                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                January 23, 2014 Session

 CLIFTON A. LAKE, ET AL. v. THE MEMPHIS LANDSMEN, LLC, ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                No. CT-00-6094-00      John R. McCarroll, Jr., Judge


                No. W2011-00660-COA-RM-CV - Filed March 7, 2014


This appeal is from a jury verdict in a negligence and products liability case. Plaintiff-
Husband suffered a traumatic brain injury when he was a passenger on a bus that collided
with a concrete truck. Plaintiff-Husband and Plaintiff-Wife filed suit against the bus
manufacturer, the bus owner, and the bus owner’s franchisor. The jury found that the
Plaintiffs suffered $8,543,630 in damages, but apportioned 100% of the fault for the collision
to the owner of the concrete truck, with whom the Plaintiffs reached a settlement prior to
trial. Plaintiffs appealed. We find that the jury’s verdict was proper and is supported by
material evidence. We therefore affirm the judgment of the trial court.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which D. M ICHAEL S WINEY, J.
and J. S TEVEN S TAFFORD, J., joined.

C. Phillip M. Campbell and Gary K. Smith, Memphis, Tennessee, for the appellants, Clifton
A. Lake and Charleen J. Lake.

Kenneth R. Rudstrom, Memphis, Tennessee, and James E. Singer, Atlanta, Georgia, for the
appellee, The Memphis Landsmen, LLC.

Molly A. Glover, Anna Vergos Blair, Eric J. Lewellyn, Aaron Robert Parker and Steven N.
Snyder, Jr., Memphis, Tennessee, for the appellee, Metrotrans Corporation.

Kirk A. Caraway, Heather Webb Fletcher and James Branson Summers, Memphis,
Tennessee,for the appellee, Budget Rent A Car System, Inc.
                                               OPINION

                                           I. B ACKGROUND

        On March 18, 1998, Clifton Lake (“Lake”) was injured when a 60,000 pound concrete
truck owned by Horn Lake Redi-Mix (“Horn Lake”) collided with the shuttle bus on which
he was riding near Memphis International Airport. The collision spun the back of the bus
into a light pole and Lake, one of two passengers on the bus, was thrown through one of the
bus’s side windows, landing on the concrete curb and suffering a traumatic brain injury.
Lake, an attorney from Chicago, had arrived that morning and was riding the bus from the
airport to a Budget Rent A Car location to pick up his rental car. The shuttle bus was owned
by Memphis Landsmen, L.L.C. (“Landsmen”), which owned and operated the Budget Rent
A Car office pursuant to a franchise agreement with Budget Rent A Car System, Inc.
(“Budget”). Landsmen purchased the shuttle bus directly from the manufacturer, Metrotrans
Corporation (“Metrotrans”). Metrotrans manufactured the shuttle bus in 1995. The windows
used in the shuttle bus were manufactured by Hehr International, Inc. (“Hehr”).

        Lake and his wife, Charleen Lake (collectively, the “Plaintiffs”), commenced this suit
on October 18, 2000.1 Having settled their claim against Horn Lake out of court, the
Plaintiffs named Metrotrans, Landsmen, Budget (collectively, the “Defendants”), and Hehr.
The trial court granted summary judgment in favor of Hehr, and the Plaintiffs later amended
their complaint to remove the claim against Hehr.

        The Plaintiffs asserted a cause of action for negligence against each of the Defendants.
They contended that the bus driver failed “to exercise ordinary and reasonable care” in his
operation of the bus and that Landsmen was vicariously liable as the driver’s employer. The
Plaintiffs contended that Metrotrans was negligent for the manufacture and sale of a bus
without passenger seatbelts and that Landsmen was negligent for purchasing and using the
bus when it had the option to install seatbelts and could have done so at a “relatively small
cost.” The Plaintiffs contended that Budget was negligent based on a franchise theory of
agency, claiming that Landsmen acted as an agent of Budget in purchasing and using the
shuttle bus. The Plaintiffs also contended that Budget acted negligently by not requiring its
franchisees to include passenger seatbelts on shuttle buses.

