                                                                                         05/12/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               February 14, 2017 Session

         JOYCE STOCKTON, ET AL. v. FORD MOTOR COMPANY

                 Appeal from the Circuit Court for Madison County
                      No. C-13-6 Roy B. Morgan, Jr., Judge
                     ___________________________________

                           No. W2016-01175-COA-R3-CV
                       ___________________________________


D. MICHAEL SWINEY, C.J., concurring.

       I concur fully in the majority Opinion. I also agree with the dissent that this Court
“has no authority to overrule or modify Supreme Court’s opinions.” Bloodworth v.
Stuart, 428 S.W.2d 786, 789 (Tenn. 1968). I, however, disagree with the dissent
regarding duty of care as the Trial Court was in fact cognizant of and adhered to our
Supreme Court’s majority opinion in Satterfield v. Breeding Insulation Co., 266 S.W.3d
347 (Tenn. 2008). At an April 19, 2016 hearing on Ford’s motion for a new trial or
judgment in accordance with a directed verdict, the following exchange occurred between
the judge and counsel:

              THE COURT: Thank you. Thank you, Counselors. And, again, I
       gave advanced consideration to the arguments that you are presenting to me
       before today.
              This is another situation where, of course, the Court finds again, as I
       previously ruled, that Satterfield, a 2008 case, applies here. There was a
       duty existing under Tennessee law. I considered Mr. Stockton’s testimony
       and recall it as far as his testimony regarding the warnings or the lack
       thereof.
              And I agree that there was quite a bit of evidence introduced
       regarding Ford’s warnings to its own employees but not warnings to the
       end users.
              But when I consider all of the evidence presented during the course
       of the trial and in the light most favorable to the plaintiff, I find that the
       defense motion should be overruled as far as this particular grounds.
              Is causation next?
              MS. RODRIGUEZ: Well, I think we swept in causation and duty.
              THE COURT: Tied it all together.
       The facts of Satterfield are not identical to those of the present case. However, the
facts herein are sufficiently analogous to Satterfield as to the application of the eight
factors. This is not an uncharted or novel extension of duty, but rather is one that
logically follows from Satterfield. Both cases involve asbestos exposure. The same
reasoning and policy whereby our Supreme Court found a duty of care extending to an
employee’s household member applies equally as well to a consumer’s household
member. I reject the view that finding and holding a duty of care to a consumer’s
household exists would lead to a flurry of harmful litigation at odds with public policy.
While such litigation might be harmful to the defendants in such a suit, it is no more or
less harmful than other litigation where the actions of those defendants may have resulted
in injury to individuals. I disagree further that adopting my, and the Trial Court’s,
position is at odds with Satterfield. In my judgment, the Trial Court decided correctly
when it acknowledged Satterfield and applied its holding to find a duty of care in the
present, analogous case.

        I also write separately to express my opinion that despite my view that Satterfield
was adhered to in this case as required, I believe there are inherent and serious problems
resulting from Satterfield. The Tennessee Supreme Court in Satterfield held that:

       [T]he trial court erred by granting Alcoa a judgment on the pleadings, and
       the Court of Appeals correctly reversed that order. Based on the facts in
       Ms. Satterfield’s complaint, we cannot conclude, as a matter of law, that
       Alcoa did not owe a duty to Ms. Satterfield. Our ruling does not foreclose
       the possibility that Ms. Satterfield’s estate will not be able to present
       sufficient evidence to support her claim. Thus, Alcoa is certainly free to
       challenge any element of Ms. Satterfield’s claim via a motion for summary
       judgment or motion for directed verdict.

Satterfield, 266 S.W.3d at 375. In other words, the Tennessee Supreme Court held in
Satterfield only that the unproven allegations in the complaint were sufficient to prohibit
granting the defendant a judgment on the pleadings on the issue of whether Alcoa owed a
duty to Ms. Satterfield.

        My concerns about a trial judge applying the eight balancing factors as set forth in
Satterfield to determine whether a duty exists results from there involving necessary
factual determinations best decided by the jury and not a trial judge. This is especially so
as to the first factor, foreseeability, as “the foreseeable probability of the harm or injury
occurring” requires, I believe, a factual determination and is one that the jury ultimately
should be required to make. Id. at 367. The second factor, “the possible magnitude of
the potential harm or injury,” is likewise a factual question. Id. In fact, most if not all
eight of the Satterfield factors involve fact questions that should be resolved not by the
trial judge but by the jury. Certainly foreseeability is a fact question. If a plaintiff fails to
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present sufficient proof as those factors, a defendant still has recourse, as stated by the
Supreme Court in Satterfield, to move for a directed verdict or to move prior to trial for
summary judgment if the defendant can satisfy the requirements for a directed verdict or
summary judgment.

        In short, I fail to see how in real life a trial judge can determine by utilizing the
Satterfield factors, especially foreseeability, except in rare situations, that a “defendant
does not owe a duty to the plaintiff” without “invad[ing] the province of the jury.”
Satterfield, 266 S.W.3d at 367-68 (footnotes omitted). I, respectfully, suggest that the
majority’s opinion in Satterfield has created a situation where it is almost impossible for
the trial court not to invade the province of the jury to determine whether a breach of duty
has occurred when the trial court determines whether or not a duty exists, at least as to
foreseeability.

        I, respectfully, suggest that it may be time for the Tennessee Supreme Court to
revisit Satterfield as I believe that Satterfield has resulted in the jury’s role being reduced
far beyond what it should be. Unless the material facts are undisputed or the standard for
a directed verdict is satisfied, the jury is the trier of fact in these cases. I agree with
Justice Holder in her dissent in Satterfield that it should be only specific cases in which
public policy considerations would mandate that a defendant would owe no duty to a
plaintiff even if the defendant’s conduct created or put the plaintiff at risk of harm.
Satterfield, 266 S.W.3d at 377 (Holder, J., concurring and dissenting). It is my view that
while Satterfield may work in theory, in practice it creates a situation that is at odds with
our jury system. This being so, and with all due respect, it is my hope that our Supreme
Court will revisit Satterfield and hold as Justice Holder suggested in her dissent that “the
existence of a duty generally would be presumed as long as the plaintiff has alleged that
he or she was harmed by the defendant’s conduct.” Id. This really is not much more than
what the majority opinion in Satterfield stated when it said “[g]enerally, the presence or
absence of a duty is a given rather than a matter of reasoned debate, discussion, or
contention.” Satterfield, 266 S.W.3d at 365. The burden still will be on the plaintiff to
prove that the defendant’s conduct put the plaintiff at risk of harm, foreseeability, and all
the other elements of negligence including breach of duty. This would, in my opinion,
restore the jury to its rightful role as the trier of fact as to whether a plaintiff has proven
his or her case, especially whether the defendant breached its duty.



                                                   _________________________________
                                                   D. MICHAEL SWINEY, CHIEF JUDGE




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