Joyce Stockton v. Ford Motor Company

05/12/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 14, 2017 Session

JOYCE STOCKTON, ET AL. v. FORD MOTOR COMPANY

Appeal from the Circuit Court for Madison County

No. C-13-6 Roy B. Morgan, Jr., Judge

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No. W2016-01175-COA-R3-CV

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This is a jury case. Automobile mechanic and his wife, Appellees, filed suit against

Appellant Ford Motor Company for negligence in relation to wife’s diagnosis of

mesothelioma. Appellees allege that Ford’s brake products, which contained asbestos,

were unreasonably dangerous or defective such that Ford owed a duty to warn Mr.

Stockton so that he, in turn, could protect his wife from exposure to air-borne asbestos

fibers. The jury returned a verdict against Ford for $3.4 million. Ford appeals. Because

the jury verdict form is defective, in that it omits two necessary questions in products

liability cases, i.e., that the product at issue was unreasonably dangerous or defective and

that the plaintiff’s injuries were reasonably foreseeable, we vacate the judgment and

remand.

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

Vacated and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court. D. MICHAEL SWINEY, C.J.,

filed a separate concurring opinion. J. STEVEN STAFFORD, P.J., W.S., filed a separate

concurring and dissenting opinion.

Stephen A. Marcum, Huntsville, Tennessee; Jonathan D. Hacker and Brad N. Garcia, pro

hac vice, Washington, D.C., for the appellant, Ford Motor Company.

Harry Douglas Nichol, Knoxville, Tennessee; Jonathan Ruckdeschel, pro hac vice,

Ellicott City, Maryland; Robert Shuttlesworth and Ross Stomel, pro hac vice, Houston,

Texas, for the appellees, Joyce Stockton and Ronnie Stockton.

OPINION

I. Background

This is an appeal from a $3,400,000.00 jury verdict and judgment against

Appellant Ford Motor Company (“Ford”). Ronnie Stockton began working as an

automobile mechanic in 1971. In 1980, Mr. Stockton opened his own shop, Stockton

Auto, where he worked on vehicles of every make and model, including vehicles

manufactured by Ford. Mr. Stockton’s wife, Joyce (together with Mr. Stockton, the

“Stocktons,” or “Appellees”), never worked directly with Ford brake products; however,

she cleaned Stockton Auto twice per week and also laundered Mr. Stockton’s clothing,

which was exposed to asbestos dust. In 2011, Mrs. Stockton was diagnosed with

mesothelioma, a lung cancer directly caused by chrysotile asbestos. It is undisputed that,

in the mid-to-late 20th century, all automotive manufacturers used chrysotile asbestos in

various automotive products, including brake linings and pads. When brake linings and

pads are replaced, contaminant buildup (i.e., dust) must be cleaned from the brake

assembly. If care is not taken to contain that dust, it can spread into the air and can be

inhaled by mechanics and bystanders. Installing brake pads can require grinding the

brake pads to size, which can also generate dust.

The Stocktons initially filed suit in Illinois against sixty-one companies, including

Ford. The Stocktons alleged that Mrs. Stockton’s mesothelioma was caused by exposure

to asbestos used in the companies’ products. The defendants named in the Stocktons’

Illinois lawsuit were all settled or dismissed. Ford was dismissed on the ground of forum

non conveniens. Thereafter, on January 7, 2013, the Stocktons filed suit, in the Circuit

Court for Madison County, against Ford, on the theory of products liability. In relevant

part, Appellees’ complaint averred that:

5. Mrs. Stockton was secondarily and primarily exposed to asbestos-

containing products and dust emanating from those products which was

brought home on her husband’s clothing as a result of her husband’s

occupation as a mechanic. Defendant Ford Motor Company or its

predecessor-in-interest is, or at times material hereto, has been engaged in

the processing, manufacturing, sale, installation, and distribution of

asbestos or asbestos-containing products. Plaintiffs would show that

Plaintiff Joyce Stockton has been exposed, on numerous occasions, to

asbestos-containing products produced and sold by Defendant and, in so

doing, had inhaled great quantities of asbestos fibers. Further, Plaintiff

Joyce Stockton has suffered injuries proximately caused by her exposure to

asbestos-containing products designed, manufactured and sold by the

Defendant.

6. Plaintiff was exposed to asbestos-containing products that were

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manufactured, designed, and distributed by the Defendant and their

predecessors-in-interest for use in automobiles and commercial grade

trucks. Plaintiffs would show that the defective design and condition of the

products rendered such products unreasonably dangerous, and that the

asbestos-containing products were in this defective condition at the time

they were designed by or left the hands of the Defendant. Plaintiffs would

show that Defendant’s asbestos-containing products and requiring or

calling for the use of asbestos-containing products were defective in the

manner in which they were marketed for their failure to contain or include

warnings regarding potential asbestos health hazards associated with the

use of or the exposure to the products. Plaintiffs would show that this

market defect rendered such products and machinery requiring or calling

for the use of asbestos-containing products unreasonably dangerous at the

time they were designed or left the hands of the Defendant. Plaintiffs

would show that Defendant is liable in product liability including, but not

limited to, strict product liability for the above-described defects.

Based on the averments set out in their complaint, Appellees prayed for both

compensatory and punitive damages.

On April 10, 2013, Ford filed its answer, wherein it denied liability and raised, as

an affirmative defense, the comparative fault of the other manufacturers named in the

Illinois lawsuit and the comparative fault of Mr. Stockton. Concerning Mr. Stockton’s

alleged negligence, Ford averred that he possessed and repeatedly received warnings that

brakes and other components contained asbestos, that dust generated from those products

posed risks of serious bodily harm, and that the dust should not be inhaled or swept

without protection. At trial, Ford provided evidence that Mr. Stockton had received

training, in 1977 and 1982, explicitly warning that breathing dust from asbestos-

containing automobile products could be hazardous and that protective gloves and masks

should be worn when working with these products. In addition to this training, Ford also

introduced numerous shop manuals that Mr. Stockton had received during his career;

these manuals contained explicit warnings about the health risks associated with asbestos

in brake parts. Thus, Ford maintained that the duty to warn Mrs. Stockton fell to her

husband and not to Ford, which had no employer-employee relationship with Appellees.

The case was tried to a jury over several days in August of 2015. At trial,

Appellees’ theory of liability was that exposure to asbestos from Ford’s products caused

Mrs. Stockton’s mesothelioma. Appellees alleged that Ford was strictly liable for Mrs.