      The Plaintiffs also contended that each of the Defendants was strictly liable under the
Tennessee Products Liability Act of 1978 (“Products Liability Act”). Tenn. Code Ann. §§
29-28-101 to -108 (2012). The Products Liability Act provides, in pertinent part, that the


        1
        The Plaintiffs originally filed suit in federal court in the Western District of Tennessee, however
the complaint was dismissed on October 16, 2000 after the addition of a non-diverse defendant.

                                                   -2-
“manufacturer or seller of a product” may be held liable for injuries caused by the product
if the product is “in a defective condition or unreasonably dangerous at the time it left control
of the manufacturer or seller.” Id. § 29-28-105(a). The Plaintiffs argued that the bus was in
a defective condition and was unreasonably dangerous because it lacked passenger seatbelts,
had side windows made of tempered glass rather than laminated glass, and used perimeter
seating rather than forward-facing seats.

       Each of the Defendants moved for summary judgment. Among other things, the
Defendants contended that the Plaintiffs’ claims based on the material used in the side
windows and the lack of passenger belts were preempted by Federal Motor Vehicle Safety
Standard (“FMVSS”) 205 and 208. See 49 C.F.R. §§ 541.205, .208 (1995). The trial court
granted partial summary judgment to Landsmen and Budget as to the products liability claims
because neither was a manufacturer or seller of the shuttle bus, however it otherwise denied
the motions, including the Defendants’ assertion of preemption.

        Over the course of three weeks in August 2008, the case was tried before a jury. At
the close of the Plaintiffs’ proof, each of the Defendants moved for a directed verdict. The
trial court denied each of the motions. At the close of all proof, the Defendants each renewed
their motions for directed verdict. At that time, the trial court granted Budget’s motion on
the issue of agency, and also granted a directed verdict as to the bus driver’s negligence,
ruling that there was insufficient evidence as a matter of law to demonstrate that the bus
driver caused or contributed to Lake’s injuries. The trial court denied the motions for
directed verdict as to all other issues.

       Following trial, the jury found that the Plaintiffs had suffered damages of $8,543,630.
However, the jury found that Horn Lake, which was not a party to the suit, was 100% at fault
for the accident and that none of the Defendants were at fault for the Plaintiffs’ injuries.
After the Plaintiffs’ motion for a new trial was denied, the Plaintiffs timely appealed.

        On appeal, this Court determined that the Plaintiffs’ state law claims regarding the use
of tempered glass in the shuttle bus’s side windows were preempted by FMVSS 205. Lake
v. Memphis Landsmen, L.L.C., No. W2009-00526-COA-R3-CV, 2010 WL 891867, at *9
(Tenn. Ct. App. Mar. 15, 2010) (“Lake I”). Additionally, the Court determined that the
Plaintiffs’ claim regarding the lack of passenger seatbelts on the bus was preempted under
FMVSS 208. Id. at *11. Having determined that preemption precluded recovery on those
claims, the Court observed that the Plaintiffs’ only remaining claim was based on the bus’s
perimeter seating arrangement. Id. at *12. In order to fully adjudicate the matter, the Court
considered the trial court’s denial of the Defendant’s motion for directed verdict on the
perimeter seating claim. Id. The Court concluded that because there was no evidence that
Lake was seated at the time of the accident, a finding that his injury was caused by perimeter

                                               -3-
seating would have been pure speculation by the jury. Id. at *13. Therefore, the Court held
that the trial court should have directed a verdict for the Defendants at the close of the
Plaintiffs’ proof and declined to address the remaining issues in the case. Id.

        Shortly after the decision in Lake I, the United States Supreme Court issued its ruling
in Williamson v. Mazda Motor of America, Inc., 131 S.Ct. 1131 (2011), which addressed the
circumstances when federal motor vehicle regulations preempt state law tort claims. In
March 2011, the Tennessee Supreme Court remanded Lake I for reconsideration in light of
Williamson. On remand, this Court found that the preemption analysis of Lake I was not
disturbed by the Williamson decision. Lake v. Memphis Landsmen, L.L.C., W2011-00660-
COA-RM-CV, 2011 WL 5022790, at *1 (Tenn. Ct. App. Oct. 21, 2011) (“Lake II”).
Subsequently, the Tennessee Supreme Court granted the Plaintiffs’ application for
permission to appeal from Lake II.

