                                                                                         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
                       ___________________________________


This is a jury case. Automobile mechanic and his wife, Appellees, filed suit against
Appellant Ford Motor Company for negligence in relation to wife’s diagnosis of
mesothelioma. Appellees allege that Ford’s brake products, which contained asbestos,
were unreasonably dangerous or defective such that Ford owed a duty to warn Mr.
Stockton so that he, in turn, could protect his wife from exposure to air-borne asbestos
fibers. The jury returned a verdict against Ford for $3.4 million. Ford appeals. Because
the jury verdict form is defective, in that it omits two necessary questions in products
liability cases, i.e., that the product at issue was unreasonably dangerous or defective and
that the plaintiff’s injuries were reasonably foreseeable, we vacate the judgment and
remand.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                              Vacated and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court. D. MICHAEL SWINEY, C.J.,
filed a separate concurring opinion. J. STEVEN STAFFORD, P.J., W.S., filed a separate
concurring and dissenting opinion.

Stephen A. Marcum, Huntsville, Tennessee; Jonathan D. Hacker and Brad N. Garcia, pro
hac vice, Washington, D.C., for the appellant, Ford Motor Company.

Harry Douglas Nichol, Knoxville, Tennessee; Jonathan Ruckdeschel, pro hac vice,
Ellicott City, Maryland; Robert Shuttlesworth and Ross Stomel, pro hac vice, Houston,
Texas, for the appellees, Joyce Stockton and Ronnie Stockton.
                                        OPINION

                                      I. Background

       This is an appeal from a $3,400,000.00 jury verdict and judgment against
Appellant Ford Motor Company (“Ford”). Ronnie Stockton began working as an
automobile mechanic in 1971. In 1980, Mr. Stockton opened his own shop, Stockton
Auto, where he worked on vehicles of every make and model, including vehicles
manufactured by Ford. Mr. Stockton’s wife, Joyce (together with Mr. Stockton, the
“Stocktons,” or “Appellees”), never worked directly with Ford brake products; however,
she cleaned Stockton Auto twice per week and also laundered Mr. Stockton’s clothing,
which was exposed to asbestos dust. In 2011, Mrs. Stockton was diagnosed with
mesothelioma, a lung cancer directly caused by chrysotile asbestos. It is undisputed that,
in the mid-to-late 20th century, all automotive manufacturers used chrysotile asbestos in
various automotive products, including brake linings and pads. When brake linings and
pads are replaced, contaminant buildup (i.e., dust) must be cleaned from the brake
assembly. If care is not taken to contain that dust, it can spread into the air and can be
inhaled by mechanics and bystanders. Installing brake pads can require grinding the
brake pads to size, which can also generate dust.

        The Stocktons initially filed suit in Illinois against sixty-one companies, including
Ford. The Stocktons alleged that Mrs. Stockton’s mesothelioma was caused by exposure
to asbestos used in the companies’ products. The defendants named in the Stocktons’
Illinois lawsuit were all settled or dismissed. Ford was dismissed on the ground of forum
non conveniens. Thereafter, on January 7, 2013, the Stocktons filed suit, in the Circuit
Court for Madison County, against Ford, on the theory of products liability. In relevant
part, Appellees’ complaint averred that:

       5. Mrs. Stockton was secondarily and primarily exposed to asbestos-
       containing products and dust emanating from those products which was
       brought home on her husband’s clothing as a result of her husband’s
       occupation as a mechanic. Defendant Ford Motor Company or its
       predecessor-in-interest is, or at times material hereto, has been engaged in
       the processing, manufacturing, sale, installation, and distribution of
       asbestos or asbestos-containing products. Plaintiffs would show that
       Plaintiff Joyce Stockton has been exposed, on numerous occasions, to
       asbestos-containing products produced and sold by Defendant and, in so
       doing, had inhaled great quantities of asbestos fibers. Further, Plaintiff
       Joyce Stockton has suffered injuries proximately caused by her exposure to
       asbestos-containing products designed, manufactured and sold by the
       Defendant.

       6.   Plaintiff was exposed to asbestos-containing products that were
                                       -2-
       manufactured, designed, and distributed by the Defendant and their
       predecessors-in-interest for use in automobiles and commercial grade
       trucks. Plaintiffs would show that the defective design and condition of the
       products rendered such products unreasonably dangerous, and that the
       asbestos-containing products were in this defective condition at the time
       they were designed by or left the hands of the Defendant. Plaintiffs would
       show that Defendant’s asbestos-containing products and requiring or
       calling for the use of asbestos-containing products were defective in the
       manner in which they were marketed for their failure to contain or include
       warnings regarding potential asbestos health hazards associated with the
       use of or the exposure to the products. Plaintiffs would show that this
       market defect rendered such products and machinery requiring or calling
       for the use of asbestos-containing products unreasonably dangerous at the
       time they were designed or left the hands of the Defendant. Plaintiffs
       would show that Defendant is liable in product liability including, but not
       limited to, strict product liability for the above-described defects.

Based on the averments set out in their complaint, Appellees prayed for both
compensatory and punitive damages.

        On April 10, 2013, Ford filed its answer, wherein it denied liability and raised, as
an affirmative defense, the comparative fault of the other manufacturers named in the
Illinois lawsuit and the comparative fault of Mr. Stockton. Concerning Mr. Stockton’s
alleged negligence, Ford averred that he possessed and repeatedly received warnings that
brakes and other components contained asbestos, that dust generated from those products
posed risks of serious bodily harm, and that the dust should not be inhaled or swept
without protection. At trial, Ford provided evidence that Mr. Stockton had received
training, in 1977 and 1982, explicitly warning that breathing dust from asbestos-
containing automobile products could be hazardous and that protective gloves and masks
should be worn when working with these products. In addition to this training, Ford also
introduced numerous shop manuals that Mr. Stockton had received during his career;
these manuals contained explicit warnings about the health risks associated with asbestos
in brake parts. Thus, Ford maintained that the duty to warn Mrs. Stockton fell to her
husband and not to Ford, which had no employer-employee relationship with Appellees.

