Tennessee

 

 

Statute of Limitations (TENNESSEE)

Personal Injury - 1 yr.[T.C.A. § 28-3-104]

Wrongful Death - 1 yr. [T.C.A. § 28-3-104]

Property Damage - 3 yrs [T.C.A. § 28-3-105]

Product Liability (Personal Injury) - 1 yr. [T.C.A. § 28-3-104] (the cause of action for injury to the person shall accrue on the date of the personal injury, not the date of the negligence or the sale of a product).

Contracts (Written and Oral) - 6 yrs [T.C.A. § 28-3-109]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs (from tender of delivery) [T.C.A. §47-2-725]

 

Under the discovery rule, a cause of action accrues when the plaintiff knows or in the exercise of reasonable care and diligence should know that an injury has been sustained as a result of wrongful or tortious conduct by the defendant [John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528 (Tenn. 1998)]

 

 

 

 

 

 

 

 

Statute of Repose (Products) (TENNESSEE)

 

6 yrs. from injury OR 10 yrs from first purchase OR 1 yr. after expiration of anticipated life of the product, whichever comes first [T.C.A. § 29-28-103]

 

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Admissibility of Expert Testimony (TENNESSEE)

 

Daubert test has not been expressly adopted.  A Tennessee trial court may consider in determining reliability: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and (5) whether the expert's research in the field has been conducted independent of litigation [McDaniel v. CSX Transp., 955 S.W.2d 257 (Tenn. 1997)].

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Causes of Action (TENNESSEE)

 

Statutory Definition – “Product liability action” 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 whatsoever [Tenn. Code Ann. § 29-28-102].

 

Strict Liability – Statutory definition: a manufacturer or seller is not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller [Tenn. Code Ann. § 29-28-105].  Tennessee has adopted Rest. (2nd) of Torts, 402A.  One who sells a product in a defective condition unreasonably dangerous to the user (or to his property) is subject to liability for physical harm caused to the ultimate user (or to his property) if: (1) the seller is engaged in the business of selling such a product; and (2) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold [Whitehead v. Toyota Motor Corp., 897 S.W.2d 684 (Tenn. 1995)].

 

Negligence – To prove negligence in a products liability action, the plaintiff must establish the existence of a defect in the product and that the defective condition was the result of negligence in the manufacturing process or that the manufacturer or seller knew or should have known of the defective condition. The primary focus in a negligence action is defendant’s conduct and duty of care and, it is vital to trace the injury to some specific error in construction or design of the machinery to determine whether the defect could have been avoided by exercise of reasonable care [Benson v. Tennessee Valley Elec. Coop., 868 S.W.2d 630 (Tenn. Ct. App. 1993)].

 

Breach of Warranty – Included in the statutory definition of “product liability action.” Actions based on express warranty are not subject to the statutory provision that a manufacturer not liable unless the product is determined to be in a defective condition or unreasonably dangerous [Tenn. Code Ann. § 29-28-105].

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Definition of “Defect” (TENNESSEE)

 

“Defective condition” means a condition of a product that renders it unsafe for normal or anticipatable handling and consumption [Tenn. Code Ann. § 29-28-102].

 

“Unreasonably dangerous” means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, 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].

 

Also, see discussion below re: design defects.

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Liability of Sellers (TENNESSEE)

 

“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 [Tenn. Code Ann. § 29-28-102].

 

A seller is not liable unless: (1) the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery is sought; (2) the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery is sought; (3) the seller gave an express warranty; (4) the manufacturer or distributor of the product or part in question is not subject to service of process; or (5) the manufacturer has been judicially declared insolvent [Tenn. Code Ann. § 29-28-106].

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Defenses (TENNESSEE)      

 

Comparative Negligence – Tennessee follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 50% at fault) [McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)].  Applies to strict liability cases [Whitehead v. Toyota Motor Corp., 897 S.W.2d 684 (Tenn. 1995)].

 

Assumption of Risk – Implied assumption of risk no longer operates as a complete bar to recovery in Tennessee [Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994)].