        On appeal, the Tennessee Supreme Court reversed Lake II, finding that the federal
motor vehicle regulations at issue did not preempt the Plaintiffs’ state law claims with regard
to the use of tempered glass in the shuttle bus’s side windows or with regard to the lack of
passenger seatbelts. Lake v. Memphis Landsmen, L.L.C., 405 S.W.3d 47, 50 (Tenn. 2013).
Additionally, the Tennessee Supreme Court concluded that evidence on the Plaintiffs’
perimeter seating claim was sufficient to avoid a directed verdict, reversing the contrary
ruling in Lake I. Id. at 68. The case was remanded to this Court “to decide the remaining
issues raised but not determined in the initial appeal.” Id. at 69.

       On appeal, the Plaintiffs have raised the following issues, as we restate them:

       1.     Whether the trial court erred in denying the Plaintiffs’ Motion for New
              Trial or to Alter or Amend the Judgment?

       2.     Whether the trial court erred in failing to charge the jury as to the
              specific effect a finding of fault on the part of a non-party, Horn Lake,
              would have on the ultimate outcome?

       3.     Whether the jury’s verdict was contrary to the weight of the evidence
              and the trial court, as “thirteenth juror” should have set the verdict
              aside?

       4.     Whether the trial court erred in permitting Horn Lake to be placed on
              the verdict form?

       5.     Whether the trial court erred in granting partial summary judgment to

                                              -4-
       Memphis Landsmen and Budget on the products liability claim?

6.     Whether the trial court erred in granting Budget a directed verdict on
       the Plaintiffs’ claims of agency?

7.     Whether the trial court erred in admitting evidence of compliance with
       government standards?

8.     Whether the trial court erred in admitting a letter from former NHTSA
       general counsel dated August 19, 1992 into evidence?

9.     Whether the trial court erred in excluding from evidence a letter from
       former NHTSA general counsel dated December 17, 1996?

10.    Whether the trial court erred in denying the Plaintiffs’ motion in limine
       to preclude evidence of Lake’s alcohol use and its possible effects on
       his brain injury?

11.    Whether the trial court erred in admitting into evidence a series of
       letters that were made exhibits to Dr. Frank Helge’s deposition?

12.    Whether all of the above errors, singularly or combination, constituted
       error which materially prejudiced the Plaintiffs and more probably than
       not affected the judgment or resulted in prejudice to the judicial
       process?

Metrotrans also raises the following issues, as we restate them:


1.     Whether the trial court should have granted a directed verdict against
       the Plaintiffs’ claims based on the use of tempered glass in the
       windows?

2.     Whether the trial court should have charged the jury as to the rebuttable
       presumption that a product which complies with government standards
       is not unreasonably dangerous?

Budget also raises the following issue, as we restate it:

1.     Whether the trial court erred in not granting a directed verdict to

                                      -5-
               Budget on the issue of whether Budget owed a legal duty to the
               Plaintiffs?

                                  II. S TANDARD OF R EVIEW

       In reviewing a judgment based on a jury verdict, appellate courts are limited to
determining whether there is material evidence to support the verdict. Tenn. R. App. P.
13(d); Willis v. Settle, 162 S.W.3d 169, 176 (Tenn. Ct. App. 2004). When addressing
whether the verdict is supported by material evidence, appellate courts shall:

       (1) take the strongest legitimate view of all the evidence in favor of the verdict;
       (2) assume the truth of all evidence that supports the verdict; (3) allow all
       reasonable inferences to sustain the verdict; and (4) discard all countervailing
       evidence. Appellate courts shall neither reweigh the evidence nor decide
       where the preponderance of evidence lies. If the record contains “any material
       evidence to support the verdict, the jury’s findings must be affirmed; if it were
       otherwise, the parties would be deprived of their constitutional right to trial by
       jury.”

Whaley v. Perkins, 197 S.W.3d 655, 671 (Tenn. 2006) (internal citations and brackets
omitted). We review the trial court’s conclusions of law de novo without affording them a
presumption of correctness. Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007).

                                        III. A NALYSIS

                                          Jury Verdict

       The Plaintiffs’ first argument on appeal is that the trial court erred by denying their
motion for a new trial or to alter or amend judgment. The Plaintiffs filed their motion
pursuant to Tennessee Rules of Civil Procedure Rule 59 along with a memorandum of
support on October 10, 2008. Each of the Defendants subsequently filed a response and
memorandum opposing the Plaintiffs’ motion. On January 27, 2009, the trial court denied
the Plaintiffs’ motion without hearing or comment.

