FILED

January 29,

1996

Cecil Crowson, Jr.

Appellate Court Clerk

January 29, 1996

FOR PUBLICATION

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

JOSEPH CARL OWENS, (

(

Plaintiff/Appellant, (

(

v . (

(

TRUCKSTOPS OF AMERICA, (

TRUCKSTOPS OF AMERICA, INC., (

AND B.P. AMERICA, INC., ( Davidson Circuit

(

Defendants/Third-Party ( Hon. Marietta M. Shipley,

Plaintiffs/Appellees, ( Judge

(

( No. 0lS0l-9408-CV-00077

v . (

(

B. MICHAEL DESIGN, INC., AND (

VITRO PRODUCTS, INC., (

(

Third-Party Defendants/ (

Appellees. (

For Plaintiff/Appellant : For Defendants/Third-Party

Plaintiffs/Appellees :

Steve North

Mark North Barry L. Howard

Nashville Michael H. Johnson

Gracey, Ruth, Howard, Tate

 & Sowell

Nashville

For Third-Party Defendants/

Appellees :

Martin D. Holmes

Stewart, Estes & Donnell

Nashville

John M. Bryant, Jr.

W. Bryan Brooks
1

The plaintiff also names "Truckstops of America" as a

defendant; however, the defendants deny that there is an

entity known by that name.

-2-

Brewer, Krause & Brooks

Nashville

O P I N I O N

JUDGMENT OF COURT OF APPEALS

MODIFIED AND CASE REMANDED TO

TRIAL COURT. REID, J.

This interlocutory appeal presents for

determination the principles of comparative fault applicable

to the assessment of liability among joint tortfeasors and

the application of those principles to this transitional

case, in which the cause of action accrued prior to the

decision in McIntyre v. Balentine , 833 S.W.2d 52 (Tenn.

1992). The decision of the Court of Appeals is modified and

the case is remanded to the trial court.

Pleadings

In the original complaint, the plaintiff, Joseph

Carl Owens, sued Truckstops of America, Inc. and B. P.

America, Inc. ("Truckstops") 1

 for damages for personal

injuries. The complaint alleges that the plaintiff sustained

personal injuries on September 14, 1987, when a stool

occupied by him in a restaurant owned and operated by

Truckstops broke, causing the plaintiff to fall to the floor. 

The complaint, which was filed on September 14, l988, the
2

See Tenn. R. Civ. P. 14.01.

3

Tenn. Code Ann. §§ 29-11-101 to 29-11-106 (1980). 

-3-

last day permitted by the statute of limitations, charges

that Truckstops was negligent in that it failed to maintain

the stool in a safe condition and it failed to warn the

plaintiff of the danger of using the stool. 

Truckstops responded to the complaint with a

general denial of negligence and causation and the

"affirmative defense" that the proximate cause of any injury

sustained by the plaintiff was the acts of unidentified third

parties for which Truckstops was not liable. 

On August 2, l989, Truckstops moved the court that

it be allowed to file a third-party complaint against Vitro

Products, Inc. ("Vitro"), which designed and manufactured the

stool, and B. Michael Design, Inc. ("Michael"), which sold

the stool to Truckstops. 2 Based on allegations of

negligence, strict liability in tort, and breach of implied

warranty of merchantability, Truckstops asserts in the thirdparty complaint that it is entitled to indemnity from Vitro

and Michael for any judgment that may be rendered against

Truckstops and, alternatively, it is entitled to pro rata

contribution by Vitro and Michael, pursuant to the Uniform

Contribution Among Tort-Feasors Act. 3 The motion was allowed
4

McIntyre did not discuss rights to indemnity.

5

Comparative fault--Joinder of third party defendants.--

(a) In civil actions where comparative fault is or becomes an

issue, if a defendant named in an original complaint

initiating a suit filed within the applicable statute of

limitations, or named in an amended complaint filed within

the applicable statute of limitations, alleges in an answer

or amended answer to the original or amended complaint that a

person not a party to the suit caused or contributed to the

-4-

on August 23, 1989. 

This was the status of the pleadings on May 4,

1992, the date on which the decision of this Court in

McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992), was

released. 

On December 23, 1992, more than three years after

Truckstops had filed its third-party complaint, Vitro filed a

motion to dismiss the third-party complaint on the ground

that the rights of indemnity and contribution among

tortfeasors were abolished by the decision in McIntyre .

4

 

On June 2, 1993, Truckstops moved that its answer

be amended to assert that Vitro and Michael may have caused

or contributed to the plaintiff's alleged injuries and

resulting damages. 

The plaintiff then, on June 4, l993, relying upon

Tenn. Code Ann. § 20-1-119 (1994), 5 which was enacted by the
injury or damage for which the plaintiff seeks recovery, and

if the plaintiff's cause or causes of action against such

person would be barred by any applicable statute of

limitations but for the operation of this section, the

plaintiff may, within ninety (90) days of the filing of the

first answer or first amended answer alleging such person's

fault, either:

(l) Amend the complaint to add such person as a

defendant pursuant to Rule l5 of the Tennessee Rules of Civil

Procedure and cause process to be issued for that person; or

(2) Institute a separate action against that person by

filing a summons and complaint. If the plaintiff elects to

proceed under this section by filing a separate action, the

complaint so filed shall not be considered an "original

complaint initiating the suit" or "an amended complaint" for

purposes of this subsection.

(b) A cause of action brought within ninety (90) days

pursuant to subsection (a) shall not be barred by any statute

of limitations. This section shall not extend any applicable

statute of repose, nor shall this section permit the

plaintiff to maintain an action against a person when such an

action is barred by an applicable statute of repose.

(c) This section shall neither shorten nor lengthen the

applicable statute of limitations for any cause of action,

other than as provided in subsection (a).

(d) The provisions of subsections (a) and (b) shall not

apply to any civil action commenced pursuant to § 28-1-105,

except an action originally commenced in general sessions

court and subsequently recommenced in circuit or chancery

court.

(e) This section shall not limit the right of any

defendant to allege in an answer or amended answer that a

person not a party to the suit caused or contributed to the

injury for which the plaintiff seeks recovery.

(f) For purposes of this section, "person" means any

individual or legal entity.

