to one another or maybe one may be
slightly higher but there’s nothing significant at ten miles an hour.
* * *
Q: When we look at your data as a whole rather than picking two
blocks out of the thousand or so that are there, what do you conclude?

A: You have to conclude that you’re better off in [the] seat that has
the, clearly no red boxes3 in it, because that’s the one at the more
severe level. You don’t cause any injury to the occupant in that seat,
nor do you cause any injury to a rear occupant, other than maybe
minor, lower torso possible injuries. And then when you go to the
lower velocity range and look at the 10 mile an hour data, you also
see that there may be some slight differences, where in some cases,
not in all, but maybe in one or two of the surrogates, the average size

3
In certain exhibits presented to the jury in chart form, the crash test data were placed in cells and the chart
noted that “red boxed cells in Table indicate injury measures that exceed 1998 NHTSA [National Highway Traffic
Safety Administration] injury values.” The red boxed cells were all in the Ford Escort seat’s columns.

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 surrogate male may show some slight increase because we didn’t
have an optimum headrest in the Sebring seat. But that doesn’t mean
you can’t design it out, just like Ford did in their seat. They designed
it out and they have a better headrest. And that’s what could be done
in here. I wouldn’t penalize the Sebring seat because those numbers
came out slightly different at 10 miles an hour, when I look at the
catastrophic effects at the higher speeds.

Ford argues that because Dr. Saczalski’s data shows a slightly increased risk of soft issue
injuries for persons in a certain weight range in a 10 m.p.h. collision, Ms. Potter, as a matter of law,
did not prove the Ford Escort seat design was defective, and the trial court should have granted a
judgment notwithstanding the verdict. We do not agree. The data was presented to the jury, it was
for the jury to decide, and the jury concluded that the Ford Escort was defective. There is abundant
material evidence supporting this conclusion. We affirm the judgment of the trial court refusing to
grant Ford a JNOV and approving the jury verdict.

III. Intervening Cause Doctrine

Ford argues on appeal that it was error for the trial court to refuse to instruct the jury on the
intervening cause doctrine. Ford’s position is that the jury should have been allowed to consider
whether Ms. Potter’s own admittedly negligent conduct in losing control of her car was an
independent, intervening cause of her injuries, such that it superseded Ford’s negligence. Ms. Potter
argues that all of the issues that were pertinent and relevant to this case were correctly submitted to
the jury under the comparative negligence analysis and accompanying instruction, including issues
of proximate cause and foreseeability. Ms. Potter argues that in such a case as this, where the alleged
intervening cause is the negligent action of the plaintiff herself, the application of the intervening
cause doctrine in addition to the comparative negligence doctrine is at best unnecessarily duplicative,
and at worst an invitation to confusion and error. We hold that an intervening cause was not present
in this case because only the conduct of Ms. Potter and Ford was to be considered - not the conduct
of a third party. Accordingly, a jury instruction on intervening cause was not necessary, and if given
would have been error.

The intervening cause doctrine operates to relieve a negligent actor from liability “when a
new, independent and unforeseen cause intervenes to produce a result that the negligent actor could
not have reasonably foreseen.” Rains v. Bend of the River, 124 S.W.3d 580, 593 (Tenn. Ct. App.
2003); White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998). “The doctrine applies only when the
intervening act (1) was sufficient by itself to cause the injury, (2) was not reasonably foreseeable to
the negligent actor, and (3) was not a normal response to the negligent actor’s conduct.” Rains, 124
S.W.3d at 593; Waste Mgmt., Inc. of Tenn. v. South Central Bell Tel. Co., 15 S.W.3d 425, 432
(Tenn. Ct. App. 1997); Elosiebo v. State, No. E2003-02941-COA-R3-CV, 2004 WL 2709206 at *2
(Tenn. Ct. App. E.S., Nov. 29, 2004). When the above elements are met, the intervening act is said
to be a superseding cause, which “breaks the chain of proximate causation.” White, 975 S.W.2d at
529; Haynes v. Hamilton Co., 883 S.W.2d 606, 612 (Tenn. 1994); McClenahan v. Cooley, 806
S.W.2d 767, 775 (Tenn. 1991). The conduct of the third party or other force supplants the

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defendant’s conduct as the legal cause of the plaintiff’s injuries. Thus, the intervening, superseding
cause relieves the defendant of liability to the plaintiff.

