FILED

September 2, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

(HEARD IN KNOXVILLE)

WILLIAM J. SNYDER, ) FOR PUBLICATION

) Filed: September 2, 1997

Plaintiff/Respondent, ) Certified Question of Law from the

) United States

) District Court for the Eastern

v. ) District of Tennessee, Northeastern

) Division

LTG LUFTTECHNISCHE GmbH; )

LTG TECHNOLOGIES, INC.; and )

HSM PRESSEN-GmbH, ) No. 01-S-01-9607-FD-00143

)

Defendants/Petitioners, )

) Hon. Dennis H. Inman, Magistrate

THE TRAVELERS INSURANCE )

COMPANY, )

)

Intervenor. )

For Plaintiff-Respondent: For Defendants/Petitioners:

Earl R. Booze John A. McReynolds, Jr.

Herrin, Booze & Rambo 

Baker, McReynolds, Byrne,

Johnson City, Tennessee O’Kane, Shea & Townsend

Knoxville, Tennessee

Bill Hampton Thomas F. Mink, II

Hampton & Street Mink & Blair

Elizabethton, Tennessee Nashville, Tennessee

For the Intervenor:

J. Paul Coleman

Herndon, Coleman, Brading &

McKee

Johnson City, Tennessee
1

"The Supreme Court may, at its discretion, ans wer questio ns of law certified to it by the Supreme Court

of the United States, a Court of Appeals of the United States, a District Court of the United States in Tennessee,

or a United States Bankruptcy Court in Tennessee. This rule may be invoked when the certifying court

determines that, in a proceeding before it, there are questions of law of this state which will be determinative of

the cause and as to which it appears to the certifying cou rt there is no controlling precedent in the decisions of

the Supreme Court of Tennessee.” Sup. Ct. R. 23, Sec. 1.

2

DROWOTA, J.

QUESTIONS CERTIFIED

Pursuant to Rule 23 of the Rules of the Supreme Court of

Tennessee,1

 this Court has accepted two questions certified to us by the United

States District Court for the Eastern District of Tennessee. The questions are as

follows:

1. Whether products liability defendants in a suit for personal

injuries based on allegations of negligence and strict liability in tort may

introduce evidence at trial that the plaintiff’s employer’s alteration, change,

improper maintenance, or abnormal use of the defendants’ product proximately

caused or contributed to the plaintiff’s injuries.

2. If “no,” of what effect is Tenn. Code Ann. § 29-

28-108?
3

As explained below, the answer to the first certified question is that

products liability defendants in a suit for personal injuries based on allegations

of negligence and strict liability in tort may introduce relevant evidence at trial

that the plaintiff’s employer’s alteration, change, improper maintenance, or

abnormal use of the defendants’ product was the cause in fact of the plaintiff’s

injuries. The jury may consider all evidence relevant to the actions of the

employer with respect to the defendants’ product in assessing whether the

plaintiff has met his burden of establishing the elements necessary to recover

against the defendants. However, in making that determination, the jury may

not assess fault against the employer. Our answer to the first question makes it

unnecessary to reach the second one. 

FACTS AND PROCEDURAL BACKGROUND

In this products liability action, the plaintiff, William Snyder, was

employed by Sara Lee Knit Products as a technician at its plant in Mountain

City. Sara Lee used presses in its plant to compress cotton into bales. These

presses, called “cotton balers,” collected cotton in the top portion of the

machine, which then vertically compressed the cotton into the lower half of the

machine. A ram would then move horizontally forward to press the cotton into

a bale.
2 The extent, if any, to which an employer’s subrogation interest in recovering workers’ compensation

benefits paid to an injured employee who brings a tort claim against a third party is affected by Tennessee’s

adoption of comparative fault will be dealt with in our forthcoming opinion in Castleman v. Ross Engineering

Inc., S.W.2d (Tenn. 1997).

4

On February 1, 1992, the plaintiff was working on a cotton baler

in his employer’s plant that had stopped in mid-cycle. Without first

disconnecting power to the baler, the plaintiff stuck his arm into the machine to

remove loose cotton covering a protective switch. The plaintiff’s arm was

inserted into the machine through an opening where a metal panel or barrier

would have normally been bolted. While the plaintiff’s arm was inside the

machine, the machine engaged, causing injury to the plaintiff’s arm. According

to the plaintiff, he had not removed the metal panel and did not know who had.