Stockton’s injuries, that Ford was negligent in the design of its products, and that Ford

was negligent in failing to provide an adequate warning about the asbestos defect in its

products. As to the failure to warn claim, Appellees did not argue that Ford should have

warned Mrs. Stockton; rather, Appellees argued that Ford should have warned Mr.

Stockton, who, in turn, would have protected Mrs. Stockton. Following deliberation, the

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jury returned a verdict, on August 21, 2015, finding that Ford was negligent “in failing to

adequately warn Joyce Stockton and [that] such negligence [was] a cause of Joyce

Stockton’s injuries and damages.” The jury assigned 71% of the fault for Mrs.

Stockton’s injuries to Ford and 29% of the fault to another manufacturer. The jury

awarded $4,192,360.52 in compensatory damages, $232,724.00 in loss of consortium

damages, and $225,000.00 in punitive damages. On December 4, 2015, Ford filed a

motion for judgment as a matter of law or, in the alternative, for new trial. As required

by Tennessee Rule of Appellate Procedure 3(e), Ford’s motion sets out all of the issues

raised in this appeal. On May 9, 2016, the trial court entered an “amended final judgment

on jury verdict and order on Ford Motor Company’s Post-Trial Motions,” wherein it

denied Ford’s motion for judgment as a matter of law or, in the alternative, for new trial.

The May 9, 2016 order awards the Stocktons a total judgment of $3,001,868.45. Ford

appeals.

II. Issues

Ford raises the following issues for review as stated in its brief:

1. Whether Ford is entitled to a new trial because: (a) the jury instructions

impermissibly allowed jurors to find Ford liable for negligent failure to

warn without finding that Ford’s products were defective or

unreasonably dangerous; (b) the verdict form and course of

deliberations preclude any inference that the jury actually found that

Ford’s products were defective or unreasonably dangerous; (c) the

court’s exclusion of plaintiffs’ prior complaint was erroneous and

prejudicial; and (d) no reasonable jury could have failed to apportion

some amount of negligence liability to Ronnie Stockton, given his

undisputed failure as an employer to follow OSHA regulations and

repeated warnings about the danger of asbestos in brake dust.

2. Whether the duty under Tennessee law of an employer to protect the

family members of employees from workplace asbestos-dust hazards

extends beyond the employer-employee, workplace context to impose

on a product manufacturer a duty of care to family members of remote,

occasional handlers of its product.

3. Whether specific causation can be found where: (1) the undisputed

evidence established that [Mr. Stockton] was already aware of the

dangers of asbestos dust and disregarded the risks, thus precluding any

inference that yet another warning from Ford would have prevented

[Mrs. Stockton’s] injuries; (b) plaintiffs adduced no evidence

quantifying or even estimating how much asbestos dust from Ford

products [Mrs. Stockton] was exposed to, leaving jurors to rely solely

on an “every exposure” theory foreclosed by precedent.

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4. Whether the punitive damages verdict must be reversed because: (a)

Michigan law should govern the issue of punishment for Ford’s

conduct, and Michigan law bars the imposition of punitive damages;

and (b) there was no evidentiary basis for concluding that Ford

recklessly ignored a known risk to family members of remote,

occasional handlers of its products.

We begin our review with Appellant’s issue concerning the jury instructions and verdict

form.

III. Jury Instructions and Verdict Form

The Tennessee Products Liability Act of 1978 (the “Act”), Tenn. Code. Ann. § 29-

28-101, et seq, provides that:

[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.

The foregoing statute is modeled on the Restatement (Second) of Torts § 402A, which

provides:

(1) One who sells any product in a defective condition unreasonably

dangerous to the user or consumer or to his property is subject to liability

for physical harm thereby caused to the ultimate user or consumer, or to his

property. . . .

In Roysdon v. R.J. Reynolds Tobacco Co., the 6th Circuit Court of Appeals explained:

Prior to the enactment of § 29-28-105, Tennessee had judicially adopted §

402A of the Restatement (Second) of Torts (1966), which requires the

plaintiff to prove that the product was both defective and unreasonably

dangerous. Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973).

However, it is clear from the plain language of the statute and its legislative

history that the criteria for liability were intended to be read in the

disjunctive (“or”) rather than the conjunctive (“and”). Smith v. Detroit

Marine Engineering Corp., 712 S.W.2d 472, 474 (Tenn.App.1985),

permission denied (June 30, 1986).1

1

In Smith, the relevant Legislative history was presented as follows:

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***

Clearly, the Tennessee legislature intended to deviate from § 402A and

allow a products liability action when the product is either defective or

unreasonably dangerous.

Roysdon v. R.J. Reynolds Tobacco Co., 815 F.2d 80 (6th Cir. Tenn. 1989). Accordingly,

whether a plaintiff’s claim against a product manufacturer is couched in negligence, strict

liability, or breach of warranty, Tennessee courts have held that the plaintiff must

establish that the product was defective or unreasonably dangerous at the time the

product left the control of the manufacturer. In Browder v. Pettigrew, the Tennessee

Supreme Court specifically held that

in a products liability action in which recovery is sought under the theory of

negligence, the plaintiff must establish the existence of a defect in the

product just as he does in an action where recovery is sought under the

strict liability theory or for breach of warranty, either express or implied.

The only significant difference is that under the negligence theory the

plaintiff has the additional burden of proving that the defective condition of

the product was the result of negligence in the manufacturing process or

that the manufacturer or seller knew or should have known of the defective

condition.

Browder v. Pettigrew, 541 S.W.2d 402, 404 (Tenn. 1976) (internal citations omitted);

accord Fulton v. Pfizer Hosp. Prod. Grp., Inc., 872 S.W.2d 908, 911 (Tenn. Ct. App.

1993) (quoting Higgs v. General Motors Corp., 655 F. Supp. 22, 23 (E.D.Tenn.1985))

(“‘[I]t makes no difference whether the complaint is couched in terms of negligence,

During the debate in the House of Representatives, Representative Ashford ... moved to

amend the bill by deleting the word “and” between “condition and unreasonably,” and

substituting instead the word “or.” Representative Ashford stated to the House as follows:

Mr. Speaker, ladies and gentlemen of the House, the substitution of the

word “or” for “and” allows an action to be brought for a defective

condition in a product, or for an unreasonably dangerous condition in a

product rather than requiring that the product be defective and

unreasonably dangerous and I think probably the sponsors of the bill

indicated that they approve of this type of a change which allows both a

defective condition of a product that might not be unreasonably

dangerous and for an unreasonably dangerous product, and I'd move

adoption of the amendment.

