# FILED

August 7, 1996 Cecil W. Crowson Appellate C ourt Cler k 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

MICHAEL ANTHONY LADD, ) a minor, by VIR GINIA LADD, ) as next fr iend and le gal guardia

n, ) ) Plaintiff /Appella nt, )

) ) VS. ) Sumner C ircuit ) No. 9605-C ) HONDA MOTOR CO., LTD.; ) Appeal N o. HONDA R & D CO., LTD.; ) 01-A-01- 9503-CV- 00091 AMERICAN HONDA MOTOR CO., ) INC.; BOWLIN G GREEN CY CLES, ) INC.; and ERBY L. GIVENS, ) ) Defenda nts/Appell ees. )

APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE THE HONORABLE THOMAS GOODALL, JUDGE

For the Plaint iff/Appe llant : For the Def endants/Appellee s : Joe Bednarz Linda J. Ham ilto n Mowles Nashville, Tennessee R. Dale Bay Lewi s, K ing, Krieg & Waldro p Knoxville, Tennessee



## REVERSED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal involves a twelve-year-old boy who became paralyzed when he lost control of

an all-te rrain vehicle and crashed into a utility pole. The boy sued the manufac turer of the all-t errain vehicle in

the Circuit C ourt for S umner County, alleging that its advertisement s f alsely and misleading ly depicte d all-ter rain vehicles as safe enough to be ope rated bychildren. The jury returned averdict f

or the manufac turer fol lowing a lengthy trial , and the child and hi s mother a

ppealed. We have de

termined that thetrial cour t’s instruc tions did not f

airly appraise the j ur y of the plai ntiff’s t

heory of th e case a

nd that its su

pplementa

l instructi ons confused the jury ab out the signif icance of their verdict. Theref

ore, we reverse the judgmen t and remand the case for a n ew trial.

I.
Erby Givens p urchas ed a four-wheeled Honda all-terrain vehicle Model TRX 250 in Januar

y 1986. App roximately four month s later, he drove his “fourwheeler” to Earl and Virginia Ladd’s apartme nt in the Por tland Housi ng Authorit

y complex. During his visit, Mr . Givens permitte d the Ladds’ tw elve-yea r-old son, Michael, to drive the

all-ter rain vehic le. He

had permi tted the boy to drive the allterrain vehicle in

the past, and he be lieved t hat childr en could saf

ely opera te it because he had seen Honda’s advertisements showing children driving all -terra in vehicles

.

Michael Ladd bega

n driving the

all-ter rain vehic le on the stre et in front of the housing compl ex. Af ter several hours, he and a pa ssenger be gan driving t he vehicle on a grassy

area behind his parents’ apartment. While Michael Ladd had adult sup ervision dur

ing the ear

ly part of the day, his parents and Mr. G ivens became involved with other activities as the af ternoon wore on. Mr. Gi vens and Mr

. Ladd were drinking beer on the Ladds’ front porch, and Ms . Ladd wa s babysitting h er grandd aughter ins ide the La dds’ apar tment.

Michael Ladd drove the all-terrain vehicle on the gras sy are a behind his parents’ apartmen t all afternoon. At approximately 5:30 p.m., he and a twelve-1 The complaint alleged negligence claims against Mr. Gi ve ns and the dealer ship that so ld him the all-t errain vehicle . This app eal conc erns only the claim s against

the Honda

defenda nts. -3- year-old p assenger hit a two- foot wide dish-shape d depressio n in the grou nd. Michael Ladd lost control, and the all-terrain veh ic le crashed into a utility pole. The passen ger was thrown from the vehicle without serious injury, but Michael Ladd hit the utility pole head-on. His injuries have rendered him a paraplegic.

In May 1991, M ichael L add filed s uit in theCircuit C ourt for Sumner County against Ho nda Moto r Co., Ltd., Honda Re search and Dev elopment , Ltd., Honda R&D Nor

th Amer ica, Inc., America n Honda Motor Company, Inc., Mr. Givens, and the dea

lership tha

t sold thefour-wh eeler to Mr. Giv ens. Wit h regard to the four Hond a defenda nts, the complaint alleged: (1) that the 1986 Honda TRX 250 all-ter

rain vehic le was de fective o r unreaso nably dange rous, (2) tha t the safety
war nings for the vehicle were inadequate, (3) that the Honda defendants ha d misrepresented the charact eristics of all-te

rrain vehicles, a

nd (4) that

the design, manufacture, testing, o r inspecti on of the 1986 Hon da TRX 250 all-te rrain vehicle was negli gent. 1

The tria l began in M arch 1993 a

nd lasted f

ive week s. On the

third day of delibera tions, the jury reported that it coul d not reac h adecision w ith regar d to the misrepre sentation

claims. The trial judge gave the jury additional instruction s and urged them to answer as many of the questions on the special verdictform as they could. The jury completed the special verdict formwithin one hour and answered all questions in favor of the Honda defendants. Mi chae l Ladd fi led two tim ely motions for newtr ia l. The trial court initially denied the motions but later reversed itself because it believed it had given an improper dynamite charge. The Honda defendants sought and obtained an interlocutory appeal with regard to this decision

.

On May 13, 1994, this court filed an opinion co ncluding that the trial court had not given t

he jury a dynamite charge and, therefore, that the trial court had

erroneous ly granted the new trial. Since the trial court had not acted on the other grounds stated in t

he motion for newtrial, t

his court va

cated the order gra nting the

new trial and remanded

the case with dire ctions that the trial court cons ider and2 The motions actually contain twent y ground s; however, two of the grounds in the second

motion for

new tria l duplica te ground s contained in the f irst motion

for new trial. -4- actupon the se other gr ounds. Ladd v. H onda Motor Co., App. No . 01-A- 01-9309- CV-00399, slip op. at

9- 10 (Tenn. Ct. App. May 13, 1994) , perm. app. denied concurring in results only (Tenn. Sept. 26 , 1994).

The trial cour

t denied the

remainin g grounds of the moti on for new trial in July 1994 before the Tennessee Supreme Court had disposed of Michael Ladd’s applicati on for perm

ission to appe al. In O ctober 1994 , aft er the Tennessee Supreme Court denie d Michael Ladd’s a pplication f

or permis sion to appea

l, the trial court ente

red a fin al order approving th e jury’s ve rdict as t hi rtee nth juror, denying the first and second motions for new trial, and taxing the costs to Michael Ladd. T his appeal ensued.

II.

T HE S COPE OF THE A PPEAL

We turn first to the scope of this appeal. Since this is the second appeal in thi s ca se, Mich ael Ladd

cannot re argue issue s that have already b een hear

d and decided. Severa

l of the issues he has raised on this appeal were either dir ectly or implicitly decided on the first appeal and, therefore, will not be considered now.

A.

Mich ael Ladd filed two timely post-trial motions containing eighteen grounds for a new t rial. 2 Eight of these grounds related to the trial court’s instruction s and comme nts to the jur y, includin g the supple mental ins tructions giv en after t he jury re

ported it w as deadloc ked. The trial cour

t first de nied the motions for new trial, observing that the a ppe llate courts “will certainly have a greatdeal to che w on.” During a later hearing concerning the wording of its final order, the trial

court annou nced that i t had chang ed its min d and had dec ided to grant Michael Ladd a new trial. The decision wa s based solely on the trial court’s belief that it had given an imp roper dyna mite char ge when th e jury announced i t was deadloc ked.-5- Both the trial

court and this court g ranted the

Honda def

endants permissio n t o pe rfect an interlocutory appeal to determine whether the trial court’s supplemental instructions am o unted to “an improper ‘dynamite charge’ which may have impr

operly inf luenced the

jury.” In this court , the Hon da defenda nts insisted that the only issue to be dec ided was whether the tr ial court u sed a dynamite charge to coerce the jury toreturn a verdict. Michael Ladd, on the other hand, argued that the c ourt could consider the broader issue of whether there was any ground for granting him a new trial. This court determined that the trial court had not used an inappropriate dyna mite char ge and accordingly vacated the order granting the motion f

or new trial. Ladd v. Hond a Motor Co ., supra, slip op. at 9. We also rema

nded the ca se with dir

ections tha

t the tria l court con sider and

rule on the other grounds asserted in the motio ns for new trial. Ladd v. Hond a Motor Co ., supra, slip op. at

10.

The trial courtthereaf

ter appro ved the ver

dict as thir

teenth juror and denied both of Michae l Ladd’s m ot ions for new trial on all grounds. The trial court stayed its order while the Tennessee Supreme Court considered whether it would review this court’s decision. After the Court declined to review the case, the trial courtentered a

final orde

r again de nying both moti ons for new trial on a

ll grounds.

B.