      The case was tried to a jury over several days in August of 2015. At trial,
Appellees’ theory of liability was that exposure to asbestos from Ford’s products caused
Mrs. Stockton’s mesothelioma. Appellees alleged that Ford was strictly liable for Mrs.
Stockton’s injuries, that Ford was negligent in the design of its products, and that Ford
was negligent in failing to provide an adequate warning about the asbestos defect in its
products. As to the failure to warn claim, Appellees did not argue that Ford should have
warned Mrs. Stockton; rather, Appellees argued that Ford should have warned Mr.
Stockton, who, in turn, would have protected Mrs. Stockton. Following deliberation, the
                                           -3-
jury returned a verdict, on August 21, 2015, finding that Ford was negligent “in failing to
adequately warn Joyce Stockton and [that] such negligence [was] a cause of Joyce
Stockton’s injuries and damages.” The jury assigned 71% of the fault for Mrs.
Stockton’s injuries to Ford and 29% of the fault to another manufacturer. The jury
awarded $4,192,360.52 in compensatory damages, $232,724.00 in loss of consortium
damages, and $225,000.00 in punitive damages. On December 4, 2015, Ford filed a
motion for judgment as a matter of law or, in the alternative, for new trial. As required
by Tennessee Rule of Appellate Procedure 3(e), Ford’s motion sets out all of the issues
raised in this appeal. On May 9, 2016, the trial court entered an “amended final judgment
on jury verdict and order on Ford Motor Company’s Post-Trial Motions,” wherein it
denied Ford’s motion for judgment as a matter of law or, in the alternative, for new trial.
The May 9, 2016 order awards the Stocktons a total judgment of $3,001,868.45. Ford
appeals.
                                        II. Issues

       Ford raises the following issues for review as stated in its brief:

       1. Whether Ford is entitled to a new trial because: (a) the jury instructions
          impermissibly allowed jurors to find Ford liable for negligent failure to
          warn without finding that Ford’s products were defective or
          unreasonably dangerous; (b) the verdict form and course of
          deliberations preclude any inference that the jury actually found that
          Ford’s products were defective or unreasonably dangerous; (c) the
          court’s exclusion of plaintiffs’ prior complaint was erroneous and
          prejudicial; and (d) no reasonable jury could have failed to apportion
          some amount of negligence liability to Ronnie Stockton, given his
          undisputed failure as an employer to follow OSHA regulations and
          repeated warnings about the danger of asbestos in brake dust.

       2. Whether the duty under Tennessee law of an employer to protect the
          family members of employees from workplace asbestos-dust hazards
          extends beyond the employer-employee, workplace context to impose
          on a product manufacturer a duty of care to family members of remote,
          occasional handlers of its product.

       3. Whether specific causation can be found where: (1) the undisputed
          evidence established that [Mr. Stockton] was already aware of the
          dangers of asbestos dust and disregarded the risks, thus precluding any
          inference that yet another warning from Ford would have prevented
          [Mrs. Stockton’s] injuries; (b) plaintiffs adduced no evidence
          quantifying or even estimating how much asbestos dust from Ford
          products [Mrs. Stockton] was exposed to, leaving jurors to rely solely
          on an “every exposure” theory foreclosed by precedent.
                                          -4-
      4. Whether the punitive damages verdict must be reversed because: (a)
         Michigan law should govern the issue of punishment for Ford’s
         conduct, and Michigan law bars the imposition of punitive damages;
         and (b) there was no evidentiary basis for concluding that Ford
         recklessly ignored a known risk to family members of remote,
         occasional handlers of its products.

We begin our review with Appellant’s issue concerning the jury instructions and verdict
form.

                            III. Jury Instructions and Verdict Form

      The Tennessee Products Liability Act of 1978 (the “Act”), Tenn. Code. Ann. § 29-
28-101, et seq, provides that:

      [a] manufacturer or seller of a product shall 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.

The foregoing statute is modeled on the Restatement (Second) of Torts § 402A, which
provides:

      (1) One who sells any product in a defective condition unreasonably
      dangerous to the user or consumer or to his property is subject to liability
      for physical harm thereby caused to the ultimate user or consumer, or to his
      property. . . .


In Roysdon v. R.J. Reynolds Tobacco Co., the 6th Circuit Court of Appeals explained:

      Prior to the enactment of § 29-28-105, Tennessee had judicially adopted §
      402A of the Restatement (Second) of Torts (1966), which requires the
      plaintiff to prove that the product was both defective and unreasonably
      dangerous. Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973).
      However, it is clear from the plain language of the statute and its legislative
      history that the criteria for liability were intended to be read in the
      disjunctive (“or”) rather than the conjunctive (“and”). Smith v. Detroit
      Marine Engineering Corp., 712 S.W.2d 472, 474 (Tenn.App.1985),
      permission denied (June 30, 1986).1

      1
          In Smith, the relevant Legislative history was presented as follows:
                                                   -5-
                                                  ***

        Clearly, the Tennessee legislature intended to deviate from § 402A and
        allow a products liability action when the product is either defective or
        unreasonably dangerous.

Roysdon v. R.J. Reynolds Tobacco Co., 815 F.2d 80 (6th Cir. Tenn. 1989). Accordingly,
whether a plaintiff’s claim against a product manufacturer is couched in negligence, strict
liability, or breach of warranty, Tennessee courts have held that the plaintiff must
establish that the product was defective or unreasonably dangerous at the time the
product left the control of the manufacturer. In Browder v. Pettigrew, the Tennessee
Supreme Court specifically held that

        in a products liability action in which recovery is sought under the theory of
        negligence, the plaintiff must establish the existence of a defect in the
        product just as he does in an action where recovery is sought under the
        strict liability theory or for breach of warranty, either express or implied.
        The only significant difference is that under the negligence theory the
        plaintiff has the additional burden of proving that the defective condition of
        the product was the result of negligence in the manufacturing process or
        that the manufacturer or seller knew or should have known of the defective
        condition.

Browder v. Pettigrew, 541 S.W.2d 402, 404 (Tenn. 1976) (internal citations omitted);
accord Fulton v. Pfizer Hosp. Prod. Grp., Inc., 872 S.W.2d 908, 911 (Tenn. Ct. App.
1993) (quoting Higgs v. General Motors Corp., 655 F. Supp. 22, 23 (E.D.Tenn.1985))
(“‘[I]t makes no difference whether the complaint is couched in terms of negligence,


        During the debate in the House of Representatives, Representative Ashford ... moved to
        amend the bill by deleting the word “and” between “condition and unreasonably,” and
        substituting instead the word “or.” Representative Ashford stated to the House as follows:

                Mr. Speaker, ladies and gentlemen of the House, the substitution of the
                word “or” for “and” allows an action to be brought for a defective
                condition in a product, or for an unreasonably dangerous condition in a
                product rather than requiring that the product be defective and
                unreasonably dangerous and I think probably the sponsors of the bill
                indicated that they approve of this type of a change which allows both a
                defective condition of a product that might not be unreasonably
                dangerous and for an unreasonably dangerous product, and I'd move
                adoption of the amendment.