        When considering a motion for a new trial, the trial court judge acts as the thirteenth
juror and must independently weigh the evidence, determine the issues presented, and decide
whether the evidence supports the jury’s verdict. Dickey v. McCord, 63 S.W.3d 714, 718
(Tenn. Ct. App. 2001) (citation omitted). If the trial court weighs the evidence and is
satisfied with the jury’s verdict, the trial court must approve the verdict. Id. However, if the
trial court is not satisfied with the verdict, it must grant a new trial. Id. The trial court must

                                               -6-
perform its duty as thirteenth juror without regard to and without showing deference to the
jury’s result. Id. In the absence of comment by the trial court in approving the jury verdict,
we presume that the trial judge performed his function adequately. Miller v. Doe, 873
S.W.2d 346, 347 (Tenn. Ct. App. 1993) (citations omitted). “We cannot review the accuracy
of the trial court’s determination as thirteenth juror.” Overstreet v. Shoney’s, Inc., 4 S.W.3d
694, 718 (Tenn. Ct. App. 1999).

        Since the trial court approved the jury’s verdict without comment, we presume the
trial judge properly reviewed the evidence and agreed with the verdict. Thus, according to
our standard of review, we must uphold the jury’s verdict so long as there is some material
evidence to support it. Tenn. R. App. P. 13(d). After reviewing the record, we find that there
is ample material evidence in this case to support the jury’s apportionment of 100% of the
fault to non-party Horn Lake.

        The undisputed evidence shows that Landsmen purchased the shuttle bus from the
manufacturer, Metrotrans. The shuttle bus’s design did not violate any state or federal
regulations. Wayne McCracken, the Plaintiffs’ accident reconstruction expert, testified that
at the time of the accident, the shuttle bus was traveling twenty-eight miles per hour away
from the airport, and the Horn Lake concrete truck was approaching the airport, intending
to make a left turn. As the concrete truck made its left turn, it hit the driver’s side rear corner
of the shuttle bus at about ten miles per hour. The impact caused the back end of the shuttle
bus to slide around counterclockwise before hitting a light pole and coming to rest. Mr.
McCracken testified that the accident occurred because the concrete truck failed to yield to
the shuttle bus. He further stated that the driver of the shuttle bus could not have done
anything to avoid the accident. Indeed, the driver of the shuttle bus attempted to avoid the
accident by swerving right, although he was unable to do so. As the jury’s verdict is
supported by the foregoing material evidence, we see no reason to disturb it.

                                       Jury Instruction

        The Plaintiffs make two contentions with regard to the jury’s instructions in this case.
First, the Plaintiffs argue that the trial court erred by placing Horn Lake on the jury verdict
form. Second, the Plaintiffs contend that if Horn Lake was properly listed on the verdict
form, the trial court should have instructed the jury on the effects of allocating negligence
to Horn Lake as a non-party. We begin by addressing the Plaintiffs’ contention that Horn
Lake should not have been included on the jury form.

       For much of its history, Tennessee courts have applied the common law doctrine of
contributory negligence, which barred recovery by plaintiffs whose own negligence
contributed to their injury in any way. Carroll v. Whitney, 29 S.W.3d 14, 16 (Tenn. 2000)

                                                -7-
(citations omitted). However in 1992, the Tennessee Supreme Court abandoned contributory
negligence in favor of a system of modified comparative fault. McIntyre v. Balentine, 833
S.W.2d 52, 56 (Tenn. 1992). In doing so, the court sought a tighter fit between liability and
fault. Carroll, 29 S.W.3d at 16. Under the new system, a defendant would only be liable for
the percentage of damages that his or her own negligence caused. Id. at 16-17 (citing
McIntyre, 833 S.W.2d at 58.) Additionally, the court adopted the non-party defense,
allowing juries to apportion fault to a culpable person or entity though they are not a party
to the lawsuit. McIntyre, 833 S.W.2d at 58. The court recognized that without allowing
participants in the negligent act to share in the apportionment of fault, the tight fit between
fault and liability would be lost. Carroll, 29 S.W.3d at 20. Indeed, this Court has stated that,
“[t]he Trial Court has the responsibility to apportion fault to anyone having a degree of
culpability.” Lindgren v. City of Johnson City, 88 S.W.3d 581, 585 (Tenn. Ct. App. 2002)
(citing Carroll, 29 S.W.3d at 22; Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000); Bervoets v.
Harde Ralls Pontiac-Olds, Inc., 891 S.W.2d 905 (Tenn. 1994)).

