$3 Million Jury Verdict Overturned; No Duty to Warn of Danger

July 6, 2017

In products liability cases, a duty to warn arises when a product is defective or unreasonably dangerous. What happens when a jury finds that the maker of a product had a duty to warn others about danger but the jury can’t agree on whether the product was actually defective or unreasonably dangerous?  The resulting Tennessee Court of Appeals opinion in Stockton v. Ford Motor Company presents three judges who agree on the proper result but not the reasons why, in a ruling that has the potential to affect all duty to warn jurisprudence in Tennessee.

In 2011, Joyce Stockton was diagnosed with mesothelioma, a type of lung cancer that is caused by asbestos. Joyce’s husband, Ronnie, had worked as an automobile mechanic beginning in 1971, where he worked with every type of automobile, including Ford automobiles. All automobiles used asbestos in their brake products at the time, including Ford’s. Mrs. Stockton never directly worked with Ford brake products, but she cleaned her husband’s mechanic shop twice a week and washed her husband’s clothes, where she was presumably exposed to asbestos dust.

The Stocktons brought a claim alleging that Ford and other manufacturers owed a duty to warn Mr. Stockton about the unreasonably dangerous asbestos, and that a warning from these manufacturers would have allowed Mr. Stockton to protect Mrs. Stockton from exposure to the asbestos. Ford rejected the idea that it had a duty to warn someone who never bought or worked with its product. Ford also countered that Mr. Stockton was negligent because he had, in fact, received training that explicitly warned of the dangers of asbestos, and had received numerous shop manuals with warnings regarding asbestos exposure. Ford argued that the duty to warn fell upon Mr. Stockton since he had received all of these warnings, and that Ford had no duty to warn Mrs. Stockton because it had no direct relationship with her—neither Mr. nor Mrs. Stockton worked for Ford.

The jury returned a verdict against Ford and another manufacturer for over $4.7 million, finding Ford 71% at fault and the other manufacturer 29% at fault. These damages included $225,000 in punitive damages. Ford then filed a motion for judgment as a matter of law, or, alternatively, for a new trial. The trial court denied the motions but entered an amended final judgment which reduced the total judgment to slightly over $3 million.

The Court of Appeals addressed two issues:

1) Whether the jury instructions impermissibly allowed the jury to find Ford liable for negligent failure to warn without finding Ford products to be defective or unreasonably dangerous.
2) Whether the duty of an employer to protect family members of employees extends beyond employee-employer relationships to impose duty on a product manufacturer.

Ford asserted that, in product liability cases, a plaintiff must establish that a product was defective or unreasonably dangerous at the time the product left the manufacturer’s control, and that the trial court permitted the jury to find negligence without establishing this. The Court agreed that the trial court erred in its jury instructions by permitting the jury to find Ford negligent of product liability without a finding of a defective or unreasonably dangerous product. The jury only affirmatively answered that they believed Ford was negligent in failing to warn Mrs. Stockton—they did not affirmatively answer whether Ford’s product was defective or unreasonably dangerous. Notably, there was a separate question on the jury verdict form as to whether Ford’s product was defective or unreasonably dangerous, and the jury did not answer that question. When polled after the trial, the jury stated that they could not reach a unanimous verdict as to the defective or unreasonably dangerous question, but did agree that there had been a failure to warn. Since the product had to be defective or unreasonably dangerous product for the duty to warn to arise, the jury would have to affirmatively answer both questions.

Ford also asserted that the trial court erred in rejecting Ford’s argument that it did not owe Mrs. Stockton a duty to warn. The trial court relied on the Tennessee Supreme Court’s holding in a 2008 asbestos case, Satterfield v. Breeding Insulation Co., in which the court held that the employer had a duty to the family members of its employees. In Satterfield, the Tennessee Supreme Court used an eight factor balancing test to determine that the employer had a duty to the employee’s family members. Here, the Court held that the trial court was correct in extending Satterfield’s holding to find Ford owed a duty to Mrs. Stockton, even though Mrs. Stockton was not a family member of Ford’s employee—her husband only worked with Ford’s products. The Court emphasized that the judge’s authority to decide cases based on a lack of duty should be limited to “exceptional cases,” and that a duty may exist even without privity between the parties.