Smith, . 712 S.W.2d at at 474-75.
                                                  -6-
strict liability or breach of warranty, it has generally been held in the State of Tennessee
that in order for a plaintiff to recover under any theory of products liability, the plaintiff
must establish that the product was defective [or] unreasonably dangerous at the time the
product left the control of the manufacturer.’”).
         Before turning to review the jury instructions, we note that “[w]hether a jury
instruction is erroneous is a question of law and is[,] therefore[,] subject to de novo
review with no presumption of correctness.” Nye v. Bayer Cropscience, Inc., 347
S.W.3d 686, 699 (Tenn. 2011). An erroneous jury instruction requires reversal when “it
appears that the erroneous instruction more probably than not affected the judgment of
the jury.” Id. at 699.

      As to negligence generally, the Tennessee Civil Pattern Jury Instructions (“T.P.I.”)
provide:

         T.P.I.—CIVIL 3.01 Determination of Whether Plaintiff Entitled to
                Recover a Verdict (No Issue of Comparative Fault)

       A plaintiff is entitled to recover compensation for an injury that was legally
       caused by the negligent conduct of a defendant. In this case, the plaintiff
       has the burden of proving:

       1. That the defendant was negligent; and

       2. That the negligence was a legal cause of injury to the plaintiff.


       USE NOTE
       This is merely an introductory statement which one may find useful but
       which may be omitted where it is not needed.

       COMMENT
       A negligence claim requires proof of the following elements: (1) a duty of
       care owed by the defendant to the plaintiff; (2) conduct by the defendant
       falling below the standard of care amounting to a breach of that duty; (3) an
       injury or loss; (4) causation in fact; and (5) proximate or legal cause. The
       existence of a legal duty is a question of law for the court which requires
       consideration of whether “such a relation exists between the parties that the
       community will impose a legal obligation upon one for the benefit of
       others.” Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998).

As set out in the “use note,” T.P.I. 3.01 is “merely an introductory statement;”
accordingly, it may be modified depending on the nature of the lawsuit. Concerning
Appellees’ claim of negligence, in its proposed jury instructions, Ford asked for the
                                         -7-
following, modified version of T.P.I. 3.01:

                                 T.P.I.—CIVIL 3.01
                          Determination of Whether Plaintiff
                            Entitled to Recover a Verdict


      A plaintiff is entitled to recover compensation for an injury that was legally
      caused by the negligent conduct of a defendant. In this case, the plaintiff
      has the burden of proving:

      1. That Ford was negligent in failing to warn Mrs. Stockton of the dangers
      associated with dust from chrysotile in Ford brakes and clutches;

      2. That Ford’s brakes and clutches were defective or unreasonably
      dangerous by failing to warn of the dangers associated with dust from
      chrysotile in Ford brakes and clutches; and

      3. That the negligence was a cause in fact and legal cause of injury to
      plaintiff.

      NOTE: Ford submits that Plaintiffs are required to establish negligence,
      strict liability, cause in fact and legal cause. Tenn. Code Ann. § 29-28-
      105(a); see also Fulton v. Pfizer Hosp. Prod. Grp., Inc., 872 S.W.2d 908,
      911 n. 1 (Tenn. Ct. App. 1993) (whether cause of action is couched in terms
      of negligence or strict liability, plaintiff must establish that the product was
      defective or unreasonably dangerous).

(Emphases in original). The trial court denied Ford’s proposed 3.01 instruction, stating:


      THE COURT: So, let me read [jury instruction] 3 for a minute. Keep in
      mind the TPI just says that the negligence was a legal cause of injury to the
      plaintiff.
              Now, that’s the Tennessee Pattern Jury Instructions that’s [sic] put
      together by the committee that consists of judges that try these cases.
              So if I stick to the TPI and then know I’m following up with those
      other TPIs that that same committee put together, I feel like that’s the safest
      approach.

                                              ***

             What I’m inclined to do is leave 3.01 over defendant’s objection as
                                         -8-
       to how it was agreed upon in the first place.

Having denied Ford’s proposed 3.01 instruction, the trial court ultimately instructed the
jury as follows on the negligence claim:

               A plaintiff is entitled to recover compensation for an injury that was
       legally caused by the negligent conduct of a defendant. And in this case the
       plaintiff has the burden of proving, number one, the defendant was
       negligent; number two that the negligence was a legal cause of injury to the
       plaintiff.

The foregoing instruction does not fully encapsulate Tennessee law on negligence in
products liability cases. As discussed above, whether the plaintiff’s claim is couched in
negligence or in strict liability, as a threshold to recovery, the plaintiff must establish that
the product was defective or unreasonably dangerous at the time the product left the
control of the manufacturer. Browder, 541 S.W.2d at 404. The foregoing instruction,
therefore, is not adequate because it broadly states that the jury must determine
“negligence,” but it does not inform the jury that such negligence must rest on an initial
finding that Ford’s brake products were unreasonably dangerous or defective. In this
regard, the trial court erred in denying Ford’s proposed T.P.I. 3.01 instruction, supra.

       As noted above, the Stocktons also claimed that Ford was strictly liable for Mrs.
Stockton’s injuries. Concerning this claim, the trial court correctly instructed the jury
verbatim from T.P.I. 10.01 and 10.02, which provide, in relevant part, that:

       One who manufactures or sells a defective or unreasonably dangerous
       product is responsible to the ultimate consumer of the product for physical
       harm caused to the consumer or the consumer’s property if:

   (1) The manufacturer/seller is engaged in the business of manufacturing/selling
       such a product; and
   (2) It is expected to and does reach the user or consumer without substantial
       change in the condition in which it was manufactured and/or sold.

       A product is defective if it is unsafe for normal or reasonably anticipated
       handling and use. A product is unreasonably dangerous if it is more
       dangerous than would be reasonably expected by the ordinary consumer or
       would not be offered for sale by a reasonably careful manufacturer or seller
       who knew of its dangerous condition. An ordinary consumer is a consumer
       who purchases or uses the product with the ordinary knowledge common to
       the community as to its characteristics. A manufacturer is a person or
       company that designs, fabricates, produces, compounds, processes or
       assembles any product or its component parts. The word seller includes a
                                           -9-
      retailer, wholesaler, or distributor.      A seller is any individual or
      organization in the business of selling a product, either for resale or for use
      or consumption. . . .

      The seller/manufacturer of the product is not responsible for any injury to
      the person or property caused by the product unless the product is
      determined to be in a defective condition or is unreasonably dangerous at
      the time it left the seller’s/manufacturer’s control. In making this
      determination, you must apply the state of scientific and technological
      knowledge available to the seller/manufacturer at the time the product was
      placed on the market, rather than at the time of the injury. . . .