The law of th e case

doctrine i s a discretionary ru le of practice that promotes judicial economy an d consistenc y and also pr otects liti gants from

the burdens of repeate dly rearguing issues thathave been d ecided. 18 Charles A. Wright et al., Federal P ractice and

Procedure

§ 4478, at 7 88-90 (19 81). It is not a limit ation

on a court’ s power like the doct rine of res judi cata, but rather it is a common sen se recognitio n that issues ordinar il y need not be revisited once they have been litigated and decid ed. Messinger v. Ande rson, 225 U.S. 436, 444, 32 S. Ct. 739, 740 (1912); Mendenha ll v. Barber- Greene Co., 26 F.3d 1573, 15 82 (Fed. Cir.), cert. de nied, 115 S. Ct. 582 (1994).3 Clingan v. Vulcan Life Ins. Co., 694 S.W.2d 327, 331 (Tenn. Ct. App. 1985). -6- Under the law o f the case doct

rine, an appellate court’s de cision on an issue of law becomes binding precedent to be followed in later trials an d appeals of

the

same case invol ving the sam e issues an d facts. Jones v. Jones, 784 S.W. 2d 349, 351 n.1 (Tenn. Ct. A

pp. 1989); Cook v. McC ullough, 735 S.W. 2d 464, 470- 71 (Tenn. Ct. App. 1987) (quoting Holcomb v. McClure , 64 So. 2 d 689, 691 (M iss. 1953)); 1B James W . Moore & Jo Desha L

ucas, Moo re’s Federal Practice ¶ 0.404[1] (2d ed. 1995). The doctrine applies to issues that were act uall y before the court, Barnes v. Walker, 191 Tenn. 36 4, 374, 234S.W.2 d 648, 652 (1950), or to issues that were necessaril y decided by impli cation. 18 Wright et al ., supra, § 4478, at 789. It does not appl y to dicta

. Ridley v. Haiman, 164 Tenn. 239, 248- 49, 47 S.W.2d 750, 752-53 (1932); S choen v. J.C. Brad ford & Co., 667 S.W. 2d 97, 101 (Tenn . Ct. A

pp. 1984). Thus, ta

king an inter

locuto ry appea l does not preclude a later appeal from the final judgment, but the dec ision of the appellate courts on the interlocutory appea l constitute s the law of the cas e with re gard to the issues rai sed and dec ided onthe interl ocutory a ppeal. 1B Mo ore et al., supra, ¶ 0.404[4. -7], at

II-36 to II-37.

The a pp lication of

the law o f the cas e doctrine to interme diate appe llate court o pinions does no t necessa rily depend

upon whethe

r the opinio n has bee n reviewedby the Tenn essee Supre me Court. The doctr ine has been applied to decisions th at have not

been revi ewed bythe Supreme Court, Bivinsv. Hospi tal Corp. of Am., 910 S.W. 2d 441, 447 (T enn. Ct. App. 1995), as well as t o decisions thatthe Supreme Cou rt has decl ined to rev iew. Life & Cas ualty Ins. Co. v. Jett, 175 Tenn. 29 5, 299, 133 S.W. 2d 997, 998- 99 (1939); State ex rel. Kirkpatrick v. Tipton, 67 0 S.W. 2d 224 , 226 & n. 5 (Tenn. Ct. App. 1984); S.M.R. Enters. v. Sou thern Hai rcutters , Inc., 662 S.W.2d 944, 950 (Tenn. Ct. App. 1983). Obviously, it does not a

pply to inter

mediate a ppell ate cour

t opinions tha

t have been reverse d or vacat

ed. Whil e some ques tion exists w ith regar d to it s applicati on to intermediate appellate court decisions that the Supreme Court has declined to review “co ncurring i n results only,” 3 we conclude that the doctrine applies to these ca ses becaus e th e decision to concur only with the results of an opinion simply “evinces . . . [the] Court’s judgment that the opin ion of th e . . . [interme diate appellate court] should not be published.” Pairamore v. Pairamore,4 Few appellate dispositions have caused more confusion among the bench a nd bar than the Tennessee Supreme Court’s practice of declining to review an intermediate appellate court’s opinion “concurring in results only.” One justice has chara cterized the practice

as “patent

ly unfair” because i t leaves t he inter mediate a ppellate courts, t he trial c ourts, and the litiga nts to specula te about the reasons for the Court’s action. Pairamore v. Pairamore, 547 S.W.2d at 552 (Henry, J., dissenting).
The Tennessee Supreme Court has never satisfactor ily explained the difference between the “d.c.r.o.” disposition and a simple denial of an application for permission to appeal. When the Court d enies an

applica tion for p ermission

to appea l “concu rring in r esults only ,” it is obviously concurr ing only in the opinion’s results, not necessarily its reasoning. However, the Courthas neve

r held tha t the simple

denial of an applic ation for

permissio n to appea

l amounts to an endorsem ent of both the reasoning and the results of the intermediate appe llate court’s opinion. While it has pointed out that the denial of a Tenn. R. App. P. 11 application, without more, “emphasizes the concurrence of the Court in the opinion of the . . . [interm ediate a ppellate court],” Beard v. Beard, 158 Tenn. 437, 442, 14 S.W.2d745, 747 (1929), it has also explained th at it is primarily concerned with the results reached, Adams v. State, 547 S.W.2d 553, 55 6 (Tenn. 1977); Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 611, 130 S.W.2d 85, 88 (1939), and that the simple den

ial of an applica tion for p ermission

to appeal d

oes not commit the Cour

t to all the views expressed in the particular intermediate appe llate court opinion. Swift v. Kirby, 737 S.W.2d 271 , 277 (Te

nn. 1987) ; Street v . Calvert, 541 S.W.2d 576, 587 (Tenn. 1976). Thus, it would appear that the Court’s simple denial of an application for permission to appeal does not have any greater jurisprudential significance than a denial “concurring in results only.” Thus, the distinction between a “d. c.r.o.”disp ositi on and the simple denial of an application for permission to appeal is extremely subtle. On the face of things, the Court appears to be enga ging in a result-oriented

analysis in both circumstances and is not necessarily agreeing withthe intermediate appellate court’s reasoning when it simply denies the Tenn. R. App. P. 11 application. A b ette r understanding of the two dispositions will only come when the Court providesa clear

er expla nation of the diffe rencesbetwee

n them. -7- 547 S.W.2 d 545, 548 (T enn. 1977). 4 These de cisions stil l have pre cedentia l value withregard to the parti es involved in the case. Patton v. McHone, 822 S.W. 2d 608, 615 n.10 (Tenn. Ct. App. 1991).

C.

This court’s de cisi on in t he earlier interlocutory appeal in this case has become the law of the cas e with rega rd to four o f Michae l Ladd’s i ssues on this appeal. First, this court has squarely decided that the trial court’s supplem ental instruction s did not amount to a dynamite charge that improperly coerced the jury into returninga verdict

for the de fendants. Second, this court expressly concurred withthe trial court’s conclusion that an interlocutory appea l from its decision to g rant a new tr ial was w arrante d. Thir

d, this cou

rt, not the trial cour t, ultim atel y decided what the sco pe of the interlocutory appeal would be and also which standard of review we would apply. Thus, the trial court’s decisions with regard5 While the cou rt ma y have been dissatisfied with some portion of the reasoning in our earlier opinion, it

left our c onclusion

that the tr

ial c ourt had no t given an improper dynamite chargein tact. Presumably the Court would not have permitted our decision to stand if we had reached the wrong result. The Court alluded to our decision in a later case without criticism. See Johnson v. Hardin, App. No. 01-S-01-9510-CV-00188, slip op. at 13 n.8 (Tenn. July 15, 1996) (Opinion designated “For Publication”). -8- t o the latter two points had no practical effect on the direction or scope of th e interlocut ory proce edings.

This court alsodecided a fourth issu e by neces sary impli cation . By determini ng that t

he trial cour

t’s supplem

ental instr

uctions we

re not inappropri ately coercive

and that the

trial cour t erred b y granting a

new tria l, we
necessar ily decided that the trial court did not err b y giving supplemental instruction s instead of declaring a mistrial. We would not hav e addre ssed the substance of the supplemen tal instructi ons had we concluded that no supplemental instruction s should have been given. Thus, our decision that the supplemen t al instruction s did n ot amount to an inappropriate dynamite charge necessarily rested

on our conclusion that the trial court did not err by giving these instructions rather than decla

ring a mist

rial.

This court addressed these four issues dire ctly or

by necessa

ry implica

tion when we grant

ed and deci ded the ea

rlier int erlocutor y appe al in this c ase. O ur decisions on these issues have not been reversed or vacated by the Tennessee Supreme Court 5 and, ther

efore, have becom

e the law of the case . Accordingl y, we will not r evisit thes e issues on t

his appeal.

III. T HE R EQUEST FOR AN A DVISORY V ERDICT

We no w turn to t

he trial c ourt’s suppl emental i nstructions after th e foreper son announc ed that th e jury was dea dlocked. The trial cour t apparently decided that the c ase would have to be tried a gain and exh orted the j ury to return
an advisory ve

rdict that would be he lpful to th e court and the pa rties. We have determined that this instruction was contrary to established l aw and tha t it confused the jury wit h regard to their func tion. Ac cordingly, it undermi ned the validity of

the jury’s verdict.6 The note contained a reference to the portion of the special verdict form containing the questions relating

to Michae

l Ladd’s m

isrepre sentation

claims. Accordingly, the trial court and the parties concluded that thejury had not been able to reach a unanimous decision on this issue. -9- A.

The jury encountered difficulties almost as soon as they began deliberating. During the first tw o days of de liberatio ns, the jur y requeste d four

clarifi cations of differe ntportions of

the instructio ns and the que stions on the special verdict form. On the third day, after the jury had deliber ated for over fift een hours, the foreper son passed a note to the trial court stating: “We c annot co me to a
unanamous [sic] de cision. We have tri ed very ha rd but on one questi on we simply cannot agree. 6 We feel that we all have followed our own convictions.”

