                       IN THE COURT OF APPEALS OF TENNESSEE
                                    AT JACKSON


JEAN CAROLYN DOTSON,              )
                                  )
           Plaintiff/Appellee,    ) Weakley Circuit No. 2661
                                  )
VS.                               ) Appeal No. 02A01-9804-CV-00117
                                  )
AMANDA B. BLAKE, DAN BLAKE,       )
and the ESTATE OF ELVIS C.
MADDOX, SR., and MARTIN MANOR )
                                  )
                                                        FILED
ASSOCIATES, LTD.,                 )
                                  )     December 31, 1998
           Defendant/Appellant. )
                                         Cecil Crowson, Jr.
                                                        Appe llate Court C lerk
                    APPEAL FROMTHE CIRCUIT COUR OF W
                                                 T    EAKLEY COU   NTY
                                AT DRESDEN, TENNESSEE
                        THE HONORABLE WILLIAM B. ACREE, JR., JUDGE




MARIANNA WILLIAMS
ANTHONY L. WINCHESTER
ASHLEY, ASHLEY & ARNOLD
Dyersburg, Tennessee
Attorneys for Appellant Martin Manor Associates, Ltd.



DONALD E. PARISH
IVEY, PARISH & JOHNS, ATTORNEYS
Attorney for Appellee




AFFIRMED




                                                                     ALAN E. HIGHERS, J.




CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
        Defendant Martin Manor Associates (“MMA”) appeals the ruling of the trial court that no fault be

assessed against non-parties Hnedek, Bobo, Gooch and Associates (“Architect”) and S. Webster Haining &

Company (“Contractor”) when all claims against the non-parties were barred by the applicable statute of

repose. Defendant MMA also appeals the trial court’s refusal to instruct the jury with Tennessee Pattern Jury

Instruction 12.10 regarding the agent/independent contractor distinction and the trial court’s refusal to grant

a new trial where the jury apportioned zero fault to the drivers involved in the automobile collision.



                                  I. Factual and Procedural History



        Dotson filed a Complaint in circuit court for injuries she received in an automobile accident. The

original defendants were Amanda Blake, the driver of the vehicle which struck the vehicle in which Dotson was

a passenger; Dan Blake, the owner of the vehicle Amanda Blake was driving; and the Estate of Elvis C.

Maddux, Sr., the driver of the car in which Dotson was a passenger. Amanda Blake and Dan Blake filed an

Answer in which they plead that the direct and proximate cause of Plaintiff’s injuries was the negligence of the

City of Martin which at the time w a non-party. City of Martin was then added as a defendant. Martin Manor
                                  as

Associates (MMA), the party that designed and built the roadway w intersected Harrison Road, was later
                                                                 hich

added as a defendant.



        The Martin Manor apartment complex access road was located just over a hill on Harrison Road. The

accident occurred when Amanda Blake was traveling northbound on Harrison Road. The Maddox vehicle, in

which Dotson was a passenger, was travelingsouthbound on Harrison road and Maddox was executing a left

turn across the northbound lane of Harrison Road and into the apartment complex. As Amanda Blake drove

over thehill on Harrison road, she struck thevehicle asit was turning across her lane. Dotson suffered severe

injuries as a result of the accident.



        Defendant MM asserted that Hnedek, Bobo, Gooch and Associates designed the project on Harrison
                    A

Road and that S. Webster Haining & C pany constructed it. Plaintiff amended her complaint to add these
                                    om

two new defendants but these defendants were dismissed as Plaintiff’s claim against those defendants was

barred as a matter of law pursuant to the statute of repose found at Tenn. Code Ann. §28-3-202.




                                                       2
          Defendant MM filed a motion to Perm Attribution of Fault to N
                      A                      it                        on-Parties requesting that the Court

allow the jury to attribute fault to the Architect and the Contractor. The trial court denied Defendant MMA’s

motion. Prior to trial M m several requests for jury instructions including a request that the Court utilize
                        MA ade

Tennessee Pattern Instruction 3.53 “Where claim is m Against One Not Joined as a Party.” Defendant
                                                    ade

MMA submitted a Request for Jury Verdict Formwhich included attribution of fault to S. Webster Haining and

Hnedek, Bobo, Gooch and Associates. MM also requested Tennessee Pattern Jury Instruction 12.10 “Agent
                                      A

or Independent Contractor- Distinction” anda special instruction relatedto the relationshipbetween Defendant

and S. Webster Haining and Hnedek, Bobo, Gooch and Associates.



