IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

September 1, 2011 Session at Knoxville

MICHAEL LIND v. BEAMAN DODGE, INC., d/b/a BEAMAN DODGE

CHRYSLER JEEP ET AL.

Appeal by Permission from the Court of Appeals, Middle Section

Circuit Court for Rutherford County

No. 59485 Royce Taylor, Judge

No. M2010-01680-SC-S09-CV - Filed December 15, 2011

The plaintiff, who had purchased a truck from an automobile dealership, filed a products

liability suit in 2007 against not only the manufacturer, but also the dealership, as seller.

Later, the plaintiff entered a voluntary nonsuit as to the seller and proceeded only against the

manufacturer. Over one year after the order granting nonsuit, the manufacturer declared

bankruptcy, and, in 2009, the plaintiff again sued the seller, alleging both negligence and

strict liability in tort. The seller filed a motion to dismiss, contending that the suit was barred

by the statute of limitations. The trial court denied the motion but granted an interlocutory

appeal. The Court of Appeals denied the appeal. This Court granted the seller’s application

for permission to appeal to consider the application of the saving statute to these unique

circumstances. We hold that the plaintiff may proceed under the strict liability claim because

that cause of action did not accrue until the manufacturer was judicially declared insolvent.

Because, however, the second suit alleged acts of negligence on the part of the seller, an

exception to the statutory rule prohibiting products liability suits against sellers, and could

have been brought in 2007, the statute of limitations is a bar to recovery under that theory.

The judgment of the trial court is, therefore, affirmed in part and reversed in part, and the

cause is remanded for trial.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Trial Court is Reversed

In Part and Affirmed In Part

GARY R. WADE, J., delivered the opinion of the Court, in which JANICE M. HOLDER and

SHARON G. LEE, JJ., joined. CORNELIA A. CLARK, C.J., filed a separate opinion concurring

in the judgment, in which WILLIAM C. KOCH, JR., J., joined.

J. Britt Phillips and Joy B. Day, Franklin, Tennessee, for the appellant, Beaman Dodge, Inc.
Mark P. Chalos, Nashville, Tennessee, for the appellee, Michael Lind.

OPINION

On March 28, 2006, Michael Lind (the “Plaintiff”) was injured as he stepped out of

his 2004 Dodge Ram 2500 truck onto Fox Hollow Road in Christiana, Tennessee, near its

intersection with Manchester Highway. Almost a year later, on March 19, 2007, he filed suit

against the truck’s manufacturer, DaimlerChrysler Corporation (“Chrysler”), and the seller,

1

Beaman Dodge, Inc., d/b/a Beaman Dodge Chrysler Jeep (the “Defendant”). The Plaintiff

alleged that when he stopped his truck on a flat surface and placed it in park in order to get

a closer look at what appeared to be a snake in the roadway, the truck, with the engine still

engaged, “self-shifted” into reverse, running over his left foot and arm, breaking his arm and

wrist, tearing a rotator cuff, and damaging muscles and ligaments in the arm. The Plaintiff

alleged that his truck had “consistently experienced problems with [its] parking system, and

that he had taken the vehicle for service on several occasions and the problem was not

corrected.” In his complaint, the Plaintiff alleged a strict liability claim, contending that the

truck was “defective or unreasonably dangerous in that it failed to properly secure in the

‘park’ position, and the alarm indicating danger did not properly function.” He also asserted

a negligence-based claim, pointing out that shortly after his accident, he had received a

“recall notice” from Chrysler regarding the problems with the “out-of-park” alarm system,

and, in consequence, asserted that both Chrysler and the Defendant, a car dealership in

Nashville, “knew” or in “the exercise of reasonable care should have known” that the vehicle

was “defective or unreasonably dangerous.” The Plaintiff further alleged that the negligence

of Chrysler and the Defendant proximately caused the accident. Chrysler, which answered

the complaint in the name of DaimlerChrysler Company LLC, denied liability, relying upon

the standards outlined in the Tennessee Products Liability Act of 1978 (the “TPLA”), Tenn.

Code Ann. §§ 29-28-101 to -108 (2000), and pled other defenses to the claim. The

Defendant also responded to the complaint, denying liability and specifically invoking the

2

protections provided sellers asset out in Tennessee Code Annotated section 29-28-106, a part

of the TPLA:

(a) No “product liability action,” as defined in § 29-28-102(6), shall be

commenced or maintained against any seller when the product is acquired and

sold by the seller . . . under circumstances in which the seller is afforded no

 This initial suit is case number 55121 in the Rutherford County Circuit Court.