-5-

legislature on May 13, 1993, one year after the decision in

McIntyre , filed a motion to amend his complaint to add Vitro

and Michael as defendants to the original suit. The amended
-6-

complaint alleges that Vitro designed, manufactured, and sold

the stool to Michael; that Vitro was negligent in the design

and manufacture of the stool; and that the stool was a

dangerous product. The amended complaint also alleges that

Michael sold the stool to Truckstops and installed the stool

in Truckstops' restaurant; that Michael was negligent in

installing the stool and in failing to warn that the stool

was dangerous; and that Michael breached an implied warranty

of merchantability. Vitro and Michael opposed the motion to

amend the complaint on the grounds that Section 20-1-119 was

not applicable to this case, and therefore, the plaintiff's

cause of action against them was barred by the statute of

limitations, laches, and estoppel. The motion to amend the

complaint was granted. 

On interlocutory appeal pursuant to Rule 9,

Tennessee Rules of Appellate Practice, the Court of Appeals

found that the decision in McIntyre required that Truckstops'

third-party claim against Vitro and Michael for contribution

be dismissed, but the court refused to dismiss the claim for

indemnity based on breach of implied warranty of

merchantability. The Court of Appeals also held that any

claim by the plaintiff against Vitro or Michael was barred by

the statute of limitations and reversed the order making them

defendants pursuant to Section 20-1-119.
-7-

Standard of Review

The issues presented are questions of law raised

by the motions to dismiss based on the failure to state a

claim and statutes of limitations. Consequently, the scope

of review is d e novo with no presumption of correctness. See

Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston ,

854 S.W.2d 87, 91 (Tenn. 1993).

Issues

This suit had been pending for more than three and

one-half years when the decision in McIntyre was released. 

Prior to the release of McIntyre on May 4, 1992, the

essential issues raised by the pleadings were whether

Truckstops was guilty of negligence which proximately caused

or contributed to the plaintiff's injuries, and whether, in

the event Truckstops was found liable to the plaintiff,

Truckstops was entitled to indemnity or pro rata contribution

from Vitro and Michael.

The holding in McIntyre , that the principles of

comparative fault would apply to all cases tried after the

decision in McIntyre was released, McIntyre , 833 S.W.2d at 

58, requires that the case before the Court be decided under
-8-

a comparative fault analysis to the extent that the

principles approved in McIntyre and subsequent decisions can

be applied in this case without imposing substantial

injustice on any party. Concepts of fairness and efficiency

are the basis of comparative fault. See W. Page Keeton et

al., Prosser and Keeton on the Law of Torts § 67, at 468-470

(5th ed. 1984); McIntyre , 833 S.W.2d at 56, 58. 

Consequently, fairness and efficiency must be the controlling

principles in adjudicating those cases commenced prior to the

decision in McIntyre which cannot be conformed to all of the

procedures contemplated by the doctrine of comparative fault. 

However, except where noted as a transitional procedure, the

rules applied here will constitute precedents for subsequent

cases.

When the alleged cause of action arose, the

plaintiff had the right to assert a claim for damages against

Truckstops, Vitro, and Michael, or any of them, and recover

100 percent of his damages from any of the parties found,

upon any applicable legal basis, to have caused or

contributed to his injuries, provided his claim was not

barred by his own conduct. See e.g. , Velsicol Chemical Corp.

v. Rowe , 543 S.W.2d 337, 342-43 (Tenn. l976); Johnson v.

King , 221 Tenn. 292, 426 S.W.2d 196, 198 (l968). 

Notwithstanding these options as to parties and causes of
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action, Truckstops was the only party sued, and negligence

was the only cause of action alleged in the original

complaint, filed the last day allowed by the statute of

limitations. The plaintiff obviously expected no recovery

against any party other than Truckstops and on no theory of

liability other than negligence. Nevertheless, the law in

effect when the plaintiff filed suit against Truckstops would

have allowed him to obtain from Truckstops full recovery for

his damages upon proof that Truckstops' negligence

proximately caused or contributed to his injuries, in the

absence of a defense based on his own conduct. See i d . 

Even though, according to the law then applicable,

any claim that the plaintiff had against Vitro and Michael

had been lost by his failure to sue them prior to the

expiration of the statute of limitations, Truckstops still 

had the right, pursuant to the Uniform Contribution Among

Tort-Feasors Act, which right it exercised, to assert claims

against Vitro and Michael for contribution and indemnity. 

Tenn. Code Ann. § 29-11-104 (1980).

If the plaintiff's cause of action had accrued

after the decision in McIntyre and after the effective date

of Tenn. Code Ann. § 20-1-119, the rights and liabilities of

the parties would be significantly different. The plaintiff
6

See discussion of strict liability infra pp. ____ [slip

op. pp. 23-26].

-10-

would have a cause of action which would not be barred by his

negligence unless his negligence was not less than the 

negligence of those responsible for his injuries, but his

recovery would be reduced in direct proportion to the extent

his negligence contributed to the injuries sustained. See

McIntyre , 833 S.W.2d at 57. Also, except as discussed

subsequently, 6 the defendants would not be jointly liable,

but each defendant's liability would be in proportion to that

party's fault. See id. at 58. Truckstops still would have

the right to assert that Vitro and Michael caused or

contributed to the plaintiff's injury, and the plaintiff

would have the right, for 90 days under Section 20-1-119, to

assert a claim against such person or persons, by amendment

to the complaint or by a separate action, even if the

applicable statute of limitations had run. See Rule 8.03 and

Rule l4.0l, Tenn. R. Civ. P.

Disposition of the motions presented on this

appeal requires the resolution of issues relating to

comparative negligence, statutes of limitations, third-party

practice, joint tortfeasors, strict liability in tort,

contribution, indemnity, and breach of implied warranty of

merchantability.
7

Previously, the terms "comparative negligence" and

"comparative fault" have been used somewhat interchangeably

to include the principles governing the apportioning of

damages between a plaintiff and defendants, as well as

between defendants. See McIntyre v. Balentine , 833 S.W.2d

52, 56 (Tenn. 1992) (adopts a system of "comparative fault"

in place of the common law doctrine of "contributory

negligence" to determine whether a plaintiff may recover from

a defendant); Cook v. Spinnaker's of Rivergate , 846 S.W.2d

810, 811 (Tenn. 1993) (finding that the plaintiff failed to

previously raise the issue of whether the doctrine of

"comparative negligence" applied in determining whether the

defendant was liable to the plaintiff); Bervoets v. Harde

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Comparative Negligence

McIntyre was a suit for damages for personal

injuries sustained by the plaintiff in a collision between

two motor vehicles. It was essentially a two-party suit, in

which the injured driver of one vehicle sued the owner,

operator of the other vehicle. The defense was contributory

negligence and the determinative issue on appeal was the

trial court's refusal to charge the doctrine of comparative

negligence. The Court adopted a modified form of comparative

negligence:

[S]o long as a plaintiff's negligence

remains less than the defendant's

negligence the plaintiff may recover; in

such a case, the plaintiff's damages are

to be reduced in proportion to the

percentage of the total negligence

attributable to the plaintiff.

