                                                                                           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
                        ___________________________________


J. STEVEN STAFFORD, P.J.,W.S., concurring and dissenting.

        Although I agree with the majority Opinion’s discussion of the improper jury
instructions given by the trial court in this case, I cannot agree with the majority’s
analysis with regard to the duty owed by Ford. Because Ford’s duty is a threshold issue
that must be determined prior to any consideration of the jury instructions given by the
trial court, I therefore file this partial dissent.

        In this case, the central dispute involves whether Ford owed a duty to Mrs.
Stockton pursuant to the Tennessee Supreme Court’s decision in Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347 (Tenn. 2008). If Ford did not owe a duty to Mrs.
Stockton, her negligence claim fails. See Giggers v. Memphis Hous. Auth., 277 S.W.3d
359, 364 (Tenn. 2009) (citing McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)) (“In
order to establish a prima facie claim of negligence, . . . a plaintiff must establish . . . a
duty of care owed by defendant to plaintiff[.]”). Accordingly, the question of Ford’s duty
is a threshold issue that must be determined prior to any consideration of the alleged
errors that occurred at trial. See Bailey v. Grooms, No. E2008-01520-COA-R3-CV, 2009
WL 3460654, at *3 (Tenn. Ct. App. Oct. 28, 2009), perm. app. denied (Tenn. Apr. 20,
2010) (citing Hale v. Ostrow, 166 S.W.3d 713, 715 (Tenn. 2005)) (“The threshold
element is duty of care because without a legal duty, there can be no conduct that
breaches the duty.”).

      In Satterfield, the defendant employer engaged in a business where its employees
were exposed to high levels of asbestos. Although the defendant employer knew of the
dangers of asbestos exposure even to those not in direct contact with the substance, the
defendant employer made no effort to warn its employees of the danger to their family
members. Id. at 352–53. The daughter of an employee later died from asbestos-related
mesothelioma and her estate sued the defendant employer for wrongful death. Id. at 353.
The defendant employer argued, however, that it owed no duty to protect the family
member of an employee from exposure to asbestos. Id. at 354. The trial court agreed and
dismissed the case. Id. The Court of Appeals reversed and the Tennessee Supreme Court
granted permission to appeal solely as to the trial court’s decision that the defendant
employer owed no duty to an employee’s daughter. Id. at 354–55.

        The Satterfield court concluded that the defendant employer did owe a duty to the
daughter. In reaching this decision, the court first noted Tennessee’s well-settled law that
duty is an essential element of any negligence claim and “a question of law to be
determined by courts.” Id. at 355. The court explained that while the question of whether
a duty exists will “generally . . . [be] a given rather than a matter of reasoned debate,
discussion, or contention,” there are situations “[w]hen the existence of a particular duty
is not a given or when the rules of the established precedents are not readily applicable.”
Id. at 365. Having determined that the issue of duty was one appropriately resolved by
the court, rather than the fact-finder, the court adopted explicit guidelines for determining
the existence of a duty to the plaintiff in negligence cases. First, the court directed that the
plaintiff must show “that the risk was foreseeable.” If the risk was not foreseeable, there
is no duty. Id. at 366. If the risk is foreseeable, however, courts must then undertake a
“balancing analysis” to determine whether a duty exists. In those situations, the
Satterfield court directed that Tennessee courts consider the following 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.

Id. at 367 (citing Burroughs v. Magee, 118 S.W.3d 323, 329 (Tenn. 2003); McCall, 913
S.W.2d at 153).

       Despite these explicit instructions, the majority Opinion largely disregards the
detailed framework in Satterfield in favor of applying the “default position” that “there is
a duty,” citing both Satterfield and The Restatement (Third) of Torts. The majority
Opinion therefore holds, without any discussion of the factors outlined in Satterfield, that
it “cannot conclude that the trial court erred in its ruling denying Ford’s motion
concerning the duty issue.” Respectfully, I believe that the majority’s decision is based
on a mischaracterization of the holding in Satterfield.

        As previously discussed, the Satterfield court did not rule that the existence of a
duty was the “default position.” Instead, the court adopted intricate rules for determining
this issue—a legal issue that must be resolved by the court, not the fact-finder. Indeed,
the Satterfield court never uses the term “default” to discuss its adopted rule. See
                                            -2-
Satterfield, 266 S.W.3d at 366–75. Although the court did recognize that duty may often
be “a given” in many cases, that certainly is not the case here, where the parties have
devoted extensive argument to this issue. In fact, as pointed out by Ford, no Tennessee
court has ever extended the duty of care to not only the users of a manufacturer’s product,
but also to the members of the user’s household. See id. (involving asbestos exposure as a
result of the family member’s employment with the defendant). Because the Satterfield
majority applied its balancing analysis in that case, the same must be necessary here
where the connection between the plaintiff and defendant is even more attenuated.

       Rather than apply the Satterfield framework, the majority Opinion reaches its
conclusion based upon The Restatement (Third) of Torts, which defines the duty broadly
and only requires the court to decide duty “in exceptional cases” where public policy
“warrants denying or limiting liability.” Restatement (Third) of Torts: Phys. & Emot.
Harm § 7 (2010); see also Benjamin C. Zipursky, Foreseeability in Breach, Duty, and
Proximate Cause, 44 Wake Forest L. Rev. 1247, 1251 (2009) (describing this rule as one
of “default”). Although the Satterfield majority cites The Restatement (Third) of Torts
for another proposition, the Satterfield majority neither cites nor adopts the above
language creating a default rule with regard to duty. Rather, as discussed above, the
Satterfield majority created an arguably complicated framework for courts to utilize in
determining the issue of duty. Satterfield, 266 S.W.3d at 367.