                                           ***

      [Instructions from T.P.I. Civil 10.02 Strict Liability—Adequacy of
      Warning]

      Where proper instructions for use and an adequate warning of hazards are
      given, the seller may reasonably assume that they will be read and
      followed. Thus, a product is not in a defective condition, nor is it
      unreasonably dangerous, if:

      1. The manufacturer or seller has given proper instructions for the use of a
         product and an adequate warning of the dangers associated with the use
         or misuse of the product;
      2. The product is safe for use if the instructions and warning are read and
         followed.

      Adequate and proper instructions establish procedures for efficient use and
      for avoiding danger. An adequate warning is one calculated to call to the
      attention of a reasonably careful person the nature and extent of the danger
      involved in using or misusing the product.

      In preparing instructions and warnings, manufacturers and sellers must take
      into account, among other things, the intended or reasonably expected users
      or consumers of the product. Where a danger or hazard is apparent to the
      ordinary user, a product is not unreasonably dangerous or defective even if
      no warning is given. . . .

The foregoing instruction properly sets out the law in Tennessee concerning strict
products liability in that it states that “[t]he seller/manufacturer of the product is not
responsible for any injury . . . unless the product is determined to be in a defective
condition or is unreasonably dangerous . . . .” The question, then, is whether the T.P.I.
                                            - 10 -
10.01 and 10.02 instructions were sufficient to inform the jury that it would need to
decide the question of whether Ford’s products were unreasonably dangerous or defective
when that criterion was omitted from the negligence instruction, supra. Unless the error
in the negligence instruction “more probably than not” affected the outcome of the case,
Nye, 347 S.W.3d at 699, the error would not be fatal to the jury’s ultimate verdict. To
answer that question, we turn to review the jury verdict form.


      Ford proposed the following verdict form:

                      FORD’S PROPOSED VERDICT FORM

             Under the instructions provided by the Court, do you find that
      Plaintiffs have proven by a preponderance of the evidence that Ford’s
      brakes and clutches were defective or unreasonably dangerous because of a
      failure to warn Mrs. Stockton of the dangers associated with brake dust
      from chrysotile in Ford’s brakes and clutches?

   a. Failure to warn as to exposures at home______Yes____No
   b. Failure to warn as to exposures in the garage_____Yes_____No.

      (If you answered “No,” then your verdict should be for Ford and notify
      the Baliff that you have reached your verdict. If you answered “Yes,”
      please proceed to question (2) below.)

      2. Under the instructions provided by the Court, do you find that Plaintiffs
      have proven by a preponderance of the evidence that Ford was negligent in
      failing to warn Mrs. Stockton of the dangers associated with brake dust
      from chrysotile in Ford’s brakes and clutches?

   a. Failure to warn as to exposures at home______Yes____No
   b. Failure to warn as to exposures in the garage____Yes____No

      (If you answered “No,” then your verdict should be for Ford and notify
      the Baliff that you have reached your verdict. If you answered “Yes,”
      please proceed to question (3) below.)

      3. Under the instructions provided by the Court, do you find that Plaintiffs
      have proven by a preponderance of the evidence that Ford’s failure to warn
      was a cause in fact and legal cause of Mrs. Stockton’s mesothelioma?

      ____Yes                    ____No

                                         - 11 -
       (If you answered “No,” then your verdict should be for Ford and notify
       the Baliff that you have reached your verdict. If you answered “Yes,”
       please proceed to question (4) below.)

The trial court denied Ford’s proposed verdict form and, instead, submitted the following

verdict form to the jury, which the jury answered as indicated below:

             We, the jury, present the following answers to the questions
       submitted by the Court:

       1. Under the instructions provided by the Court, have Plaintiffs proven by
          a preponderance of the evidence that Defendant Ford was negligent in
          failing to adequately warn Joyce Stockton and was such negligence a
          cause of Joyce Stockton’s injuries and damages?

                                                      Yes            No


       2. Under the instructions provided by the Court, have Plaintiffs proven by
          a preponderance of the evidence that Defendant Ford was negligent in
          the design of its products and was such negligence a cause of Joyce
          Stockton’s injuries and damages?

                                                      Yes            No


       3. Under the instructions provided by the Court, have Plaintiffs proven by
          a preponderance of the evidence that Defendant Ford’s products were
          defective or unreasonably dangerous at the time they left Defendant
          Ford’s control and, if so, were such products a cause of Joyce
          Stockton’s injuries and damages?

                                                      Yes            No


       If you answered “Yes” to either Question 1, 2, or 3, continue on to
       Question 4. If you answered “No” to Questions 1, 2, and 3, please sign
       and date the verdict form; you do not need to answer the remaining
       Questions.2

       2
        Question 4, on the jury verdict form, asked the jurors to assess the percentage of fault
among several other brake manufacturers and Mr. Stockton.
                                             - 12 -
As set out on the jury verdict form, the jury found Ford liable in negligence, but without
finding that Ford’s products were unreasonably dangerous or defective. Not only does
the jury form relieve Appellees from the required showing of defective or unreasonably
dangerous condition, but the record also indicates that the jury was confused by the form
and could not reach consensus:

      THE COURT: I have just received from the jury a note . . . . It reads, “Do
      we have to be in complete agreement about No. 1, 2, and 3 before moving
      to 4? What if we agree only on one of the questions but disagree on the
      other two? Can we move to No. 4?”
             I want input from counsel. My thought is if they can resolve one of
      the three questions and move forward, they need to do that. Ultimately,
      they may not resolve the other two and you might have issues in declaring a
      mistrial or whatever on the other issues. But I think they can proceed
      forward without.
             Does the plaintiff agree?

      [PLAINTIFFS’ COUNSEL]: I agree.

      THE COURT: Defense agree?

      [DEFENDANT’S COUNSEL]: Your Honor, we think they have to have an
      answer on all three, a unanimous answer, whatever it is.

      THE COURT: . . . I disagree with defense counsel. I think they can answer
      the questions they can answer and proceed forward. . .

Later in the proceedings, the jury asked another question concerning the verdict form:

      THE COURT: We have a question from the jury . . . . It reads as follows:
      “Does every yes/no question have to be answered on page 1, or can just one
      question be answered yes and the other two questions be left blank?”
             Counselors, as I share this with you, this goes back to where we
      were, I guess, a day ago . . . about just answering one of the first three
      questions. I’ve stated on the record the court’s position. Does the plaintiff
      wish to proceed further with any comment?

      [PLAINTIFFS’ COUNSEL]: We don’t believe they have to go further than
      that. And if you read the verdict form . . . if they answer “yes” to either 1,
      2, or 3, continue on to 4. And it would appear—I mean, we don’t know—
      but it would appear they’ve answered “yes” to one of them. . . .
                                         - 13 -
       [DEFENDANT’s COUNSEL]: We submit, Your Honor, that they have to
       answer the three questions. . . .