The trial court called the jury int o the court

room in re sponse to the

note and asked the fore

person whether the

jury had agreed on the answers to the quest ions

on the specia

l verdict f

orm other

than those r

elating to the misrepre sentation claims. After the forep erson annou nced that t he jury had be en able to a nswer the other questions, the trial court instructed the jury

to go back and fill out w hat you c an. Now, yo u must rem e mber, I doubt th at I have ins tructed yo u on this , I will look it o ver to be cert ain there is not any inconsistentverdict, I’ll rev ie w that. . . . Tho se things thatyou have agreed on, go on and fill that[the verdict form] out , sign it, come bac k and let me look at that

.

The jury retur

ned approxi mately tw enty minute s later w ith a parti ally completed verdict form. The trial court repeated the portion s of its original c harge concernin g the requir

ement of a

unanimous ve

rdict, t he duty of jurors to consult witheach othe

r during de liberatio ns, and the jurors’ ob ligation not t

o su rrender their honest convi ctions. T

he trial court alsostated tha t it would di scuss the possibilityof giving ad ditional inst ructions with the l awyers a nd then asked each juror whether “an expanded definit

ion” of the

portionof the instr

uctions re lating to Michael Ladd’s m isrepresentation claim would be helpful. Five of the seven jurors responded that they doubted that additi onal instruc tions would b e helpful.-10- As soon as the

jury returned

to the jury room, the

trial cour t informe d the lawyers that it intended to give the jur y a “dynami te charge.” After the lawyers couldnot agree

on the instr

uctions to a

ccompany t

his supplemental instru ction, the trial court stated out of the jury’s presence:

[Y]ouall can a ssign this a s an error , but I’m going to call them ba ck in and give them the dynamite charge. Andyou all can

assign it as error, either one of you, and I’ll grant a ne w trial o n that, but I don’t thin

k tha t working this long w e should lea ve the cour

troom and not have some sort of an advisor, because the Supreme Courtis advocat

ing alternat

ive dispute resolutions and it’s -- you know, even if a maj ority can decide on a certain thing, whatever

that majority decides, I’dlike to know tha t to have in t

he file he re, and I ’ll grant ane w trial based on tha

t. Bu t this right here [the partiall y completed verdict form ] as I have got it is an inconclusiv e, parti al verdic t. Thereafter, the trial court summoned the jury backto the cour troom and repeated its original in structions with rega rd to Micha

el Ladd’ s burden of proof and th e elements of his misr

epresent ation clai ms againstthe Honda defendants. In addition to th ese instru ctions, th e trial c ourt instru cted the ju ry as follo ws: Now, five of

you have sai d you don’t think i t will do any good for

this furthe

r in stru ction and se veral of you have said

you thought it w ould help, could possibl y help. I’m rel

uctant to gi ve you the r est of this charge, but I am. Y ou have wor

ked hard a

nd we’re into the 6th week. This is my job. I lov e my work and I try m

y best to give fair , impart

ial instruc tion s to all of y ou, and I certainly don’t wan

t to f uss at anyone. Some jury has got to try this case. And we’ re not going to ever f ind a better jury than you are. If we ever find an y better l isteners, I haven’t

seen any in

the four ye ars I hav e been on the be nch. You have all impressed me as intelligent

persons and

understand

ing th ing s in an objective manner. These parties, for whatever reasons thatI m ig ht perceive or you might perceive need an answer. This accident

occurre d in the ear

ly part of ’86. The newspape

rs and -- well, I don’t

want to pick on the newspape rs, critics say that we move too slowly i n the administra

tion of justice. I ma d e it my cr edo when I too k this position here to move litigation as expeditious ly as possible without hurr ying any one. I want you to go back

there and

recogniz e that as yo ur part; we ne ed an answer t o these qu estions somehow, one way or the

other. A nd those that

can sign it, sign it. If you can’t c onscientiou sly sign the j ud gme nt, those-11- thatcan c o nscientious ly sign it, whatever y ou find, that’s an advisory to me and a ll parties in volved. Now, if you will ma

ke that muc h of an eff

ort, we have got anothe r hour here and I appeal to your sense of fai r play. Don’t

surrende r your hones t conviction s but take this and try to a

rriveat some sort of verdict thatwill be helpful to a

ll of us. T

hank you.

After the jury r

etired to c ontinue deli

berating, the tr

ial c ourt explai ned to the lawyers that its comment that “we h ave got an other hour here” w as not intended to leave t

he jury wi th the impression that the trial court had placed a onehour time limi t on the jury’s del iberations . Neve rtheless, approxima

tely one hour after receiv ing the supplemental in structions, the jury returned a completed verdict sheetsigned only by

the fore person. I t answer ed all questions co ncerning liability in favor of the Honda defendant s. In re sponse to the trial court’s questions, each juror conf

irmed tha t these ans wers w ere their own.

B.

Juries have the exclusive duty to decide all disputed questions of fact submitted to them, McCormi c v. Sm ith, 668 S.W.2d 30 4, 306 (Te nn. Ct. App. 1984); Finks v. Gillu m, 38 Tenn. App. 3 04, 311-13, 2 73 S.W. 2d 722, 726- 27 (1954); 8 Tennessee

Pattern J ury Instruc tions T.P.I. -- C ivil 1.10 (Committee on Pattern Jury Instr

uctions (C ivil) of

the Tenn. Judicial C onferenc e ed., 2d ed. 1988) (“T.P.I. -- Civil” ), based

on the law

as explain ed by the tr ial court. M’Corry v. King’s Heirs, 22 Tenn. (3 Hum.) 266, 277-78 (1842). T hus, the sou ndness of every jury ve rdict rests on the fairness and accuracy of the trial court’s i ns tructions. Since the instructions are the sole source of the legal principles needed to guide the jury’s deliberat ions, State ex re l. Myer s v. Brown, 209 Tenn. 141, 148-49, 3 51 S.W.2d 38 5, 388 (19 61), t ri al courts m ust give subst antially accurat e instructio ns concer

ning the law a

pplicable to the matters at is sue. Street

v. Calvert, 541 S.W. 2d at 584; Mitchell v. S mith, 779 S.W. 2d 384, 390 (Tenn. Ct. App. 1989).
Jury instructions need not be p erfect in every de tail. See In re E state of Elam, 738 S.W. 2d 169, 174 ( Tenn. 198 7); Benson v. Te nnes see Valley Elec.-12-

Coop., 868 S.W.2d 6 30, 642-4 3 (Tenn. Ct. A pp. 1993). A single err

oneous stateme nt will not ne cessarily undermine otherwis e proper i nstructions th at, on th e whole, fairlydefine the issues an d do not m islead th e jury. Cortazzo v. Blackbur n, 912 S.W.2d 7 35, 745 (Ten n. Ct. App. 199 5).

Instructi ons must

be viewed as a whole, In re Estate of Elam, 738 S.W.2 d at174; Memphis St. Ry. v. Wi lson, 108 Tenn. 618, 620, 69 S.W. 265, 265 (1902); Abbott v. American Hon da Motor C o., 682 S.W.2d 20 6, 209 (Te nn. Ct. A pp. 1984), and the challenged portion of t he instructio ns should be c onsidered i n light of its con text. Gorman v. Earhart, 876 S.W.2 d 832, 836 (T enn. 1994) ; Hurst v. Dougherty, 800 S.W. 2d 183, 186 ( Tenn. Ct. App. 1990). An erroneo us instruct ion will not be consi dered re versible e rror if t he trial c ourt explai ns or corr ects it in otherportion s of the cha rge. In re Est a te of Elam, 738 S.W. 2d at 174; Smith v. Parker, 213 Tenn. 147, 156, 373 S.W.2d 205, 209 (1963).

Juries are gene

rally compos ed of persons who do not have formal legal training. Accordi ngly, a tr ial court’ s instructi ons should be couched in plain terms thatlay person s can readil y underst and. Sas ser v. Ave ritt Expre ss, Inc., 839 S.W.2 d 422, 430 (T enn. Ct. App. 1992) ; Herstein v. Kemker, 19 Tenn. App. 681, 702, 94 S.W. 2d 76, 89 (19 36). It a lso follow s that appe llate courts must view the challenged instructions not through the practiced eyes of a judge but rather through the eyes of an average lay juror.

C.

The jury’s ver

dict is the foundation of the judgment in civil cases where t he parties have invoke d their con stitutiona l or statutory right to a jury trial. It represe nts the jury’s final statement with regard to the issues presented to them. The verdict, whether

general o r special , is binding on th e trial c ourt and the parties unless it is set aside through some recognized legal proced ure. Acco rdingly, neither th e trial c ourt nor the parties a re free to disrega

rd a jury’ s verdict o nce it has been pro perly r eturned. See Smith Count y Educ. Ass’n v. Anderson, 676 S.W.2d 328, 336 (Tenn. 1984).7 Johnson v. Hardin , supra note 5, slip op. at 13.

8 Johnson v. Hardin, supra note 5, slip op. at 15-18. -13- The Tennessee Supreme Court has recently revieweda medical malpractice

case in which th e trial court u sed a supplemental instruction requesting an advisory verdictsubstantially similar to the instruction involved in this case. In thatcase, the jury informed the trial court that it was deadlocked after de liberatin g for twe lve hours ove

r two days . The tr

ial court t hen reques ted the jur

y to just spend a little more time as to whether you can give an advisory. I’m talk

ing about an a

dvisory to me

and to these lawyers. Some sort of answer is better than nothing.