McIntyre , 833 S.W.2d at 57. 7

 
Ralls Pontiac-Olds, Inc. , 891 S.W.2d 905, 908 (Tenn.1994)

(actions for contribution between defendants will be tried

under the principles of "comparative fault"). However, each

of these terms may be used to express a distinct meaning.

The term "comparative negligence" is defined as the

measure of the plaintiff's negligence in percentage terms

used for the purpose of reducing the plaintiff's recovery

from the defendant in proportion to the percentage of

negligence attributed to the plaintiff. It encompasses the

system of determining the damages attributable to the

plaintiff as against the defendants which this Court adopted

when it abandoned the "outmoded and unjust common law

doctrine of contributory negligence." McIntyre v. Balentine ,

833 S.W.2d at 56; see also John Scott Hickman, Note,

Efficiency, Fairness, and Common Sense: The Case for One

Action as to Percentage of Fault in Comparative Negligence

Jurisdictions that have Abolished or Modified Joint and

Several Liability , 48 Vand. L. Rev. 739, 741 n. 9 (1995)

(quoting Schneider Nat'l, Inc. v. Holland Hitch Co. , 843 P.2d

561, 566 n. 4 (Wyo. 1992)). The term "comparative fault" is

defined as those principles which encompass the determination

of how to "apportion damage recovery among multiple or joint

tortfeasors according to the percentage of fault attributed

to those actors after reduction for the plaintiff's

percentage of negligence." Schneider Nat'l, Inc. v. Holland

Hitch Co. , 843 P.2d at 566 n. 4. 

The rationale behind this distinction is that negligence

is generally the only theory by which the plaintiff's damages

can be reduced; whereas, the defendants' liability may be

based on theories of liability other than negligence.

It is recognized that there are problems with the use of

these terms and that scholars have suggested alternative

approaches:

The Court [in McIntyre v. Balentine ] uses

the term "comparative fault," which is

adequate for negligence actions but

inappropriate for strict liability

actions, in which the conceptually

confused term "comparative causation"

sometimes is substituted. The best term,

for both negligence and strict liability

actions, is "comparative responsibility."

Richard W. Wright, The Logic and Fairness of Joint and

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Several Liability , 23 Mem. St. U. L. Rev. 45 n. 2 (1992); 

The term "comparative fault" will be used in

instances because it more appropriately reflects

what the courts are doing when they come to address

the interface between plaintiffs' fault and socalled strict liability.

Victor E. Schwartz, Comparative Negligence , § 11-1 (3d ed.

1994).

Nonetheless, the usefulness of the terms in discussing 

the issues justifies their adoption despite their

limitations. For the purposes of this opinion, the term

"comparative negligence" will refer to the system of

apportioning negligence between a plaintiff and the

defendants, and the term "comparative fault" will refer not

only to the system of apportioning liability between

tortfeasors, but also to the set of principles governing the

analysis of liability in actions grounded in tort.

8

See e.g. , Whitehead v. Toyota Motor Corp. , 897 S.W.2d

684 (Tenn. 1995) (comparative negligence principles applied

in apportioning damages between a plaintiff and defendants in

strict liability actions); Volz v. Ledes , 895 S.W.2d 677, 680

(Tenn. 1995) (damages apportioned among defendants according

to fault even if one of the defendants is insolvent); Eaton

v. McLain , 891 S.W.2d 587 (Tenn. 1994) (prior common law

doctrines of remote contributory negligence, last clear

chance and implied assumption of risk have become subsumed by

comparative negligence); Perez v. McConkey , 872 S.W.2d 897

(Tenn. 1994) (implied assumption of risk is no longer an

absolute bar to recovery).

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In no case involving principles of comparative

fault decided by the Court since McIntyre , even though they

all have been transitional cases, has the Court found that

substituting comparative negligence for the traditional

doctrine of contributory negligence worked an unfairness upon

any party. 8 Likewise, application of comparative negligence

in this case would not defeat the right alleged, the right to
9

Truckstops did not plead contributory negligence in

this case.

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recover damages from Truckstops upon proof that Truckstops

was negligent and its negligence proximately caused or

contributed to the plaintiff's injuries and damages. 9 

However, application of comparative fault

principles in this case would limit the plaintiff's recovery

to that portion of the damages corresponding to the fault

attributable to Truckstops without granting to the plaintiff

the benefit of other rights recognized in McIntyre , and,

therefore, could impose upon him a significant unfairness. 

The application of McIntyre , which allows the defendant to

show "that a non-party caused or contributed to the injury or

damage from which recovery is sought," id. at 58, would allow

Truckstops to show that Vitro and Michael were responsible

for some of the plaintiff's damages thereby reducing the

extent of its liability and thus preventing the plaintiff

from obtaining a full recovery, unless the plaintiff has the

right, pursuant to Tenn. Code Ann. § 20-1-119 or otherwise,

to assert claims against Vitro and Michael.

 

Consequently, before deciding Truckstops'

liability to the plaintiff and Truckstops' claims under its

third-party action against Vitro and Michael, the plaintiff's
-15-

rights against those third-party defendants must be

determined. 

Statutes of Limitations

Vitro and Michael claim that the plaintiff is

barred by the statutes of limitations from recovering from

them. The plaintiff's causes of action for strict liability

and negligence accrued when he was injured on September l4,

l987. The record does not show clearly when his alleged

warranty claim accrued, it certainly accrued no later than

the date of the injury. See Tenn. Code Ann. § 47-2-725(2)

(1992). Under Tenn. Code Ann. § 28-3-104 (Supp. 1993),

actions for personal injury, including products liability

cases, must be commenced within one year from the date on

which the cause of action accrued. Actions for breach of the

implied warranty of merchantability must be commenced within

four years under Section 47-2-725. The plaintiff did not

seek to assert any claim against Vitro or Michael until

June 4, 1993, almost six years after the date of his injury. 