The following comment from the Supreme Court illustrates the interconnection between the
concepts of intervening cause and proximate or legal cause, and the significance of foreseeability to
both concepts:

With respect to superseding intervening causes that might break the
chain of proximate causation, the rule is established that it is not
necessary that tortfeasors or concurrent forces act in concert, or that
there be a joint operation or a union of act or intent, in order for the
negligence of each to be regarded as the proximate cause of the
injuries, thereby rendering all tortfeasors liable. See Cartwright v.
Graves, 182 Tenn. 114, 184 S.W.2d 373, 381 (1944); Whitehurst v.
Howell, 20 Tenn.App. 314, 98 S.W.2d 1071, 1081 (1936); Morris v.
Bolling, 31 Tenn.App. 577, 218 S.W.2d 754, 758 (1949). There is no
requirement that a cause, to be regarded as the proximate cause of an
injury, be the sole cause, the last act, or the one nearest to the injury,
provided it is a substantial factor in producing the end result.
Lancaster, 390 S.W.2d at 221; Kroger Co., 387 S.W.2d at 626;
Roberts at 871. An intervening act, which is a normal response
created by negligence, is not a superseding, intervening cause so as
to relieve the original wrongdoer of liability, provided the intervening
act could have reasonably been foreseen and the conduct was a
substantial factor in bringing about the harm. Solomon v. Hall, 767
S.W.2d 158, 161 (Tenn.App.1988). “An intervening act will not
exculpate the original wrongdoer unless it appears that the negligent
intervening act could not have been reasonably anticipated.” Evridge
v. American Honda Motor Co., 685 S.W.2d 632, 635 (Tenn.1985);
Ford Motor Co. v. Wagoner, 183 Tenn. 392, 192 S.W.2d 840, 843
(1946). See also Restatement (Second) of Torts, Section 447 (1965).
“It is only where misconduct was to be anticipated, and taking the risk
of it was unreasonable, that liability will be imposed for
consequences to which such intervening acts contributed.” Prosser,
supra. Just as in the case of proximate causation, the question of
superseding intervening cause is a matter peculiarly for the jury
because of foreseeability considerations. See Brookins at 550;
Evridge at 635; Young v. Reliance Electric Co., 584 S.W.2d 663, 669
(Tenn.App.1979).

McClenahan, 806 S.W.2d at 775-76.

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 There are several reasons why the intervening cause doctrine is inapplicable where the
alleged intervening, superseding cause is the plaintiff’s own negligent conduct. We initially note that
Ford has not cited any Tennessee case holding the plaintiff’s own negligent conduct to be an
intervening, superseding cause, thereby cutting off his or her recovery, nor has our research revealed
such a case. Although our courts have recognized that “suicide may constitute an intervening cause
if it is a willful, calculated and deliberate act of one who has the power of choice,” White, 975
S.W.2d at 530; Rains, 124 S.W.3d at 593 and cases therein cited, we are presented here with a
plaintiff’s negligent, not intentional, conduct.

In Dunnivant v. Nafe, 334 S.W.2d 717 (Tenn. 1960), the Tennessee Supreme Court adopted
the following definition of “superseding cause” from the Second Restatement of Torts, § 440: “A
superseding cause is an act of a third person or other force which by its intervention prevents the
actor from being liable for harm to another which his antecedent negligence is a substantial factor
in bringing about.” Id. at 719 (emphasis added). We are of the opinion that the Restatement
(Second) of Torts §440's definition of superseding cause as involving a “third person or other force”
is not met when the alleged superseding cause is the conduct of either the initial defendant or that
of the plaintiff. In the present case, there is no allegation of a third tortfeasor or other malfeasant
force – only the negligence of the Plaintiff and the Defendant Ford, which are properly and
adequately compared under our comparative negligence system, with no need for the intervening
cause doctrine.

In Perez v. McConkey, our Supreme Court, abolishing the doctrine of implied assumption
of risk, noted that “it would be ironic indeed if, after abolishing the all-or-nothing proposition of
contributory negligence in McIntyre [v. Ballentine, 833 S.W.2d 52], we were to reinstate it here
using the vehicle of assumption of risk.” Perez, 872 S.W.2d 897, 905 (Tenn. 1994). We are of the
opinion that applying the bar of intervening, superseding cause to a plaintiff’s negligent conduct
would mark a return to the “all-or-nothing proposition” rejected in McConkey. It is simply an
unnecessary analysis when a much more refined and better legal tool – comparative negligence and
comparative fault4 – is now available.

Our review of jurisprudence from our jurisdictions addressing this question finds general
agreement for this position. See Von Der Heide v. Commonwealth of Pennsylvania, 718 A.2d 286,
289 (Pa. 1998)(holding “a superseding cause was not present in this case because there was never
a third party or event to be considered beyond the conduct of the defendant and the plaintiff.”); Barry
v. Quality Steel Prods., 820 A.2d 258 (Conn. 2003)(stating that “the instruction on superseding cause
complicates what is essentially a proximate cause analysis and risks jury confusion”); Control
Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108 (Ind. 2002)(the superseding cause “doctrine in
today’s world adds nothing to the requirement of foreseeability that is not already inherent in the
requirement of causation”); Torres v. El Paso Elec. Co., 987 P.2d 386 (N.M. 1999)(overruled on
other grounds by Herrera v. Quality Pontiac, 73 P.3d 181 (N.M. 2003); Brooks v. Logan, 903 P.2d

4
For a discussion of the difference between these two concepts, see Turner v. Jordan, 957 S.W .2d 815, 821
(Tenn. 1997) and Owens v. Truckstops of America, 915 S.W .2d 420, 425 n.7 (Tenn. 1996).

