# FILED September 2, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE (HEARD IN KNOXVILLE) WILLIAM J. SNYDER, ) FOR PUBLICATION ) Filed: Septem

ber 2, 1997 Plaintiff/Responde

nt, ) Certified Question of Law f rom the ) United States ) District Court for the Eastern v. ) District of Tennessee, Northeastern ) Division LTG LUFTTECHNISCHE GmbH; ) LTG TECHN

OLOGIES,

INC.; and ) HSM PRESSEN-GmbH, ) No. 01-S-01-960 7-FD-00143 ) Defendants/Petit

ioners, )

) Hon. Dennis H.

Inman, Magist

rate THE TRAVELERS INSU RANCE ) 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, She a & 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, Br ading & McKee Johnson City, Tennessee1 "The Supreme Court may, at its discretion, ans wer questio ns of law certified to it by the Supreme Court of the Unit ed States , a Court of

Appeals of

the United States, a District Court of the Unit

ed States in Tennes see, or a United States Bankruptcy Court in Tennessee. Thi s rule ma y be invoked when the certifying court determines that, i

n a proceeding before i t, there ar

e questions of

law of this state which wi ll be det erminat ive of the cause and as t

o which it appears to the certifying cou rt there is no control ling pr ecedent i n the deci sions of the Supreme

Court of Tenn

essee.” Sup. Ct. R. 23, Sec. 1.

2 DROWOTA, J. QUESTIONS CERTIFIED P u rsuant to Rule 23 of the Rule s of the Suprem e Court of Tennessee, 1 this Court has accepted two qu estions certified t

o us by the

United States District Court for the Eastern District of Tenne ssee. The questions are as follows:

1. Whether product s liab ility defendants in a suit for personal injuries based on allegations of negligence and s tric t liability in tort may introduce evidence at trial that the plaintiff’ s employ er’s alt eration, change, improper maintenance,

or abnormal use

of the defendants’ product proxima tely caused or contribute

d to the plaintiff’ s injuries.

2. If “no,” of what effect is T enn. Code Ann. § 29- 28-108?3 As explained below, t

he answer to the

first certified q

uestionis that products liability defen

dants ina suit

for personal injur

ies based on allegati

ons of negligence and strictliability in tort may introduce relevant evidence at trial t hat the plaintiff’s em

ployer’s alt

eration, change,

improper m

aintenance, or abnormal use of the defendant s’ product was the

cause in fact of the plai ntiff’s injuries. The jury m

ay consider all

evidence relevant

to the actions of the
e mployer with respect to the

defendants’ produ

ct in assessing wheth

er the plaintiff has met his burden of establishing the elements necessary to recover aga ins tthe defendants. However, in making that determination, the jury may not assess fault against

the employe

r. Our answer to the fir

st question makes

it unnecessary to reach the s econd one.

FACTS AND PROCEDURAL BACKGROUND

In this products liability action, the plaintiff, William Snyder, wa s employed by Sara Lee

Knit Produ cts as a

technician at its pla

nt in Mountain City. Sara Lee used presses in its plan t to co mpress cotton int o bales. These presses, called “cotton

balers,” collec

ted cotton in t

he top p ortion of the machine, which then vertica lly compre ssed thecotton into the lower half of the machine. A ram would

then move horizo

ntally forwar

d to press the

cotton into a bale.2 The extent, i f any, t o which an employer’s subrogation interest i n recovering workers’ compensati on be nefits paid to an i

njured empl

oyee who bri

ngs a tor t clai m against

a thir d party i s affe

cted byTennessee’ 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 Feb ruary 1, 1992, the plaintiff was working on a cotton baler in his employe

r’s plant t hat had stopped in m id-cycle. W

ithout first disconnecting

power to the baler, the plaintiff stuck his arm into the machine to
remove loos e c otton covering a protective switch. The plaintiff’s arm was inserted into themachine through an opening where a metal panel or barrier would have normally been bolted. While t he plaintiff’s arm

was inside the machine, the machine engage d, causing injury

to the plaintiff’ s arm. Acc ording to the plaintiff, he h

ad not removed th

e metal panel an

d did not know who

had. However, he adm

its to removing a

nd replacing it on pre

vious occasions.