Consequently, any claims the plaintiff may have had against

Vitro or Michael were barred when he moved the Court to amend

his complaint to make them defendants. 

The enactment of Tenn. Code Ann. § 20-1-119 does
-16-

not revive the plaintiff's right to assert claims against

Vitro and Michael. Section 20-1-119 now allows a plaintiff a

limited time within which to amend a complaint to add as a

defendant any person alleged by another defendant to have

caused or contributed to the injury, even if the statute of

limitations applicable to a plaintiff's cause of action

against the added defendant has expired. However, this

statute was not enacted until 1993, after the plaintiff's

claims had become barred. The state constitution prohibits

the revival of these causes of action outside of the

limitation periods. The Constitution of Tennessee, Article

I, Section 20, provides "[t]hat no retrospective law, or law

impairing the obligations of contracts, shall be made." 

Retrospective laws are laws that "take away or impair vested

rights acquired under existing laws or create a new

obligation, impose a new duty, or attach a new disability in

respect of transactions or considerations already passed." 

Morris v. Gross , 572 S.W.2d 902, 907 (Tenn. 1978). This

Court has determined that a potential defendant acquires a

vested right not to be sued once a cause of action has

accrued and the applicable statute of limitations has

expired. Watts v. Putnam County , 525 S.W.2d 488, 492 (Tenn.

1975). Accordingly, the plaintiff is barred from asserting

any claim for personal injury or breach of implied warranty

of merchantability against Vitro or Michael.
10 At any time after commencement of the

action a defending party, as a thirdparty plaintiff, may cause a summons and

-17-

Since the plaintiff cannot recover from Vitro or

Michael damages which may be attributable to them, he may be

denied a full recovery unless he is allowed to recover all of

his damages from Truckstops. However, this could constitute

an injustice to Truckstops, unless Truckstops can assert

third-party claims against Vitro and Michael. The issue then

is the effect of McIntyre and subsequent decisions on

Truckstops' right to pursue third-party actions against Vitro

and Michael for indemnity and contribution.

Third-Party Practice

The only cause of action asserted by the plaintiff

against Truckstops was based on negligence, while Truckstops

has asserted third-party claims based on negligence, strict

liability in tort, and breach of implied warranty of

merchantability. The basis on which Truckstops can assert

third-party claims against Vitro and Michael is not limited

to the cause of action asserted by the plaintiff against

Truckstops. In Turner v. Aldor Co. of Nashville, Inc. , 827

S.W.2d 318 (Tenn. App. 1991), decided before McIntyre , the

Court of Appeals examined third-party practice in Tennessee

under Rule 14 of the Tennessee Rules of Civil Procedure, 1 0
complaint to be served upon a person not

a party to the action who is or may be

liable to him for all or part of the

plaintiff's claim against him. . . .

Tenn. R. Civ. P. l4.0l.

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and found that its purpose "is to enable the defendant to

implead another person 'who is or may be liable to him for

all or part of the plaintiff's claim against him.'" Id. at

320 (quoting Tenn. R. Civ. P. l4.0l). The court held:

The third-party defendant's liability to

the defendant may be based on an

entirely different theory than the

defendant's liability to the plaintiff. 

Since a plaintiff may choose to sue one

or more defendants without joining

others, it is irrelevant that the

plaintiff has no claim against the

third-party defendant or has chosen not

to assert one. 

Id. (citations omitted). See also 4 American Law of Products

Liability 3d , § 52:17 (Timothy E. Travers et al. eds., 3d ed.

1987). Notwithstanding the above-stated rule applicable to

third party practice generally, the doctrine of comparative

fault contemplates that the apportionment of fault is limited

to those against which the plaintiff has a cause of action. 

Since the claims that Truckstops, in the posture of a thirdparty plaintiff, has against Vitro and Michael, in the

posture of third-party defendants, are claims which the

plaintiff Owens could have asserted against Vitro and
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Michael, an apportionment of liability among the first-party

defendant and the third-party defendants that is consistent

with principles of comparative fault can be accomplished

according to third-party proceedings in this case. 

Liability Between Joint Tortfeasors

I. Negligence

Truckstops insists that McIntyre "abolished" joint

and several liability in all cases "tried or retried, after

the McIntyre decision," and that, consequently, its liability

is limited to that portion of the fault attributable to it. 

Truckstops also claims that it has the right, under McIntyre ,

to show, pursuant to its amended answer, that Vitro and

Michael caused or contributed to the plaintiff's injuries and

resulting damages, thereby reducing or eliminating liability

on its part. Vitro and Michael also contend that McIntyre

abolished joint and several liability and the incidental

rights of contribution and indemnity. 

McIntyre was an action in negligence against a

sole defendant; consequently, the only allocation of fault in

that case was between the plaintiff and the defendant. After

remanding the case for a new trial, the Court in McIntyre
11The Court also used the term "obsolete" to indicate

that the doctrines of remote contributory negligence and last

clear chance were subsumed into the doctrine of comparative

negligence. McIntyre , 833 S.W.2d at 57. 

-20-

stated:

 We recognize that today's decision

affects numerous legal principles

surrounding tort litigation. For the

most part, harmonizing these principles

with comparative fault must await

another day. However, we feel compelled

to provide some guidance to the trial

courts charged with implementing this

new system.

McIntyre , 833 S.W.2d at 57. As part of its guidance for the

bench and bar, the Court described that decision's effect as

rendering the doctrine of joint and several liability

"obsolete," 1 1 stating, 

[h]aving thus adopted a rule more

closely linking liability and fault, it

would be inconsistent to simultaneously

retain a rule, joint and several

liability, which may fortuitously impose

a degree of liability that is out of all

proportion to fault.

Id. at 58. The Court further stated:

[T]he Uniform Contribution Among TortFeasors Act, T.C.A. §§ 29-11-101 to 106

(1980)), will no longer determine the

apportionment of liability between
-21-

codefendants.

I d . However, in response to a petition for a rehearing, the

Court stated that further guidance regarding "the

advisability of retaining joint and several liability in

certain limited circumstances . . . should await an

appropriate controversy." Id. at 60. That issue is

presented in the case before the Court.

