FILED

January 29,

1996

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

JOSEPH CARL OWENS, ) FOR PUBLICATION

)

Plaintiff/Appellant, )

)

v. ) Davidson Circuit

)

TRUCKSTOPS OF AMERICA, ) Hon. Marietta M. Shipley,

TRUCKSTOPS OF AMERICA, INC., ) Judge

and B.P. AMERICA, INC., )

)

Defendants/ )

Third-Party Plaintiffs/Appellees, )

) No. 01S01-9408-CV-00077

v. )

)

B. MICHAEL DESIGN, INC. and )

VITRO PRODUCTS, INC., )

)

Third-Party Defendants/ )

Appellees. )

DISSENTING (IN PART) OPINION

DROWOTA, J.

Based on the plaintiff's expectations at the time he filed this lawsuit in 1988,
2

I agree with the majority that, in this transition case, it is reasonable to permit the

plaintiff to recover from the defendants that he named in his complaint ("Truckstops")

all of his damages that were proximately caused by Truckstops and that were not

attributable to the plaintiff's own fault (if any). I also agree with the majority that it is

fair in this transition case to permit Truckstops to receive contribution from the parties

that were named by Truckstops as third-party defendants. However, I believe that

the contribution should be based on the parties' respective percentages of fault, and

that this method should apply not only to the negligence claims set forth in the thirdparty complaint, but to the strict products liability claim as well. If liability were thus

linked to fault on each claim in the third-party complaint, each defendant (including

the third-party defendants) would be liable only for the percentage of the plaintiff's

damages that was caused by that defendant's fault, and the doctrine of joint and

several liability would have no application.

First of all, this Court has repeatedly disapproved of the doctrine of joint and

several liability in a general sense. In McIntyre v. Balentine we stated, in dicta, that

joint and several liability was rendered obsolete by the adoption of comparative

negligence. We confirmed the obsolescence of the doctrine of joint and several

liability in Volz v. Ledes, 895 S.W.2d 677 (Tenn. 1995), in which we stated as follows:

We again confirm that the doctrine of joint and several liability was

rendered obsolete by our decision in McIntyre v. Balentine. We believe

that a system wherein a particular defendant is liable only for the

percentage of a plaintiff's damages that are caused by that defendant's

fault is the system that best achieves our stated goal in McIntyre v.

Balentine of linking liability and fault. In keeping with this goal, we

decline to adopt a rule comparable to the rule under the Uniform

Comparative Fault Act pursuant to which the liability of a given

defendant is enhanced beyond that defendant's percentage of fault if
3

another culpable defendant is insolvent. We do not believe that the

goal of linking liability with fault is furthered by a rule that allows a

particular defendant's liability to be determined by the happenstance of

the financial wherewithal of other defendants. 

895 S.W.2d at 680 (emphasis added).

In addition to our general disapproval of joint and several liability, we have

recently decided two cases, Bervoets v. Harde Ralls Pontiac-Olds, Inc., 891 S.W.2d

905 (Tenn. 1994) and Whitehead v. Toyota Motor Company, 897 S.W.2d 684 (Tenn.

1995), which, when considered in tandem, appear to me to require a different result

from that reached by the majority. In Bervoets, one of several defendants settled with

the plaintiff, who had been injured in an automobile accident. The settlement had the

effect of releasing the defendant who was actually a party to the settlement, as well

as all other defendants. The issue presented was whether the remedy of contribution

survived our McIntyre decision. In holding that it did, we stated as follows: 

Therefore, we today reaffirm McIntyre and hold that actions for

contribution that are to be tried or retried after May 4, 1992, are to be

tried in accordance with the principles of comparative fault. Because

this case unquestionably fits in this category, on retrial the jury will

determine the percentage of fault attributable to each of the

defendants, and contribution will be ordered accordingly.

. . .