On December 3,

1992, the plaintiff filed a products lia bility suit against LTG Lufttech

nische GmbH,

a German cor

poration , andLTG Technologies,Inc., a South Ca rolina corporation.

Plaintiff allege

d that these defendants were the manufacturers and sellers of the baler that injured him. In turn, these defendants named HSM Pressen GmbH, a German cor poration, as a party, claiming that it was the manufacturer of the baler at issue. The T ravelers Insur anc e Company int

ervened to assert i

ts subrogation claim

for the amount paidto t he plai ntiff as th e workers’ co mpensation carrier for t he plaint iff’s employer, Sara Lee. 23 Tenn. Code Ann. § 29-28-105 provides that a “manufactur

er or seller of a p roduct sha ll not be liable forany injury to person or property caused by the product unless the product is determined to be in a defective conditi on or unreasonably dan gerous at the time it l

eft the cont

rol of the manuf

acturer or seller. In making this determination, the state of scientific and t echnological knowledge available to themanufacturer or seller at t he 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 strictliability in tort, negligence and breach of warranty. Plaintiff claims tha t the defendants negligent ly designed and m

anufactured the ba

ler, negli gen tly 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 da

ngerous when it left their

control. 3 They also clai

m that the m

achine was not defe

ctively designed. Rather, the defendants assert that the plaintiff’s employer altered or failed to maintain the machine by removing the bolt

ed metal panel

through which the plaintiff stuck his a rm, thereby

constituting a subseque

nt intervening actof neglig ence tha

t caused the plaintif

f’s injuries.Thus, according t o the defendants, it was the pl ainti ff’s emp l oyer’s conduct that rendered the baler defective or unreasonably danger ous. SeeTenn. Code Ann. § 29-28-108 (“If a product is not unreasonably dangerous at the ti me it leaves the control of the
m anufac turer

or seller but was m

ade unreasonably

dangerous by subse

quent unforeseeable

alteration, chan

ge, improper maintenance or abnormal use,

the manufacturer

or seller is not liable.”). The defendants further maintain that6

removing the pr otect ive pa nel fr om the m achine and attempting maintenance and repairs without fi

rst disconnecting the

power violated safety

provisions of the machine’s operating an d maintenance instructi ons.

An order certif

ying to this Court t

he two questions set f

orth above
was issued by the Uni

ted States Distric

t Court for the Eastern D istrict of Tennessee at Greenville. The district judge opined that this Court’s d

ecision in Ridin gs v . Ralph M. Parso ns Co. , 914 S.W.2d 79 (Tenn. 1996) could be construed to preclude the

defendants from

presenting proof tha

t the cause of the p l aintiff’s injuries was the acts or omissions of his employer. W e entered an order accepting certif

ication of the questio

ns posed and set this ca

use for oral argument.

ANALYSIS

In McIntyre v. B alentine , 833 S.W.2d 52 (Tenn. 1992), we adopted
asystem of modified comparative fault. In describing this system, we stated that “so long as a plaintiff’s

negligence rem

ains less than the

defendant’s negligence, the plaintiff may recover; in such a c ase, the plaintiff ’s damages a

re to be reduced in proportion to the per centage of the total negligence att ributable to the plaintiff.” McIntyre , 833 S.W.2d a t 57. At the tim

e we decided McIntyre , we recogni z ed that the decision would have far reaching implications and that4 Employers are imm une 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 stat

ed that “ defendant

s calle d upon to ans wer all

egations [of] neg ligence be permitted to allege, as an affirm ativ e defense, th at a non-party caused or contribut

ed to the injur

y or damage for whic

h recovery is sought. In case s where such a defense is ra ised, the trial cou rt shall instruct the jury to assign thi s nonparty the perc

entage of the

total negl

igence for whi

ch he is respons

ible.” McIntyre , 833 S.W .2d at 58. 7 working through the

many aff ected principles w

ould take time. McIntyre , 833 S.W.2d at 57 (“We recognize that today’s decision aff ec ts numerous legal principles surrounding tort litiga tion. For the m

ost part, harm

onizin g th ese principles with comparat ive fault must await anoth er day.”).