The comparative fault decisions rendered to date

by this Court have dealt primarily with the allocation of

fault between the plaintiff and the defendant or defendants. 

In Perez v. McConkey , 872 S.W.2d 897 (Tenn. 1994), there was

only one defendant. The cause of action was common law

negligence. The issue was whether assumption of risk was an

absolute bar to the plaintiff's charge of negligence. The

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

were husband and wife. The complaint charged common law

negligence, the issue was the factors to be considered in

assigning fault to the plaintiff and the defendants. There

was no determination of competing rights and liabilities

between the defendants. 

The first opportunity to consider the competing

interests between tortfeasors was presented in Bervoets v.
-22-

Harde Rolls Pontiac-Olds, Inc. , 891 S.W.2d 905 (Tenn. 1994).

In that case the tortfeasors were charged with separate,

independent acts of negligence. Like the case before the

Court, that case was pending when the decision in McIntyre

was rendered. Bervoets, who was a passenger in an automobile

operated by Jackson, was injured when the vehicle was

wrecked. Bervoets sued Jackson and the owners of the

vehicle, who, in turn, filed a third-party claim for

contribution against Adanac, Inc., alleging that the thirdparty defendant caused the accident by unlawfully serving

alcoholic drinks to Jackson, who was a minor. Jackson and

his liability insurance carrier entered into a settlement

agreement with Bervoets, in which Bervoets released his

claims against all parties. Jackson's insurer then pursued a

claim against Adanac for contribution. 

Following the release of the decision in McIntyre ,

Adanac moved to dismiss Jackson's claim for contribution on

the ground that McIntyre abolished joint and several

liability and the incidental right to contribution. The

Court rejected Adanac's interpretation of the opinion in

McIntyre , stating: 

[O]ur statements in McIntyre with regard

to the effect of our adoption of a

scheme of comparative fault on the

remedy of contribution make it clear
-23-

that we did not intend to deprive

litigants of the right to pursue a claim

for contribution in an appropriate case:

Id. at 907. Since there is no right of contribution among

tortfeasors who are not jointly liable, the Court recognized

that the right to contribution would be utilized in some

situations to resolve the rights and liabilities of

tortfeasors jointly and severally liable to others. In

explanation of why there was no right to contribution in

Bervoets , the Court quoted from McIntyre :

[B]ecause a particular defendant will

henceforth be liable only for the

percentage of a plaintiff's damages

occasioned by that defendant's negligence,

situations where a defendant has paid more

than his "share" of a judgment will no

longer arise, and therefore the Uniform

Contribution Among Tortfeasors Act, T.C.A.

§§ 29-11-101--106 (1980) will no longer

determine the apportionment of liability

between codefendants .

Id. (emphasis in original) (quoting McIntyre , 833 S.W.2d at

58). The Court in Bervoets made clear that Tenn. Code Ann. §

29-11-103(1), which provides that tortfeasors' "relative

degrees of fault shall not be considered" in determining the

pro rata shares of liability, is not consistent with the

doctrine of comparative fault, which imposes liability in

direct relation to fault. The holding in Bervoets was that
-24-

under comparative fault, Jackson and Adanac, Inc. were not

jointly and severally liable to the plaintiff, but, Jackson,

who had paid the plaintiffs' damages in full, would be

allowed, in that transitional case, to assert a claim for

contribution against Adanac, Inc. so that liability would be

assessed, as explained on petition to rehear, according to

"the percentage of fault attributable to each of the

defendants." 

Had the plaintiff's cause of action in Bervoets

arisen subsequent to the adoption of comparative fault,

Jackson, in an effort to reduce the extent of his liability,

would have alleged in his answer that Adanac, Inc. caused or

contributed to the damages, and the plaintiff, on pain of

recovering less than full damages, would have amended his

complaint pursuant to Section 20-1-119 to assert a claim

against Adanac, Inc. Thus, the purpose of comparative fault,

the assessment of liability in proportion to fault, would

have been accomplished without the proceeding to enforce

contribution, which was made necessary in Bervoets because

the time within which the plaintiff could assert a claim

against Adanac, Inc. directly had expired when McIntyre was

decided. 

Procedurally, Bervoets and the case before the
-25-

Court are similar. In both cases, the plaintiff sued a

defendant on a charge of negligence, and the defendant filed

a third-party action against others asserting a separate,

independent act of negligence. In neither case had the

plaintiff asserted a claim directly against the third-party

defendant. The main difference in the two cases is that in

Bervoets , the plaintiff had, by settlement with the

defendants, recovered his damages in full, while, in the

present case, the issue of the defendant's liability to the

plaintiff had not been resolved when McIntyre was decided. 

The defendants in Bervoets were charged with separate,

independent acts of negligence, and under comparative fault

would not be jointly liable. Contribution was utilized so

that liability for damages could be apportioned between the

defendants on the basis of their relative fault. 

Volz v. Ledes , 895 S.W.2d 677 (Tenn. 1995), was a

medical malpractice case in which the jury attributed 10

percent of the fault to the plaintiff, 45 percent to the

physician-defendant, and 45 percent to a non-party physician. 

As in Bervoets , each tortfeasor was charged with separate,

independent acts of negligence. The decision was that fault

be attributed against each tortfeasor separately, even though

one tortfeasor was not a party to the suit.
-26-

These comparative fault cases decided by the Court

establish that, in all cases of negligence in which the

plaintiff is entitled to recover damages, liability for

damages will be reduced in proportion to the damages

attributable to the plaintiff's fault. The decisions also

establish that where the separate, independent negligent acts

of more than one tortfeasor combine to cause a single,

indivisible injury, each tortfeasor will be liable only for

that proportion of the damages attributable to its fault. As

to those tortfeasors, liability is not joint and several but

several only, even though two or more tortfeasors are joined

in the same action. 

However, as in Bervoets , fairness demands that

contribution be allowed in this case. Truckstops' thirdparty claim against Vitro and Michael for contribution based

on allegations of negligence will be apportioned according to

the percentage of fault attributable to each of the

tortfeasors. The policy consideration that Tennessee not

"abandon totally our fault-based tort system" which was the

basis for rejecting pure comparative fault in favor of the

"49 percent" rule, McIntyre , 833 S.W.2d at 57 , is not

applicable to the apportionment of liability among
12Under a "pure comparative fault" analysis, the codefendant may recover even if his negligence is greater than

the negligence of the other tortfeasors. Liability is

apportioned solely based on the percentage of causal

negligence, or fault, Cf. McIntyre , 833 S.W.2d at 57; 1 J. D.