* * * Now, I know that s ome of you ha ve said it won’t do any good. B ut some sor t of an advis ory might be helpful for me, for the lawyers in this case.
Johnson v. Hardi

n , ___ S.W.2d ___, ___ (Tenn. 1996). 7 Followingthis instruction , the jury wrote a no te on the back of the spec ial verdic t form sta ting thatthey had decided that the defendant had not committed medical malpractice. The trial court entered a judgment for the defendant based on the jury’s verdict even though he

had told the

jury that i ts verdict

was advis ory.

The Court conc luded that ot her portio ns of the tr

ial c our t’s supplemental instruction s had imprope

rly coerc ed the jury into re turning a verdict. Johnson v. Hardin, ___ S.W.2d at

___. 8 In addition, the Court evaluated the effect of the trial court’s charact

erizatio n of the jur

y’s verdic t as an “advisory.” The Court concluded: An additional factor in our evaluation of t h e

effect of th e misguided charge is the judge’s charact erizatio n of thedesired verdictas an “advi sory.” The ju rors an d counsel w ere obvious ly confused as to the nature of an advisory verdict. Bothinquired of the judge as to what he meant. His response, to counsel at least, indicated

that he w anted something from the jury to guide coun sel in futur

e negotiat ions.
Whileadvisory ve

rdicts ar e not unknow n in Ten nesse e in equity matters, see Smith Count y Education

Asso cia tion v. An derson , 676 S.W .2d 2d9 Johnson v. Hardin, supra note 5, slip op. at 18-19. -14- [si c] 328 (Tenn. 1984), onc e a jury is impanele d to render a verdict, that determination is not an advisory opinion, but

a final ve rdict. Further , the jur

y’s findings of fact ar e binding upon

the judg e. Id . at 337-3 8. The judge’s request f

or an “adv isory” was, at the very least, confusing and incon sistent with Tenness ee law. Although the judge pol led th e jury to inquire whether the finding was the “verdict” of each juror, the n o te, writ ten on the back of

the jury f

orm, ma y represent nothing more than

the jury’s ine

pt attempt

to render the “advisory” requeste d by the tria l court.
Johnso n v. H

ardin, ___ S.W. 2d at ___. 9 While dif ference s exist betw een the wording of the request for an advisory ve rdict in thi s case and

the wording of

the request in J ohnson v . Hardinand the context in which the requests were made, these differences are not so grea t that they p lace this c ase beyond t he reasoni ng of the Johnson v. Hardin decision.

The jury in this case, like the jury in Joh nson v. H ardin , had alr

eady engaged in leng thy, apparent ly fruitle ss, delibe

rations w hen the tri al court to ld them that what

ever they decided w ould be “an advis ory” for the court a

nd the parties. The tria

l court als o told the jurors that they should record their advisory decision on the spec ial verdic t form by a nswering the question s and by not signing the form if t hey could not cons cientiou sly sign it.

Theseinstructio ns must hav e left the jury with the impre ssion that it s decision would not be

binding. T

hey must also have i nduced the j ury, alr eady tired from five weeks of trial and fifteen hours of deliberations, to reach a quick decision in order to bring their service on the jury t

o an end. T

his is prec isely what happened. The jury agre ed on an advi sory decisi on within one hour afte r the supplemental instructio ns and rec orded its de cision on the special verdict form thatwas signed not by the entire jury but by only the foreperson. The jurors’ later acknowle dgment

of the ver

dict in open co urt provides no indication that they understood t

hat their decision w as anything more than advisory.

We have r ev iewed the trial court’s comments concerning an advisory verdictin light of t

heir imme diate cont

ext and in li ght of the e ntire cha rge. In the10 We have co nfined ou r analys is of this is sue to the portion of the trial court’s instructions requesting an advisory verdict. We have not considered w hether other portions of the ch arge improper ly coerced the

jury into reaching a decision since we addressed this issue on the earlier interlocutory appeal of this case and our decision has become the law of the case. -15- context in which th ey were

made, th ese comments could only ha ve confuse d the jury with rega

rd to its pr

oper role by leaving t

he jury with the impre ssion that it s decision would not f

inally res olve the dis pute betw een t he parties . This confusion, more probably than not, affected the judgment in this case and forces

us to conclude, like the Tennessee Supreme Court in the Johnson v. Hardin case, that the jur

y’s decisi on was not a

considere d, unanimo us verdict

. 10

IV. M ICHAEL L ADD ’ S M ISREPRESENTATI ON C LAIM

We turn next to Michael Ladd’s claim that the Honda defendants had misrepresented the handling characteristics of all-terrain vehicles by adverti sing thatthey were safe enoug h to be oper ated by chi ldren. T he Honda de fendants assertthatMichael L add cannot s ucceed w ith this claim without proving that they misrepresented the handling characteristics of the particular model of all-ter rain vehicle involved in th

is case. Michael L add respond s that his cl aim may r est on proof that the Honda defendant s misrep resented the handling

charact eristics of allterrain vehicles i n general . We ag ree wit h Michael Ladd.

A.

Itwas cle ar from

the outset that Michael Ladd’s pr incipal cl aim again st the Honda defendant s was pre dicated on their advertisements fro m the early 1970s to the m id-198 0s repres enting that all-ter rain vehic les could be

operated safely by children under six teen years o f age. He asserted that these

advertisements were misrepre sentations because they create d the illusion that all-terrain vehicles were safe when, in

fact, t hey were not. He also asser

ted th at Erby Gi vens’s and h is parents’ impressio n s o f the saf e use of a

ll-terr ain vehicl es had bee n shaped by Honda’s advertisi ng and that t hey had per

mitted him

to operate

Mr. Givens’s allterrain vehicle be cause of t heir impr ession that he could saf

ely do so.-16- The Honda defendan ts insist ed that the evidence with regard to Michael Ladd’s misrepre sentation c laim shoul d be limited to its advertisements concernin g the 1986 Honda TRX 250 - the particular all-terr ain v ehicle Michael Ladd was operatingwhen he w as injured . Prior to trial, the y sought to pre clude the introductio n of all evidence that did not relate to the 1986 Honda TRX 250 on the groundof relevance. The trial court overr uled th e objections and permitted Michael Ladd to int

roduce evi dence of t

he developm

ent and market ing of allterrain vehicles from the early 1970s to the mid-1980s to prove t h at Honda’s marketinghad shaped t

he public’s percepti on of the use and

safety of all-ter rain vehicles and that thi s marketi n g had mis led the publi c into belie ving that al lterrain vehicles c ould be operated safe ly by childr en.

B.

Honda first intr oduced all- terrain

vehicles into the United States m arket in the early 1970s . They w ere mode led after motorcycl es but had th

ree wh eels. Since they were intended to be used year -round in a

ll types of weather and terr ain, the market ing of these vehicles was originally directed toward off-road enthusiasts

. Honda s hifted its m arketing s trategy in the earl y 1980s to begi n promoting all-ter

rain vehic les as suita

ble for f amily recreation. Its broadcas t and print advertisi ng d epi cted entir e famili es, inclu ding young chil dren, sa fely operatingall-terrain vehicles. In 1984, Honda introduced a four-whee l ed allterrain vehicle into the United States market and mar keted it as a utility ve

hicle that coul d also be u sed for spo rts and recre ation.

The rate of a

ccidents a

nd injuries associate d withal l-terrain vehicles increased dra ma tically during the 1970s and 1980s. The Consumer Product SafetyCommission

launched a

n industry-w ide investi gation in 1984

. The allterrain vehicle manufac turers r

etained a child safety expert who advised them that their ad ver tising should b e more r ealistic and safet

y-oriente d. The expert also

r ecommended that parents should be better informed about the pro blems an d dangers in using all-ter

rain vehic les befor

e purchasi ng them for

their chil dren. Despite these private warnings, Honda responded publicly to the Consumer ProductSafety C ommission th at children as young a s seven or eight years old11 The Honda TRX 250 is an adult-sized all-terrain vehicle. -17- couldsafely opera te a n all-ter rain vehic le and that

three and

four-wh eeled all

terrain vehicles, like larg e an d compact automobile s, had adva ntages and disadvantages.
Erby Givens boug hthis Honda T RX 250 in January

1986. His decision to purchase this partic ular all- terrain

vehicle was chiefly influenced by his brother’s decision to purchas e one , not by any of H onda’s adve rtisements. None

of Honda’s advertisements of the 1986 Model TRX 250 depicted it being operated by young childr

en.
Eight months aft

er Micha el Ladd’ s injury, t

he Consu merProduct S afety Commission

release d its findings that all- terrain vehic les represe nte d an immine nt hazard to American consumers. In Decemb er 19 87, the Department of Justice filed suit against all manufacturers selling all-terrain vehicles in the United States, alleging that all- terrain

vehicles required a high degr ee of skill and attent

iveness despitetheir deceptively safe outward a ppearanc e. The

commission

also alleged thatthe all-t

errain ve hicle indust

ry had fai led to provi de potentia l users wi th adequate warnings of the haz ards associ ated with the opera

tion of all- terrain vehicles.

The all-terrain vehicle industry immediat ely settle d with the

Departm ent of Justice. In March 1988, Honda signed a consent agreement in which it agree d to stop distributing and marketing three -wheeled all-ter rain vehic les. Ho nda also agreed to war n the consumi ng public tha t children under sixte en years o f age shouldnever ride an adult-sized all-terrain vehicle, 1 1 to mail safety alerts to all past purcha sers, an d to provide similar sa fety aler ts to all fu ture purc hasers.