Four years after McIntyrewas decided, the case of Ridin gs v. Ralph M. Parsons Co. , 914 S.W.2d 79 (Tenn. 1996), a case simila r to the present one, p rovided us with our first oppor tunity to decide w

hether under Tennesse e’ s modified comparative f

ault system

a defendant in

a products liability

case could assertthat t

he pl aintiff’s im

mune employ

er caused or contr

ibuted to the plaintif f’s injuries. 4 In Ridings , the p laint iff wa s inju red wh en he f ell fr om a ladder duri ng the course and sco pe of his employment. Id . at 80. He fi led a third-party

tort action against the manufacturer a nd distributor of the ladder, alleging neglig ence and strict liabi lity. Id . As in the present case, the defendants in Ridings sought to present proof that the pl aint iff’s employer caused or contributed to his in juries. 5 Thus, the issue in Ridings was “whether the defendants . . . [could] as sert as an affirmative d efense tha t the plain tiff’s8

employer caused or contribut

e d to the plaintiff’ s injuries and dam ages, notwithstanding

that the injuries alleged were sustained in the course and scope of the plaintiff’s employment which was covere d by the workers ’ compensation law of Tennessee.” Id . In other words, could the em

ployer, who w

as immune from tort liability by

virtueof the workers’ compensation law, be included in the apportionment of

fault in the em

ployee’s thir

d-party tort ac

tion.

The defendants in Ridings argued thatfault could be apportioned to the plaintiff’s emplo yer and that their liability could be decreased accord ingly, without

the imposition of legal liability upon the employer. Id . at 81. The defendants also clai med that excluding the plai ntiff’s emp

loyer from those persons to whom f

ault could be attributed vi

olated the principle stated in McIntyre that a party be held liable only for the percenta ge of the pl aintiff’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 t o attribute fault to t he plainti ff’s emp loyer, against whom the plaint

iff cannot mai

ntain an action for damages, violates the McIntyre principle that the ‘plaintiff’s damages are to be reduced in proportion to the per centage of the

total negligence attributable to the plaintif f.’” Ridings , 914 S.W.2d a t 80 (quoting McIntyre , 833 S. W .2d at 57). Thus, both parties in Ridings presented argum ents b ased upon notions of9

fairness consistent with their interpretation of T

ennessee’s system

of comparative f

ault.

This Courtrejected the de fendants’ position i

n Ridings , stating that itwas “not consis

tent with the Tenn

essee d octrine of comparative fau lt.” Ridings , 914 S.W. 2d at 81. We did so after carefully considering the policy underlying the

workers’ compensation sy stem (i.e. , liability im

posed upon the employer without regard to the em plo yer’s neglige

nce in exchange for

a limit
on damages and tort immunity) and after examinin g how other jurisdi

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

rns underlying McIntyrecompelled the result that fault be apportioned only to those persons against whom the plaintiff h ad a cause of actionin tort. Specifically, we held that “[s]ince the plaintiff’s e

mployer ca

nnot be made a party to the plaintiff’s tort action for personal injuries sustained in the
courseand scope of his employment, the rationale of McIntyre
. . . will not p ermit fau lt to be attributed to the plaintiff’s employer.” Id . at 82. Thus, we concluded that“the plaintiff ’s right to recove

r on allegations of

negligence and strictliability [m

us t be] determined without re ference to t he employer’s conduct.” Id . at 84.1 0 In the present case,

the defendants m

aintain that Rid ings wa s wrongly decided an d should be reversed. Th ey claim t

hat Ridings is not consistent

with McIntyre’s objective of fairness because they will have to bear whatever percentage of fa

ult the jurywould have accessed ag ainst the plaintiff ’s employer. We carefully considered and reje cted this same a

rgument in Ridings , stating that [t]he

rationale of McIntyre

postulates that fault may be att ributed only to the persons against whom

the plaintiff has a cause of action in tort. . . . S ince the plaintif f’s employer canno t be ma de a party to the plaintif f’s tort action for personal injuries sustained in the course and scope of h

is employm

ent, the rationale of McIntyre , bothas to principle and procedure, w

ill not permit fault to be attribute d to the pl aintiff’s employer. * * * L imitin g the parties to whom fault may