       In spite of the unrefuted case law on this point, the Plaintiffs contend that Horn Lake
should not have been included on the verdict form because Lake’s injuries were proximately
caused by his ejection from the shuttle bus rather than the initial impact with the Horn Lake
concrete truck. The Plaintiffs argue that this case involves two separate impacts: (1) the
Horn Lake concrete truck’s collision with the shuttle bus, and (2) the shuttle bus’s collision
with a light pole, which ejected Lake from the bus. The Plaintiffs contend that Lake’s
injuries were all suffered after the second impact, therefore the jury should not have been
permitted to consider the first impact as a proximate cause.

        To prevail on a negligence claim, a plaintiff must prove two kinds of causation: cause
in fact and proximate cause. Kirkpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993).
Cause in fact and proximate cause are both “ordinarily jury questions, unless the
uncontroverted facts and inferences to be drawn from them make it so clear that all
reasonable persons must agree on the proper outcome.” Haynes v. Hamilton County, 883
S.W.2d 606, 612 (Tenn. 1994) (citation omitted). Cause in fact means that the injury would
not have occurred “but-for” the negligent conduct. Kirkpatrick, 868 S.W.2d at 598.
Proximate cause refers to the “cause and effect relationship between the tortious conduct and
the injury.” Id. (citations omitted). In Tennessee, courts consider three factors to determine
proximate cause: (1) whether the tortious conduct was a substantial factor in bringing about
the harm complained of; (2) whether there is some rule or policy that should relieve the
wrongdoer of liability because of the manner in which the tortious act resulted in the harm;
and (3) whether the harm could have been reasonably foreseen or anticipated by a person of
ordinary intelligence and prudence. Hale v. Ostrow, 166 S.W.3d 713, 719 (Tenn. 2005)
(citations omitted).



                                              -8-
       It is undisputed in this case that the negligence of Horn Lake’s driver caused the
concrete truck to collide with the shuttle bus. With regard to the proximate cause factors: (1)
the collision between the concrete truck and the shuttle bus was clearly a substantial factor
in bringing about Lake’s injuries; (2) the Plaintiffs do not cite any rule or policy that should
relieve Horn Lake of liability; and (3) Lake’s injuries were a reasonably foreseeable result
of Horn Lake’s negligence. In the absence of any clearly defined reason why Horn Lake’s
negligence could not be a proximate cause of Lake’s injuries, the trial court was correct to
submit that question to the jury. We therefore find no error in the trial court’s inclusion of
Horn Lake on the verdict form.

         We turn now to the Plaintiffs’ contention that the trial court erred by failing to charge
the jury as to the effect of a finding of fault on the part of Horn Lake. At the close of the
trial, the jury found that none of the Defendants were negligent, but that non-party, Horn
Lake, was. The jury attributed 100% of the fault for the Plaintiffs’ injuries to Horn Lake.
The jury went on to find that Lake sustained damages of $6,834,928 and that his wife
sustained damages of $1,708,702–a total award of $8,543,630. However, because 100% of
the fault was attributed to Horn Lake, and Horn Lake was not a party to the litigation, the
Plaintiffs were unable to recover any of the awarded damages. On appeal, the Plaintiffs
contend that the jury was misled by the court’s instructions and should have been informed
as to the consequences of assigning 100% of the fault to a non-party.