C.12 America n Safety E

quip. Corp. v. Winkl

er, 640 P.2d 216, 218-19 (Colo. 1982). -18- In the early 1930s American courts began to hold selle rs strict ly liable f or injuries to consumer s who r elied onthe seller ’s misrep resentat ions concer

ning their product’s character and quality. In one o f t he leading decisions, the Washington

Supreme Court held that a m anu facture r who adve

rtised tha t its automobile’s windshiel d was shat terproof was liabl e to a pur

chaser w ho was injured when a windshiel d shattere d after b eing struck by a stone. Baxter v . Ford Motor Co., 12 P.2d 409, 412 (Wash. 1932). The American Law Institute included these decisions i n Restate ment (Second) of Torts § 402B (1964) which pro vides: One engaged in t he business of selling cha ttels who, by adverti sing, labe ls, or othe rwise, makes to th e public a misrepr

esentation

of a mater ial fact concerni ng th e charact

er or qual ity of a cha

ttel sold b y him i s subject to liabilit

y for physic al harm to a consu mer of the chattel caused by justifiable rel ian ce upon the misrepre sentation, even though (a) it is not made fraudule ntly or negl igently, a nd (b) the consumerhas not

bought the ch attel fr

om or entered into any contractual relation with the seller.
Despite b eing a “co rollary” of the widely accepte d strict li ability doctrine articulated in Re statement (Second) of Torts § 402A (1964), 12 liability f or innocent misrepre sentation un der Sect ion 402B has b een reco gnized in only a minorityof jurisdictions. 1 Louis R. Frumer & Melv in I. Friedman , Products Liability § 2.05[4] , at 2-76 &

n.88 (1996); Misrepres entation, 1 Prod. L iab. Rep

. (CCH) ¶ 1900, at 4991 (1993). One treatise has surmised that Section 402B has been overshadowed by the broad acc eptance of Section 402A. 1 Frumer & Friedman, supra, § 2.05[4] , at 2-76 t o 2-80.

The Tennessee Supreme Court first recognized Section 402B claims thirty years ago, Ford Motor Co . v. Lo non, 217 Tenn. 400, 423, 3 98 S.W. 2d 240, 250 (1966), rev’d on ot

her grounds, First Nat’ l Bank v. Brook s F arms, 821 S.W. 2d 925, 931 (Tenn. 1991), and has recently reaffirmed its decision

. Ritter v . Custom Chemicides, Inc., 912 S.W. 2d 128, 131-32 (Tenn. 1995). T

he General Assem

bly likewise included S ection 402B claims in the Tennessee Products Liability Act of 1978. See Tenn. Code Ann. § 29-28-102(6) (1980).13 The Restatement (Second) of Torts used

the term “chattel” in Section 402B. We see no meaningful distinction between the terms “chattel” and “product” which are freque ntly used interchangeably. Adhering to the language of the Tennessee Products Liability Act of 1978, we will continue to use the term “product.” -19- A claim bas ed on S ection 402B is entire ly distinct f rom a Sec tion 402A

c lai m. It does not condition lia bility on the product bei ng defect ive or

unreasona

bly dangerou s. Ford Motor Co. v. Lonon, 217 Tenn. at 423, 398 S.W.2 d at250; Tenn. Code Ann. § 29-28-105( c) (1980) ; 1 Frumer & Friedm an, supra, § 2.05[4], at 2-79 n. 91. Rathe r, it foc uses on whether the pr oduct confo r ms t o the manufacturer’s express st atements ab out the p roduct. Klages v. Ge neral Ordnance Equip. Corp., 367 A.2d 30 4, 310-11 ( Pa. Supe r. Ct. 1976 ). I n order to create liabilityunder Sec tion 4 02B, th ere must be proof of a misrepresentation of a material fact, m ade to the p ublic, w ith respec t to the cha racter and q uality of th e product, which is false and upon which the consumeris expected to justifia bly rely. Restatem ent (Second) of Torts § 402B; 1 Frumer & Friedm an, supra, § 2.05[4], at 2-80 to 2-83. The rep resentat ions must be more than mere sta tements of

opinion

or the kind of l oose general sales t alk commonly referred to as “puffing .” Restatem ent (Sec ond) of To rts § 402B c mt. g.

The Tennesse e Product s LiabilityAct of 197 8 includes c auses of a ction based on Section

402B. Tenn. Code A

nn. § 29-28 -102(6); First Nat’l Bank v. Brooks Farms, 821 S.W.2 d at 9 31. Acc ordingly, c auses of a ction for misrepre sentation

must be cou ched in the terms use d in the prod

ucts liabil ity statutes rather than the terms used in the Re state ment. Tennessee’s product liabilitystatutes a

ppl y to “products” w hich include “any tangible object [s] or good s produced ,” rather than to “chatte ls.” 13 Tenn. Code Ann. § 29-28-102(5).

We must still dete rmine wh ether the

term “pr oduct” re fers onlyto a specif ic model or brand or whether it ma y refer more gene

rally to sim

ilar types of goods. The Honda def

endants insi stthat “product” should be limited to a specific model

or item because actions based on Section 402B derive

from ac tions on an e xpress
warran ty and an expr

ess warranty mus t be model- specific. While the Restatment recognizes the concept of mi sr epresent ation as a n on-contra ctual expr ess warranty, italso points out that this w arranty “ is at leas t a di fferent kind of wa

rranty fr om14 We need not decide here whether actions based on express warranties must always be mo del-specific. We note, however, that the seminal case of Baxter v. Ford Motor Co. , fro m whic h R estatement (Second) of Torts § 402B was developed, involved a re presentation concer ning all For

d automobi les, not ju st a spec ific mode l. -20- that invo lved in the ordinary sale of goods . . . and is subject to different rules

. ” Restatemen t (Second) o f Torts § 402 B cmt. d.

When the Tenne ssee Supr em e Court ap proved cau ses of act ion based on Section 402B, it no ted that it viewed th e claim a s one based on a misrepr esentation theory rather t

han a warranty the ory. Ford Motor Co. v. Lonon, 217 Tenn. a t 419, 398 S.W.2d at 248. Likewise, liability under the Tennessee Products Liabity Act of 1978 include s “all ac tions brought for or on a ccount of personal injury, de ath or propertydamage caused by or resulting from the ma nufact ure, con struction, design, formula, prep aration, a ssembl y, testing , servic e, war ning, instr

uction, marketing , packaging or labeling of any product” notwithstan ding w hether the claim is predicated on contrac t, warra nty, tort, or misrepresentat ion. Te nn. Code Ann. § 29-28-102( 6). Bas ed o n these authorities, we conclude that a p roducts liabil ity cause of a

ction based

on innocent m

isrepres entations c oncerning t h e character or quality o f a prod

uct is not subjec t to the sam e limitati ons that migh

t otherwis e be app licable to actions ba sed on an exp ress war ranty rel ating to a specificproduct. 14

We have been unable to f

ind any case s construingSection 402B that di scuss the definition

of “product” or “chattel.” Three cases addressed evidentiary issues similarto the ones i nvolved in thi s c ase, but none of t hese case s discussed t

he admi ssibility of advert

isements i n terms of

the scope o f liabilit

y under Se ctio n 402B. Two decisions excluded advertisements about a differen t mode l of a product. In one ca se involving a claim of misrepre sentation concerni ng the safety of a Jeep CJ- 5 under ce

rtain driv ing conditions , t he court e xcluded tel evision

commerc ials depicting a

Jeep Cherok ee. Haynes v . Ame rican Motors Co rp., 691 F.2d 1268, 1270 ( 8th Cir. 1 982). In t he oth er case, the co urt held that a sales brochure containing p ictures a nd repres entations a

bout school bus es was not relevant to a claim that the same manufacturer had made m

isrepres entations a

bout its activ ity buse s. Collins v. Wayne Corp ., 621 F.2d 777, 787 (5th Cir. 1980).-21- Contrary to these cases, the Iowa Supreme Court hel d that adve rtisements of a differ ent model of

automobile

were admissible to prove a m isrepres entation claim. In a case

involving a 1968 Chevelle , the tri al court pe rmitted th e introductio n of

advertisements of the Che velle fr om 1967, 1969 , and 1970 be cause the pu rch aser “ha [d] tied i n these ads in with the same auto mobile that

he did pu rchase .” Jacobso n v. Benson Mo tors, Inc., 216 N.W.2d 39 6, 402-03 (Iowa 1974).

Each of these c ases was essential ly reso lv ed on rele vancy ground s. The opinion in Jacobson v. Benson Motors, Inc. indicates that the pla intiff had demonstrated that the d ifferent mod els were essen tially si milar. The plain tiff in the Collins v. Wayn e Corp. case appa rently did n ot make a s imilar sho wing and did not rely on repres entations t

hat applie d to both act

ivity buses and school buses. We cannot tell from the Haynes v . Ame rican Motor s Corp. opinion wh ether the plaintiff at temp ted to demon strate tha t the model s were s imilar or that the misrepre sentations a

pplied to mor

e than one model.

None of these

cases hold as a matter

of law th at liabilit

y under Se ction 402B is limited to misre presentations about a particular model. We have cited them simply to show thatcourts dec iding simila r issues to t

he one involv ed in this ca se have based

their dec isions on the ad hoc basis of relevancy. None of these cases undert ookto c onstrue the word “chattel” or “product” under Section 402B. Lacking specificdirection from eit her Sect io n 402B, the Tenne ssee Prod ucts Liability Act of 1978, or

the case law fro m this or oth er jurisdi ctions, w e turn to the underlying p u rposes of S ection 402B to determ ine wheth er “produc t line misrepresentations” are actionable under Section 402B.