Smith, . 712 S.W.2d at at 474-75.

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strict liability or breach of warranty, it has generally been held in the State of Tennessee

that in order for a plaintiff to recover under any theory of products liability, the plaintiff

must establish that the product was defective [or] unreasonably dangerous at the time the

product left the control of the manufacturer.’”).

Before turning to review the jury instructions, we note that “[w]hether a jury

instruction is erroneous is a question of law and is[,] therefore[,] subject to de novo

review with no presumption of correctness.” Nye v. Bayer Cropscience, Inc., 347

S.W.3d 686, 699 (Tenn. 2011). An erroneous jury instruction requires reversal when “it

appears that the erroneous instruction more probably than not affected the judgment of

the jury.” Id. at 699.

As to negligence generally, the Tennessee Civil Pattern Jury Instructions (“T.P.I.”)

provide:

T.P.I.—CIVIL 3.01 Determination of Whether Plaintiff Entitled to

Recover a Verdict (No Issue of Comparative Fault)

A plaintiff is entitled to recover compensation for an injury that was legally

caused by the negligent conduct of a defendant. In this case, the plaintiff

has the burden of proving:

1. That the defendant was negligent; and

2. That the negligence was a legal cause of injury to the plaintiff.

USE NOTE

This is merely an introductory statement which one may find useful but

which may be omitted where it is not needed.

COMMENT

A negligence claim requires proof of the following elements: (1) a duty of

care owed by the defendant to the plaintiff; (2) conduct by the defendant

falling below the standard of care amounting to a breach of that duty; (3) an

injury or loss; (4) causation in fact; and (5) proximate or legal cause. The

existence of a legal duty is a question of law for the court which requires

consideration of whether “such a relation exists between the parties that the

community will impose a legal obligation upon one for the benefit of

others.” Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998).

As set out in the “use note,” T.P.I. 3.01 is “merely an introductory statement;”

accordingly, it may be modified depending on the nature of the lawsuit. Concerning

Appellees’ claim of negligence, in its proposed jury instructions, Ford asked for the

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following, modified version of T.P.I. 3.01:

T.P.I.—CIVIL 3.01

Determination of Whether Plaintiff

Entitled to Recover a Verdict

A plaintiff is entitled to recover compensation for an injury that was legally

caused by the negligent conduct of a defendant. In this case, the plaintiff

has the burden of proving:

1. That Ford was negligent in failing to warn Mrs. Stockton of the dangers

associated with dust from chrysotile in Ford brakes and clutches;

2. That Ford’s brakes and clutches were defective or unreasonably

dangerous by failing to warn of the dangers associated with dust from

chrysotile in Ford brakes and clutches; and

3. That the negligence was a cause in fact and legal cause of injury to

plaintiff.

NOTE: Ford submits that Plaintiffs are required to establish negligence,

strict liability, cause in fact and legal cause. Tenn. Code Ann. § 29-28-

105(a); see also Fulton v. Pfizer Hosp. Prod. Grp., Inc., 872 S.W.2d 908,

911 n. 1 (Tenn. Ct. App. 1993) (whether cause of action is couched in terms

of negligence or strict liability, plaintiff must establish that the product was

defective or unreasonably dangerous).

(Emphases in original). The trial court denied Ford’s proposed 3.01 instruction, stating:

THE COURT: So, let me read [jury instruction] 3 for a minute. Keep in

mind the TPI just says that the negligence was a legal cause of injury to the

plaintiff.

Now, that’s the Tennessee Pattern Jury Instructions that’s [sic] put

together by the committee that consists of judges that try these cases.

So if I stick to the TPI and then know I’m following up with those

other TPIs that that same committee put together, I feel like that’s the safest

approach.

***

What I’m inclined to do is leave 3.01 over defendant’s objection as

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to how it was agreed upon in the first place.

Having denied Ford’s proposed 3.01 instruction, the trial court ultimately instructed the

jury as follows on the negligence claim:

A plaintiff is entitled to recover compensation for an injury that was

legally caused by the negligent conduct of a defendant. And in this case the

plaintiff has the burden of proving, number one, the defendant was

negligent; number two that the negligence was a legal cause of injury to the

plaintiff.

The foregoing instruction does not fully encapsulate Tennessee law on negligence in

products liability cases. As discussed above, whether the plaintiff’s claim is couched in

negligence or in strict liability, as a threshold to recovery, the plaintiff must establish that

the product was defective or unreasonably dangerous at the time the product left the

control of the manufacturer. Browder, 541 S.W.2d at 404. The foregoing instruction,

therefore, is not adequate because it broadly states that the jury must determine

“negligence,” but it does not inform the jury that such negligence must rest on an initial

finding that Ford’s brake products were unreasonably dangerous or defective. In this

regard, the trial court erred in denying Ford’s proposed T.P.I. 3.01 instruction, supra.

As noted above, the Stocktons also claimed that Ford was strictly liable for Mrs.

Stockton’s injuries. Concerning this claim, the trial court correctly instructed the jury

verbatim from T.P.I. 10.01 and 10.02, which provide, in relevant part, that:

One who manufactures or sells a defective or unreasonably dangerous

product is responsible to the ultimate consumer of the product for physical

harm caused to the consumer or the consumer’s property if:

(1) The manufacturer/seller is engaged in the business of manufacturing/selling

such a product; and

(2) It is expected to and does reach the user or consumer without substantial

change in the condition in which it was manufactured and/or sold.

A product is defective if it is unsafe for normal or reasonably anticipated

handling and use. A product is unreasonably dangerous if it is more

dangerous than would be reasonably expected by the ordinary consumer or

would not be offered for sale by a reasonably careful manufacturer or seller

who knew of its dangerous condition. An ordinary consumer is a consumer

who purchases or uses the product with the ordinary knowledge common to

the community as to its characteristics. A manufacturer is a person or

company that designs, fabricates, produces, compounds, processes or

assembles any product or its component parts. The word seller includes a

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retailer, wholesaler, or distributor. A seller is any individual or

organization in the business of selling a product, either for resale or for use

or consumption. . . .