be attributed to those subj ect t o liability, accomplishes the pol icy objec tive of fairnes s and ef ficien cy. Ridings , 914 S.W.2d at 81-83. See also , Owens v. Truckstops of America , 915 S.W.2d 420, 428 (T enn. 1996) (“[T] he doctrine of com parative fault contemplates that the apport ionment of fault is limited to those against which the plaintiff has a cau se of action.”).6 The d istinct ion betwe en cause in fac t and prox imate, or lega l, cause is not me rely an exercise in semantics. The term s are not interc hangeab le. Alt hough 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 an d 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 ev ent if t he event would not

have occurred 1 1 T here is no question that the C ourt in Ridings consid ered th e “fairness” arguments advanced here by the defendants an d made a policy decision to leave immune employers out of the ass essment of fault. W e t hus decline the defendants’ invitation to reverse Ridings or otherwise depart f rom the rule adopted in that decision.

However, before leaving Ridin gs , we are inclined to add that our decision in that case

can best be understoo

d when considered in t

he analytical context in whi ch the case c ame to the Court. The defendants in Ridings , likethe defendants here, wanted the jury to assess

fault against

the employe

r by arguing that the employer’s actions were the proximate , or legal, ca use of the p laintiff’s injuries. Of course, the e

mployer ca

nnot be found to

be the proximat

e, or legal,
causeof the plaintiff’ s injuries because the employe

r is immune from tort liability under Tenn. Cod e Ann. § 50-6-108(a). By enacting Te nn. Code Ann. § 50-6-108(a), the legislature has already deter mined that for p

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

This is not to say, how

ever, that the em

ployer cannot be

foundby the trier of fact

to have been the cause in fact of the plaintif f’s injuries. 6 If thebut for that cond uct. Kilpatrick , 868 S.W.2d at 598. In c ontrast, proximate cause, or legal ca use, concerns a dete rm inati

on 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

legis lature

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 , 9 36 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 employe

r alt ered, c hanged, or impr operly ma i ntained the cott

on bailer that i njured th

e plaint iff 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 def e ndants would effec

tively be precl

uded from presentinga defense. A de fense that the produc

t was n ot defectiv e or unreasonably

dangerous when it le

ft the defendants’ contr

ol would not be credible unless the defendant

s were permi

tted to introduce evidence as to what actually happened to the produc t leading up to the incident that injur ed the plaintiff. Excising the em ployer from

that d iscus sion would be tantam ount to drawing a line which would m ake discussion of the case to be tried difficult, if not impossible. 7 The end result would be that the j ury would not hear evidence of the true facts surrounding the product that caused the plai

ntiff’s injuries but, nonetheless, be ask e d to determine f ault and hence liabil

ity for dam

ages. Prohibitingthe introduction of such evidence cou

ld result in a defendant, w

ho
was not the cause in

fact of the plaintif

f’s injuries,

being required to pay

for the harm anywa y.

CONCLUSION1 3 In light of the foregoing

discussion, our

answer to the

first certified question is that products liabil

ity defendants

in a suit for personal injuries based
on allegations of negligence and strict liability in tort may

introduce relevant
ev idence at tri al tha t the p laint iff’s employ er’s al terat ion, c hang e, imp rope r maintenance, or abnormal use of the defendant’ s product was the ca use in fact of the plaintiff’s injuries. Put another way, the jury may considerall evidence relevant to the event leading up

to the incident that injured the pla intiff. The defendants may not, ho

wever, ask the j ury to assign faul tto the employer. That is, the defendants m

ay not take the le

gal position that the em

ployer’s ac

tions
were the legal cause of t

he plaintiff’s in

juries. The jury should be instructed that itmay conside

r the actions of the e

mployer only

in assessing whether

the plaintiff has met his burden of establishing the elements necessary to recover against the defendants. A

lso, the jury

should be instructe

d that it may not, i

n making that determina

tion, assess fault

against the employer. Finally, the trial judgeshould give an instructi on that lets the juryknow that the employer’s legal responsibility

will be determined at

a later time or has already been determ ined in another forum.

The cle rk wil l transmit this op inion in accordance with Rule 23, Section 8 of the Rules of the S upreme Court. The costs in this Cour t will be taxed to the defenda nts.1 4 __________________________________ FRANK F. DROWOTA, III, JUSTICE Concur: Anderson, C.J., Reid, Birch, H

older, J.J.