S ection402B addre sses a man ufacture r’s liabi lity for inn ocen t misrepre sentations made thro ugh “adver tising, la bels, or o therwise .” It w as the law’s response t

o the incre asing use of

television , radio, and other a dvertising media to e xtol the wo rth, qual ity, and benefits of v arious prod ucts in glow ing details an d terms. Randy Knit wear, In c. v. A merican C yanamid Co. , 181 N.E. 2d 399, 402 (N.Y . 1962); Rogers v. Toni Hom e Perm anent Co. , 147 N.E .2d 612, 61 5- 16 (Ohio 1958). It recognizes that commercial a dvertising o f products is often the-22-

guiding force in

shaping consumers ’ expectati ons abou t a product

. Leichtamer v. Americ an Motors Corp

. , 424 N. E.2d 568, 578 (Ohio 1981) ; Inglis v. American Motors Corp. , 197 N.E .2d 921, 92 4 (Ohio Ct

. App. 1964) , aff’d , 209 N. E.2d 583 (Ohio 196 5).

Accordi ngly, Section 40 2B provides a basis for hold ing ma nufacturers accountab le for

the public’s reliance on the repr esentation s in their a

dvertisem ents about the chara cter and q uality of th eir

products. Consumers should be abl e to rely

on represe ntations in a

dvertisem ents for an entire product lin e in the same way that they rely on adv ertisements for par ticular models in a pr

odu ct line. Thus, manufacturers should not be permitted to insulate themselves from liability under Section 4 02B simply by using general advertisements of an entire product line. Accord ingly, we see noreason w hy manufac turers sho uld not be hel d liable in actions based on Se ction 402B if their gene

ral adver tisements of a produc t line contain r epresent a tions of the

charact er or qual ity of part

icular mo dels in the product line and if the other condi tions for liability under Section 402B have been met.

The Honda advertising introduced by Michael Ladd exto lled the useof allterrain vehicles in general. It contai ned repr esentation s concerni ng the safety of all-terrain vehicles and, without being mo del-specific, portrayed all-ter rain vehicle s
as being suita

ble for use

by the entir

e family - including small chil dren. Thus, we

see no reason t

o shield the

Honda def

endants fr omliability under Section 40 2B for rep resent ations in their advertising a bout all-te

rrain vehicles in ge neral if the genera l advertisi ng containe d misrepr esentation s appli cable to all Honda all-terrai n vehicles , includ ing the spec ific all- terrain vehicle Mi chael La dd was operating when he w as injured

.

V. T HE D EFENSES TO M ICHAEL L ADD ’ S M ISREPRESENTATI ON C LAIM

The Ho nda defendants asserted two principal defenses at trial agai ns t Michael Ladd’ s mis represe ntation cla im. Fir st, they a

rgued that their advertisements did not conta in the type o f misrepr

esentation s of the cha

ract er or-23-

quality of their prod

uct that w ould subject

them to liability. Second, they claimed thatMichael L add did

not prove hi s misrepr

esentation

claim bec ause Mr. Givens did not rely on H onda’s adve rtisements when he

purchase d his all-te

rrain vehicle. We find that neither of t

hese defenses was sufficient to preve nt the case from bein g submitted tothe jury.

A.
Liability for misrepre sentation un der Resta tement (Second) of Torts § 402B

ar ises only with r

egard to m

isrepres entations of

materia l facts c oncerning t

h e character and quality of the prod

uct in quest

ion. It doe s not arise

from stat ements of opinion and, in par ticular, to t he “kind of loose general praise of ware s sold which, o n the part of

the seller , is consid ered to be ‘sale s talk,’ and is commonly called ‘puffing.’” Restatement (Seco n d) of Tor ts § 402B cmt . g. Th e Honda defendant s asserte d at trial that their advertisements depicting young children riding all- terrain vehicles w ere no mor e than puff

ing.
“Puffing ” refers to loose gen eral sta tements m ade by sell ers in com mending their products. These s tatement s embody exaggerations , the truth or falsi ty of which cannot be d etermine d easily, that amount to no more t

han an expr

essionof the seller’ s opinion about the chara cter or q uality of the prod

uct. Loula v. Snap-On Tools Corp., 498 N.W .2d 866, 86 8 (Wis. C t. App. 1993). Bu yers have no right to rely on these statements. Thus, a seller’s character izatio n of an auto mobile as a “dandy” or a “good little car” or the “pride

of our line ” or the “best in the American market” will not give rise to lia bility u nder Sectio n 402B. See Restatement (Second) of Torts § 542 cmt. e (1976).

The courts hav e genera

lly been cauti ous about a se ller’s c laim that i ts repres entations were mere puff ing. Thus , the ques tion of whether a par ti cula r statement amounts to an actiona

ble misrepre sentation w ill genera lly be left to the jury wheneve

r the cir cumstances in dicate that the buyer reasonably understood that he or she wa s receivi ng something in the way of an assuranc e as to spec ific fac ts. W. Page Keeton et al., Prosser and Keeton on the Law of Tort s § 109, at 75 7 (5th ed. 1984). T

he courts are also more inclined to send close cases to the jury when-24-

the representation atissue relates directly to the product’s safety. Hoffman v. A.B. Chance Co., 346 F. Supp. 991, 992 (M.D. Pa. 1972) (rep resentation that it was unnecessary to have another person in the cab when operating the tractor); Hauter

v. Zogarts, 534 P.2d 377, 381 (Cal. 1975) (representation that a golf training device

was “complet

ely safe [because

the] ball will not

hit [the] player”) ; but see Hoffman

v. A.B. Chance Co., 339 F. Sup p. 1385, 13 88 (M.D . Pa. 1 972) (stat ement tha t the product provided “unprecedented safety” was puffing).

The Honda defendants rely heavily on the Washington Supreme Court’s holding that tele vision commercials describinga mini-trail bike as “a very go od bike for children” and showingchildren r iding mini-t

rail bikes were mere puff

ing. Baughn v. Honda

Motor Co., 727 P.2d 655, 668 (Wash. 1986). W e do not find the Baughn decision tobe persua sive in thi s case bec ause it is f actually distinguishable. The childr en in Baughn were ope rating a m

ini-trail bike on a public road despite warnings in the owner’s ma n ual and on a decal on th e bike itself that the bik

e was for off-road use only. Their parents had also warned them repeate dly not to use mi ni-trail bikes for s treet ri ding becaus e they might ge t hurt. Whilethe televi sion advert ising at issu e in t he Baughn case depicted children riding mini-tra

il bikes, i t did not depic t them operating mini- trail bike s on apublic street. Accordi ngly, the m anufactur er’s adve rtizing at issue in B au ghn did not create the impre ssion in the m

inds of the c hildren or

their par ents that m

in i-trail bikes could b e operate d safely on public stre ets.

In this case, Michael Ladd presented proof that all-ter rain vehic les could not be operated saf

ely by any child under the age of sixteen, that Honda’s advertis ements represe nted that a ll-terr ain vehicl es could be operated by young children, and that the se advert isements m aterially influence d the decis ion of his uncle and his fat

her to per mit him to operate t

he all-te rrain vehicle. T

hus, the f acts of this cas e make out

the neces sary elem

ent of justifiable reliance that is missing in the Baughn case. They also demonstrate that the r eprese ntations in t he advertisements were m aterial to the deci sion to perm itMichael L add to opera

te the all-terrain vehicle.-25- A misrepre sentation c laim should b e submitte d to the jury when the represe ntationat issue ma y reasona bly be inter

preted ei the r as an expr

ession of opinion or as a statem ent of fact. Stamp v. Hon est Abe Log Homes, Inc., 804 S.W.2 d 455, 458 (T enn. Ct. App. 1990); Mackie v . Fuqua, 14 Tenn. App. 176, 185 (1931). At the very least, the issue concerning whet her Honda’s a

dvertisem ents showing entire familie s riding all-ter rain vehic les amounte d to a misre presenta tion thatchildren l ike Michael Ladd cou ld safely o perate a ll-terr ain vehicles s hould be decided by a

jury.

B.

The Honda

defendant s also asse

rted that M ichael L add did not ma ke out a Section 402B misre

presenta tion cl aim beca

use he fai led to produc e evidence of reliance on their ad vertisin g. They pointed chiefly to Mr. Givens’s testimony that he bought his Honda TR

X 250 not bec ause of any of Honda’s a

dvertisem ents but because his broth er ha d purchased the same vehicle. Even though Mr. Givens’s decision to purchas e an all- terrain vehicle is largelyirrelev ant, we will addr ess the reliance issue brie fly in light of ou r decision toremand this case f or another

trial.

Section 40 2B requires that a cons umer must justifiabl y rely upon t he misrepre sentation

in order f

or liabilit y to arise. The comm

ents to Sec tion 402B discuss the element of reli ance and point out that

liability un der Sect

ion 402B will not arise “where the misrepresentation is not known, or there is indifference to it, and it does not in flue nce the pu rchase or subsequent c onduct.” Restatem ent (Second) of Torts § 402B cmt. j. Thus the consumer’s reliance mayrelate to other later con duct, not j ust to the co nsumer’s decision to purchase the product

.