The seller/manufacturer of the product is not responsible for any injury to

the person or property caused by the product unless the product is

determined to be in a defective condition or is unreasonably dangerous at

the time it left the seller’s/manufacturer’s control. In making this

determination, you must apply the state of scientific and technological

knowledge available to the seller/manufacturer at the time the product was

placed on the market, rather than at the time of the injury. . . .

***

[Instructions from T.P.I. Civil 10.02 Strict Liability—Adequacy of

Warning]

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;

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. . . .

The foregoing instruction properly sets out the law in Tennessee concerning strict

products liability in that it states that “[t]he seller/manufacturer of the product is not

responsible for any injury . . . unless the product is determined to be in a defective

condition or is unreasonably dangerous . . . .” The question, then, is whether the T.P.I.

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10.01 and 10.02 instructions were sufficient to inform the jury that it would need to

decide the question of whether Ford’s products were unreasonably dangerous or defective

when that criterion was omitted from the negligence instruction, supra. Unless the error

in the negligence instruction “more probably than not” affected the outcome of the case,

Nye, 347 S.W.3d at 699, the error would not be fatal to the jury’s ultimate verdict. To

answer that question, we turn to review the jury verdict form.

Ford proposed the following verdict form:

FORD’S PROPOSED VERDICT FORM

Under the instructions provided by the Court, do you find that

Plaintiffs have proven by a preponderance of the evidence that Ford’s

brakes and clutches were defective or unreasonably dangerous because of a

failure to warn Mrs. Stockton of the dangers associated with brake dust

from chrysotile in Ford’s brakes and clutches?

a. Failure to warn as to exposures at home______Yes____No

b. Failure to warn as to exposures in the garage_____Yes_____No.

(If you answered “No,” then your verdict should be for Ford and notify

the Baliff that you have reached your verdict. If you answered “Yes,”

please proceed to question (2) below.)

2. Under the instructions provided by the Court, do you find that Plaintiffs

have proven by a preponderance of the evidence that Ford was negligent in

failing to warn Mrs. Stockton of the dangers associated with brake dust

from chrysotile in Ford’s brakes and clutches?

a. Failure to warn as to exposures at home______Yes____No

b. Failure to warn as to exposures in the garage____Yes____No

(If you answered “No,” then your verdict should be for Ford and notify

the Baliff that you have reached your verdict. If you answered “Yes,”

please proceed to question (3) below.)

3. Under the instructions provided by the Court, do you find that Plaintiffs

have proven by a preponderance of the evidence that Ford’s failure to warn

was a cause in fact and legal cause of Mrs. Stockton’s mesothelioma?

____Yes ____No

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(If you answered “No,” then your verdict should be for Ford and notify

the Baliff that you have reached your verdict. If you answered “Yes,”

please proceed to question (4) below.)

The trial court denied Ford’s proposed verdict form and, instead, submitted the following

verdict form to the jury, which the jury answered as indicated below:

We, the jury, present the following answers to the questions

submitted by the Court:

1. Under the instructions provided by the Court, have Plaintiffs proven by

a preponderance of the evidence that Defendant Ford was negligent in

failing to adequately warn Joyce Stockton and was such negligence a

cause of Joyce Stockton’s injuries and damages?

Yes  No

2. Under the instructions provided by the Court, have Plaintiffs proven by

a preponderance of the evidence that Defendant Ford was negligent in

the design of its products and was such negligence a cause of Joyce

Stockton’s injuries and damages?

Yes No

3. Under the instructions provided by the Court, have Plaintiffs proven by

a preponderance of the evidence that Defendant Ford’s products were

defective or unreasonably dangerous at the time they left Defendant

Ford’s control and, if so, were such products a cause of Joyce

Stockton’s injuries and damages?

Yes No

If you answered “Yes” to either Question 1, 2, or 3, continue on to

Question 4. If you answered “No” to Questions 1, 2, and 3, please sign

and date the verdict form; you do not need to answer the remaining

Questions.2

2

Question 4, on the jury verdict form, asked the jurors to assess the percentage of fault

among several other brake manufacturers and Mr. Stockton.

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As set out on the jury verdict form, the jury found Ford liable in negligence, but without

finding that Ford’s products were unreasonably dangerous or defective. Not only does

the jury form relieve Appellees from the required showing of defective or unreasonably

dangerous condition, but the record also indicates that the jury was confused by the form

and could not reach consensus:

THE COURT: I have just received from the jury a note . . . . It reads, “Do

we have to be in complete agreement about No. 1, 2, and 3 before moving

to 4? What if we agree only on one of the questions but disagree on the

other two? Can we move to No. 4?”

I want input from counsel. My thought is if they can resolve one of

the three questions and move forward, they need to do that. Ultimately,

they may not resolve the other two and you might have issues in declaring a

mistrial or whatever on the other issues. But I think they can proceed

forward without.

Does the plaintiff agree?

[PLAINTIFFS’ COUNSEL]: I agree.

THE COURT: Defense agree?

[DEFENDANT’S COUNSEL]: Your Honor, we think they have to have an

answer on all three, a unanimous answer, whatever it is.

THE COURT: . . . I disagree with defense counsel. I think they can answer

the questions they can answer and proceed forward. . .

Later in the proceedings, the jury asked another question concerning the verdict form:

THE COURT: We have a question from the jury . . . . It reads as follows:

“Does every yes/no question have to be answered on page 1, or can just one

question be answered yes and the other two questions be left blank?”

Counselors, as I share this with you, this goes back to where we

were, I guess, a day ago . . . about just answering one of the first three

questions. I’ve stated on the record the court’s position. Does the plaintiff

wish to proceed further with any comment?

[PLAINTIFFS’ COUNSEL]: We don’t believe they have to go further than

that. And if you read the verdict form . . . if they answer “yes” to either 1,

2, or 3, continue on to 4. And it would appear—I mean, we don’t know—

but it would appear they’ve answered “yes” to one of them. . . .

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[DEFENDANT’s COUNSEL]: We submit, Your Honor, that they have to

answer the three questions. . . .

THE COURT: Thank you. We know the jury is instructed—and I insist

properly—that to answer a question, they must have a unanimous bore to

do so. . . . I have already ruled that, in response to their question, they

could proceed on because, as the verdict form says . . . “If you answered

yes to either Question 1, 2, or 3, continue on to Question 4. If you

answered no to Question 1, 2, and 3, please sign the form and come back.”