Lee & Barry A. Lindahl, Modern Tort Law , § 12.06 (rev'd ed.

1994); Comparative Negligence/Fault, 1 Prod. Liab. Rep. (CCH)

¶ 3030 (Apr. 1994).

-27-

tortfeasors. 1 2 This is consistent with the decision in

Bervoets that "[the jury] shall proceed to determine the

percentage of fault attributable to each of the defendants,

and contribution will be ordered accordingly." Bervoets , 891

S.W.2d at 908. Allowing the claim for contribution will

accomplish the same equitable results in this case that would

be accomplished if the rights and liabilities of all of the

parties could be determined according to the principles

announced in McIntyre and provided in Section 20-1-119. 

II. Strict Liability in Tort

Whitehead v. Toyota Motor Corp. , 897 S.W.2d 684

(Tenn. 1995), was the Court's first comparative fault case

involving a products liability action based on strict

liability in tort. The Court held that in Tennessee, as in

the majority of other jurisdictions, comparative negligence

applies to products liability actions based on strict

liability in tort. Id. at 691. Whitehead was a federal case

in which the United States District Court, pursuant to Rule
-28-

23, Rules of the Supreme Court, certified to this Court the

question of whether the affirmative defense of comparative

negligence can be raised in a products liability action based

on strict liability in tort. The Court recognized that prior

to the adoption of comparative fault in Tennessee

contributory negligence was not a defense to an action based 

on strict liability in tort, Whitehead v. Toyota Motor Corp. ,

897 S.W.2d at 688, see Ellithorpe v. Ford Motor Co. , 503

S.W.2d 516 (Tenn. 1973). However, answering the certified

question in the affirmative, the Court stated:

 The conduct that leads to strict

products liability involves fault, as

the word "fault" is commonly understood. 

See generally William C. Powers, The

Persistence of Fault in Products

Liability , 6l Tex. L. Rev. 777 (1983). 

In keeping with the principle 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.

Whitehead v. Toyota Motor Corp. , 897 S.W.2d at 693. 

After reviewing the history of strict liability in Tennessee,

the Court found that reducing the plaintiff's recovery by the

proportion of damages attributable to the plaintiff's fault

would not defeat the principal reasons for the adoption of

strict liability: 
13The Court has not, as stated in the dissent, 

disapproved of the doctrine of joint and several liability i n

a general sense ; see infra p. _____ [slip op. dissent at p.

2]; it has disapproved joint and several liability in a

particular sense , that is, where the defendants were charged

with separate, independent acts of negligence. This

particular limitation on joint and several liability was the

basis for the Court's decisions in Bervoets v. Harde Ralls

Pontiac-Olds, Inc. 891 S.W.2d at 905; Whitehead v. Toyota

Motor Corp. , 897 S.W.2d at 684; and Volz v. Ledes , 895 S.W.2d

at 677. Joint and several liability need not be

"resurrected," see infra p. _____ (dissent), [slip op.

-29-

(1) to encourage greater care in the

manufacture of products that are

distributed to the public, and (2) to

relieve injured consumers from the

burden of proving negligence on a

manufacturer's part.

Id. at 693. 

Although there were two defendants in Whitehead ,

the manufacturer and the seller of the product alleged to be

defective and unreasonably dangerous, the issue presented to

the Court related only to the apportionment of damages

between the plaintiff and the defendants. Whitehead did not

address the issue presently before the Court, the rights and

liabilities between multiple defendants in a strict liability

action. This case is the "appropriate controversy,"

McIntyre , 833 S.W.2d at 60, for the Court to address "the

advisability of retaining joint and several liability," i d . ,

for defendants in the chain of distribution of a product who

are liable upon a theory of strict liability in tort. 1 3 
dissent at p. 5], because it has continued to be an integral

part of the law, except where specifically abrogated.

-30-

Strict liability in tort is recognized as a cause

of action in the Tennessee Products Liability Act of 1978. 

Tenn. Code Ann. §§ 29-28-10l to 29-29-108 (1980 and Supp.

1994). Under Tenn. Code Ann. § 29-28-105(a) (1980), a

manufacturer or seller of a product may be liable for "injury

to person or property caused by the product [if] 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." Proof of negligence on the part of the

manufacturer or seller is not required. Ford Motor Co. v.

Eads , 224 Tenn. 473, 457 S.W.2d 28, 30 (1970); Restatement

(Second) of Torts, § 402A, cmt. m (1965). The policy reasons

for imposing strict liability were reviewed by the Court in

Whitehead : 

"We imposed strict liability against the

manufacturer and in favor of the user or

consumer in order to relieve injured

consumers 'from problems of proof

inherent in pursuing negligence . . .

and warranty . . . remedies . . .' As

we have noted, we sought to place the

burden of loss on manufacturers rather

than 'injured persons who are powerless

to protect themselves .'"

Whitehead v. Toyota Motor Corp. , 897 S.W.2d at 691 (quoting

from Daly v. General Motors Corp. , 575 P.2d 1162, 1167-69
-31-

(1978)) (emphasis in original). The Court recognized that in

applying comparative negligence principles to actions based

on strict liability,

[t]here is still no requirement that

negligence on the part of a manufacturer

be proved, only that the manufacturer

distributed a defective or unreasonably

dangerous product.

Id. at 693. 

 Procedurally, a plaintiff in a strict liability

action must satisfy one of the conditions set forth in § 29-

28-106(b) (Supp. 1994), which provides:

No product liability action as defined

in § 29-28-102(6), when based on the

doctrine of strict liability in tort

shall be commenced or maintained against

any seller of a product which is alleged

to contain or possess a defective

condition unreasonably dangerous to the

buyer, user or consumer unless the

seller is also the manufacturer of the

product or the manufacturer of the part

thereof claimed to be defective, or

unless the manufacturer of the product

or part in question shall not be subject

to service of process in the state of

Tennessee or service cannot be secured

by the long-arm statutes of Tennessee or

unless such manufacturer has been

judicially declared insolvent.

