The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at (Additional information below.)

§15.7 Allocation of Fault to a Product

The Case: Owens v. Truckstops of America v. B. Michael Design. Inc , 915 S.W.2d 420 (Tenn. 1996).

The Basic Facts: Plaintiff brought a negligence claim against a restaurant after a stool he was sitting in broke, causing him to fall. The restaurant then brought a third-party complaint against the manufacturer and seller of the stool for contribution and indemnity based on negligence, strict liability and implied warranty of merchantability.

The Bottom Line:

  • "Consequently, joint and several liability against parties in the chain of distribution of a product is essential to the theory of strict products liability. Since strict liability does not require proof of negligence, but only that the product was defective or unreasonably dangerous, parties in the chain of distribution must be treated as a single unit for the purpose of determining and allocating fault.FN14
    FN14 The dissent's insistence that each defendant in an action for strict liability be liable to the plaintiff according to its separate "fault" would impose upon the plaintiff the burden of proving each defendant was negligent, thus abolishing strict liability."
    915 S.W.2d at 432.
  • "This conclusion is supported by portions of the Uniform Contribution Among Tort-Feasors Act not addressed in McIntyre, which provide, '[i]f equity requires, the collective liability of some as a group shall constitute a single share' and '[p]rinciples of equity applicable to contribution generally shall apply.' Tenn. Code Ann. § 29-11-103(2) and (3)." Id.
  • "When comparative fault principles are applied in a strict liability action, the plaintiff's fault is compared with the fault of the strictly liable defendants as a single unit. The fault of these defendants is measured by the injury caused by the defective or unreasonably dangerous product. When liability is found on strict liability and also negligence or other theories, the trier of fact must apportion the fault for the plaintiff's injuries or damages according to the percentage of damages caused by the plaintiff, that caused by the product, and that caused by each tortfeasor acting separately and independently.FN17 This procedure was adopted by the Court in Whitehead...
    FN17The following special verdict form, as adopted to the specific allegations of the case, may be used in cases where liability is predicated upon strict products liability and other theories such as negligence:

    Using 100 percent as the total combined harm, find from a preponderance of the evidence the percentage of the plaintiff's injuries or damages proximately caused by:

    The defective or unreasonably dangerous product
    (Defendants A and B)        _____ %
    Defendant X        _____ %
    Defendant Y        _____ %
    Plaintiff               _____ %

    (Total must equal 100%)
    Signature of Foreman    "
    Id . at 433.
  • "The triers of fact will determine the percentage of a plaintiff's damages that is attributable to thedefective or unreasonably dangerous product as well as the percentage that is attributable to the plaintiff's own fault. Whitehead v. Toyota Motor Corp., 897 S.W.2d at 693 (emphasis added). See also Duncan, 665 S.W.2d at 427 (Tex. 1984). Thus, the adoption of comparative fault did not alter that products liability law under which the liability of defendants in the chain of distribution of a product, who are liable under a theory of strict liability, is joint and several. Under comparative fault principles, however, these defendants are jointly and severally liable only for that percentage of the plaintiff's damages caused by the product. For the percentage of damages caused by the product, the strictly liable defendants are treated as a single unit or share. On the other hand, when liability is based on negligence, each of the defendants is severally liable only for the percentage of damages caused by its negligence. If those defendants who can be held jointly and severally liable on a claim of strict liability are also charged with negligence, as in this case, their liability on the negligence charge will be as separate, independent tortfeasors, and their liability on the negligence charge will be several only." Id.

Other Sources of Note: Wielgus v. Dover Industries, Inc ., 39 S.W.3d 124, 131 (Tenn. Ct. App. 2000) (Owens not applicable under the facts).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

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