***

I think the instructions were complete and adequate, and the form is

complete and adequate when you consider the verdict form and the

instructions together.

***

[DEFENDANT’S COUNSEL]: We just note our continued exception that

we believe that all—that an answer is required [on] all three of [the

questions] because we need that information for a proper verdict.

***

THE COURT: I think, based upon all I’ve said and stated, it’s very clear

these are separate and distinct questions.

***

[DEFENDANT’S COUNSEL]: I just want to add . . . [u]nder Tennessee

law . . . to find negligence, they have to find defect. And so the questions

are interrelated. If—let’s say, for example, that they check “yes” to

negligence and they don’t answer defect, that’s a defense verdict. So they

need to answer all three questions.

THE COURT: Thank you. But you’re absolutely wrong . . .

Respectfully, the trial court erred in its ruling. As discussed in detail above, under either

of Appellees’ theories, i.e., negligence or strict liability, the jury would have to find, as a

threshold criterion, that Ford’s products were defective or unreasonably dangerous. The

absence of this criterion in Question 1 on the jury form negates the jury’s finding of

liability. In fact, after the foregoing exchange, and with the consent of all parties, the trial

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court polled the jurors concerning their progress:

THE COURT: . . . Now, I ask you this question, not what your vote is

either way, but the question is, have you reached a unanimous decision in

this case as to Question No. 1 on the verdict form?

[All jurors answered “Yes”]

***

I ask you, ladies and gentlemen of the jury, have you reached a unanimous

decision as to Question 2 on the verdict form?

[All jurors answered “No”]

***

As to Question 2 . . . do you believe or find that further deliberations could

possibly result in a unanimous decision as to Question 2?

[All jurors answered “No”]

***

Now . . . as to Question 3, have you reached a unanimous verdict in

response to Question 3 on page 1 of the verdict form?

[All jurors answered “No]

***

Do you believe or find that further deliberations could possibly result in a

unanimous verdict as to Question 3 on page 1 of the verdict form?

[All jurors answered “No]

Clearly, the jury could not reach agreement on question 3, i.e., “have Plaintiffs proven by

a preponderance of the evidence that Defendant Ford’s products were defective or

unreasonably dangerous . . . .” Browder, 541 S.W.2d at 404. In the absence of a

defective or unreasonably dangerous finding, the jury could not have properly found that

“Defendant Ford was negligent in failing to adequately warn Joyce Stockton.” Id. In this

regard, the jury’s verdict is inconsistent, and its finding of negligence is irreconcilable.

“Tennessee law is well established that litigants are entitled to have their rights settled by

a consistent and intelligible verdict, and verdicts that are inconsistent and irreconcilable

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cannot stand.” Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 911 (Tenn. 1999);

Milliken v. Smith, 405 S.W.2d 475, 476 (Tenn. 1966) (“verdicts which are inconsistent

and irreconcilable must not be allowed to stand.”). Accordingly, when “a judgment is

based upon inconsistent findings by a jury it is the duty of the appellate court to reverse

and remand the case for a new trial.” Concrete Spaces, 2 S.W.3d at 911. The reasoning

underlying this rule is that, with inconsistent and unintelligible verdicts, “it cannot be told

with reasonably certainty what facts the jury found.” Berr v. Foster, 287 S.W.2d 16, 18

(Tenn. 1955) (quoting Gray v. Brooklyn Heights R.R. Co., 67 N.E. 899, 900 (N.Y.

1903)). In other words, an inconsistent verdict is “no verdict at all.” McInturff v. White,

565 S.W.2d 478, 482 (Tenn. 1976).

IV. Foreseeability, Duty, and Causation

In addition to the fact that the jury did not answer the threshold question of

whether Ford’s products were unreasonably dangerous or defective, the jury also did not

consider the question of whether Mrs. Stockton’s injuries were reasonably foreseeable.

As set out above, the trial court instructed the jury to first answer the question “have

Plaintiffs proven by a preponderance of the evidence that Defendant Ford was negligent

in failing to adequately warn Joyce Stockton and was such negligence a cause of Joyce

Stockton’s injuries and damages.” To prevail on a negligence claim, a plaintiff must

establish: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the

defendant falling below the standard of care amounting to a breach of that duty; (3) an

injury or loss; (4) causation in fact; and (5) proximate or legal cause. Satterfield v.

Breeding Insulation Co., et al., 266 S.W.3d 347, 356 (Tenn. 2008). By first asking the

jury to determine whether Ford “was negligent in failing to adequately warn Joyce

Stockton and was such negligence a cause of Joyce Stockton’s injuries,” the trial court

conflates the prima facie elements of duty, breach, and causation into a single inquiry,

and overlooks the jury’s role in the question of foreseeability as it relates to breach and

causation, discussed infra.

Ford argues that Ford owed no legal duty to Mrs. Stockton. In a footnote to its

proposed jury verdict form, Ford states: “Ford recognizes that the Court rejected its

argument that Ford had no duty to warn as to take-home exposures.” The record does not

contain the exact basis for the trial court’s initial ruling on the duty question. However,

as C.J. Swiney points out, in his separate concurring opinion, in ruling on Ford’s motion

for directed verdict or new trial, the trial court stated: “This is another situation where, of

course, the Court finds again, as I previously ruled, that Satterfield, a 2008 case, applies

here. There was a duty existing under Tennessee law.” From this statement, we know

that the trial court relied on the Satterfield case in declining to hold, as a matter of law,

that there was no duty owed by Ford to Mrs. Stockton. Although there is no evidence

that the trial court engaged in the detailed duty analysis that the Tennessee Supreme

Court applied in Satterfield (a fact that J. Stafford, in his partial dissent, argues was

error), the trial court, nonetheless, concluded (at least inferentially) that the Satterfield

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holding extends Ford’s legal duty to Mrs. Stockton. The question, then, is whether the

trial court erred in its application of Satterfield and its ultimate decision to decline to

find, as a matter of law, that Ford owed no duty in this case. We now turn to that

discussion.