          At trial the court refused to charge thejury regardingattributionof fault to non-parties. Further the court

did not instruct the jury on the distinction between independent contractors and agents. The court did give an

instruction regarding duty of adjacent landowners to persons traveling on the highway. Defendant objected

to that instruction. The jury found in favor of Plaintiff and assigned 51% fault to MMA and 49%fault to City of

Martin.



          Defendants MM and City of Martin each filed Motions for New Trial. Defendant MMAargued that the
                       A

Court erred in failing to permit the attribution of fault to non-parties, in denying Martin Manor’sMotion to Amend

Answer, in erroneously charging thejury on the law regarding the duty of a landowner with respect to a street

abutting the landowner’s property, and in failing to charge the jury with Tennessee Pattern Jury Instruction

12.10, “Agent or Independent Contractor-Distinction.” Furtherm M argued that, in assigning no fault to
                                                              ore, MA

AmandaBlake or the late Elvis C. Maddox, Sr., the jury’s verdict was against the weight of the evidence. The

court denied those motions on December 5, 1997. This appeal by Defendant MMA followed. The City of Martin

also filed a Notice of Appeal and subsequently paid its part of the judgm An Order of Satisfaction and
                                                                         ent.

Judgment was entered by the court on April 13, 1998, with regard to the City of Martin. Defendants Amanda

Blake and Dan Blake also compromised and settled after the appeals were filed.



                                 II. Attribution of Fault to Non-parties



          At trial, Dotson alleged that the driveway to the Martin Manor Apartment complex was improperly

located near the crest of ahill andthat thiscreated ahazard w respect to access toand from Harrison Road.
                                                             ith

                                                          3
Hnedek, Bobo, Gooch & Associates (“Architect”) was the architectural firm which designed the complex and

S. Webster Haining & C pany(“Contractor”) w theconstruction company which built it. Dotson presented
                      om                   as

expert proof that the driveway was located in a dangerous location and that the design of the driveway failed

to meet engineering requirements. There was witness testimony that M relied upon the expertise of the
                                                                    MA

Architect and Contractor in building the driveway and that M had no formal training in the fields of
                                                            MA

construction and design.



           Dotson amended her C plaint tonameArchitect and Contractor as defendants. However, Architect
                               om

and Contractor successfully argued that Dotson’s claimagainst them was barred as a matter of law pursuant

to the statute of repose found at Tenn. Code Ann. §28-3-202. MM then sought to amend its Answer to assert
                                                               A

affirmatively the negligence of the Architect and Contractor in the event the jury found negligence in the

construction or design of the driveway. The Court deniedMMA’smotion inthisregard. MMA alsofileda Motion

to Perm Attribution of Fault to Non-Parties for the purpose of including Architect and Contractor in the pool
       it

of comparative fault since they were no longer parties to the suit. The trial court denied that motion. MMA

contends that the trial court erred in failing to allow the jury to consider the apportionm of fault to non-
                                                                                           ent

parties.



           Tennessee first adopted comparative negligence in the case of McIntyrev. Balentine, 833 S.W.2d 52

(Tenn. 1992) based in largepart uponprinciples of fairness. The Supreme Court recognizedthat their decision

would affect numerous legal principles surrounding tort litigation and that harmonizing these principles with

comparative fault must await another day. Id. at 57. The Court also stated that the treatm of non-parties
                                                                                          ent

should await an appropriate controversy. Id. at 60.



           Such appropriate controversy arose four years later in Ridings v. Ralph M. Parsons Co., 914 S.W.2d

79 (Tenn. 1996). Ridings was injured on the job and subsequently filed a tort action against the responsible

third parties. As Ridings was injured in the course of his employment, his only redress against his employer

was under the workers compensation law. However, the defendants sought to assign a percentage of fault to

Ridings’ employer in the tort action. The Supreme Court wascalled upon to decide whether a non-party against

whom the plaintiff could not legally maintain a cause of action in tort could nonetheless be apportioned a

percentage of fault with the corresponding result of reducing the liability of other responsible defendants.