        The Plaintiffs rely primarily on McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn.
1992), the seminal case in Tennessee on comparative fault, for the proposition that the jury
should be instructed on the effect of its findings as to the percentage of negligence between
the parties. Indeed, McIntyre states that “the trial court shall instruct the jury on the effect
of the jury’s finding as to the percentage of negligence as between the plaintiff or plaintiffs
and the defendant or defendants.” Id. at 57 (citing Colo. Rev. Stat. § 13-21-111.5(5) (1987)).
However, the Plaintiffs’ reliance on McIntyre is misplaced. Though McIntyre provides that
juries are to be informed of the effect of allocating fault as between plaintiffs and defendants,
the same rule does not apply to the allocation of fault between multiple defendants or
defendants and non-parties. In fact, the Colorado statute that the McIntyre court relied upon
for the proposition specifically states that, “the jury shall not be informed as to the effect of
its finding as to the allocation of fault among two or more defendants.” Colo. Rev. Stat. §
13-21-111.5(5) (1987). The reason for the distinction goes back to the previously discussed
policy that drove the Tennessee Supreme Court to adopt comparative negligence in the first
place: establishing a closer link between liability and fault. See McIntyre, 833 S.W.2d at 58.
If the jury knows that a plaintiff will not be able to recover its full award from one negligent
actor, the percentage of negligence the jury allocates to another negligent actor from whom
the plaintiff can recover could be inflated. In Carroll v. Whitney, 29 S.W.3d 14 (Tenn.
2000), the Tennessee Supreme Court addressed this issue when determining whether non-

                                               -9-
parties could be allocated liability at all, stating that if they could not, “the likelihood is great
that the jury will allocate to a defendant fault that properly lies elsewhere.” Id. at 20 (citation
omitted). The Carroll court’s decision clearly elucidates the preference in Tennessee to
protect a defendant from liability greater than his or her proportional fault, even though such
protection may come at the expense of plaintiffs. Id. at 20 (“Through our rejection of joint
and several liability in McIntyre, we shifted to plaintiffs the risk that no recovery could be
obtained due to the presence of judgment-proof tortfeasors.”).

        Turning back to the facts of the present case, logic dictates that had the jury been
specifically instructed that the Plaintiffs could not recover damages from Horn Lake, the jury
may have inflated the liability of the Defendants, thereby destroying the close link of fault
and liability sought by the court in McIntyre. In light of the foregoing, we conclude that the
trial court was not required to instruct the jury on the effect of allocating fault to Horn Lake.
Accordingly, we find no error in the trial court’s jury instruction.

                      Landsmen and Budget Products Liability Claims

        In their complaint, the Plaintiffs asserted a cause of action against each of the
Defendants for strict liability under the Products Liability Act. Tenn. Code Ann. §§ 29-28-
101 to -108. The trial court subsequently granted partial summary judgment to Landsmen
and Budget with respect to the Plaintiffs’ products liability claims. The Plaintiffs contend
that the trial court erred in doing so.

        A grant of summary judgment is appropriate only where the moving party can
demonstrate that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. Tenn. R. Civ. P. 56.04; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5
(Tenn. 2008). “When ruling on a summary judgment motion, the trial court must accept the
nonmoving party’s evidence as true and resolve any doubts concerning the existence of a
genuine issue of material fact in favor of the nonmoving party.” Dick Broadcasting Co., Inc.
of Tennessee v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013) (citations omitted).
“A grant of summary judgment is appropriate only when the facts and the reasonable
inferences from those facts would permit a reasonable person to reach only one conclusion.”
Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (citations omitted). The
trial court’s grant or denial of a motion for summary judgment is a question of law, which
we must review de novo without a presumption of correctness. Sherrill v. Souder, 325
S.W.3d 584, 596 (Tenn. 2010) (citation omitted).

       The Products Liability Act provides that a cause of action for injury caused by a
defective or unreasonably dangerous product may be brought against a manufacturer or seller
of the product. See Tenn. Code Ann. § 29-28-103. It defines a manufacturer as “the

                                                -10-
designer, fabricator, producer, compounder, processor or assembler of any product or its
component parts.” Tenn. Code Ann. § 29-28-102(4). It defines a seller as “retailer,
wholesaler, or distributor, and means any individual or entity engaged in the business of
selling a product, whether such sale is for resale, or for use or consumption,” as well as “a
lessor or bailor engaged in the business of leasing or bailment of a product.” Tenn. Code
Ann. § 29-28-102(7). After considering the issue, the trial court granted summary judgment
to Landsmen and Budget, ruling that the Plaintiffs could not recover damages from either on
a products liability theory because they had not manufactured or sold the shuttle bus or any
of its component parts. The Plaintiffs argue that summary judgment was improper because
Landsmen and Budget may be considered either a manufacturer or seller of the shuttle bus,
which they contend was unreasonably dangerous. We disagree.