At the foundation of negligence law is the idea that people have a duty, i.e., a legal

obligation, to conform to a reasonable person standard of care in order to protect others

against unreasonable risks of harm.” Burroughs v. Magee, 118 S.W.2d 323, 328-29

(Tenn. 2003). While this basic concept is not, on its face, difficult to understand, the

application of duty in various cases has been muddled by the elusive idea of

foreseeability, discussed infra. In Satterfield, the Tennessee Supreme Court

acknowledges the basic tenant of negligence law, stating that “Tennessee law currently

provides that one owes a duty to refrain from engaging in conduct that creates an

unreasonable and foreseeable risk of harm to others.” Satterfield, 266 S.W.3d at 363

(citations omitted) (emphasis added). The Restatement (Third) of Torts § 7: Liability for

Physical and Emotional Harm encapsulates this tenant of duty in negligence law as

follows:

(a) An actor ordinarily has a duty to exercise reasonable care when the

actor’s conduct creates a risk of physical harm.

(b) In exceptional cases, when an articulated countervailing principle or

policy warrants denying or limiting liability in a particular class of cases, a

court may decide that the defendant has no duty or that the ordinary duty of

reasonable care requires modification.

The Restatement (Third) of Torts Reporters’ adoption of the foregoing concept of duty

ostensibly takes foreseeability out of the duty equation and lessens the role of the judge in

determining duty as a matter of law. Put another way, if duty exists as a default position,

then a judge would only need to decide the question of duty in “exceptional cases” where

“principles or policy” (read: not lack of foreseeability) dictate the rare case where no duty

is determined as a matter of law. As explained by the Tennessee Supreme Court in

Satterfield, concerning the question of duty, “[a] court’s function is more limited than a

jury’s. As a practical matter, a court serves as a gate-keeper and may exclude a claim

only if it finds, as a matter of law, that the defendant does not owe a duty to the plaintiff.”

Satterfield., 266 S.W.3d at 368. Appellants would limit the Satterfield holding to extend

the duty owed, by a manufacturer of asbestos containing products, only to those with

whom the manufacturer’s employee comes into regular and close contact. Satterfield,

266 S.W.3d at 352 (“The employer owed a duty to those who regularly and for extended

periods of time came into close contact with the asbestos-contaminated work clothes of

its employees . . . .”). However, Appellants’ narrow reading of the duty holding in

Satterfield ignores the fact that the Satterfield Court espoused a broad view of duty in

take-home asbestos cases by holding that duty may exist even in the absence of privity,

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i.e., a special relationship. In so holding, the Satterfield Court relied on the Restatement

(Third) of Torts:

While [some] courts . . . that have found, as a matter of law, that employers

have a duty in take-home asbestos exposure cases, rely on the absence of a

special relationship, this argument is misplaced under Tennessee tort law as

it has developed over the years. This Court has recognized that a duty of

reasonable care arises whenever a defendant’s conduct poses an

unreasonable and foreseeable risk of harm to persons or property. McCall

v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). Thus, like the drafters of the

new Restatement (Third) of Torts containing the principles applicable to

liability for physical harm, we are of the view that

[e]ven when the actor and victim are complete strangers and

have no relationship, the basis for the ordinary duty of

reasonable care . . . is conduct that creates a risk to another.

Thus, a relationship ordinarily is not what defines the line

between duty and no-duty; conduct creating risk to another is.

Restatement (Third) of Torts

Satterfield, 266 S.W.3d at 362-63. Indeed, the Restatement (Third) of Torts: Liability for

Physical and Emotional Harm § 6 provides, broadly, that “[a]n actor whose negligence is

a factual cause of physical harm is subject to liability for any such harm within the scope

of liability, unless the court determines that the ordinary duty of reasonable care is

inapplicable.” Here, we do not know whether the trial court made an affirmative finding

that there was a duty owed by Ford to Mrs. Stockton; rather, from what we can glean

from the record, we know that the trial court declined to find, as a matter of law, that

there was not a duty owed by Ford to Mrs. Stockton. Applying the holding in Satterfield

to the instant case, we cannot conclude that the trial court erred in its ruling denying

Ford’s motion concerning the duty issue.

The Restatement (Third) of Torts asserts a “strong default rule that each person

has a duty to exercise reasonable care not to injure another; this default rule almost

operates as a presumption.” Benjamin C. Zipursky, Foreseeability in Breach, Duty, and

Proximate Cause, 44 Wake Forest L. Rev. 1247, 1251 (2009) In drafting The

Restatement (Third) of Torts, the Reporters were clearly concerned with the concept of

foreseeability in the duty, breach, and causation elements of negligence and the

respective role of the judge and jury in each of these inquiries. As to the role of

foreseeability in duty, the Reporters are concerned that

courts sometimes usurp the jury’s function of determining breach by

mischaracterizing a breach of duty issue and then claiming the prerogative

to decide the duty issue as a matter of law. They do this because duty is an

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issue for the court, and unforseeability is sometimes deemed a ground for

no duty. It is critical . . . to see that when unforseeability is being deemed a

ground for no duty, the court is just flipping around the words “breach” and

“duty.”

Zipurskwy, supra, at 1251 (citing Restatement (Third) of Torts: Liability for Physical and

Emotional Harm § 7). Accordingly, the Reporters “want to eliminate foreseeability in

duty so that judges do not invade the province of the jury.” Id. at 1274; see also W.

Jonathan Cardi, Purging Foreseeability The New Vision of Duty and Judicial Power in

the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739 (2005). Professor

Cardi explains the role of foreseeability in the context of breach and proximate cause as

follows:

The brand of foreseeability associated with breach is one of general focus.

That is, it does not examine the foreseeability of the particular injury

suffered by the plaintiff, but the foreseeable likelihood and severity of the

injuries that might have occurred. . . . Thus, it might be said that in the

context of breach, foreseeability’s concern is risk generally, not whether a

particular result is one for which defendant should be held liable. This

latter concern is addressed by proximate cause.

***

Proximate cause . . . focuses on the nature and extent of the connection

between a defendant’s unreasonable conduct and the plaintiff’s injury and

cuts off liability at the point where “the harm that resulted from the

defendant’s negligence is so clearly outside the risks created that it would

be unjust or at least impractical to impose liability. . . .

Furthermore, foreseeability in the context of proximate cause does not help

to decide whether the defendant acted unreasonably, as in the context of

breach, but rather aids in the decision of whether the actual consequences of

defendant’s conduct were so bizarre or far-removed from the risks that

made the actor’s conduct negligent that the defendant, though

blameworthy, should not be held liable.

Cardi, supra, at 747-49. Professor Cardi concedes that the question of when a resulting

harm falls outside the risk of the tortfeasor’s conduct has no clear answer. Id. at 748.