1

The record demonstrates that counsel for the Defendant at the time of the answer sent a letter to 2

then-counsel for the Plaintiff, asserting that the Defendant “was not on notice of any problem with the

parking system until well after the recall notice” and that “repair records do not show any record of [the

Plaintiff] requesting any repair of the parking system.”

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reasonable opportunity to inspect the product in such a manner which would

or should, in the exercise of reasonable care, reveal the existence of the

defective condition. The provisions of the firstsentence of thissubsection shall

not apply to:

(1) Actions based upon a breach of warranty, express or implied, as defined by

title 47, chapter 2; or

(2) Actions where the manufacturer of the product or part in question shall not

be subject to service of process in the state of Tennessee and where service

cannot be secured by the long-arm statutes of Tennessee; or

(3) Actions where the manufacturer has been judicially declared insolvent.

(b) 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.

3

 The definitions provided by the TPLA include the following: 3

. . . .

(2) “Defective condition” means a condition of a product that renders it unsafe for normal

or anticipatable handling and consumption;

. . . .

(4) “Manufacturer” means the designer, fabricator, producer, compounder, processor or

assembler of any product or its component parts;

(5) “Product” means any tangible object or goods produced;

(6) “Product liability action” for purposes of this chapter includes all actions brought for or

on account of personal injury, death or property damage caused by or resulting from the

manufacture, construction, design, formula, preparation, assembly,testing, service, warning,

(continued...)

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Tenn. Code Ann. § 29-28-106(a)–(b) (emphasis added).

The Plaintiff entered a voluntary nonsuit as to the Defendant on December 21, 2007,

pursuant to Rule 41 of the Tennessee Rules of Civil Procedure, but continued the litigation

against Chrysler. When, however, Chrysler filed a voluntary bankruptcy petition on April

30, 2009, in the United States Bankruptcy Court for the Southern District of New York, an

automatic stay issued in accordance with section 362 of the Bankruptcy Code. See generally

4

11 U.S.C.A. § 362 (West 2004).

On August 17, 2009, the Plaintiff, represented by new counsel, again filed suit against

the Defendant based upon strict liability and negligence. In Count One of the complaint, the

5

Plaintiff alleged that Chrysler had been judicially declared insolvent, asserting the

Defendant’sliability under both Tennessee Code Annotated section 29-28-106(a)(3) and (b).

In Count One, he claimed that the truck sold to him by the Defendant was “defective and/or

unreasonably dangerous” both “in design or formation” and “due to inadequate warnings”

(...continued) 3

instruction, marketing, packaging or labeling of any product. “Product liability action”

includes, but is not limited to, all actions based upon the following theories: strict liability

in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge

a duty to warn or instruct, whether negligent, or innocent; misrepresentation, concealment,

or nondisclosure, whether negligent, or innocent; or under any othersubstantive legal theory

in tort or contract whatsoever;

(7) “Seller” includes a retailer, wholesaler, or distributor, and means any individual or entity

engaged in the business of selling a product, whether such sale is for resale, or for use or

consumption. “Seller” also includes a lessor or bailor engaged in the business of leasing or

bailment of a product; and

(8) “Unreasonably dangerous” means that a product is dangerous to an extent beyond that

which would be contemplated by the ordinary consumer who purchasesit, with the ordinary

knowledge common to the community as to its characteristics, or that the product because

of its dangerous condition would not be put on the market by a reasonably prudent

manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous

condition.

Tenn. Code Ann. § 29-28-102.

On June 1, 2009, the Bankruptcy Court authorized the sale of Chrysler’s assets to New CarCo 4

Acquisition LLC. On August 5, 2009, the Second Circuit Court of Appeals affirmed. In re Chrysler, LLC,

576 F.3d 108 (2d Cir. 2009), vacated as moot, 592 F.3d 370 (2d Cir. 2010). Chrysler’s insolvency is not at

issue.

 This case is number 59485 in the Rutherford County Circuit Court.

5

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regarding the “park-to-reverse defect,” which the Plaintiff contended involved a delay in the

6

engagement of the reverse gear, subjecting a driver who exits the vehicle with the engine in

operation to sudden and unexpected backward movement. In Count Two, the Plaintiff

alleged negligence, claiming that the Defendant failed to exercise ordinary care in the

inspection, marketing, advertising, and sale of Dodge Ram trucks by continuing to sell them

even though the Defendant “knew or should have known that [they] contained the

unreasonably dangerous park-to-reverse defect and w[ere] defective.” In response, the

Defendant filed a motion to dismiss, arguing that the suit, filed more than one year after the

voluntary nonsuit to the March 19, 2007 complaint, was time-barred by the applicable rule.