Judge Michael Swiney filed a concurring opinion agreeing with the reversal based on the errors in the jury verdict form and jury instructions. However, his concurrence took issue with the Satterfield opinion, finding serious problems with the ruling. He found it almost impossible for a trial judge to determine the duty issue applying the Satterfield test without invading the province of the jury. He wrote to ask that the Supreme Court revisit the case. He suggested that Justice Janice Holder’s dissent in that case should be adopted, where she stated that “the existence of a duty generally would be presumed as long as the plaintiff has alleged that he or she was harmed by the defendant’s product.”

Judge Stephen Stafford concurred with the holding regarding the reversible error in the the jury instructions. However, he dissented from the majority opinion’s application of the Satterfield rule, arguing that the issue of duty must be decided as an issue of law before the case is submitted to the jury. In addition, after the jury has decided such a case, the Court of Appeals must again use the 8 factor Satterfield test even though a jury has passed on the issue. Thus, he would rule on the issue of duty as a legal issue, and only then proceed to consider the propriety of the jury instructions.

The Court remanded the case back to the trial court to proceed with a new trial using jury instructions amended to include a “defective or unreasonably dangerous” product requirement, but it did not require the trial court to change its analysis of duty.

The underlying debate about duty is a long-standing one. Justice Holder’s divergence from the other members in the Supreme Court on the issue of duty began with the case of Coln v. City of Savannah, 966 S.W.2d 34, 43-44 (Tenn. 1998). She had no quarrel with examining “foreseeability and the gravity of harm to determine whether a duty exists.” She did not believe, however, that the following factors should be considered on the question of duty: “Whether the danger was known and appreciated by the plaintiff; whether the risk was obvious to a person exercising reasonable perception, intelligence, and judgement; and whether there was some other reason for the defendant to foresee the harm.” In her opinion, “[t]hese factors are more properly considered by the trier of fact determining whether a duty has been breached.”

In Coln, Justice Holder described a distinction between the existence of a duty and a breach of that duty. She would have held that the entire “open and obvious” rule “has been subsumed into the comparative fault scheme.” She stated that “[o]nce a duty is found to exist as to the class of persons to which the plaintiff belongs, the obviousness of the danger and the plaintiff’s confrontation of that danger would be but two additional factors for the jury to consider in determining the parties’ percentages of fault.”

The dispute between the majority and Justice Holder on the proper way to analyze the question of duty continued unresolved. In Rice v. Sabir, 979 S.W.2d 305 (Tenn. 1998), Justice Holder again differed with the majority’s analysis of the duty of issue, this time in dissent. According to Justice Holder, the majority was engaged in “the weighing process that is normally reserved to the jury in the negligence cases.” Summary Judgment was not appropriate there because Justice Holder believed that reasonable minds could differ on whether the plaintiff’s negligence exceeded that of the defendant. Justice Holder concluded:

The majority has weighed the evidence and made its own determination of the facts presented. By doing so, the majority of this Court has not only ignored the standards to be applied in summary judgment cases but also has unsurped the function of the trier of fact. I would affirm the Court of Appeals and remand to the trial court to determine the relative fault of the parties.
Id. at 311.

Justice Holder’s dissent in Satterfield reflected again on her view of duty stated in previous concurring and dissenting opinions: “As I have often stated, the foreseeability of an injury is more property considered an element of breach of duty or proximate cause.” Satterfield, 266 S.W.3d at 375.  Justice Holder has left the Court, but Judge Swiney has picked up her mantle and advocates that her dissents provide the most workable method for analyzing the element of duty in a negligence case. Judge Stafford’s disagreement with Judge Swiney and Justice Holder is evidence that this controversy over the proper way for a trial court do consider the element of duty will likely continue.

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