IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
JOSEPH CARL OWENS, ) FOR PUBLICATION
)
Plaintiff/Appellant, )
)
v. ) Davidson Circuit
)
TRUCKSTOPS OF AMERICA, ) Hon. Marietta M. Shipley,
TRUCKSTOPS OF AMERICA, INC., ) Judge
and B.P. AMERICA, INC., )
)
Defendants/ )
Third-Party Plaintiffs/Appellees, )
) No. 01S01-9408-CV-00077
v. )
)
B. MICHAEL DESIGN, INC. and )
VITRO PRODUCTS, INC., )
) FILED
Third-Party Defendants/ ) January 29,
Appellees. ) 1996
Cecil Crowson, Jr.
Appellate Court Clerk
DISSENTING (IN PART) OPINION
DROWOTA, J.
Based on the plaintiff's expectations at the time he filed this lawsuit in 1988,
I agree with the majority that, in this transition case, it is reasonable to permit the
plaintiff to recover from the defendants that he named in his complaint ("Truckstops")
all of his damages that were proximately caused by Truckstops and that were not
attributable to the plaintiff's own fault (if any). I also agree with the majority that it is
fair in this transition case to permit Truckstops to receive contribution from the parties
that were named by Truckstops as third-party defendants. However, I believe that
the contribution should be based on the parties' respective percentages of fault, and
that this method should apply not only to the negligence claims set forth in the third-
party complaint, but to the strict products liability claim as well. If liability were thus
linked to fault on each claim in the third-party complaint, each defendant (including
the third-party defendants) would be liable only for the percentage of the plaintiff's
damages that was caused by that defendant's fault, and the doctrine of joint and
several liability would have no application.
First of all, this Court has repeatedly disapproved of the doctrine of joint and
several liability in a general sense. In McIntyre v. Balentine we stated, in dicta, that
joint and several liability was rendered obsolete by the adoption of comparative
negligence. We confirmed the obsolescence of the doctrine of joint and several
liability in Volz v. Ledes, 895 S.W.2d 677 (Tenn. 1995), in which we stated as follows:
We again confirm that the doctrine of joint and several liability was
rendered obsolete by our decision in McIntyre v. Balentine. We believe
that a system wherein a particular defendant is liable only for the
percentage of a plaintiff's damages that are caused by that defendant's
fault is the system that best achieves our stated goal in McIntyre v.
Balentine of linking liability and fault. In keeping with this goal, we
decline to adopt a rule comparable to the rule under the Uniform
Comparative Fault Act pursuant to which the liability of a given
defendant is enhanced beyond that defendant's percentage of fault if
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another culpable defendant is insolvent. We do not believe that the
goal of linking liability with fault is furthered by a rule that allows a
particular defendant's liability to be determined by the happenstance of
the financial wherewithal of other defendants.
895 S.W.2d at 680 (emphasis added).
In addition to our general disapproval of joint and several liability, we have
recently decided two cases, Bervoets v. Harde Ralls Pontiac-Olds, Inc., 891 S.W.2d
905 (Tenn. 1994) and Whitehead v. Toyota Motor Company, 897 S.W.2d 684 (Tenn.
1995), which, when considered in tandem, appear to me to require a different result
from that reached by the majority. In Bervoets, one of several defendants settled with
the plaintiff, who had been injured in an automobile accident. The settlement had the
effect of releasing the defendant who was actually a party to the settlement, as well
as all other defendants. The issue presented was whether the remedy of contribution
survived our McIntyre decision. In holding that it did, we stated as follows:
Therefore, we today reaffirm McIntyre and hold that actions for
contribution that are to be tried or retried after May 4, 1992, are to be
tried in accordance with the principles of comparative fault. Because
this case unquestionably fits in this category, on retrial the jury will
determine the percentage of fault attributable to each of the
defendants, and contribution will be ordered accordingly.
. . .