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73 (Idaho 1995)(superseded by statute on other grounds); Sumpter v. City of Moulton, 519 N.W.2d
427 (Iowa Ct. App. 1994); Roggow v. Mineral Processing Corp., 894 F.2d 246, 248 (7th Cir. 1990);
Laney v. Coleman Co., Inc., 758 F.2d 1299, 1305-06 (8th Cir. 1985); Vasina v. Grumman Corp., 644
F.2d 112, 114-16 (2nd Cir. 1981).5

Ford argues on appeal that the circumstances of this case are so unusual (Ford characterizes
them as “bizarre”) that they were entirely unforeseeable. Ford asserts that it could not be expected
to foresee that a seriously overweight plaintiff would be driving in the rain on badly worn tires, lose
control of the car and collide backwards into a tree at roughly 30 miles an hour. However, as the
McClenahan Court stated,

The foreseeability requirement is not so strict as to require the
tortfeasor to foresee the exact manner in which the injury takes place,
provided it is determined that the tortfeasor could foresee, or through
the exercise of reasonable diligence should have foreseen, the general
manner in which the injury or loss occurred. Roberts at 871; Wyatt at
280-81. “The fact that an accident may be freakish does not per se
make it unpredictable or unforeseen.” City of Elizabethton v. Sluder,
534 S.W.2d 115, 117 (Tenn.1976). It is sufficient that harm in the
abstract could reasonably be foreseen. Shell Oil Co. v. Blanks, 46
Tenn.App. 539, 330 S.W.2d 569, 572 (1959).

McClenahan, 806 S.W.2d at 775; accord Bara v. Clarksville Mem. Health Systems, Inc., 104 S.W.3d
1, 12 (Tenn. Ct. App. 2002).

We do not agree that the harm in the abstract – a rear-end collision resulting in a change of
velocity of approximately 30 m.p.h. – was unforeseeable to Ford when it was designing and
manufacturing its Ford Escort seats. See Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 519 (Tenn.
1973)(holding “collisions are clearly foreseeable by the manufacturer [who] therefore has a duty to
minimize the harm of inevitable accidents by utilizing reasonably safe design”). But more important
and relevant than our view on this issue is the fact that the trial court fully and accurately instructed
the jury on the issues of proximate cause and foreseeability, and the jury rejected Ford’s position.
The trial court’s refusal to instruct the jury on intervening cause did not take away its determination
of foreseeability, as Ford argues.

5
See also Michael D. Green, The Unanticipated Ripples of Comparative Negligence: Superseding Cause in
Products Liability and Beyond, 53 S.C. L. Rev. 1103 (Summer 2002); Terry Christlieb, Why Superseding Cause Should
be Abandoned, 72 Tex. L. Rev. 161 (Nov. 1993).

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 Further, the jury was instructed that Ford could only be held liable for Ms. Potter’s enhanced
injuries, those she suffered as a result of her collision with the back seat due to the collapse of the
driver’s seat, as follows:

Ford Motor Company is not responsible for any injuries except those
legally caused by Ford Motor Company. Ford Motor Company can
only be responsible for any enhanced injuries.

Enhanced injuries refers to the plaintiff’s injuries, if any, that were
caused by defects, if any, in the 1997 Ford Escort, or because of
Ford’s negligence, if any, over and above those injuries that probably
would have occurred as a result of the accident absent any defect or
negligence caused by Ford.

The jury’s verdict thus reflected only the damages it found to have been caused by the defective seat
back. The intervening cause doctrine applies only when the intervening act “was sufficient by itself
to cause the injury.” Rains, 124 S.W.3d at 593; Waste Mgmt., Inc. of Tenn. v. South Central Bell Tel.
Co., 15 S.W.3d 425, 432 (Tenn. Ct. App. 1997). In following the above instruction, the jury by
necessity determined that Ms. Potter’s negligent act in losing control of the car was not sufficient
by itself to cause the injuries for which she sued Ford. Therefore, though we have held it was not
error for the trial court to have found the intervening cause doctrine inapplicable under these
circumstances, even if it was error, it was clearly harmless in light of the properly-approved jury
verdict.

IV. Jury Verdict Form

Ford argues that the verdict form and jury charge on enhanced damages were deficient under
Tennessee law. Ford concedes that the enhanced injury instruction and the verdict form were in
accordance with the principles articulated in Cruze v. Ford Motor Co., No. 03A01-9907-CV-00245,
1999 WL 1206798 (Tenn. Ct. App. E.S., Dec. 16, 1999). Cruze was also an enhanced injury case
involving the “crashworthiness” of a Ford Escort, and Ford here reiterates some of its arguments
regarding the jury charge and verdict form. In this case, Ford argues that Cruze was incorrectly
decided. We believe Cruze was well-reasoned and correctly decided. We have reviewed the verdict
form and the jury instructions, and hold that they fairly and adequately instructed the jury in this
case.

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 V. Conclusion

The judgment of the trial court approving and incorporating the jury verdict in favor of Ms.
Potter is affirmed. Costs on appeal are assessed to the Appellant, Ford Motor Company.

____________________________________
SHARON G. LEE, JUDGE

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