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Products Liability – Joint and several liability in product liability cases is significantly changed by new 2013 Tennessee Statute, T.C.A. § 29-11-107.

Posted on Jun 24 2013 8:15AM by Attorney, Jason A. Lee

Brief Summary:  Joint and several liability between a manufacturer and seller of a product is abolished in Tennessee.  Joint and several liability in product liability actions now only apply between manufacturers under the legal theories of strict liability and breach of warranty.

 

Analysis:  One area of Tennessee law that retained a portion of the doctrine of joint and several liability since McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992) is in products liability actions.  The Tennessee Supreme Court in Owens v. Truckstops of America, 915 S.W.2d 420, 433 (Tenn. 1996) found that “the adoption of comparative fault did not alter that product liability law under which the liability of defendants in the chain of distribution of a product, who are liable under a theory of strict liability, is joint and several.”  In other areas of the law the Tennessee Supreme Court has issued several other decisions over the years that moved away from a general abolishment of joint and several liability.  Therefore, the Tennessee legislature addressed this issue in the 2013 Tennessee legislative session.  It passed Public Chapter No. 317 which was signed into law by Governor Bill Haslam on April 29, 2013.  This Public Chapter created a new statute, T.C.A. § 29-11-107, which provides as follows:

 

(a)  If multiple defendants are found liable in a civil action governed by comparative fault, a defendant shall only be severally liable for the percentage of damages for which fault is attributed to such defendant by the trier of fact, and no defendant shall be held jointly liable for any damages.

 

            (b)  Notwithstanding subsection (a), the doctrine of joint and several liability remains in effect:

(1)        To apportion financial responsibility in a civil conspiracy among two (2) or more at at-fault defendants who, each having the intent and knowledge of the other’s intent, accomplish by concert an unlawful purpose, or accomplish by concert a lawful purpose by unlawful means, which results in damage to the plaintiff, and

(2)        Among manufacturers only in a product liability action as defined in § 29-28-102, but only if such action is based upon a theory of strict liability or breach of warranty.  Nothing in this subsection (b) eliminates or affects the limitations on product liability actions found in § 29-28-106.

 

This statute takes effect for all causes of action that accrue on or after July 1, 2013.  The portion of this statute that I want to concentrate on for this post is the exception found in (b)(2).  Subsection (a) basically declares that for any case governed by comparative fault, each defendant will only be responsible for the portion of damages attributed to that defendant by the trier of fact.

 

This statute significantly alters joint and several liability in product liability actions in Tennessee even though there is an exception allowing joint and several liability in certain circumstances.  The key language is found in the first three words of the exception which states “among manufacturers only”.  Based on this plain language, T.C.A. § 29-11-107 limits the application of joint and several liability in product liability cases to simply “among manufacturers”.  There is no reference to sellers as defined in the products liability statute.  As a result, joint and several liability no longer reaches down the chain of distribution and allows sellers of the product to be jointly and severally liable with the manufacturer.  Further, joint and several liability will only apply, even among manufacturers, under theories of “strict liability” or “breach of warranty.”

 

You may next ask whether both the manufacturer and seller are required to be parties (and found liable) in order to take advantage of this change in the statute?  The reason you may ask is because the language in the first part of the statute, subsection (a), which generally abolishes joint and several liability states “if multiple defendants are found liable in a civil action.”  This can only occur if they are all parties, right?  I think the answer to this question is “No.”  The reason is subsection (d) which provides as follows:

 

(d)  Nothing in this section limits the ability of the trier of fact to allocate fault to a nonparty to the suit, including, but not limited to, an immune third party or a settling party, person, or entity.  Allocations of fault to nonparties shall be used only to determine the liability of named parties and shall not subject nonparties to liability in the action in which the allocation occurred or in any other action.    

 

My interpretation of this section is that a plaintiff cannot avoid the joint and several liability abolishment between a seller and manufacturer by simply not adding the manufacturer as a party.  This section allows the trier of fact to allocate fault against nonparties to the suit when comparative fault is asserted by a defendant.  This statute would not make much sense if the application of joint and several liability depended on the plaintiff actually adding the manufacturer as a party.

 

This is a very important new statute for any Tennessee attorney that practices in products liability actions.  The impact could be very significant in some cases.  Obviously, a seller of the product can still be sued for its own negligence but there is often very little, if any, negligence by the seller.  This statute could make it very difficult for a plaintiff to recover against a foreign manufacturer of a product.  Remember, a seller already has significant defenses to a products liability action as set forth in T.C.A. § 29-28-106 that I discussed in detail in a previous post.  It will be very interesting to see how this new statute is used in the years to come.  I expect there are more ramifications that are not yet apparent that will be developed in the case law.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Defense Litigation blog.

TAGS: Tennessee Comparative Fault, Defenses, 2013 Tennessee Legislation, Products Liability
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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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