We are of the opinion that on the retrial of this case the jury should first
be informed of the amount of the settlement, and then asked to
determine if that settlement was reasonable according to the principles
of comparative fault. The jury may consider the fault of the plaintiff
Bervoets and the defendants Jackson (Safeco Insurance Company)
and Adanac, Inc. in making this determination. If the jury finds that the
settlement was reasonable, it shall proceed to determine the
percentage of fault attributable to each of the defendants, and
contribution will be ordered accordingly. If however, the jury finds that
the settlement was, according to the principles of comparative fault, '
in excess of what was reasonable,' this same jury will then determine
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the proper amount of damages; and the jury may consider the fault of
plaintiff and the two defendants in making this determination. Once the
jury has determined the proper amount of damages, it shall then
determine the fault attributable to each of the defendants. If the jury
finds that the third-party defendant was at fault, contribution shall be
ordered from that defendant commensurate with its percentage of fault.
891 S.W.2d at 908(emphasis added).
If and when the plaintiff in this case obtains a judgment against Truckstops,
this case will be in a posture exactly analogous to the situation that existed in
Bervoets -- in other words, the plaintiff would be entitled to collect a given dollar
amount from one defendant, and would be precluded from directly collecting anything
from other would-be defendants. Contribution could then be determined according
to the method set forth in Bervoets.
The majority in this case has followed Bervoets with respect to the negligence
claims in the third-party complaint. However, it refuses to extend the Bervoets
rationale to the strict products liability claim, arguing that the theory of strict products
liability law necessarily requires the retention of joint and several liability, and thus
precludes any apportionment on the basis of fault. In my view, this Court's decision
in Whitehead, supra, defeats this argument. In that case, in which this Court was
answering questions that had been certified to us pursuant to Rule 23 of the Rules
of the Supreme Court, we stated as follows:
In light of the foregoing discussion, our answer to the first question
certified to us is that comparative fault principles do apply in products
liability actions based on strict liability in tort.
The conduct that leads to strict products liability involves fault, as the
word 'fault' is commonly understood. . . . In keeping with the principle
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of linking liability with fault, a plaintiff's ability to recover in a strict
products liability case should not be unaffected by the extent to which
his injuries result from his own fault."
897 S.W.2d at 693(emphasis added)(citation omitted).
Inasmuch as we have previously determined that contribution among
defendants should be ordered based on the defendants' respective percentages of
fault, and that the conduct that leads to strict products liability is based on fault,1 the
exception made by the majority for strict products liability claims represents, in my
view, a departure from our prior decisions. Because I do not believe that such a
departure promotes the considerations of fairness that prompted our adoption of
comparative fault, and because there is no reason to confuse the law by resurrecting
joint and several liability, I respectfully dissent.
1
Contrary to the assertion made in footnote 14 of the majority opinion, determining
the liability of each defendant according to that defendant's "separate fault" would
not require the plaintiff to prove "negligence" on the part of each defendant, thus
"abolishing strict liability." Rather, the plaintiff would, as always, only be required
to prove that a defective or unreasonably dangerous product was placed in the
stream of commerce, and that he or she was injured thereby. In fact, we have
already recognized this in Whitehead, where we stated: "plaintiffs will continue to
be relieved of proving that the manufacturer or distributor was negligent in the
production, design, or dissemination of the article in question. Defendant's liability
for injuries caused by a defective product remains strict." Whitehead, 897 S.W.2d
684, 691 (Tenn. 1995). If the plaintiff is able to carry this burden, the jury would
then apportion "fault" -- as that term is defined in Whitehead -- between the
various defendants, and each defendant's liability would be determined according
to that percentage. The majority's insistence that such a system would "abolish
strict liability" stems from its overly-expansive definition of that theory of liability.
Strict products liability only means that a plaintiff does not have to prove the
traditional elements of negligence on the part of the defendant or defendants in
order to recover; it does not necessarily require any particular system of damage
allocation, such as joint and several liability or comparative fault. Because the
majority appears to confuse burden of proof considerations with damage
allocation issues, I believe the majority erroneously concludes that the usage of
comparative fault in strict liability actions with multiple defendants "abolishes" strict
products liability.
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_________________________________
FRANK F. DROWOTA III
JUSTICE
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Owens v. Truckstops of America
Combined Opinion