However, he admits to removing and replacing it on previous occasions.

On December 3, 1992, the plaintiff filed a products liability suit

against LTG Lufttechnische GmbH, a German corporation, and LTG

Technologies, Inc., a South Carolina corporation. Plaintiff alleged that these

defendants were the manufacturers and sellers of the baler that injured him. In

turn, these defendants named HSM Pressen GmbH, a German corporation, as a

party, claiming that it was the manufacturer of the baler at issue. The Travelers

Insurance Company intervened to assert its subrogation claim for the amount

paid to the plaintiff as the workers’ compensation carrier for the plaintiff’s

employer, Sara Lee. 2
3 Tenn. Code Ann. § 29-28-105 provides that a “manufacturer or seller of a p roduct sha ll not be liable

for any injury to 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. In making this

determination, the state of scientific and technological knowledge available to the manufacturer or seller at the

time the product was placed on the market . . . is applicable.” Tenn. Code Ann. § 29-28-105(a), (b).

5

The plaintiff’s suit seeks recovery for personal injury based upon

strict liability in tort, negligence and breach of warranty. Plaintiff claims that

the defendants negligently designed and manufactured the baler, negligently

failed to warn of the machine’s dangers, and are liable for breach of warranties.

In response, the defendants insist that the cotton baler in question

was state of the art and that it was neither defective nor unreasonably dangerous

when it left their control.3 They also claim that the machine was not defectively

designed. Rather, the defendants assert that the plaintiff’s employer altered or

failed to maintain the machine by removing the bolted metal panel through

which the plaintiff stuck his arm, thereby constituting a subsequent intervening

act of negligence that caused the plaintiff’s injuries. Thus, according to the

defendants, it was the plaintiff’s employer’s conduct that rendered the baler

defective or unreasonably dangerous. See Tenn. Code Ann. § 29-28-108 (“If a

product is not unreasonably dangerous at the time it leaves the control of the

manufacturer or seller but was made unreasonably dangerous by subsequent

unforeseeable alteration, change, improper maintenance or abnormal use, the

manufacturer or seller is not liable.”). The defendants further maintain that
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removing the protective panel from the machine and attempting maintenance

and repairs without first disconnecting the power violated safety provisions of

the machine’s operating and maintenance instructions. 

 An order certifying to this Court the two questions set forth above

was issued by the United States District Court for the Eastern District of

Tennessee at Greenville. The district judge opined that this Court’s decision in

Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996) could be

construed to preclude the defendants from presenting proof that the cause of the

plaintiff’s injuries was the acts or omissions of his employer. We entered an

order accepting certification of the questions posed and set this cause for oral

argument. 

ANALYSIS

In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), we adopted

a system of modified comparative fault. In describing this system, we stated that

“so 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. At the time we decided McIntyre, we

recognized that the decision would have far reaching implications and that
4 Employers are immune from tort liability due to the exclusive remedy provision o f the workers’

compensation law. Tenn. Code Ann. § 50-6-108(a).

5

In McIntyre, we stated that “defendants called upon to answer allegations [of] negligence be permitted

to allege, as an affirmative defense, th at a non-party caused or contributed to the injury or damage for which

recovery is sought. In case s where such a defense is ra ised, the trial cou rt shall instruct the jury to assign this nonparty the percentage of the total negligence for which he is responsible.” McIntyre, 833 S.W .2d at 58. 

7

working through the many affected principles would take time. McIntyre, 833

S.W.2d at 57 (“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.”). 

Four years after McIntyre was decided, the case of Ridings v. Ralph

M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996), a case similar to the present one,

provided us with our first opportunity to decide whether under Tennessee’s

modified comparative fault system a defendant in a products liability case could

assert that the plaintiff’s immune employer caused or contributed to the

plaintiff’s injuries.4 In Ridings, the plaintiff was injured when he fell from a

ladder during the course and scope of his employment. Id. at 80. He filed a

third-party tort action against the manufacturer and distributor of the ladder,

alleging negligence and strict liability. Id. As in the present case, the

defendants in Ridings sought to present proof that the plaintiff’s employer

caused or contributed to his injuries.5

 Thus, the issue in Ridings was “whether

the defendants . . . [could] assert as an affirmative defense that the plaintiff’s
8

employer caused or contributed to the plaintiff’s injuries and damages,

notwithstanding that the injuries alleged were sustained in the course and scope

of the plaintiff’s employment which was covered by the workers’ compensation

law of Tennessee.” Id. In other words, could the employer, who was immune

from tort liability by virtue of the workers’ compensation law, be included in the

apportionment of fault in the employee’s third-party tort action.