While denying the Defendant’s motion to dismiss on the basis that “the limitation

period . . . did not begin to run until the manufacturer was adjudicated bankrupt,” the trial

court granted the Defendant’s application for an interlocutory appeal because it determined

that appellate review would “prevent needless, expensive and protracted litigation.” Tenn.

R. App. P. 9(a)(2). The Court of Appeals denied interlocutory review. Because the question

of whether the one-year saving statute under Tennessee Code Annotated section 28-1-105

applies under these circumstances is one of first impression, this Court granted the

Defendant’s application for permission to appeal.

Scope of Review and Statutory Construction

The scope of review after the grant or denial of a motion to dismiss involves a

question of law. See Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696-97

(Tenn. 2002). A motion to dismiss pursuant to Rule 12.02(6) of the Tennessee Rules of Civil

Procedure seeks only to determine whether the pleadings state a claim upon which relief can

be granted. Such a motion challenges the legal sufficiency of the complaint, not the strength

of the plaintiff’s proof. See Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d

422, 426 (Tenn. 2011). The motion admits the truth of all relevant and material averments

contained in the complaint, but asserts that such facts do not constitute a cause of action. Id.;

see also Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997). In considering a

The National Highway Traffic Safety Administration’s Vehicle Research and Test Center (the 6

“VRTC”) is a federal research facility which conductsthe testing of vehicles in an effort to improve highway

safety. See Vehicle Research & Testing (VRTC), http://www.nhtsa.gov/VRTC (last visited Sept. 28, 2011). 

The Plaintiff alleged that the VRTC safety notice to the owners of 2003-2005 Dodge Ram pick-up trucks

indicated that “[t]esting showed that the shift lever could be placed at numerous points between gated reverse

and gated park that allowed [unexpected rearward movement] to occur between 10 and 30 seconds after

releasing the shift lever.” U.S. Dept. of Transp., Nat’l Highway Traffic Safety Admin., VRTC - DCD5084

(EA04-025), Unintended Powered Roll-Away in Reverse After Parking – Dodge Ram Pickup Trucks,

available at http://www-odi.nhtsa.dot.gov/cars/problems/recalls/results.cfm. (2005). The solution to this

problem was to install an “out of park” alarm, which sounded the theft deterrent system if an operator

attempted to exit the vehicle with the engine in operation.

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motion to dismiss, the Court is required to take the relevant and material factual allegations

in the complaint as true and to construe liberally all allegations in favor of the plaintiff.

Stein, 945 S.W.2d at 716; see also Webb, 346 S.W.3d at 426 (observing that “Tennessee

follows a liberal notice pleading standard, which recognizes that the primary purpose of

pleadings is to provide notice of the issues presented to the opposing party and court”

(citation omitted)). Additionally, this Court’s review of a trial court’s determinations on

issues of law is de novo, without any presumption of correctness. Frye v. Blue Ridge

Neuroscience Ctr., P.C., 70 S.W.3d 710, 712 (Tenn. 2002); Bowden v. Ward, 27 S.W.3d 913,

916 (Tenn. 2000); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

This appeal also involves the interpretation of legislation and the application of the

Tennessee Rules of Civil Procedure. The construction of statutes and procedural rules are

questions of law that are reviewed de novo without any presumption of correctness. In re

Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009); see also Carter v. Quality Outdoor

Prods., Inc., 303 S.W.3d 265, 267 (Tenn. 2010) (citing Perrin v. Gaylord Entm’t Co., 120

S.W.3d 823, 826 (Tenn. 2003)). When dealing with statutory interpretation, well-defined

precepts apply. Our primary objective is to carry out legislative intent without broadening

or restricting the statute beyond its intended scope. Houghton v. Aramark Educ. Res., Inc.,

90 S.W.3d 676, 678 (Tenn. 2002). In construing legislative enactments, we presume that

every word in a statute has meaning and purpose and should be given full effect if the

obvious intention of the General Assembly is not violated by so doing. In re C.K.G., 173

S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we apply the plain meaning without

complicating the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).

Our obligation is simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,

Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is ambiguous that we may

reference the broader statutory scheme, the history of the legislation, or other sources. Parks

v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Even though

“the rules of civil procedure are not statutes, the same rules of statutory construction apply

. . . .” Thomas v. Oldfield, 279 S.W.3d 259, 261 (Tenn. 2009) (citing Lacy v. Cox, 152

S.W.3d 480, 483 (Tenn. 2004)).

Analysis

Initially, a voluntary dismissal is governed by Rule 41 of the Tennessee Rules of Civil

Procedure, which provides that “[a] voluntary nonsuit to dismiss an action without prejudice

must be followed by an order of voluntary dismissal signed by the court and entered by the

clerk. The date of entry of the order will govern the running of pertinent time periods.”