       THE COURT: Thank you. We know the jury is instructed—and I insist
       properly—that to answer a question, they must have a unanimous bore to
       do so. . . . I have already ruled that, in response to their question, they
       could proceed on because, as the verdict form says . . . “If you answered
       yes to either Question 1, 2, or 3, continue on to Question 4. If you
       answered no to Question 1, 2, and 3, please sign the form and come back.”

                                             ***

       I think the instructions were complete and adequate, and the form is
       complete and adequate when you consider the verdict form and the
       instructions together.

                                             ***

       [DEFENDANT’S COUNSEL]: We just note our continued exception that
       we believe that all—that an answer is required [on] all three of [the
       questions] because we need that information for a proper verdict.

                                             ***

       THE COURT: I think, based upon all I’ve said and stated, it’s very clear
       these are separate and distinct questions.

                                             ***

       [DEFENDANT’S COUNSEL]: I just want to add . . . [u]nder Tennessee
       law . . . to find negligence, they have to find defect. And so the questions
       are interrelated. If—let’s say, for example, that they check “yes” to
       negligence and they don’t answer defect, that’s a defense verdict. So they
       need to answer all three questions.

       THE COURT: Thank you. But you’re absolutely wrong . . .

Respectfully, the trial court erred in its ruling. As discussed in detail above, under either
of Appellees’ theories, i.e., negligence or strict liability, the jury would have to find, as a
threshold criterion, that Ford’s products were defective or unreasonably dangerous. The
absence of this criterion in Question 1 on the jury form negates the jury’s finding of
liability. In fact, after the foregoing exchange, and with the consent of all parties, the trial
                                              - 14 -
court polled the jurors concerning their progress:

       THE COURT: . . . Now, I ask you this question, not what your vote is
       either way, but the question is, have you reached a unanimous decision in
       this case as to Question No. 1 on the verdict form?
       [All jurors answered “Yes”]

                                           ***
       I ask you, ladies and gentlemen of the jury, have you reached a unanimous
       decision as to Question 2 on the verdict form?

       [All jurors answered “No”]

                                             ***

       As to Question 2 . . . do you believe or find that further deliberations could
       possibly result in a unanimous decision as to Question 2?

       [All jurors answered “No”]

                                             ***

       Now . . . as to Question 3, have you reached a unanimous verdict in
       response to Question 3 on page 1 of the verdict form?

       [All jurors answered “No]

                                             ***

       Do you believe or find that further deliberations could possibly result in a
       unanimous verdict as to Question 3 on page 1 of the verdict form?

       [All jurors answered “No]


Clearly, the jury could not reach agreement on question 3, i.e., “have Plaintiffs proven by
a preponderance of the evidence that Defendant Ford’s products were defective or
unreasonably dangerous . . . .” Browder, 541 S.W.2d at 404. In the absence of a
defective or unreasonably dangerous finding, the jury could not have properly found that
“Defendant Ford was negligent in failing to adequately warn Joyce Stockton.” Id. In this
regard, the jury’s verdict is inconsistent, and its finding of negligence is irreconcilable.
“Tennessee law is well established that litigants are entitled to have their rights settled by
a consistent and intelligible verdict, and verdicts that are inconsistent and irreconcilable
                                            - 15 -
cannot stand.” Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 911 (Tenn. 1999);
Milliken v. Smith, 405 S.W.2d 475, 476 (Tenn. 1966) (“verdicts which are inconsistent
and irreconcilable must not be allowed to stand.”). Accordingly, when “a judgment is
based upon inconsistent findings by a jury it is the duty of the appellate court to reverse
and remand the case for a new trial.” Concrete Spaces, 2 S.W.3d at 911. The reasoning
underlying this rule is that, with inconsistent and unintelligible verdicts, “it cannot be told
with reasonably certainty what facts the jury found.” Berr v. Foster, 287 S.W.2d 16, 18
(Tenn. 1955) (quoting Gray v. Brooklyn Heights R.R. Co., 67 N.E. 899, 900 (N.Y.
1903)). In other words, an inconsistent verdict is “no verdict at all.” McInturff v. White,
565 S.W.2d 478, 482 (Tenn. 1976).

                         IV. Foreseeability, Duty, and Causation

        In addition to the fact that the jury did not answer the threshold question of
whether Ford’s products were unreasonably dangerous or defective, the jury also did not
consider the question of whether Mrs. Stockton’s injuries were reasonably foreseeable.
As set out above, the trial court instructed the jury to first answer the question “have
Plaintiffs proven by a preponderance of the evidence that Defendant Ford was negligent
in failing to adequately warn Joyce Stockton and was such negligence a cause of Joyce
Stockton’s injuries and damages.” To prevail on a negligence claim, a plaintiff must
establish: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the
defendant falling below the standard of care amounting to a breach of that duty; (3) an
injury or loss; (4) causation in fact; and (5) proximate or legal cause. Satterfield v.
Breeding Insulation Co., et al., 266 S.W.3d 347, 356 (Tenn. 2008). By first asking the
jury to determine whether Ford “was negligent in failing to adequately warn Joyce
Stockton and was such negligence a cause of Joyce Stockton’s injuries,” the trial court
conflates the prima facie elements of duty, breach, and causation into a single inquiry,
and overlooks the jury’s role in the question of foreseeability as it relates to breach and
causation, discussed infra.

        Ford argues that Ford owed no legal duty to Mrs. Stockton. In a footnote to its
proposed jury verdict form, Ford states: “Ford recognizes that the Court rejected its
argument that Ford had no duty to warn as to take-home exposures.” The record does not
contain the exact basis for the trial court’s initial ruling on the duty question. However,
as C.J. Swiney points out, in his separate concurring opinion, in ruling on Ford’s motion
for directed verdict or new trial, the trial court stated: “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.” From this statement, we know
that the trial court relied on the Satterfield case in declining to hold, as a matter of law,
that there was no duty owed by Ford to Mrs. Stockton. Although there is no evidence
that the trial court engaged in the detailed duty analysis that the Tennessee Supreme
Court applied in Satterfield (a fact that J. Stafford, in his partial dissent, argues was
error), the trial court, nonetheless, concluded (at least inferentially) that the Satterfield
                                              - 16 -
holding extends Ford’s legal duty to Mrs. Stockton. The question, then, is whether the
trial court erred in its application of Satterfield and its ultimate decision to decline to
find, as a matter of law, that Ford owed no duty in this case. We now turn to that
discussion.