The defendants in Ridings argued that fault could be apportioned

to the plaintiff’s employer and that their liability could be decreased

accordingly, without the imposition of legal liability upon the employer. Id. at

81. The defendants also claimed that excluding the plaintiff’s employer from

those persons to whom fault could be attributed violated the principle stated in

McIntyre that a party be held liable only for the percentage of the plaintiff’s

damages caused by that party. See McIntyre, 833 S.W.2d at 57. In response, the

plaintiff in Ridings argued that “allowing the jury to attribute fault to the

plaintiff’s employer, against whom the plaintiff cannot maintain an action for

damages, violates the McIntyre principle that the ‘plaintiff’s damages are to be

reduced in proportion to the percentage of the total negligence attributable to the

plaintiff.’” Ridings, 914 S.W.2d at 80 (quoting McIntyre, 833 S.W.2d at 57).

Thus, both parties in Ridings presented arguments based upon notions of
9

fairness consistent with their interpretation of Tennessee’s system of

comparative fault.

This Court rejected the defendants’ position in Ridings, stating that

it was “not consistent with the Tennessee doctrine of comparative fault.”

Ridings, 914 S.W.2d at 81. We did so after carefully considering the policy

underlying the workers’ compensation system (i.e., liability imposed upon the

employer without regard to the employer’s negligence in exchange for a limit

on damages and tort immunity) and afterexamining how other jurisdictions have

dealt with the same issue. See Ridings, 914 S.W.2d at 81-82. We determined

that the fairness concerns underlying McIntyre compelled the result that fault be

apportioned only to those persons against whom the plaintiff had a cause of

action in tort. Specifically, we held that “[s]ince the plaintiff’s employer cannot

be made a party to the plaintiff’s tort action for personal injuries sustained in the

course and scope of his employment, the rationale of McIntyre . . . will not

permit fault to be attributed to the plaintiff’s employer.” Id. at 82. Thus, we

concluded that “the plaintiff’s right to recover on allegations of negligence and

strict liability [must be] determined without reference to the employer’s

conduct.” Id. at 84. 
1 0

In the present case, the defendants maintain that Ridings was

wrongly decided and should be reversed. They claim that Ridings is not

consistent with McIntyre’s objective of fairness because they will have to bear

whatever percentage of fault the jury would have accessed against the plaintiff’s

employer. We carefully considered and rejected this same argument inRidings,

stating that 

[t]he rationale of McIntyre postulates that fault may

be attributed only to the persons against whom the

plaintiff has a cause of action in tort. . . . Since the

plaintiff’s employer cannot be made a party to the

plaintiff’s tort action for personal injuries sustained in

the course and scope of his employment, the rationale

of McIntyre, both as to principle and procedure, will

not permit fault to be attributed to the plaintiff’s

employer.

* * * 

Limiting the parties to whom fault may be

attributed to those subject to liability, accomplishes

the policy objective of fairness and efficiency.

Ridings, 914 S.W.2d at 81-83. See also, Owens v. Truckstops of America, 915

S.W.2d 420, 428 (Tenn. 1996) (“[T]he doctrine of comparative fault

contemplates that the apportionment of fault is limited to those against which

the plaintiff has a cause of action.”). 
6 The distinction between cause in fac t and prox imate, or lega l, cause is not me rely an exercise in

semantics. The terms are not interc hangeab le. Although both cause in fact and proximate, or legal, cause are

elements of negligence that the plaintiff must p rove, they are very different co ncepts. Ridings, 914 S.W.2d at 83;

Kilpatrick v. Bryant, 868 S.W.2d 594 , 598 (Tenn. 1993). Cause in fact refers to the cause and effect relationship

between the defendan t’s tortious cond uct and the p laintiff’s injury or loss. T hus, cause in fac t deals with the “but

for” consequences of an act. The defendant’s conduct is a cause of the event if the event would not have occurred

1 1

There is no question that the Court in Ridings considered the

“fairness” arguments advanced here by the defendants and made a policy

decision to leave immune employers out of the assessment of fault. We thus

decline the defendants’ invitation to reverse Ridings or otherwise depart from

the rule adopted in that decision. 