Tenn. R. Civ. P. 41.01(3). The 2004 Advisory Commission Comments indicate that the oneyear saving statute under Tennessee Code Annotated section 28-1-105 (2000) begins with

the filing of the order granting nonsuit. The saving statute specifically provides as follows:

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If the action is commenced within the time limited by a rule or statute of

limitation, but the judgment or decree isrendered against the plaintiff upon any

ground not concluding the plaintiff’s right of action, or where the judgment or

decree is rendered in favor of the plaintiff, and is arrested, or reversed on

appeal, the plaintiff, or the plaintiff’s representatives and privies, as the case

may be, may, from time to time, commence a new action within one (1) year

after the reversal or arrest . . . .

Tenn. Code Ann. § 28-1-105(a).

The Defendant contends that this suit, filed more than one year after the order granting

the voluntary nonsuit, is barred by the one-year period of limitation. The Plaintiff, however,

argues that under the TPLA, the cause of action against the Defendant did not arise until the

entry of the order declaring the manufacturer insolvent. The precise issue is whether, by the

terms of the TPLA, the Plaintiff may rely upon the declaration of insolvency of the

manufacturer to maintain his cause of action under theories of either strict liability or

negligence against the Defendant even though more than one year has passed from the entry

of a voluntary nonsuit against the Defendant.

Count One – Strict Liability

In Count One of his 2009 complaint, the Plaintiff made a strict liability claim in tort

against the Defendant, alleging that the truck was “defective and/or unreasonably dangerous

in design or formulation” as well as “defective and/or unreasonably dangerous due to

inadequate warnings.” Of importance, the language of the TPLA provides that the seller of

7

a product “cannot be held to strict liability in tort unless, as to the seller, one or more of the

conditions set forth in Tennessee Code Annotated section 29-28-106(b) . . . is satisfied.”

Wielgus v. Dover Indus., Inc., 39 S.W.3d 124, 129 (Tenn. Ct. App. 2000) (emphasis added).

Among the exceptions to the rule is when the manufacturer is judicially declared insolvent.

Id.

In Braswell v. AC & S, Inc., 105 S.W.3d 587 (Tenn. Ct. App. 2002), a case cited by

both the Plaintiff and the Defendant, Braswell sued a manufacturer for injuries stemming

A claim for strict liability may be properly alleged based upon the “fail[ure] to warn consumers of 7

the dangers of a particular product at the time of sale.” Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 693

(Tenn. 2011) (internal quotation marks omitted). 

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from asbestos exposure. Well after the statute of limitations had elapsed, the manufacturer

was declared insolvent and Braswell amended the complaint to add the seller as a defendant.

Id. at 587-88. Our Court of Appeals, called upon to construe the terms of Tennessee Code

Annotated section 29-28-106(b), presumed that the General Assembly was “aware . . . the

manufacturer’s adjudication in bankruptcy could occur after the limitation period had

expired,” and, therefore, concluded that the intent of the legislation was for the statute of

limitations for strict liability claims asserted against sellers to begin at the time the

manufacturer was adjudicated insolvent. Id. at 589-90. The court further observed that

Tennessee Code Annotated section 29-28-106(b) was designed “to ensure that the injured

consumer could maintain a strict liability action against whomever was most likely to

compensate plaintiff for his or her injuries.” Id. at 589.

The Plaintiff cites Braswell for the proposition that the cause of action in strict

liability does not accrue against a seller until the judicial declaration of the insolvency of the

manufacturer. The Defendant points out that the holding in Braswell is distinguishable from

the case before us because Braswell did not involve a prior suit against the product’s seller.

While making the argument that the one-year saving statute should apply, the Defendant

contends that because the Plaintiff properly alleged that it knew or should have known of the

product defect in 2007, the 2009 suit is altogether barred. In essence, the Defendant argues

that one cause of action exists under the TPLA – a products liability action – and that there

are merely multiple theories of recovery that can be asserted under the “umbrella” of this

action, as articulated in Tennessee Code Annotated section 29-28-102(6). Because, the

Defendant contends, the Plaintiff previously asserted a valid cause of action under the TPLA,

and the time to reinstate the suit has passed under both the statute of limitations and the

saving statute, he could not re-file his “product liability action” by claiming that an alternate

theory of recovery constitutes a new “cause of action.”