        At the foundation of negligence law is the idea that people have a duty, i.e., a legal
obligation, to conform to a reasonable person standard of care in order to protect others
against unreasonable risks of harm.” Burroughs v. Magee, 118 S.W.2d 323, 328-29
(Tenn. 2003). While this basic concept is not, on its face, difficult to understand, the
application of duty in various cases has been muddled by the elusive idea of
foreseeability, discussed infra.      In Satterfield, the Tennessee Supreme Court
acknowledges the basic tenant of negligence law, stating that “Tennessee law currently
provides that one owes a duty to refrain from engaging in conduct that creates an
unreasonable and foreseeable risk of harm to others.” Satterfield, 266 S.W.3d at 363
(citations omitted) (emphasis added). The Restatement (Third) of Torts § 7: Liability for
Physical and Emotional Harm encapsulates this tenant of duty in negligence law as
follows:

       (a) An actor ordinarily has a duty to exercise reasonable care when the
       actor’s conduct creates a risk of physical harm.

       (b) In exceptional cases, when an articulated countervailing principle or
       policy warrants denying or limiting liability in a particular class of cases, a
       court may decide that the defendant has no duty or that the ordinary duty of
       reasonable care requires modification.

The Restatement (Third) of Torts Reporters’ adoption of the foregoing concept of duty
ostensibly takes foreseeability out of the duty equation and lessens the role of the judge in
determining duty as a matter of law. Put another way, if duty exists as a default position,
then a judge would only need to decide the question of duty in “exceptional cases” where
“principles or policy” (read: not lack of foreseeability) dictate the rare case where no duty
is determined as a matter of law. As explained by the Tennessee Supreme Court in
Satterfield, concerning the question of duty, “[a] court’s function is more limited than a
jury’s. As a practical matter, a court serves as a gate-keeper and may exclude a claim
only if it finds, as a matter of law, that the defendant does not owe a duty to the plaintiff.”
Satterfield., 266 S.W.3d at 368. Appellants would limit the Satterfield holding to extend
the duty owed, by a manufacturer of asbestos containing products, only to those with
whom the manufacturer’s employee comes into regular and close contact. Satterfield,
266 S.W.3d at 352 (“The employer owed a duty to those who regularly and for extended
periods of time came into close contact with the asbestos-contaminated work clothes of
its employees . . . .”). However, Appellants’ narrow reading of the duty holding in
Satterfield ignores the fact that the Satterfield Court espoused a broad view of duty in
take-home asbestos cases by holding that duty may exist even in the absence of privity,
                                              - 17 -
i.e., a special relationship. In so holding, the Satterfield Court relied on the Restatement
(Third) of Torts:
         While [some] courts . . . that have found, as a matter of law, that employers
         have a duty in take-home asbestos exposure cases, rely on the absence of a
         special relationship, this argument is misplaced under Tennessee tort law as
         it has developed over the years. This Court has recognized that a duty of
         reasonable care arises whenever a defendant’s conduct poses an
         unreasonable and foreseeable risk of harm to persons or property. McCall
         v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). Thus, like the drafters of the
         new Restatement (Third) of Torts containing the principles applicable to
         liability for physical harm, we are of the view that

              [e]ven when the actor and victim are complete strangers and
              have no relationship, the basis for the ordinary duty of
              reasonable care . . . is conduct that creates a risk to another.
              Thus, a relationship ordinarily is not what defines the line
              between duty and no-duty; conduct creating risk to another is.

       Restatement (Third) of Torts

Satterfield, 266 S.W.3d at 362-63. Indeed, the Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 6 provides, broadly, that “[a]n actor whose negligence is
a factual cause of physical harm is subject to liability for any such harm within the scope
of liability, unless the court determines that the ordinary duty of reasonable care is
inapplicable.” Here, we do not know whether the trial court made an affirmative finding
that there was a duty owed by Ford to Mrs. Stockton; rather, from what we can glean
from the record, we know that the trial court declined to find, as a matter of law, that
there was not a duty owed by Ford to Mrs. Stockton. Applying the holding in Satterfield
to the instant case, we cannot conclude that the trial court erred in its ruling denying
Ford’s motion concerning the duty issue.

       The Restatement (Third) of Torts asserts a “strong default rule that each person
has a duty to exercise reasonable care not to injure another; this default rule almost
operates as a presumption.” Benjamin C. Zipursky, Foreseeability in Breach, Duty, and
Proximate Cause, 44 Wake Forest L. Rev. 1247, 1251 (2009)              In drafting The
Restatement (Third) of Torts, the Reporters were clearly concerned with the concept of
foreseeability in the duty, breach, and causation elements of negligence and the
respective role of the judge and jury in each of these inquiries. As to the role of
foreseeability in duty, the Reporters are concerned that

       courts sometimes usurp the jury’s function of determining breach by
       mischaracterizing a breach of duty issue and then claiming the prerogative
       to decide the duty issue as a matter of law. They do this because duty is an
                                           - 18 -
      issue for the court, and unforseeability is sometimes deemed a ground for
      no duty. It is critical . . . to see that when unforseeability is being deemed a
      ground for no duty, the court is just flipping around the words “breach” and
      “duty.”

Zipurskwy, supra, at 1251 (citing Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7). Accordingly, the Reporters “want to eliminate foreseeability in
duty so that judges do not invade the province of the jury.” Id. at 1274; see also W.
Jonathan Cardi, Purging Foreseeability The New Vision of Duty and Judicial Power in
the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739 (2005). Professor
Cardi explains the role of foreseeability in the context of breach and proximate cause as
follows:

      The brand of foreseeability associated with breach is one of general focus.
      That is, it does not examine the foreseeability of the particular injury
      suffered by the plaintiff, but the foreseeable likelihood and severity of the
      injuries that might have occurred. . . . Thus, it might be said that in the
      context of breach, foreseeability’s concern is risk generally, not whether a
      particular result is one for which defendant should be held liable. This
      latter concern is addressed by proximate cause.

                                            ***

      Proximate cause . . . focuses on the nature and extent of the connection
      between a defendant’s unreasonable conduct and the plaintiff’s injury and
      cuts off liability at the point where “the harm that resulted from the
      defendant’s negligence is so clearly outside the risks created that it would
      be unjust or at least impractical to impose liability. . . .

      Furthermore, foreseeability in the context of proximate cause does not help
      to decide whether the defendant acted unreasonably, as in the context of
      breach, but rather aids in the decision of whether the actual consequences of
      defendant’s conduct were so bizarre or far-removed from the risks that
      made the actor’s conduct negligent that the defendant, though
      blameworthy, should not be held liable.