Michael Ladd does not

dispute tha

t Mr. Givens admit

ted that his decision to purchase the Honda TRX 250 was not influenced by Honda’ s advertisements. However, as we pointed out e arlier i n this opinion, Michael L add’s cla im does not involve Mr. Gi vens’s dec ision to purc hase the a ll-terr ain vehicl e but rathe r his decision to permit Michael Ladd to operate it. Mr. Givens testified specifically that seeing children o n televisio n r idin g all-terrain vehicles led him to believe that Michael Ladd could safely operate his all-terrain vehicle.-26- Mr. Givens’s reliance

on Honda’s advertisi ng in decidin g whether to permit Michael Ladd to operate his all-terr ain ve hicle satisfies Section 402B’s reliance requirem ent. Michael L add i s a “con sumer” f or the purp ose of Sec tion 402B because he “ma[de] us e of t he chatte l in the manner whic h a purcha ser may be expected to use it.” R estatement (Second) of Torts § 402B cmt. I. The reliance required by Section

402B need not be

that of the

injured co nsumer but m ay be that of the purcha ser who pa sses theproduct along to the ultimate consumer. Baughn

v. Honda Moto r

Co., 727 P. 2d a

t 668; Resta

tement (S econd) of

Torts § 402 B cmt. j (the reliance “may be that of the ultimate purchaser of the cha

ttel, w ho because of such rel iance pass es it on to the consu mer who is in fact injure d”).

VI. T HE T RIAL C OURT ’ S I NSTRUCTIONS

Michael Ladd al so as serts that the trial court did no t properly

present hi s misrepre sentation

claim to t

he jury bec ause its ins truc tio ns did not ac curately reflect his theory o f

liability a

nd because t

he instruc tions and the

questions on t

he special verdict f

orm wer e inconsistent. The

Hon d a defenda

nts respond t

hat the instr uctions correct

ly stated th e law re lating to mi srepresentation cla im s and, in an y event, that Micha

el Ladd’ s lawyer

did not effect ively objec t to the instr

uctions or the questions on t

he specia l verdict form. We find that Michael Ladd’s lawyer properlytook issue w ith these matters. We also find that the trial court’s burden of proof instr

uctionmisstated the law and did not accurately reflect Michael Ladd’s theory of the case and that the instructions improperly conflicted with the qu estions on the special verdict form.

A.

The trial court conducte d a charge co nference on April 8, 1993 after th e close of th e proof but

before f inal argum

ents. D uring the

conference, the parties presented their re spective positions wi th regard

to the instr

uctions conc erning the elements of Mic hael La dd’s misre presenta tion claim

as well a s the parti es’ respective burdens of proof. They also discussed the trial court’s de cisionnot to15 The Honda defendant s’ burden of proof instruction stated that the plaintiff must prove

by a preponderance of the evid ence that they “made material misreprese ntations about the vehicle which were not true . . ..” -27- providethe jury w ith a wri tten copy of its instru ctions and the use of special interroga tories.

After Michael Ladd’s lawyer would not agree to the Honda def endants’ proposed burden of pro of instruc tion, 15 the trial court re quested the

parties to submit addition al instruc tions. The trial court acknowledged that it had overlooked

an instructio n defining t

he eleme nts of a Se ction 402B misre presenta tion claim

in its draft inst

ructions a nd agreed to bothparties’ requests f or an instruction based

on T.P. I. -- C ivil 10.20. In addition , the tri al court so licited sug gestions con cerning the verdict f

orm in light

of its dec ision not to pr

ovide the jur

y with a written cop y of its instruc tions. Th e Honda de fendants proposed le ngthy special interrogatories to guide the jury’s deliberations. Michael Ladd, who hadoriginally requested that the jury rec eive a copy of th e written instructi ons, pref erred a general v erdict an d a short verdict form.

The parties su

bm itted revis ed burden of proof instr

uctions on A

pril 12, 19 93. The instruction proposed by the Honda defendants stated that Mi chael Ladd had the burde n of proving by a preponde

rance of the eviden ce “[t] hat the Ho nda Defenda nts made materia

l misrepr esentation s about the 1 986 Honda TR X 250 and the plaintiff

relied on such misrepresentation.” On the other hand, Mic hael Lad d requested a broader instruction stating that he had the b urden of e stablishingby a preponderance of the evidence “[t]hat the Honda defendants misrepre sented t he characteristics of the Al l-terra in ve hicles and the plaintiffs relied on such misreprese ntation .”

The trial cour

t and the pa

rties cont

inued their

discussion about the instruction s following the closi ng argumen ts. Lacking a consensus on the burden of proof instr

uction, the

trial cour

t announced

that it wo uld use the H onda defendant s’ burden of p roof instr uction and

Michael Ladd’s special verdict form. The trial court adhered to its decision despite the concern of one of Michael Ladd’s lawyers that the ins tructions a nd the speci al ve rdict for m should be c onsistent. Accordi ngly, the t

rial cour t instructe d the jury th at Michae l Ladd had the burden-28-

of proving that

“the Hond a defenda

nts made m aterial misrepre sentations about the Honda TRX 250” and then provided the jury a special verdict form asking, “[d]o you find that t

he Honda de fendants misrepre sented the charact eristics of all-te

rrain vehicles?”

Th e jury soon encountered problems wit h Michael Ladd’s m

isrepres entation claim. On Apri l 1 3, 1996, it re quested add itional inst

ructions c oncerning t

he meaning of “characteristics ” as it wa s used on the special ve rdict for m. On thi s occasion, the trial

court dec lined to expa

nd on or rep eat its or

igina l i nstruction. On e day later , the jur

y informe d the trial

court that

it was de adlocked on th e misrepre sentation

claim. The tria

l court re

peated its origi nal in structions pertainingto M ichael La dd’s burden of proof and the elements of a misrepre sentation

claim. Repeatin g these inst ructions a pparently did not resolve the jury’s dif

ficulties because

it soon requested a written copy of the se instruc tions. The tria l court com

plied with

this reque st despite M ichael L add’s objec tion.

B.

The trial court’s instructions should be complete and accurat e an d should fairlyreflec t the parties’ th eories of th e case. Cole v. Woods, 548 S.W. 2d 640, 642 (Tenn. 1977); Street v. Calvert, 541 S.W.2d at 584; Grissom v . Metrop olitan Gov’t, 817 S.W.2d 679, 685 ( Tenn. C t. App. 1991). T rial cour ts should not gi ve inconsistentinstruct ions. Citizens’ St. R. R. v. She ph erd, 107 Tenn. 444, 449-50 , 64 S.W. 710, 711 (19 01); Abbott v. A merican Hon da Motor C o., 682 S.W.2d at 209. Thus, tr

ial courts should give a

requeste d instructi on (1) if i tis supported by the evidence, (2) if it embodies the party’s theory of the case, (3) if it is a correc t statement of the law, and (4) if its substance has not already been included in other portions of thecharge, Spellmeyer v. Tennessee Fa rmers Mut. Ins . Co., 879 S.W. 2d 843, 846 (Tenn . Ct. A

pp. 1993). It should de ny requeste d i n structions that are

erroneous or

incomple te. Betty v . Metrop olitan Gov’ t, 835 S.W. 2d 1, 10 (Tenn. Ct. App. 1992).

The parties submitted inconsistent proposed instructions regarding Michael Ladd’s burden of proof on his misrepresentation cl aim. M ichael L add’s instr uction-29-

relied on Honda’s advertisi ng of all it s all-terrain vehicles betweenthe earl y 1970s and the mid-19 80s; while the Honda

defendant s’ inst

ructi on was lim

ited to the advertisements of the Hon daTRX 250. The trial cour t used the H onda defen dants’ proposed ins truction.

We conclude d in Sectio n IV of this opinion tha t Section 4 02B misrepre sentation

claims ma

y be based on

represe ntation s contained in general advertisi ng for an ent

ire prod uct line . Acco rdingly, t he Honda de fendants’ proposed instructio n was not a correct statemen t of the la w. It l ikewis e did not fairlyembody Michael Ladd’s theory of l iability. Michael L add never claimed that the advertisements for

the Honda

TRX 250 c ontained re

presenta tions thatchildren couldoperate i t safely. Rather, he claime d that Honda advertisi ng from the

early 1970s to the mid- 1980s repre sented that all-ter rain ve hicle s were s uitable fo r family fun and we

re safe enough to be o perated b y children . The in struction limited the jury’s considera tion of the m

isrepres entation is sue to statements specific ally made about

the 1986 Honda

TRX 250. Since Michael Ladd had asserted that Honda

had misre

presente d all of its all-terr ain vehicl es, this instruction

was err oneous.

C.