However, before leaving Ridings, we are inclined to add that our

decision in that case can best be understood when considered in the analytical

context in which the case came to the Court. The defendants in Ridings, like the

defendants here, wanted the jury to assess fault against the employer by arguing

that the employer’s actions were the proximate, or legal, cause of the plaintiff’s

injuries. Of course, the employer cannot be found to be the proximate, or legal,

cause of the plaintiff’s injuries because the employer is immune from tort

liability under Tenn. Code Ann. § 50-6-108(a). By enacting Tenn. Code Ann.

§ 50-6-108(a), the legislature has already determined that for policy reasons the

employer may not be the legal cause of the plaintiff’s injuries. 

This is not to say, however, that the employer cannot be found by

the trier of fact to have been the cause in fact of the plaintiff’s injuries.6 If the
but for that cond uct. Kilpatrick, 868 S.W.2d at 598. In contrast, proximate cause, or legal ca use, concerns a

determination of whether leg al liability should b e imposed where caus e in fact has bee n established . Id.

Proxima te or legal cause is a policy decision made by the legislature or the courts to deny liability for otherwise

actionable conduct based o n considerations of logic, com mon sense, policy, preced ent and “our more o r less

inadequa tely expressed ideas of wha t justice dema nds or of wh at is administrative ly possible and convenien t.”

Bain v. Wells, 936 S.W .2d 618 , 625 (T enn. 199 7); George v. Alexander, 931 S.W.2d 517 , 521 (Tenn. 1996);

Kilpatrick, 868 S.W .2d at 598 ; Smith v. Gore, 728 S.W .2d 738 , 749 (T enn. 198 7). 

7

For example, in the present ca se, the defend ants would be restricted from presenting evidence that the

plaintiff’s employer altered, changed, or improperly maintained the cotton bailer that injured the plaintiff by

removing the metal pan el that covere d the area into which the plain tiff stuck his arm. 

1 2

rule were otherwise, the defendants would effectively be precluded from

presenting a defense. A defense that the product was not defective or

unreasonably dangerous when it left the defendants’ control would not be

credible unless the defendants were permitted to introduce evidence as to what

actually happened to the product leading up to the incident that injured the

plaintiff. Excising the employer from that discussion would be tantamount to

drawing a line which would make discussion of the case to be tried difficult, if

not impossible.7 The end result would be that the jury would not hear evidence

of the true facts surrounding the product that caused the plaintiff’s injuries but,

nonetheless, be asked to determine fault and hence liability for damages.

Prohibiting the introduction of such evidence could result in a defendant, who

was not the cause in fact of the plaintiff’s injuries, being required to pay for the

harm anyway.

CONCLUSION
1 3

In light of the foregoing discussion, our answer to the first certified

question is that products liability defendants in a suit for personal injuries based

on allegations of negligence and strict liability in tort may introduce relevant

evidence at trial that the plaintiff’s employer’s alteration, change, improper

maintenance, or abnormal use of the defendant’s product was the cause in fact

of the plaintiff’s injuries. Put another way, the jury may consider all evidence

relevant to the event leading up to the incident that injured the plaintiff. The

defendants may not, however, ask the jury to assign fault to the employer. That

is, the defendants may not take the legal position that the employer’s actions

were the legal cause of the plaintiff’s injuries. The jury should be instructed that

it may consider the actions of the employer only in assessing whether the

plaintiff has met his burden of establishing the elements necessary to recover

against the defendants. Also, the jury should be instructed that it may not, in

making that determination, assess fault against the employer. Finally, the trial

judge should give an instruction that lets the jury know that the employer’s legal

responsibility will be determined at a later time or has already been determined

in another forum. 

The clerk will transmit this opinion in accordance with Rule 23,

Section 8 of the Rules of the Supreme Court. The costs in this Court will be

taxed to the defendants. 
1 4

__________________________________

FRANK F. DROWOTA, III,

JUSTICE

Concur: 

Anderson, C.J.,

Reid, Birch, Holder, J.J.