Tennessee Code Annotated section 29-28-102(6), which defines “product liability

action” for purposes of the TPLA, provides as follows:

“Product liability action” for purposes of this chapter includes all actions

brought for or on account of personal injury, death or property damage caused

by or resulting from the manufacture, construction, design, formula,

preparation, assembly, testing, service, warning, instruction, marketing,

packaging or labeling of any product. “Product liability action” includes, but

is not limited to, all actions based upon the following theories: strict liability

in tort; negligence; breach of warranty, express or implied; breach of or failure

to discharge a duty to warn or instruct, whether negligent, or innocent;

misrepresentation, concealment, or nondisclosure, whether negligent, or

innocent; or under any other substantive legal theory in tort or contract

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whatsoever.

Tenn. Code Ann. § 29-28-102(6). If this provision was the only one under consideration, this

Court might be inclined to endorse the position taken by the Defendant. “In interpreting

statutes, [however,] we are required to construe them as a whole, read them in conjunction

with their surrounding parts, and view them consistently with the legislative purpose.” State

v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995). In consequence, we must consider how this

definition is affected by the provisions of the TPLA governing the potential liability of the

seller.

Seller liability is defined in two sections of the TPLA. The first section, Tennessee

8

Code Annotated section 29-28-106(a), refers to “‘product liability action[s]’ as defined in §

29-28-102(6),” and would appear, at first glance, to include strict liability in tort. Tennessee

Code Annotated section 29-28-106(b), however, specifically applies to a product liability

action “based on the doctrine of strict liability in tort” where it is alleged that the “product

. . . contain[s] or possess[es] a defective condition unreasonably dangerous to the buyer, user

or consumer.” This provision tracks key language relative to strict seller liability as it is

This provision was amended, effective October 1, 2011. See Act of June 16, 2011, ch. 510, §§ 12 8

& 24, 2011 Tenn. Pub. Acts 1221, 1233-34. The amended statute substantially simplifies seller liability

under the TPLA, providing as follows:

No “product liability action”, as defined in § 29-28-102(6), shall be commenced or

maintained against any seller, other than the manufacturer, unless:

(1) The seller exercised substantial control over that aspect of the design, testing,

manufacture, packaging or labeling of the product that caused the alleged harm for which

recovery of damages is sought;

(2) Altered or modified the product, and the alteration or modification was a substantial

factor in causing the harm for which recovery of damages is sought;

(3) The seller gave an express warranty as defined by Title 47, Chapter 2;

(4) The manufacturer or distributor of the product or part in question is notsubject to service

of process in the State of Tennessee and the long-arm statutes of Tennessee do not serve as

the basis for obtaining service of process; or

(5) The manufacturer has been judicially declared insolvent.

Tenn. Code Ann. § 29-28-106 (Supp. 2011). Our analysis in this case, however, is limited to the pre-2011

version of the statute. 

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defined in section 402A of the Restatement (Second), which had been adopted by Tennessee

9

courts prior to the enactment of the TPLA. See, e.g., Olney v. Beaman Bottling Co., 418

S.W.2d 430, 431 (Tenn. 1967). The original version of the legislation that became the TPLA

abolished strict liability of a seller as contemplated by section 402A. See, e.g., S. Journal,

90th Gen. Assemb., 2d Sess. 2073 (1978) (allowing strict liability to be asserted against a

seller only if it was also the manufacturer of the product). This wholesale abrogation,

however, “was met with considerable hostility by numerous members of the Tennessee

Senate,” Seals v. Sears, Robuck & Co., 688 F. Supp. 1252, 1254 (E.D. Tenn. 1988), and the

bill was eventually amended to provide for strict seller liability under the limited

circumstances currently contained in subsection (b). See id.; see also, e.g., S. Journal, 90th

Gen. Assemb., 2d Sess. 2103 (1978) (adopting amendment to what is now section 29-28-

106(b) prohibiting strict liability claims against sellers unless the manufacturer is not subject

to service of process or “such manufacturer is insolvent”).

 Section 402A provides as follows: 9

(1) One who sells any product in a defective condition unreasonably dangerous to the user

or consumer or to his property is subject to liability for physical harm thereby caused to the

ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change

in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his

product, and

(b) the user or consumer has not bought the product from or entered into any

contractual relation with the seller.

Restatement (Second) of Torts § 402A (1965).

While section 29-28-106(b) refers to, as does section 402A, a product containing “a defective

condition unreasonably dangerous,” another provision of the TPLA states that a manufacturer or seller cannot

be held liable for injuries caused by a 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.” Tenn. Code Ann. §

29-28-105(a) (emphasis added); see also Tenn. Code Ann. § 29-28-103(a)(referring to limitations on actions

based upon injury caused by a product in a “defective or unreasonably dangerous condition”). Other courts

have held that a plaintiff need only prove that the product was either defective or in a condition unreasonably

dangerous under the TPLA. See, e.g., Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 235 (6th Cir.