        The Plaintiffs contend that Budget and Landsmen were designers of the shuttle bus
and are therefore included in the Products Liability Act’s definition of manufacturer.
Viewing the evidence in the light most favorable to the Plaintiffs, it appears that Landsmen
ordered the shuttle bus, pursuant to Budget’s specifications, without passenger seatbelts or
forward-facing seating, even though Metrotrans offered both options. We are unconvinced
that Landsmen and Budget may be considered designers or manufacturers of the shuttle bus
merely by choosing one of several options Metrotrans offered. Strict liability for designers
is appropriate in instances in which a company that “exercises strict control over the design
and testing of a product, even though the product is not manufactured by the company;” not
where the consumer merely makes design specifications. 63 A M. J UR. 2 D Products Liability
§ 87 (2010); see also Bittler v. Doyen & Associates, Inc., 648 N.E.2d 1028, 1031 (Ill. App.
Ct. 1995) (“Specifications are not intended as a substitute for a safe design and manufacture
in accordance with the various safety statutes.”). Additionally, the language of Tennessee
Code Annotated section 29-28-105(a) dictates that strict liability does not apply unless the
injury results from a product that is in a “defective condition or unreasonably dangerous
condition at the time it left control of the manufacturer or seller.” (emphasis added). As this
Court has previously noted, that language indicates that a product must “actually leave the
control of the manufacturer [or seller], . . . in order to be held strictly liable as a manufacturer
[or seller] under the statute.” Leatherwood v. Wadley, 121 S.W.3d 682, 702 (Tenn. Ct. App.
2003). Here, it is undisputed that the shuttle bus never left control of Landsmen and Budget.

      Based on the foregoing, we find that no genuine issue of material fact exists as to
whether Landsmen or Budget were manufacturers or sellers of the shuttle bus under the
Products Liability Act. We therefore affirm the trial court’s grant of summary judgment to
them on the Plaintiffs’ products liability claim.




                                               -11-
                                     Evidentiary Rulings

       The Plaintiffs argue that the trial court erred in several instances with regard to the
admission and exclusion of certain evidence during the trial. We will review the Plaintiffs’
contentions while remaining mindful of the wide discretion trial courts are afforded in
determining the admissibility of evidence. Mercer v. Vanderbilt University, Inc., 134 S.W.3d
121, 131 (Tenn. 2004) (citation omitted). We will only overturn a trial court’s decision on
the admissibility of evidence where there is an abuse of that discretion. Id. The trial court
abuses its discretion “only when it applies an incorrect legal standard or reaches a decision
which is against logic or reasoning that causes an injustice to the party complaining.”
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citation omitted). We will not
substitute our own judgment for that of the trial court; rather, we will uphold the trial court’s
ruling so long as reasonable minds can reach differing conclusions as to its propriety. Id.

        We turn first to the Plaintiffs’ contention that the trial court erred by admitting
evidence that the shuttle bus was manufactured in compliance with government regulations,
specifically FMVSS 208. FMVSS 208 “specifies performance requirements for the
protection of vehicle occupants in crashes.” 49 C.F.R. § 571.208, S1. In buses weighing
10,000 pounds or less, FMVSS 208 requires both driver and passenger seatbelts. Id. §
571.208, S4.2.1. However in buses weighing over 10,000 pounds, such as the shuttle bus in
this case, FMVSS 208 only requires that the driver have a seatbelt, while remaining silent on
seatbelt requirements for passengers. Id. § 571.208, S4.4.2.1-.2, S4.4.3.1.

        In Tennessee, a party that is charged with negligently manufacturing a product may
introduce proof of its compliance with federal regulations to demonstrate that it has satisfied
its standard of care. Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 536 (Tenn. 2008).
Evidence of such compliance creates a rebuttable presumption that the product was not
unreasonably dangerous. Tenn. Code Ann. § 29-28-104. “Tennessee Code Annotated
section 29-28-104 was designed ‘to give refuge to the manufacturer who is operating in good
faith and [in] compliance of what the law requires him to do.’” Flax, 272 S.W.3d at 536
(quoting Tuggle v. Raymond Corp., 868 S.W.2d 621, 625 (Tenn. Ct. App. 1992)).