        It is exactly this framework that forced Justice Janice Holder to dissent in
Satterfield. See Satterfield, 266 S.W.3d at 375 (Holder, J., dissenting). Indeed, in her
dissent, Justice Holder specifically takes issue with the Satterfield majority’s
“problematic” “formulation” that injects foreseeability and public policy considerations
into the duty determination. Id. at 377. Instead, Justice Holder would apply a rule where
“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. In support, Justice Holder
cites the provisions of The Restatement (Third) of Torts that the majority of this Court
now uses to support its imposition of a default rule. Clearly, Justice Holder’s presumption
is largely synonymous with the default rule championed by the majority of this Court.1
Such a rule, however, is simply not reflective of the majority Opinion in Satterfield, and
therefore, does not reflect current Tennessee law.

       While my learned colleagues and I may question the wisdom of the rule set forth
in Satterfield, it is simply not our place to disregard binding precedent set forth by our
supreme court. “The Court of Appeals has no authority to overrule or modify Supreme
Court’s opinions.” Bloodworth v. Stuart, 221 Tenn. 567, 572, 428 S.W.2d 786, 789
(Tenn. 1968) (citing City of Memphis v. Overton, 54 Tenn. App.[] 419, 392 S.W.2d 86
(Tenn. 1964)); Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976). As such, “[o]nce the

1
  Perhaps this is why the majority in this case chooses to discuss Justice Holder’s dissent in more depth
than the Satterfield majority.
                                                  -3-
Tennessee Supreme Court has addressed an issue, its decision regarding that issue is
binding on the lower courts.” Morris v. Grusin, No. W2009-00033-COA-R3-CV, 2009
WL 4931324, at *4 (Tenn. Ct. App. Dec. 22, 2009) (quoting Davis v. Davis, No. M2003-
02312-COA-R3-CV, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct. 12, 2004)); see also
Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997) [moved](quoting
State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995)) (“[I]t is a controlling principle that
inferior courts must abide the orders, decrees and precedents of higher courts. The
slightest deviation from this rigid rule would disrupt and destroy the sanctity of the
judicial process.”); Levitan v. Banniza, 34 Tenn. App. 176, 185, 236 S.W.2d 90, 95
(Tenn. Ct. App. 1950) (“This court is bound by the decisions of the Supreme Court.”).
Respectfully, in failing to apply the framework adopted by the majority in Satterfield in
favor of a “default position” more closely akin to the dissenting Opinion in Satterfield,
the majority Opinion misstates current Tennessee law.

       Moreover, I cannot agree that the procedural posture of this case has any effect on
this analysis. In Satterfield, the trial court dismissed the plaintiff estate’s claim based
upon a motion for judgment on the pleadings. Satterfield, 266 S.W.3d at 351. The
Tennessee Supreme Court noted, however, that its ruling “does not foreclose the
possibility that [the plaintiff estate] will not be able to present sufficient evidence to
support her claim,” and indicating that the proof may be tested through either a motion
for summary judgment or a motion for a directed verdict after the presentation of proof.
Id. at 375. In contrast, in this case, the trial court determined that a duty existed and
allowed this case to proceed to a trial on the merits. As such, unlike the court in
Satterfield, we now have the benefit of all of the evidence presented by Appellees to
support their assertion that Ford owed a duty to Mrs. Stockton. Accordingly, we are in an
even better position than the court in Satterfield to determine whether Appellees
presented sufficient evidence of a duty in this case.

        The purpose of this partial dissent is not to suggest that the trial court derogated its
own duty to answer the question of whether Ford owed a duty under the circumstances
presented. Indeed, as both the majority Opinion and Judge Swiney’s concurrence point
out, I agree that the trial court concluded that Appellees presented sufficient evidence of a
duty to deny both a pre-trial motion and a motion for judgment in accordance with a
directed verdict on this issue.2 Rather, I filed this partial dissent only to question the
majority’s failure to likewise analyze the duty question, a question which remains at all
times an issue of law that is reviewed de novo by this Court. Id. at 355. The majority
Opinion, however, 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. I simply cannot agree that the procedural posture of a case may operate to
transform a legal issue into a factual one. See generally Marla H. v. Knox Cty., 361
S.W.3d 518, 530–37 (Tenn. Ct. App. 2011) (undertaking a detailed analysis of whether

2
    I express no opinion, however, as to whether the trial court reached the correct decision.
                                                      -4-
the defendant owed a duty under the Satterfield factors, despite the fact that a trial on the
merits had occurred and the defendant was found liable). Duty is therefore a legal issue to
be decided by the court regardless of the procedural posture of the case on appeal. See
Satterfield, 266 S.W.3d at 355; Marla H., 361 S.W.3d at 530–37. Consequently, I remain
of the opinion that this issue must be decided by this Court using the factors outlined in
Satterfield, even where the case has been tried on the merits before a jury.

       In sum, I disagree that Tennessee law applies a “default rule” with regard to duty.
Because duty is a legal issue for the court’s consideration, rather than simply affirm the
trial court’s decision without analysis, I would apply the framework adopted by the
Satterfield majority to determine whether Ford owed a duty in this case.3 Ford ostensibly
concedes that the risk of harm to Mrs. Stockton was foreseeable. Ford disagrees,
however, that the factors outlined in Satterfield establish a duty on its part to Mrs.
Stockton. As such, I would address the Satterfield factors and their application to this
case in order to determine whether a duty exists. Only if Ford’s duty to Mrs. Stockton is
established would I proceed to consider the propriety of the jury instructions. I therefore
respectfully dissent in part from the majority Opinion.



                                                        _________________________________
                                                        J. STEVEN STAFFORD, JUDGE




3
 Indeed, the parties have extensively briefed this very issue, apparently assuming that this Court would
address it.
                                                 -5-