An erroneous ins t ruction w ill not requ ire reve rsal if it is corre cted or explained in another portion of the charg e. In r e Estate of El am, 738 S.W.2d at 174; Smith v. Parker, 213 Tenn. at 156, 373 S.W.2 d at 209. In this case, the trial courtnever corrected the error in its burd en of proof instr

uction and, in fact, comp ou nded it by repeating the instruction, by providing the jury with a written copy of this portion of t

he charge , and by pr

oviding the jury w ith an incons istent special in terrogat ory.
Repeatinginstructio ns is not nec essarily e rroneous, Cortazzo v. Blackbur n, 912 S.W.2d at 745, as long as the r epeated i nstruction i s broad enoug h to cover t he misunderst

ood issues com

pletely w ithout undulyemp hasizing the particular portionof the charge. Berry v. Conover, 673 S.W. 2d 541, 544- 45 (Tenn. Ct. App. 1984). The tria

l court re peated its instructio ns concerning the elements of a16 The instructi ons conta in another error not briefed by the parties that is material enough to mention here becaus e this case will be retried. The trial court instructed the jury that “[a] manufacturer

of a product is not liable for any injury to a person or prop erty cau sed by the pr od uct unless the

product i s determined to be in a defective co ndition or unreaso nably dangerous at the time it left the control of the manufacturer.” While this is a correct statement of the law with regard to most claims under the Tennessee Products Liability Act of

1978, it does notapply to claims based on misrepresentation. See Tenn. Code Ann. § 29-28-105(c). The trial court failed to explain this distinction in the portions of its instructions dealing with Michael Ladd’s burden of

proof, th e misrepr esentat ion claim, or the pr

oducts lia bility cla ims. -30- misrepre sentation

c laim and Michael Ladd’s burden of proof after the jury announced that it wa s deadlocke d on the misr epresent ation claim. Repeatin g the instruction s was appropriate; however, the trial court later provided the jury with

awritten copy of only these portions of the charge. Under the circumst ances of thi s case, providing the jury a written copy of only a portion of the charg e improperly emphasized that portion of the charge.
Although the special in

terrogat ory on the m

isrepres entation

issue corr

ectly presented Michael L add’s t heory o f the cas e to the jur y, it did not

specific ally correct the erro neous portio n of the trial court’s charge. Rather, the inconsistency between the ins truction and the interrogatory only served to confuse the jury further, a s evidence d by the req uests for c larific ation of “c haracte ristics” in the interrogatory and for r

epetit ion of the misr

epresent ation and bur

den of proof instruct ions.

Inconsiste ntinstruct ions and interr ogatories, like two i nconsistent instruction s, do not neutralize or validat e e ach other but rather

intensify t

he risk thatthe jury wil l be confus ed. See State v . Stephens on, 878 S.W. 2d 530, 555 (Tenn. 1994); Citizens’ St. R. R. v. Shepherd, 107 Tenn. at 449-50, 64 S.W. at 711. We have dete

rmined tha

t the err oneous char

ge and the inconsi stency betw een the charge and the special interrogatory more probably than not affected the jury’s verdict in this case and, therefore, that they constitute reversible error. 16

D.
Providing the jury w ith a wri tten copy of the inst ructions c an be quite helpfulin civil ca ses. How ever, un like theprocedur e in felony cas es, see Tenn. R. Crim. P. 30(c), juries in civil ca ses are no tentitled to take a written copy of the trial-31-

court’s instructio ns into the jury room. While trial courts must, on request, reduce their jury charge to writing for the benefit of the attorneys in civil ca s es, Te nn. Code Ann. § 20- 9-501 (1994) , they ar e not requ i red to prov ide a wr itten copy of their instructio ns to thejury. In re Estateof Deprie st , 733 S.W .2d 74, 77 ( Tenn. Ct. App. 1986) ; Smith v. Steele , 44 Tenn . App. 2 38, 251, 31 3 S.W. 2d 49 5, 501 (1956).

The Tennessee Supreme Court entered an order in 1991 pro posin g an amendmentto Tenn. R. Civ. P. 51 to r equire tha t juries in civil cases be provided witha written copy of th e instruct ions. In Re Te nnessee R ules of Civil Pr ocedure (Tenn. Jan. 25, 1991). The Court w ithdrew the proposed rule one month later without explanat ion. In re: Tennessee Rules of C ivil Proc edure Am endment t o Proposed Amendm ent - Rule 51, Ten nessee D ecisions , 797-802 S.W. 2d at XXX (order entered February 28 , 1991). Thus, the decision toprovide th e jury wit h a written copy of the

instructio ns in a civil

case re mains discr

etionary w ith the trial court.

A w ritte n copy of the trial cour

t’s entir e charge would proba

bly have benefitted the jury in this case. However, in light of the present state of the law withregard to providing the jury w ith written instructions, we cannot conclude that the trial court er

red by denyi ng Michael

Ladd’s r equest to pr

ovide the jury with a written copy of the entire charge. The tria l court’s e rror wa s to submit only a por tion of it s charge t

o the jury ov er Micha

el Ladd’ s objections . Beca use of the risk of improper

emphasis, trial cour

ts should avoid providing juries with a written copy of only a por

tion of their charge . If al l counsel c oncur in pr oviding only a portionof the charge in writing, the char ge should conta in an instru ction substantial ly similar

to T.P. I. -- C ivil 1.11.

VII. T HE T RIAL C OURT ’ S R OLE AS T HIRTEENTH J UROR

Michael Ladd alsoass ert s that the trial court erred in fulfilling its role as thirteent h juror. He argues that the tr ial court’ s comments both before a nd after the-32-

trial demonstra

te that the trial cour t misunders tood its role

as thirteenth juror. His principal argument seems to be, howe ver, tha t the trial cour

t could not adequately performits functio n as thirte enth juror due to the fifteen month delay between the trial and his review of the verdict. We disagree.

A court spea

ks only through its written orders. Massachuse tts Mut. L ife Ins. Co. v. Tayl

or Impl ement & V

ehic le Co. , 138 Tenn. 28, 39, 195 S.W. 762, 765 (1917); Evans v. Perkey , 647 S.W .2d 636, 64 1 (Tenn. Ct. App. 1982). W hile the appellate courts may consider th e trial c ourt’s com ments made

in the cour se of reviewing a motion fo r new trial, Ridings v. Norfolk S. Ry. , 894 S.W .2d 281, 28 9 (Tenn. Ct. App. 1994), our review is limited to determining whether the trial court properly r

eviewed the eviden ce and

was sati sfied or di ssatisfie d with the verdict. Herbert v. Braz eale , 902 S.W. 2d 933, 936 (Tenn. Ct. App. 1995). The accuracy of the trial court ’s determin ation as thirteenth ju ror is not a

proper subj ect of appellate review. State v. M oats , 906 S.W.2d 43 1, 435 (Tenn . 1995).

The thirteent

h jur or rul e requires the trial court to weigh the evidence independent

ly, to pass upon th e issues, and to deci de whethe r the ver dict is supported by the eviden ce. Curran v. State , 157 Tenn. 7, 13, 4 S.W. 2d 957, 958 (1928); Loeffler v . Kjellgr en, 884 S.W. 2d 463, 468-69 (Tenn. Ct. App. 1994). If the trial court comments on the record about its determination as thirteenth juror, its ruling sh ould be cl ear and uneq uivocal. State v. M oats , 906 S.W .2d at 435. This court must remand a case for a new trial if the tri al court’ s comments demonstra

te dissatisf

acti on with th e verdict. Cumberland Tel. & Tel. Co. v. Smithwick , 112 Tenn. 463, 467-68 , 79 S.W . 803, 804 ( 19 04); Miller v. Doe , 873 S.W.2d 346, 34 7 (Tenn. Ct. App .1993).

In this case, the tri al court fi nally revi ewed the jury’s ver

dict from its vantagepoint as thir

teenth jur or fifteen months after the trial. The passage of time alone p rovides no ba sis for con cluding that the trial court coul d not or did not properlyreview the verdic t. The O ctober 18, 1994 order cl early and unequivoca

lly demonstrates that the tr

ial c ourt unde rstood and properly performed its role as thirteent h juror.-33- VIII. T HE R ETURN OF A G ENERAL V ERDICT

Michael Ladd fina

lly ass erts that the tr

ial court e

rred by not

directingthe jury to return a genera

l verdict. While T enn. R. Civ. P. 49.03 pres erves the right to a genera

l verdict, the right m

ust be exer

cised prio r to the tim

e the jury ret ires. Even when a general verdict has been requested, the court may require thejury to

answer special in

terrogat ories. T enn. R. Civ. P. 49.02 . U sing special interrogatories is especially appropriate when the issues in the case are nume rous and involve d. See Sharpe v . City of Lewisbur

g, 677 F. Supp. 136 2, 1364 (M.D. Tenn. 1988); Mitchell

v. Jenni ngs, 836 S.W.2d 575, 577 (Tenn. Ct. App. 1992).

The issues involved in th

is case a re complex and involve d. Accordi ngly, the trial cour t properly exercise d its discretion to use special in

terrogat ories to as sist the jury in r

endering a

reasoned verdict c onsistent w ith the proo f. How ever, a ny of the parties would have been entitled to a general verdict had they requeste d one in a timely man ner. While Mic hael La dd’s lawyer told the tri al court du ring the charge conference that

he would pr

efer a g eneral ve

rdict bec ause the trial court had decided not to provide

the jury w ith a wri tten copy of its inst ructions, he never formally demanded a

general v erdict an d did n ot objec t when the trial court announced its decisio n to us e the special interrogatories that the lawyer himself had prepare d. Accordi ngly, we do not find th a t the trial

court’s f ailure to r equire the jury to return a general verdict was error.

IX.

For the reas ons stated he

rein, w e revers e the judgmen t andremand th e case f or a new tr ial consist

ent with th

is opinion. We also ta

x the costs o f this appea l joint and severally to Honda Motor Co., Ltd., Honda R & DCo ., Ltd., and American Honda Motor Co., Inc. f or which execution, if necessary, may issue.

_________________

___________ WILLIAM C. KOCH, JR., JUDGE-34-

CONCUR:

_________________

_______________ HENRY F. TODD, P.J., M.S.

_________________

_______________ BEN H. CANTRELL, JUDGE