Cardi, supra, at 747-49. Professor Cardi concedes that the question of when a resulting
harm falls outside the risk of the tortfeasor’s conduct has no clear answer. Id. at 748.
Accordingly, such questions are best left to the purview of the jury. Professor Cardi
opines that, “[d]espite overlap in the choices underlying duty and proximate cause . . .
they stand as separate elements and serve different conceptual purposes;” however,
“appellate courts frequently treat the proximate cause issue as if it were a question of
law.” Id. at 750. This is an issue that Justice Holder addresses in her dissent in
                                          - 19 -
Satterfield:

       By incorporating foreseeability into an analysis of duty, the majority
       transforms a factual question into a legal issue and expands the authority of
       judges at the expense of juries. See City of Elizabethton v. Sluder, 534
       S.W.2d 115, 117 (Tenn. 1976) (noting that foreseeability is a jury issue). A
       collection of twelve people representing a cross-section of the public is
       better suited than any judge to make the common-sense and experience-
       based judgment of foreseeability.

Satterfield, 266 S.W.3d at 376 (Holder, J. dissenting). The majority in Satterfield
applied a foreseeability analysis in holding that Alcoa owed a duty to Ms. Satterfield. In
relevant part, the Court held:

       Because the risk of Ms. Satterfield being exposed to the asbestos fibers on
       her father’s work clothes was foreseeable, the analysis shifts to considering
       the balancing factors: (1) the foreseeable probability of the harm or injury
       occurring; (2) the possible magnitude of the potential harm or injury; (3)
       the importance or social value of the activity engaged in by the defendant;
       (4) the usefulness of the conduct to the defendant; (5) the feasibility of
       alternative conduct that is safer; (6) the relative costs and burdens
       associated with the safer conduct; (7) the relative usefulness of the safer
       conduct; and (8) the relative safety of alternative conduct. Burroughs v.
       Magee, 118 S.W.3d at 329; McCall v. Wilder, 913 S.W.2d [150,] at 153
       [(Tenn. 1995)].

Satterfield¸ 266 S.W.3d at 367. Although the majority clearly makes a foreseeability of
harm determination in weighing the foregoing factors, it cautions that, “[w]hen
considering these factors, courts should take care not to invade the province of the jury. A
court's function is more limited than a jury’s.” Id. at 367-68. In her dissent, Justice
Holder opines that the majority’s position invades the province of the jury concerning
questions of foreseeability:

       I remain concerned about the role that foreseeability plays in the majority’s
       understanding of duty. Foreseeability enters the majority’s analysis in two
       related ways. First, foreseeability forms a part of the majority’s basic
       explanation of when a duty arises. For example, the majority states that
       “‘all persons have a duty to use reasonable care to refrain from conduct that
       will foreseeably cause injury to others.’” (quoting Burroughs v. Magee,
       118 S.W.3d 323, 328 (Tenn. 2003); Bradshaw, 854 S.W.2d at 870)
       (emphasis added). Second, foreseeability is a key component of the public
       policy balancing test employed by the majority. Burroughs, 118 S.W.3d at
       329; McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995).
                                           - 20 -
              As I have often stated, the foreseeability of an injury or risk is more
       properly considered an element of breach of duty or proximate cause. Hale
       v. Ostrow, 166 S.W.3d 713, 720 (Tenn. 2005) (Holder, J., concurring and
       dissenting); Staples [v. CBL & Associates, Inc.,] 15 S.W.3d [83,] at 9[2]
       [(Tenn. 2000)] (Holder, J., concurring); accord W. Jonathan Cardi, Purging
       Foreseeability: The New Vision of Duty and Judicial Power in the
       Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739, 744-50
       (2005). This observation is important primarily because the existence of
       duty is determined by courts as a matter of law while breach of duty and
       proximate cause are fact-based inquiries to be determined by juries. West
       [v. East Tennessee Pioneer Oil Co.,] 172 S.W.3d [545,] at 556 (Tenn.
       2005) (observing that breach of duty and proximate causation are factual
       determinations); Staples, 15 S.W.3d at 89 (holding that existence of duty is
       a matter of law).

Satterfield, 266 S.W.3d at 375-76 (Holder, J. dissenting). Professor Cardi opines that
“concept of foreseeability is a scourge, and its role in negligence cases is a vexing,
crisscrossed morass.” Cardi, supra, at 740. The Satterfield case elucidates this point.
Clearly, the respective roles of judge and jury in the foreseeability inquiry is not settled in
Tennessee. The Satterfield Court acknowledges the fact that foreseeability is paramount
to negligence:

       While every balancing factor is significant, the foreseeability factor has
       taken on paramount importance in Tennessee. Hale v. Ostrow, 166 S.W.3d
       713, 716-17 (Tenn. 2005); Biscan v. Brown, 160 S.W.3d [462,] at 480
       [(Tenn. 2005)]. This factor is so important that if an injury could not have
       been reasonably foreseen, a duty does not arise even if causation-in-fact has
       been established. Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn.
       1992). Conversely, foreseeability alone is insufficient to create a duty.
       McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 904 (Tenn. 1996).
       Thus, to prevail on a negligence claim, a plaintiff must show that the risk
       was foreseeable, but that showing is not, in and of itself, sufficient to create
       a duty. Instead, if a risk is foreseeable, courts then undertake the balancing
       analysis.

Satterfield, 266 S.W.3d at 366. The Court also acknowledges that foreseeability informs
both questions of law (i.e., duty) and questions of fact (i.e., causation) in a negligence
analysis:

       The role that the concept of foreseeability plays in the context of a court’s
       determination of the existence and scope of a duty differs from the role the
       concept plays when the fact-finder is addressing proximate causation. For a
       duty to exist, the defendant’s “conduct must create a recognizable risk of
                                          - 21 -
       harm to the [plaintiff] individually, or to a class of persons—as, for
       example, all persons within a given area of danger—of which the [plaintiff]
       is a member.” Restatement (Second) of Torts § 281 cmt. c, at 4-5.
       However, because almost any outcome is possible and can be foreseen, the
       mere fact that a particular outcome might be conceivable is not sufficient to
       give rise to a duty. For the purpose of determining whether a duty exists,
       the courts’ consideration of foreseeability is limited to assessing whether
       there is some probability or likelihood of harm that is serious enough to
       induce a reasonable person to take precautions to avoid it. In this context,
       the courts are not concerned with the ultimate reasonableness, or lack of
       reasonableness, of the defendant’s conduct. Rather, the courts are simply
       ascertaining “whether [the] defendant was obligated to be vigilant of a
       certain sort of harm to the plaintiff.”