 

Product Misuse – If a product is not unreasonably dangerous at the time it leaves the control of the manufacturer or seller but was made unreasonably dangerous by subsequent unforeseeable improper maintenance or abnormal use, the manufacturer or seller is not liable [Tenn. Code Ann. § 29-28-108].

 

Product Alteration/Modification – If a product is not unreasonably dangerous at the time it leaves the control of the manufacturer or seller but was made unreasonably dangerous by subsequent unforeseeable alteration or change, the manufacturer or seller is not liable [Tenn. Code Ann. § 29-28-108].

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (TENNESSEE)

 

ELD, which provides that the rights and obligations of a buyer and seller are governed exclusively by contract where the only damages alleged come under the heading of economic losses, draws the line between tort and warranty by barring recovery for economic losses in tort actions [Trinity Industries, Inc. v. McKinnon Bridge Co., Inc., 77 S.W.3d 159 (Tenn. App. 2001)].  ELD precluded bus owner’s insurer from recovering damages in tort against engine manufacturer for damage to the bus due to defect in engine that caused it to catch fire; a consumer does not have an action in tort for economic damages under strict liability [Lincoln General Ins. Co. v. Detroit Diesel Corp., 293 S.W.3d 487 (Tenn. 2009)].

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (TENNESSEE)

 

A defect in a product, as well as any other material fact, may be proven by direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence [Browder v. Pettigrew, 541 S.W.2d 402 (Tenn. 1976)].

 

 

 

 

 

 

 

 

Design Defects (TENNESSEE)                                                                                                

 

The statutory definition of “product liability action” includes “design” [Tenn. Code Ann. § 29-28-102].

  

In determining whether a product is defective or unreasonably dangerous, the state of scientific and technological knowledge available to the manufacturer or seller at the time the product was placed on the market is applicable. Consideration is given also to the customary designs, methods, standards and techniques of manufacturing, inspecting and testing by other manufacturers or sellers of similar products [Tenn. Code Ann. § 29-28-105].

  

“Unreasonably dangerous” means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, 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].  Therefore, Tennessee uses a combination of the “consumer expectation” test and “prudent manufacturer” test.  The “consumer expectation” test is whether the product’s condition poses a danger beyond that expected by an ordinary consumer with reasonable knowledge.  The “prudent manufacturer” test is whether, given that knowledge, a prudent manufacturer would market the product [Ray by Holman v. BIC Corp., 925 S.W.2d 527 (Tenn. 1996)].

 

Compliance by a manufacturer or seller with any federal or state statute or administrative regulation existing at the time a product was manufactured and prescribing standards for design, inspection, testing, manufacture, labeling, warning or instructions for use of a product, raises a rebuttable presumption that the product is not in an unreasonably dangerous condition in regard to matters covered by these standards [Tenn. Code Ann. § 29-28-104].

 

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Failure to Warn (TENNESSEE)

 

The statutory definition of “product liability action” includes “warning,” “instruction,” and “failure to discharge a duty to warn or instruct” [Tenn. Code Ann. § 29-28-102].

 

The law requires manufacturers to warn of hidden and unknown dangers in their product.  However, as to some risks, manufacturers are entitled to rely upon the common sense and good judgment of consumers [Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690 (Tenn. 1984)].

 

A product is not unreasonably dangerous because of a failure to adequately warn of a danger or hazard that is apparent to the ordinary user [Tenn. Code Ann. § 29-28-105].

 

Compliance by a manufacturer or seller with any federal or state statute or administrative regulation existing at the time a product was manufactured and prescribing standards for design, inspection, testing, manufacture, labeling, warning or instructions for use of a product, raises a rebuttable presumption that the product is not in an unreasonably dangerous condition in regard to matters covered by these standards [Tenn. Code Ann. § 29-28-104].

 

Tennessee has not adopted the “heeding” presumption [Payne v. Novartis Pharms. Corp., 767 F.3d 526 (6th Cir. Tenn. 2014)].

 

 

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Independent Cause of Action for Evidence Spoliation (TENNESSEE)

 

Not addressed/recognized.