We are of the opinion that on the retrial of this case the jury should first

be informed of the amount of the settlement, and then asked to

determine if that settlement was reasonable according to the principles

of comparative fault. The jury may consider the fault of the plaintiff

Bervoets and the defendants Jackson (Safeco Insurance Company)

and Adanac, Inc. in making this determination. If the jury finds that the

settlement was reasonable, it shall proceed to determine the

percentage of fault attributable to each of the defendants, and

contribution will be ordered accordingly. If however, the jury finds that

the settlement was, according to the principles of comparative fault, '

in excess of what was reasonable,' this same jury will then determine
4

the proper amount of damages; and the jury may consider the fault of

plaintiff and the two defendants in making this determination. Once the

jury has determined the proper amount of damages, it shall then

determine the fault attributable to each of the defendants. If the jury

finds that the third-party defendant was at fault, contribution shall be

ordered from that defendant commensurate with its percentage of fault.

891 S.W.2d at 908(emphasis added).

If and when the plaintiff in this case obtains a judgment against Truckstops,

this case will be in a posture exactly analogous to the situation that existed in

Bervoets -- in other words, the plaintiff would be entitled to collect a given dollar

amount from one defendant, and would be precluded from directly collecting anything

from other would-be defendants. Contribution could then be determined according

to the method set forth in Bervoets. 

The majority in this case has followed Bervoets with respect to the negligence

claims in the third-party complaint. However, it refuses to extend the Bervoets

rationale to the strict products liability claim, arguing that the theory of strict products

liability law necessarily requires the retention of joint and several liability, and thus

precludes any apportionment on the basis of fault. In my view, this Court's decision

in Whitehead, supra, defeats this argument. In that case, in which this Court was

answering questions that had been certified to us pursuant to Rule 23 of the Rules

of the Supreme Court, we stated as follows:

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

certified to us is that comparative fault principles do apply in products

liability actions based on strict liability in tort.

The conduct that leads to strict products liability involves fault, as the

word 'fault' is commonly understood. . . . In keeping with the principle
1

Contrary to the assertion made in footnote 14 of the majority opinion, determining

the liability of each defendant according to that defendant's "separate fault" would

not require the plaintiff to prove "negligence" on the part of each defendant, thus

"abolishing strict liability." Rather, the plaintiff would, as always, only be required

to prove that a defective or unreasonably dangerous product was placed in the

stream of commerce, and that he or she was injured thereby. In fact, we have

already recognized this inWhitehead, where we stated: "plaintiffs will continue to

be relieved of proving that the manufacturer or distributor was negligent in the

production, design, or dissemination of the article in question. Defendant's liability

for injuries caused by a defective product remains strict." Whitehead, 897 S.W.2d

684, 691 (Tenn. 1995). If the plaintiff is able to carry this burden, the jury would

then apportion "fault" -- as that term is defined in Whitehead -- between the

various defendants, and each defendant's liability would be determined according

to that percentage. The majority's insistence that such a system would "abolish

strict liability" stems from its overly-expansive definition of that theory of liability.

Strict products liability only means that a plaintiff does not have to prove the

traditional elements of negligence on the part of the defendant or defendants in

order to recover; it does not necessarily require any particular system of damage

allocation, such as joint and several liability or comparative fault. Because the

majority appears to confuse burden of proof considerations with damage

allocation issues, I believe the majority erroneously concludes that the usage of

comparative fault in strict liability actions with multiple defendants "abolishes" strict

products liability.

5

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." 

897 S.W.2d at 693(emphasis added)(citation omitted).

Inasmuch as we have previously determined that contribution among

defendants should be ordered based on the defendants' respective percentages of

fault, and that the conduct that leads to strict products liability is based on fault,1

 the

exception made by the majority for strict products liability claims represents, in my

view, a departure from our prior decisions. Because I do not believe that such a

departure promotes the considerations of fairness that prompted our adoption of

comparative fault, and because there is no reason to confuse the law by resurrecting

joint and several liability, I respectfully dissent.
6

_________________________________

FRANK F. DROWOTA III

JUSTICE