A primary purpose of this section is "to ensure that an
14The dissent's insistence that each defendant in an

action for strict liability be liable to the plaintiff

according to its separate "fault" would impose upon the

plaintiff the burden of proving each defendant was negligent,

thus abolishing strict liability.

-32-

injured consumer may maintain a strict liability action

against whomever is most likely to compensate him for his

injuries." Seal v. Sears, Roebuck and Co., Inc. , 688 F.

Supp. l252, l253 (E.D. Tenn. l988). When the manufacturer is

not amenable to service of process or is insolvent, an

injured consumer can assert liability against the "faultless"

seller. If, under these circumstances, the seller were not

held to be jointly liable for the plaintiff's damages, then,

contrary to the products liability statute, the injured

consumer would be left with no remedy. When the legislature

grants a remedy, it cannot be abolished by judicial decision. 

Bervoets , 891 S.W.2d at 907.

Consequently, joint and several liability against

parties in the chain of distribution of a product is

essential to the theory of strict products liability. Since

strict liability does not require proof of negligence, but

only that the product was defective or unreasonably

dangerous, parties in the chain of distribution must be

treated as a single unit for the purpose of determining and

allocating fault. 1 4
15The strict liability action against Michael cannot be

maintained unless one of the conditions of Tenn. Code Ann. §

29-28-106(b) (Supp. 1994) is satisfied. 

16Whereas contribution has been utilized in transitional

cases as a means of attributing liability according to fault,

contribution and indemnity will continue to be the effective

means of apportioning liability among tortfeasors jointly and

severally liable in cases arising under comparative fault. 

-33-

This conclusion is supported by portions of the

Uniform Contribution Among Tort-Feasors Act not addressed in

McIntyre , which provide, "[i]f equity requires, the

collective liability of some as a group shall constitute a

single share" and "[p]rinciples of equity applicable to

contribution generally shall apply." Tenn. Code Ann. § 29-

11-103(2) and (3). Consequently, in the case before the

Court, on the charge of strict liability in tort, the

liability of Vitro, as the manufacturer, and Michael, as the

seller 1 5 of a product alleged to be defective and dangerous,

"shall constitute a single share." The third-party

defendants will be held jointly and severally liable as to

the third-party plaintiff, with principles of contribution

and indemnity applying to determine the ultimate division of

liability among the strictly liable defendants. 1 6

 

This holding is consistent with Whitehead . In

that case, as in almost all of the cases cited therein where

comparative fault was applied to strict products liability

actions, Whitehead , 897 S.W.2d at 691-92, the allocation of
-34-

fault among the defendants in the chain of distribution of

the product was not an issue. It was not an issue because in

those comparative fault jurisdictions, joint and several

liability of tortfeasors had been retained after the adoption

of comparative fault or the strict products liability action

was brought against only one defendant. See Elliot v. Sears,

Roebuck and Co. , 642 A.2d 709 (Conn. 1974); West v.

Caterpillar Tractor Co. , 336 So. 2d 80 (Fla. l976); Kaneko v.

Hilo Coast Processing , 654 P.2d 343 (Haw. 1982); Coney v.

J.L.G. Indus., Inc. , 454 N.E.2d l97 (Ill. l983); Bell v. Jet

Wheel Blast , 462 So. 2d 166 (La. l985); Austin v. RaybestosManhattan, Inc. , 471 A.2d 280 (Me. l984); Brisboy v.

Fibreboard Corp. , 4l8 N.W.2d 650 (Mich. 1988); Jack Frost,

Inc. v. Engineered Bldg. Components Co. , 304 N.W.2d 346

(Minn. l98l); Day v. General Motors Corp. , 345 N.W.2d 349

(N.D. l984); Sandford v. Chevrolet Div. of General Motors ,

642 P.2d 624 (Or. l982); Fiske v. MacGregor , 464 A.2d 7l9

(R.I. l983); Duncan v. Cessna Aircraft Co. , 665 S.W.2d 4l4

(Tex. l984); Mulherin v. Ingersoll-Rand Co. , 628 P.2d l30l

(Utah l98l); Lundberg v. All-Pure Chemical Co. , 777 P.2d l5

(Wash. App. 1989); Star Furniture Co. v. Pulaski Furniture

Co. , 297 S.E.2d 854 (W. Va. l982); Dippel v. Sciano , l55

N.W.2d 55 (Wis. 1967); Keltner v. Ford Motor Co. , 748 F.2d

l265 (8th Cir. 1984) (based on Arkansas law); Trust Corp. of

Montana v. Piper Aircraft Corp. , 506 F. Supp. 1093 (D. Mont.
17The following special verdict form, as adopted to the

specific allegations of the case, may be used in cases where

liability is predicated upon strict products liability and

other theories such as negligence: 

 Using 100 percent as the total combined harm,

find from a preponderance of the evidence the

percentage of the plaintiff's injuries or damages

proximately caused by:

The defective or unreasonably 

 dangerous product (Defendants 

 A and B) _____ %

Defendant X _____ %

Defendant Y _____ %

Plaintiff _____ %

 (Total must equal 100%)

_______________________

Signature of Foreman 

-35-

1981) (based on Montana law).

When comparative fault principles are applied in a

strict liability action, the plaintiff's fault is compared

with the fault of the strictly liable defendants as a single

unit. The fault of these defendants is measured by the

injury caused by the defective or unreasonably dangerous

product. When liability is found on strict liability and

also negligence or other theories, the trier of fact must

apportion the fault for the plaintiff's injuries or damages

according to the percentage of damages caused by the

plaintiff, that caused by the product, and that caused by

each tortfeasor acting separately and independently. 1 7 This

procedure was adopted by the Court in Whitehead , where the
-36-

Court stated:

The triers of fact will determine the

percentage of a plaintiff's damages that

is attributable to the defective or

unreasonably dangerous product as well

as the percentage that is attributable

to the plaintiff's own fault.

Whitehead v. Toyota Motor Corp. , 897 S.W.2d at 693 (emphasis

added). See also Duncan , 665 S.W.2d at 427 (Tex. 1984). 

Thus, the adoption of comparative fault did not

alter that products 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. Under comparative fault principles, however, these

defendants are jointly and severally liable only for that

percentage of the plaintiff's damages caused by the product. 