Id. at 366-67. However, the Court draws no clear line as to when the determination of
foreseeability should fall to the judge and when it should fall to the jury. To clarify the
respective role of judge and jury in foreseeability determinations, Justice Holder
advocates adoption of the Restatement (Third) of Torts’ position that foreseeability has
no place in the judge’s determination of whether a duty exists, and thus the determination
of foreseeability should rest with the jury alone. The Satterfield majority

       attempts to support the integration of duty and foreseeability by arguing
       that foreseeability plays a different role in the duty context than it does in
       the context of breach of duty or proximate cause. In support of its position,
       the majority cites to cases that propose a distinction between the
       foreseeability of a general threat of harm to others and the foreseeability of
       the specific harm suffered by the plaintiff. McCain v. Fla. Power Corp,
       593 So.2d 500, 502-04 (Fla. 1992); Kroll v. Bd. of Regents of Univ. of
       Neb., 258 Neb. 1, 601 N.W.2d 757, 763 (1999). According to these cases,
       the former analysis is relevant to duty while the latter is relevant to
       proximate cause. McCain, 593 So.2d at 502-04; Knoll, 601 N.W.2d at 763.
       The majority places this distinction in its own terms, stating, “For the
       purpose of determining whether a duty exists, the courts’ consideration of
       foreseeability is limited to assessing whether there is some probability or
       likelihood of harm that is serious enough to induce a reasonable person to
       take precautions to avoid it.”

Satterfield, 266 S.W.3d at 376 (Holder, J. dissenting). Justice Holder argues that the
majority’s distinction between general and specific foreseeability, while valid in theory,
“is difficult, if not impossible, to apply in practice.” Id. at 377 (Holder, J. dissenting). In
other words, the question of foreseeability in duty and foreseeability in causation are so
inseparable that it is impossible to make a distinction between foreseeability in duty and
foreseeability in causation. Thus, she opines that the foreseeability question is one for the
                                              - 22 -
jury alone. Id. at 377 (Holder, J. dissenting) (“I firmly believe . . . that analyzing
foreseeability in the context of duty is inherently problematic and that the Restatement
(Third) of Torts presents a wiser approach.”). The concept of foreseeability remains an
elusive and indefinite concept in our jurisprudence.3

        Turning back to the instant appeal, as discussed above, the trial court did not
conclude, as a matter of law, that there was no duty owed by Ford to Mrs. Stockton.
Based on the holding in Satterfield, which adopts (in part) the Restatement (Third) of
Torts, we conclude that the court’s decision to allow the case to go forward on the
element of duty was not error. However, the determination of breach and causation still
remain. These are questions of fact for the jury. Specifically, the question of whether the
probability or likelihood of harm to Mrs. Stockton is sufficiently foreseeable to induce a
reasonable person to take precautions to avoid it, or whether her injuries were so tenuous
and removed from Ford’s conduct as to preclude a finding of foreseeability, is a question
for the jury. Accordingly, on remand, the jury should be instructed not only on the
question of whether Ford’s product was unreasonably dangerous or defective, but also on
whether Mrs. Stockton’s injuries were reasonably foreseeable. These two questions
should be presented on the verdict form. Only if the jury answers affirmatively to both of
these questions should it be allowed to continue to the question of whether Ford breached
its duty to Mrs. Stockton and, if so, whether that breach was a cause of her injuries. In
the absence of a finding that Ford’s product was defective or unreasonably dangerous and
that Mrs. Stockton’s injuries were reasonably foreseeable, the jury’s finding of
negligence cannot stand. In view of this holding, we pretermit Appellant’s remaining
issues.

        Before concluding, we write briefly in response to J. Stafford’s partial dissent,
wherein he states that “[t]he majority Opinion . . . appears to suggest that the issue of
duty has been converted to a question to be determined by the jury simply because the
matter was allowed to be heard by a jury.” Respectfully, the dissent misapprehends the
majority holding. The question of duty, in negligence, remains a question of law and not
of fact. As J. Stafford notes, “in this case, the trial court determined that a duty existed
and allowed this case to proceed to a trial on the merits.” (Emphasis added). The
Satterfield case is distinguishable from the instant case insofar as the trial court, in
Satterfield, held, as a matter of law, that Alcoa did not owe a duty to Ms. Satterfield.
Here, the trial court did not find, as a matter of law, that Ford owed no duty to Mrs.
Stockton. In Satterfield, the Tennessee Supreme Court cited, with approval, the
Restatement (Third) of Torts approach to duty, which is that a duty may exist “[e]ven
when the actor and victim are complete strangers and have no relationship [because] the
basis for the ordinary duty of reasonable care . . . is conduct that creates a risk to another.
Thus, a relationship ordinarily is not what defines the line between duty and no-duty;

       3
        We encourage the Tennessee Supreme Court to revisit the question of whether
Tennessee should adopt the Restatement (Third) of Torts’ approach to foreseeability.
                                            - 23 -
conduct creating risk to another is.” Satterfield, 266 S.W.3d at 362-63 (citing
Restatement (Third) of Torts). In this opinion, we have referred to this approach as a
“default position,” meaning only that duty will usually exist when a plaintiff has been
harmed by a defendant’s product. J. Stafford opines that “the Satterfield Court did not
rule that the existence of a duty was a ‘default position.’” Semantics aside, J. Stafford
advocates for application of the Satterfield Court’s “intricate rules for determining [the]
issue [of duty]” in every case where the existence of a duty is raised as an issue,
regardless of whether the trial court found a duty or not. We opine that the Satterfield
Court’s adoption, at least in part, of the Restatement (Third) of Torts approach to duty
negates the need for an intricate analysis on the duty question unless the trial court finds
(as it did in Satterfield) that there is no duty as a matter of law. Because such finding is
against the trend in negligence law, as set out in the Restatement (Third), if a trial court
determines that no duty exists, a reviewing court must go through the duty analysis in
order to review, as a question of law, the trial court’s determination on duty. However,
where the trial court declines to find that there is no duty, which is the scenario here, the
case may proceed to the jury, not on the question of duty, but on the question of whether
the duty was breached and, if so, whether the breach was the cause of the plaintiff’s
harm. Accordingly, had the trial court, in this case, determined that there was no duty,
we would be required to engage in a de novo review of the legal question of whether the
trial court erred, as a matter of law, in so holding. However, because the trial court did
not find that there was no duty owed, it is unnecessary to engage in the Satterfield
analysis.
                                         V. Conclusion

       For the foregoing reasons, we vacate the trial court’s judgment on the jury verdict.
The case is remanded for such further proceedings as may be necessary and are consistent
with this opinion. Costs of the appeal are assessed against the Appellees, Joyce and
Ronnie Stockton, for all of which execution for costs may issue if necessary.




                                                    _________________________________
                                                    KENNY ARMSTRONG, JUDGE




                                           - 24 -