1988); Whaley v. Rheem Mfg. Co., 900 S.W.2d 296, 299 (Tenn. Ct. App. 1995). Because the issue is not

before us, we need not determine whether a conflict exists between section 29-28-106(b) and these provisions

or what a plaintiff must prove regarding the product’s condition when seeking to recover under strict liability

in tort. 

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In light of the specific language chosen by the legislature, as well as the history behind

this provision, we view section 29-28-106(b) as governing those limited instances in which

a seller may be sued in strict liability in tort. Accordingly, we conclude that section 29-28-

106(a) first addresses additional circumstances under which a products liability action is

prohibited against the seller of a product, and second, by implication, those instances in

10

which a plaintiff may pursue a claim directly against the seller because the defective product

was not sold in a sealed container and the seller was “afforded [a] reasonable opportunity to

inspect the product in such a manner which would or should, in the exercise of reasonable

care, reveal the existence of the defective condition.” Tenn. Code Ann. § 29-28-106(a).

11

These are the theories of liability listed in section 29-28-102(6), other than that which is

specifically referenced in section 29-28-106(b), see, e.g., Washington v. Robertson Cnty., 29

S.W.3d 466, 475 (Tenn. 2000) (noting that “a specific statutory provision . . . will control

over a more generalstatutory provision”), and that which is excluded by subsection (a) itself.

See Tenn. Code Ann. § 29-28-106(a)(2) (stating that the prohibition against liability

contained in subsection (a) “shall not apply to . . . [a]ctions based upon a breach of warranty,

express or implied”). These theories include negligence, negligent or innocent breach of or

failure to discharge a duty to warn or instruct, negligent or innocent misrepresentation,

12

This provision of the TPLA is based on the premise that most sellers “have little or no knowledge 10

of or control over whether the products they sell may be dangerously defective” and generally “have no

practical way to test products to discover hidden dangers.” 2 M. Stuart Madden et al., Madden & Owen on

Products Liability, § 19.1 (3d ed. 2000), available at MOPL 19:1 (Westlaw) [hereinafter MOPL 19:1]. As

a result, courts traditionally held that a seller had no duty to inspect or test a product or warn consumers of

latent defects “particularly . . . when the retail seller serves merely as a conduit of a product that arrives at

the retailer in a pre-packaged condition” and therefore was shielded from liability “for negligence when

selling goods in their original, sealed containers or packages.” Id. This “general no-duty to inspect, test, or

warn rule has exceptions in cases where the retail seller knows or has reason to know of the danger, in which

situations the seller has a duty of reasonable care to test, inspect, or warn.” Id.; cf. Gentry v. Hershey Co.,

687 F. Supp. 2d 711, 721 (M.D. Tenn. 2010) (stating that subsection (a) “wasintended to protectsellersfrom

liability associated with latent defects passed to them from the manufacturer of the product, not to relieve

the seller from all liability to the consumer when the seller causes or allows the product to become

adulterated”). Subsection (a) merely codifies this common law doctrine, often referred to as the “sealedcontainer” or “original-package” doctrine or defense. See MOPL 19:1. 

We observe that section 29-28-106(a) only refers to “the existence of the defective condition,” 11

whereas section 29-28-106(b) refers to “a defective condition unreasonably dangerous.” The legislature’s

use of different terminology to describe the necessary condition of the product for purposes of seller liability

under these two provisions further demonstrates a distinction. 

While liability based upon an innocent “breach of or failure to discharge a duty to warn or instruct”

12

could conceivably be construed as “strict,” strict liability derived from section 402A of the Restatement

(Second) of Torts does not hinge on the nature of the defendant’s conduct; in other words, “whether [the

defendant] acted intentionally, negligently, or innocently[] is not important on the issue of his liability.” 

(continued...)

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concealment or nondisclosure, “or any other substantive legal theory in tort or contract

13

whatsoever.”

Although, under subsection (a), a plaintiff may sue a seller directly under certain

circumstances, a plaintiff may not sue a seller in strict liability under subsection (b) unless,

as is pertinent to this case, the seller has been judicially declared insolvent. The effect of

these provisions is to create two causes of action under which a claimant may seek relief

from a seller of a product, either under the circumstances contemplated by subsection (a),

which contain various theories of recovery, or those contemplated under subsection (b),

which pertain only to strict liability in tort where the product is alleged to contain a defective

condition unreasonably dangerous to the buyer, user, or consumer.