        The Plaintiffs contend that because FMVSS 208 is silent on passenger seatbelt
requirements for large buses, the trial court should not have allowed evidence that the shuttle
bus was “in compliance” with the regulation by not having any. They contend that allowing
the Defendants to state that they complied with federal regulation was misleading and
“presented a false implication of direct government endorsement.” We disagree. As we
noted above, both the Tennessee courts and the Tennessee General Assembly have
determined that compliance with government regulations is a relevant concern in products
liability cases. The shuttle bus in this case was in compliance with FMVSS 208 because it

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weighed over 10,000 pounds and had a sufficient seatbelt for its driver. To exclude evidence
of the shuttle bus’s compliance would undermine the purpose of Tennessee Code Annotated
section 29-28-104 as a refuge for good faith manufacturers who operate in compliance with
what the law requires them to do.

       Next, the Plaintiffs argue that the trial court erred in its evidentiary rulings on two
National Highway Transportation Safety Administration (“NHTSA”) letters offered as
evidence at trial. The NHTSA is the federal administrative agency charged with defining the
minimum safety standards for motor vehicles, like those at issue in this case. 49 C.F.R. §
1.95(a) (2012). The first letter was written in 1992 (“1992 NHTSA Letter”) by then chief
counsel of the NHTSA, Paul Jackson, and was admitted into evidence at trial. The second
is a 1996 letter (“1996 NHTSA Letter”) written by then chief counsel of the NHTSA, John
Womack, which was excluded from evidence. The Plaintiffs contend that the trial court
abused its discretion in both rulings.

        The 1992 NHTSA Letter addresses concerns that a bill pending in the New York state
legislature would be preempted by FMVSS 208. If passed, the bill would have required
passenger seatbelts on intercity buses operating in New York, with certain exceptions. The
1992 NHTSA Letter concludes that the proposed law is preempted by the federal regulation.
Additionally, it states that the “NHTSA expressly determined that there is not a safety need
for safety belts or another type of occupant crash protection” for passenger seats in buses
over 10,000 pounds. Though the letter is indisputably relevant to the question of whether the
shuttle bus was unreasonably dangerous when it was manufactured in 1995, the Plaintiffs
argue summarily that the letter should have been excluded as confusing to the jurors because
of its statements on preemption. In the absence of further explanation by the Plaintiffs, we
are unable to see how the danger of jury confusion substantially outweighed the probative
value of the 1992 NHTSA Letter. See Tenn. R. Evid. 403. We therefore conclude that the
trial court did not abuse its discretion in admitting the 1992 NHTSA Letter.

        The 1996 NHTSA Letter also addresses the issue of passenger seatbelts on buses over
10,000 pounds. The letter reiterates that the NHTSA has “not found sufficient justification”
to require passenger seatbelts on large buses. However, it goes on to state that the “NHTSA
does not prevent States and local jurisdictions that wish to order safety belts on large buses
from doing so . . . . bus owners are free to purchase their buses with safety belts installed if
they believe their particular circumstances warrant such installation.” The Defendants
objected to the introduction of the 1996 NHTSA Letter because it was written after the
manufacture of the shuttle bus. The trial court sustained the objection. The Plaintiffs offer
no evidence that the 1996 NHTSA Letter’s exclusion contravened logic or caused an
injustice to them; we therefore find no abuse of discretion in its exclusion.



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       Our disposition of the foregoing issues is sufficient to affirm the judgment of the trial
court. Discussion of the remaining issues is therefore pretermitted.

                                         IV. H OLDING

        For the foregoing reasons, we find that the trial court did not err in its instructions to
the jury, and the jury’s verdict was supported by material evidence submitted at trial.
Additionally, we find that the trial court did not err in granting summary judgment to
defendants Memphis Landsmen, L.L.C. and Budget Rent A Car System, Inc. on the issue of
products liability. Further, we find that the trial court did not abuse its discretion with regard
to the evidence admitted during the trial. All other issues are pretermitted. Consequently,
we affirm the judgment of the trial court. Costs of this appeal are taxed to the appellants,
Clifton Lake and Charleen Lake, and their surety, for which execution may issue if necessary.




                                                     _________________________________
                                                     DAVID R. FARMER, JUDGE




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