Accordingly, such questions are best left to the purview of the jury. Professor Cardi

opines that, “[d]espite overlap in the choices underlying duty and proximate cause . . .

they stand as separate elements and serve different conceptual purposes;” however,

“appellate courts frequently treat the proximate cause issue as if it were a question of

law.” Id. at 750. This is an issue that Justice Holder addresses in her dissent in

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Satterfield:

By incorporating foreseeability into an analysis of duty, the majority

transforms a factual question into a legal issue and expands the authority of

judges at the expense of juries. See City of Elizabethton v. Sluder, 534

S.W.2d 115, 117 (Tenn. 1976) (noting that foreseeability is a jury issue). A

collection of twelve people representing a cross-section of the public is

better suited than any judge to make the common-sense and experience-

based judgment of foreseeability.

Satterfield, 266 S.W.3d at 376 (Holder, J. dissenting). The majority in Satterfield

applied a foreseeability analysis in holding that Alcoa owed a duty to Ms. Satterfield. In

relevant part, the Court held:

Because the risk of Ms. Satterfield being exposed to the asbestos fibers on

her father’s work clothes was foreseeable, the analysis shifts to considering

the balancing factors: (1) the foreseeable probability of the harm or injury

occurring; (2) the possible magnitude of the potential harm or injury; (3)

the importance or social value of the activity engaged in by the defendant;

(4) the usefulness of the conduct to the defendant; (5) the feasibility of

alternative conduct that is safer; (6) the relative costs and burdens

associated with the safer conduct; (7) the relative usefulness of the safer

conduct; and (8) the relative safety of alternative conduct. Burroughs v.

Magee, 118 S.W.3d at 329; McCall v. Wilder, 913 S.W.2d [150,] at 153

[(Tenn. 1995)].

Satterfield¸ 266 S.W.3d at 367. Although the majority clearly makes a foreseeability of

harm determination in weighing the foregoing factors, it cautions that, “[w]hen

considering these factors, courts should take care not to invade the province of the jury. A

court's function is more limited than a jury’s.” Id. at 367-68. In her dissent, Justice

Holder opines that the majority’s position invades the province of the jury concerning

questions of foreseeability:

I remain concerned about the role that foreseeability plays in the majority’s

understanding of duty. Foreseeability enters the majority’s analysis in two

related ways. First, foreseeability forms a part of the majority’s basic

explanation of when a duty arises. For example, the majority states that

“‘all persons have a duty to use reasonable care to refrain from conduct that

will foreseeably cause injury to others.’” (quoting Burroughs v. Magee,

118 S.W.3d 323, 328 (Tenn. 2003); Bradshaw, 854 S.W.2d at 870)

(emphasis added). Second, foreseeability is a key component of the public

policy balancing test employed by the majority. Burroughs, 118 S.W.3d at

329; McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995).

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As I have often stated, the foreseeability of an injury or risk is more

properly considered an element of breach of duty or proximate cause. Hale

v. Ostrow, 166 S.W.3d 713, 720 (Tenn. 2005) (Holder, J., concurring and

dissenting); Staples [v. CBL & Associates, Inc.,] 15 S.W.3d [83,] at 9[2]

[(Tenn. 2000)] (Holder, J., concurring); accord W. Jonathan Cardi, Purging

Foreseeability: The New Vision of Duty and Judicial Power in the

Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739, 744-50

(2005). This observation is important primarily because the existence of

duty is determined by courts as a matter of law while breach of duty and

proximate cause are fact-based inquiries to be determined by juries. West

[v. East Tennessee Pioneer Oil Co.,] 172 S.W.3d [545,] at 556 (Tenn.

2005) (observing that breach of duty and proximate causation are factual

determinations); Staples, 15 S.W.3d at 89 (holding that existence of duty is

a matter of law).

Satterfield, 266 S.W.3d at 375-76 (Holder, J. dissenting). Professor Cardi opines that

“concept of foreseeability is a scourge, and its role in negligence cases is a vexing,

crisscrossed morass.” Cardi, supra, at 740. The Satterfield case elucidates this point.

Clearly, the respective roles of judge and jury in the foreseeability inquiry is not settled in

Tennessee. The Satterfield Court acknowledges the fact that foreseeability is paramount

to negligence:

While every balancing factor is significant, the foreseeability factor has

taken on paramount importance in Tennessee. Hale v. Ostrow, 166 S.W.3d

713, 716-17 (Tenn. 2005); Biscan v. Brown, 160 S.W.3d [462,] at 480

[(Tenn. 2005)]. This factor is so important that if an injury could not have

been reasonably foreseen, a duty does not arise even if causation-in-fact has

been established. Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn.

1992). Conversely, foreseeability alone is insufficient to create a duty.

McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 904 (Tenn. 1996).

Thus, to prevail on a negligence claim, a plaintiff must show that the risk

was foreseeable, but that showing is not, in and of itself, sufficient to create

a duty. Instead, if a risk is foreseeable, courts then undertake the balancing

analysis.

Satterfield, 266 S.W.3d at 366. The Court also acknowledges that foreseeability informs

both questions of law (i.e., duty) and questions of fact (i.e., causation) in a negligence

analysis:

The role that the concept of foreseeability plays in the context of a court’s

determination of the existence and scope of a duty differs from the role the

concept plays when the fact-finder is addressing proximate causation. For a

duty to exist, the defendant’s “conduct must create a recognizable risk of

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harm to the [plaintiff] individually, or to a class of persons—as, for

example, all persons within a given area of danger—of which the [plaintiff]

is a member.” Restatement (Second) of Torts § 281 cmt. c, at 4-5.

However, because almost any outcome is possible and can be foreseen, the

mere fact that a particular outcome might be conceivable is not sufficient to

give rise to a duty. For the purpose of determining whether a duty exists,

the courts’ consideration of foreseeability is limited to assessing whether

there is some probability or likelihood of harm that is serious enough to

induce a reasonable person to take precautions to avoid it. In this context,

the courts are not concerned with the ultimate reasonableness, or lack of

reasonableness, of the defendant’s conduct. Rather, the courts are simply

ascertaining “whether [the] defendant was obligated to be vigilant of a

certain sort of harm to the plaintiff.”