Further, this Court, while observing that “the phrase ‘cause of action’ can, at times,

be difficult to define,” has held that “a common thread among the definitions . . . is that a

‘cause of action’ is associated with a right of one party to sue another.” Shelby Cnty. Health

Care Corp. v. Nationwide Mut. Ins. Co., 325 S.W.3d 88, 96 (Tenn. 2010) (citation omitted);

see also 1 Am. Jur. 2d Actions § 1 (2005) (“Although it has been said that the term ‘cause

of action’ has different meanings in different contexts, a ‘cause of action’ generally is

understood as a set of facts which gives rise to a right to seek a remedy.”). Pursuant to

Tennessee Code Annotated section 29-28-106(b), the right of a claimant to assert a claim for

strict liability against a seller does not arise until the manufacturer has been judicially

declared insolvent. Cf. Seals, 688 F. Supp. at 1257 (finding “it . . . clear that the

14

‘commenced or maintained’ language [contained in section 29-28-106(b)] does not mean that

(...continued) 12

Wyatt v. Winnebago Indus., Inc., 566 S.W.2d 276, 279 (Tenn. Ct. App. 1977); accord Phillips v. Cricket

Lighters, 841 A.2d 1000, 1008 (Pa. 2003) (observing that strict liability involves “examin[ing] the product

itself, and sternly eschew[ing] considerations of the reasonableness of the [defendant’s] conduct”).

 Again, liability based upon an innocent misrepresentation, concealment, or nondisclosure could 13

be construed as “strict.” However, liability under this theory, which is based on section 402B of the

Restatement (Second) of Torts, “is entirely distinct from a Section 402A claim,” as liability is “not

condition[ed] . . . on the product being defective or unreasonably dangerous.” Ladd by Ladd v. Honda Motor

Co., 939 S.W.2d 83, 97 (Tenn. Ct. App. 1996). Instead, liability is based upon that which is communicated

to the plaintiff and “does not require that the product contain a ‘defect’ unlessthe manufacturer falsely states

that the product is free thereof.” David G. Owens, Products Liability Law § 3.4 (2d ed. 2008).

In addition, if the product was sold in a sealed container and/or was acquired and sold by the seller

14

under circumstances in which the seller had no reasonable opportunity to inspect the product such that, in

the exercise of reasonable care, the defective condition would be discovered, the manufacturer’s insolvency

would also allow a plaintiff to then bring a claim against the seller under any of the theories of liability

mentioned in section 29-28-106(a). 

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the manufacturer must be insolvent on the fortuitous date that the complaint is filed. What

is important is that before a seller may be subjected to liability, it must be determined that the

manufacturer is insolvent”). And while it is true that a tort claim is said to accrue “when the

plaintiff knows, or in the exercise of reasonable care and diligence should know, that an

injury has been sustained,” Wyatt v. A-Best, Co., 910 S.W.2d 851, 854 (Tenn. 1995), we

cannot ignore the fact that, under the terms of the statute, a plaintiff does not have the right

to sue a seller in strict liability until the manufacturer is judicially declared insolvent. It

logically follows that the limitations period applicable to a cause of action does not begin

until the cause of action itself accrues. See 18 Tenn. Jur. Limitation of Actions § 19 (2005)

(“It is a general rule that the statute of limitations begins to run as soon as there is a right of

action . . . .”); id. § 20 (“The statutes of limitations do not begin to run in favor of or against

a party until the accrual of a right of action in favor of or against him.”); see also Vason v.

Nickey, 438 F.2d 242, 247 (6th Cir. 1971); State ex rel. Cardin v. McClellan, 85 S.W. 267,

270 (Tenn. 1905) (“[N]o time runs to the plaintiff until he has the right to sue[. T]he statute

of limitation[s] does not begin to run until that time[, as i]f the rule [were] otherwise,

meritorious actions might be barred before the plaintiff had the right to bring his suit. This

would work gross injustice.”). As the Court of Appeals observed in Braswell, “[t]o hold that

the statute of limitations ran before the manufacturer was adjudicated bankrupt[] would

render the statute in part, meaningless.” 105 S.W.3d at 590. Because we presume that the

General Assembly did not intend to enact meaningless or useless legislation, Texas Gas

Transmission Corp. v. Atkins, 327 S.W.2d 305, 307 (Tenn. 1959), it is our view that until the

judicial declaration of insolvency is made, or until one of the other two exceptions contained

in Tennessee Code Annotated section 29-28-106(b) is met, a claimant has no cause of action

against a seller in strict liability pursuant to section 29-28-106(b).