For the percentage of damages caused by the product, the

strictly liable defendants are treated as a single unit or

share. On the other hand, when liability is based on

negligence, each of the defendants is severally liable only

for the percentage of damages caused by its negligence. If

those defendants who can be held jointly and severally liable

on a claim of strict liability are also charged with

negligence, as in this case, their liability on the

negligence charge will be as separate, independent
-37-

tortfeasors, and their liability on the negligence charge

will be several only. 

The result of applying these principles to this

case is that on the charge of strict liability in tort, the

liability of Vitro and Michael to Truckstops is joint and

several, but only to that portion of the total liability that

is attributable to them as a single unit or share, under

comparative fault principles. On the charge of negligence,

the liability of each is several and in proportion to the

damage attributable to its negligence. 

III. Indemnity

Truckstops claims that it is entitled to indemnity

from either Vitro or Michael because its negligence should be

considered passive. It relies upon the rule in Tennessee

that one guilty of only "passive" negligence rather than

"active" negligence can recover indemnification. Wolff &

Munier, Inc. v. Price-Waterhouse , 811 S.W.2d 532, 536 (Tenn.

App. 1991). Whereas contribution shifts only part of the

loss from one party to another, traditional implied indemnity

shifts the entire loss from the party found liable to a party

who should bear the entire loss. 4 American Law of Products

Liability at § 52.1. The law of indemnity may be applied
-38-

where one party is held liable solely by imputation of law

because of a relation to a wrongdoer. W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts , § 51, at 341-42 (5th

ed. 1984). "Contracts of indemnification may be expressed,

or an obligation to indemnify may arise by implication from

the relationship of the parties . . . ." Houseboating Corp.

of Am. v. Marshall , 553 S.W.2d 588, 589 (Tenn. 1977). 

The right of indemnity is not impaired by the

Uniform Contribution Among Tort-Feasors Act. Section 29-11-

102(f) provides:

 This chapter does not impair any

right of indemnity under existing law. 

Where one tort-feasor is entitled to

indemnity from another, the right of the

indemnity obligee is for indemnity and

not contribution, and the indemnity

obligor is not entitled to contribution

from the obligee for any portion of his

indemnity obligation.

See also Continental Ins. Co. v. City of Knoxville , 488

S.W.2d 50, 52 (Tenn. 1972). However, indemnification which

imposes the entire loss on one tortfeasor based on the

imprecise distinction between active and passive negligence

is inconsistent with the comparative fault principles adopted

in McIntyre and subsequent decisions. Consequently, there

can be no claim for indemnification based on active-passive
-39-

negligence because that distinction is subsumed into the

doctrine of comparative fault. While no longer determinative

of the right to seek indemnity, the distinctions between the

active and passive negligence may be factors to be weighed by

the jury in assessing the percentage of fault of the parties. 

Schneider Nat'l Inc. v. Holland , 843 P.2d 561, 578-79 (Wyo.

1992). However, where implied indemnity is based on the

legal relationship between the parties, the traditional

principles of indemnity continue to apply. 

Consequently, Truckstops is not entitled to

indemnity on the third-party plaintiff's charge of

negligence, and the liabilities of Truckstops, Vitro and

Michael on the charge of negligence will be based on their

respective percentages of fault. Neither Vitro nor Michael

has raised the issue of indemnity on the charge of strict

liability. 

IV. Breach of Implied Warranty

As noted by the Court of Appeals, the third-party

complaint alleges no facts in support of the charge of breach

of implied warranty of merchantability. Consequently, the

discussion of that issue is limited to the determination that

in an action for damages for personal injuries based on
-40-

breach of implied warranty of merchantability of a product,

comparative negligence may be pled as a defense. The

rationale is the same as that supporting comparative

negligence as a defense in actions based on negligence and

strict liability in tort. The principle is well-stated by

the Court in Fiske v. MacGregor, Div. of Brunswick , 464 A.2d

7l9, 728 (R.I. 1983):

If the comparative-negligence statute

only applied to negligence actions, a

defendant manufacturer found liable in

strict liability or implied warranty

could not have the damages apportioned

because of plaintiff's culpable conduct. 

Ironically, defendant manufacturers

found liable in negligence would have

the damages apportioned, despite the

fact that their conduct was clearly more

culpable than the conduct of those

defendants found liable in strict

liability or implied warranty. We

believe that the just outcome of a case

should not be determined by adroit

pleading or semantical distinctions. A

defendant's culpability is the basis for

an award of damages, whether that

culpability is denominated negligence,

strict liability, or breach of warranty. 

Similarly, a plaintiff's culpable

conduct is the basis for an

apportionment of those damages.

The conclusion is that, on the charge of breach of

implied warranty of merchantability, a plaintiff's claim for

damages and the apportionment of those damages among

tortfeasors in a comparative fault case, and among the first-
-41-

party and third-party defendants in this case, will be

determined according to the principles of comparative fault

hereinabove discussed.

Conclusion

Based on these considerations, the equitable

results contemplated by the doctrine of comparative fault can

be best accomplished in this case by not relieving Truckstops

of the joint and several liability which existed when the

plaintiff's cause of action against Truckstops accrued, and

by allowing Truckstops to pursue its third-party claims

against Vitro and Michael. The plaintiff will have the same

expectation of recovery as when he filed his action for

negligence against Truckstops, and Truckstops will have the

same right to pursue its third-party claims against Vitro and

Michael as when it made them third-party defendants. In the

event that Truckstops is found to have caused or contributed

by its negligence to the plaintiff's injuries and damages,

the plaintiff shall be allowed to recover from Truckstops the

full amount of his damages. And Truckstops shall be allowed

to pursue its third-party actions according to the principles

set forth in this decision. Thus, liability for the damages

to which the plaintiff may be entitled will be allocated

among all of the defendants in a manner consistent with the
18Although the allocation of liability in this case will

be consistent with the doctrine of comparative fault, the

discharge of the separate liabilities and the attending

consequences may depend upon the collectibility of the awards

made.

-42-

doctrine of comparative fault. 1 8

The judgment of the Court of Appeals remanding the

case to the trial court is affirmed as modified by this

decision.

 

Costs will be taxed against the parties equally. 

____________________________

REID, J.

Concur:

Anderson, C.J., Birch, and

 White, JJ.

Drowota, J. - Dissenting.