Id. at 366-67. However, the Court draws no clear line as to when the determination of

foreseeability should fall to the judge and when it should fall to the jury. To clarify the

respective role of judge and jury in foreseeability determinations, Justice Holder

advocates adoption of the Restatement (Third) of Torts’ position that foreseeability has

no place in the judge’s determination of whether a duty exists, and thus the determination

of foreseeability should rest with the jury alone. The Satterfield majority

attempts to support the integration of duty and foreseeability by arguing

that foreseeability plays a different role in the duty context than it does in

the context of breach of duty or proximate cause. In support of its position,

the majority cites to cases that propose a distinction between the

foreseeability of a general threat of harm to others and the foreseeability of

the specific harm suffered by the plaintiff. McCain v. Fla. Power Corp,

593 So.2d 500, 502-04 (Fla. 1992); Kroll v. Bd. of Regents of Univ. of

Neb., 258 Neb. 1, 601 N.W.2d 757, 763 (1999). According to these cases,

the former analysis is relevant to duty while the latter is relevant to

proximate cause. McCain, 593 So.2d at 502-04; Knoll, 601 N.W.2d at 763.

The majority places this distinction in its own terms, stating, “For the

purpose of determining whether a duty exists, the courts’ consideration of

foreseeability is limited to assessing whether there is some probability or

likelihood of harm that is serious enough to induce a reasonable person to

take precautions to avoid it.”

Satterfield, 266 S.W.3d at 376 (Holder, J. dissenting). Justice Holder argues that the

majority’s distinction between general and specific foreseeability, while valid in theory,

“is difficult, if not impossible, to apply in practice.” Id. at 377 (Holder, J. dissenting). In

other words, the question of foreseeability in duty and foreseeability in causation are so

inseparable that it is impossible to make a distinction between foreseeability in duty and

foreseeability in causation. Thus, she opines that the foreseeability question is one for the

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jury alone. Id. at 377 (Holder, J. dissenting) (“I firmly believe . . . that analyzing

foreseeability in the context of duty is inherently problematic and that the Restatement

(Third) of Torts presents a wiser approach.”). The concept of foreseeability remains an

elusive and indefinite concept in our jurisprudence.3

Turning back to the instant appeal, as discussed above, the trial court did not

conclude, as a matter of law, that there was no duty owed by Ford to Mrs. Stockton.

Based on the holding in Satterfield, which adopts (in part) the Restatement (Third) of

Torts, we conclude that the court’s decision to allow the case to go forward on the

element of duty was not error. However, the determination of breach and causation still

remain. These are questions of fact for the jury. Specifically, the question of whether the

probability or likelihood of harm to Mrs. Stockton is sufficiently foreseeable to induce a

reasonable person to take precautions to avoid it, or whether her injuries were so tenuous

and removed from Ford’s conduct as to preclude a finding of foreseeability, is a question

for the jury. Accordingly, on remand, the jury should be instructed not only on the

question of whether Ford’s product was unreasonably dangerous or defective, but also on

whether Mrs. Stockton’s injuries were reasonably foreseeable. These two questions

should be presented on the verdict form. Only if the jury answers affirmatively to both of

these questions should it be allowed to continue to the question of whether Ford breached

its duty to Mrs. Stockton and, if so, whether that breach was a cause of her injuries. In

the absence of a finding that Ford’s product was defective or unreasonably dangerous and

that Mrs. Stockton’s injuries were reasonably foreseeable, the jury’s finding of

negligence cannot stand. In view of this holding, we pretermit Appellant’s remaining

issues.

Before concluding, we write briefly in response to J. Stafford’s partial dissent,

wherein he states that “[t]he majority Opinion . . . appears to suggest that the issue of

duty has been converted to a question to be determined by the jury simply because the

matter was allowed to be heard by a jury.” Respectfully, the dissent misapprehends the

majority holding. The question of duty, in negligence, remains a question of law and not

of fact. As J. Stafford notes, “in this case, the trial court determined that a duty existed

and allowed this case to proceed to a trial on the merits.” (Emphasis added). The

Satterfield case is distinguishable from the instant case insofar as the trial court, in

Satterfield, held, as a matter of law, that Alcoa did not owe a duty to Ms. Satterfield.

Here, the trial court did not find, as a matter of law, that Ford owed no duty to Mrs.

Stockton. In Satterfield, the Tennessee Supreme Court cited, with approval, the

Restatement (Third) of Torts approach to duty, which is that a duty may exist “[e]ven

when the actor and victim are complete strangers and have no relationship [because] the

basis for the ordinary duty of reasonable care . . . is conduct that creates a risk to another.

Thus, a relationship ordinarily is not what defines the line between duty and no-duty;

3

We encourage the Tennessee Supreme Court to revisit the question of whether

Tennessee should adopt the Restatement (Third) of Torts’ approach to foreseeability.

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conduct creating risk to another is.” Satterfield, 266 S.W.3d at 362-63 (citing

Restatement (Third) of Torts). In this opinion, we have referred to this approach as a

“default position,” meaning only that duty will usually exist when a plaintiff has been

harmed by a defendant’s product. J. Stafford opines that “the Satterfield Court did not

rule that the existence of a duty was a ‘default position.’” Semantics aside, J. Stafford

advocates for application of the Satterfield Court’s “intricate rules for determining [the]

issue [of duty]” in every case where the existence of a duty is raised as an issue,

regardless of whether the trial court found a duty or not. We opine that the Satterfield

Court’s adoption, at least in part, of the Restatement (Third) of Torts approach to duty

negates the need for an intricate analysis on the duty question unless the trial court finds

(as it did in Satterfield) that there is no duty as a matter of law. Because such finding is

against the trend in negligence law, as set out in the Restatement (Third), if a trial court

determines that no duty exists, a reviewing court must go through the duty analysis in

order to review, as a question of law, the trial court’s determination on duty. However,

where the trial court declines to find that there is no duty, which is the scenario here, the

case may proceed to the jury, not on the question of duty, but on the question of whether

the duty was breached and, if so, whether the breach was the cause of the plaintiff’s

harm. Accordingly, had the trial court, in this case, determined that there was no duty,

we would be required to engage in a de novo review of the legal question of whether the

trial court erred, as a matter of law, in so holding. However, because the trial court did

not find that there was no duty owed, it is unnecessary to engage in the Satterfield

analysis.

V. Conclusion

For the foregoing reasons, we vacate the trial court’s judgment on the jury verdict.

The case is remanded for such further proceedings as may be necessary and are consistent

with this opinion. Costs of the appeal are assessed against the Appellees, Joyce and

Ronnie Stockton, for all of which execution for costs may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

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