15

When the Plaintiff initially filed his suit in 2007, the truck’s manufacturer, Chrysler,

had not yet been judicially declared insolvent. The Plaintiff’s cause of action in strict

liability against the Defendant did not accrue until this declaration occurred. Because the

Plaintiff “commenced” his suit against the Defendant by filing a complaint within one year

of Chrysler’s insolvency, see Tenn. R. Civ. P. 3, his strict liability claim against the

16

Defendant was asserted in a timely manner.

17

This holding should not be construed to mean that a bankruptcy filing is a judicial declaration of 15

insolvency. See, e.g., Nye, 347 S.W.3d at 693 (“[A] debtor need not be insolvent to qualify for protection

under Chapter 11 of the Bankruptcy Code.”). 

A civil action is “commenced within the meaning of any statute of limitations upon [the] filing of 16

a complaint” with the clerk of the court. Tenn. R. Civ. P. 3. 

As noted by the Plaintiff, his strict liability claim is not foreclosed by the statute of repose

17

(continued...)

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Count Two – Negligence

Under the TPLA, a judicial declaration of the insolvency of a product’s manufacturer

allows a suit to be brought against the seller not only in strict liability under Tennessee Code

Annotated section 29-28-106(b), but also under the circumstances set out in Tennessee Code

Annotated section 29-28-106(a). Subsection (a) providesthat a products liability action shall

not be commenced or maintained against a seller when (1) “the product is acquired and sold

by the seller in a sealed container and/or” (2) “when the product is acquired and sold by the

seller under circumstances in which the seller is afforded no reasonable opportunity to

inspect the product in such a manner which would or should, in the exercise of reasonable

care, reveal the existence of the defective condition.” Tenn. Code Ann. § 29-28-106(a).

Even when these circumstances are present, however, a suit may be filed against the seller

if the manufacturer has been judicially declared insolvent. Tenn. Code Ann. § 29-28-

106(a)(3).

18

Our interpretation of the language contained in section 29-28-106(a) is that a product

liability action, other than one based on strict liability as contemplated in subsection (b), can

be maintained against a seller if the product is not in a sealed container and the seller is

afforded a reasonable opportunity to inspect the product in such a way that, in the exercise

of reasonable care, would reveal the defective condition. We must consider, therefore,

whether the Plaintiff’s negligence count in the 2009 complaint makes such allegations.

As previously noted, courtsin Tennessee must liberally construe litigants’ complaints.

See Webb, 346 S.W.3d at 426. In Count Two of the 2009 complaint, the Plaintiff plainly

asserted negligence on the part of the Defendant, contending that the Defendant breached its

“duty to exercise reasonable care to properly inspect, market, advertise, and sell” the truck.

These allegations suggest that the Defendant had the opportunity to inspect the truck,

discover the defect, and warn the Plaintiff of its existence, yet failed to do so. The cause of

action asserted in Count Two, based upon the Defendant’s alleged failure to exercise

reasonable care in discovering the truck’s defective parking system, could have been asserted

against Beaman at the time the initial suit was filed. Because more than one year passed

before the suit was reinstated in 2009, the products liability claim based upon the negligence

of the seller is barred, notwithstanding the subsequent insolvency of Chrysler.

(...continued) 17

contained in the TPLA, which states, in pertinent part, that an action “must be brought within ten (10) years

from the date on which the product was first purchased for use or consumption.” Tenn. Code Ann. § 29-28-

103(a). 

The other exceptions, not at issue here, occur when the action is based upon express or implied

18

warranty or the manufacturer is not subject to service of process. Tenn. Code Ann. § 29-28-106(a)(1)–(2). 

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In summary, the plain language of Tennessee Code Annotated section 29-28-106(a)

exempts a seller from liability absent being afforded a “reasonable opportunity to inspect the

product in such a manner which would or should . . . reveal the existence of the defective

condition.” Proof of the opportunity to inspect and the failure to exercise reasonable care

may have subjected the Defendant to liability in the initial suit. Thus, the Plaintiff’s claim

for negligence against the Defendant could have been litigated in the 2007 action. The 2009

claim based upon the theory of negligence was, therefore, filed beyond the saving period, see

Tenn. Code Ann. § 28-1-105, and barred by the statute of limitations. Tenn. Code Ann. § 28-

3-104.

Conclusion

Because the claim by the Plaintiff against the Defendant under the theory of strict

liability did not arise until the declaration of Chrysler’s insolvency, the claim was not barred

by the statute of limitations. The Defendant’s motion to dismiss was properly denied as to

the strict liability claim, but should have been granted as to the claim of negligence. The

judgment of the trial court is, therefore, affirmed in part, reversed in part, and the cause is

remanded for trial. Costs are adjudged against the Defendant, for which execution may issue

if necessary.

_________________________________

GARY R. WADE, JUSTICE

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