                                                       4
        The SupremeCourt in Ridings held that since the plaintiff’s employer couldnot bemade aparty to the

plaintiff’s tort action for personal injuries sustained in the course of his scope of employment, the rationale of

McIntyrewould not perm fault to be attributed totheplaintiff’s employer. Ridings at 82. The Court concluded
                      it

that the plaintiff’s right to recover on allegations of negligence and strict liability must be determined without

reference to the employer’s conduct. Id. at 84. The Court stated that the rationale of McIntyre postulates that

fault may be attributed only to those persons against whom the plaintiff has a cause of action in tort. Id. at 81.



        The caseof Snyder v. Ltg. Lufttechnische GmbH, 955 S.W.2d 252 (Tenn. 1997) shed some light upon

the Ridings decision. Snyder was employed at a textilefactory andwasinjuredonthejobwhen he put his arm

inside a stalled machine. He filed a products liability action against the Germ manufacturer and seller of the
                                                                               an

machine. The defendants sought to have fault apportioned against the employer.



        The defendants in Snyder argued that Ridings should be overruled because it would force them to

bear that percentage of fault that would have beenassessedagainst the plaintiff’s employer. TheCourt stated

that they had carefully considered and rejected the same argument in Ridings.

                 [t]he rationale of McIntyre postulates that fault may be attributed only to the
                 persons against whomtheplaintiff has a cause of action in tort . . . Since the
                 plaintiff’s employer cannot be made a party to the plaintiff’s tort action for
                 personal injuries sustained in the course and scope of employment, the
                 rationaleof McIntyre, both as to principleand procedure, will not permit fault
                 to be attributed to the plaintiff’s employer.
                                                       ***
                 Limiting the parties to whom fault may be attributed to those subject to
                 liability accomplishes the policy objective of fairness and efficiency.

Snyder at 255-56 (citing Ridings at 81-83). The Court went on to say that there is no question that the Court

in Ridings considered the “fairness” arguments advanced here by the defendants and made a policy decision

to leave immune employers out of theassessment of fault. The Court thus declined thedefendant’s invitation

to reverse Ridings or otherw depart from the rule adopted in that decision. The Court ultimately held that
                            ise

product liability defendants in a suit based on negligence and strict liability may introduce relevant evidence

at trial that the employer’s alteration, change, improper maintenance, or abnormal use of the defendant’s

product was a cause in fact of the plaintiff’s injuries but the defendants may not ask the jury to assess fault to

the employer.



        In the case at hand, all claims against Architect and Contractor were barred by the statute of repose

                                                        5
found at Tenn. Code Ann. §28-3-202. The issue before this Court is whether the principles set out in Ridings

and Snyder would similarly bar the attribution of fault to non-parties immune from suit pursuant to a statute of

repose. For the following reasons, we hold that the rationale found in Ridings applies equally to statutes of

repose.



          The running of a statute of repose nullifies both the remedy and the right. Wyatt v. A-Best Products

Co., Inc. 924 S.W.2d 98, 102 (Tenn. App. 1995). Because a statute of repose sets the triggering event as

something other than accrual, it can have the effect of barring a plaintiff's claim before it accrues, most typically

before theplaintiff becomes awareof his or her injury. Id. at 102. A statute of repose is a substantive provision

because it expressly qualifies the right which the statute creates by barring a right of action even before the

injury has occurred if the injury occurs subsequent to the prescribed time period. Bruce v. Hamilton, 894

S.W 274, 276(Tenn. App.1993). Thispossibility has prom
   .2d                                                pted courts to hold that statutes of repose affect

the substantive right of a party to bring suit, as well as the remedy. Wyatt at 102.



          In Agus v. Future Chattanooga Development Corporation, 358 F.Supp. 246 (E.D.Tenn.1973), Judge

Wilson gave his interpretation of Tenn. Code Ann. §28-3-202 (then §28-314):

                  The intent of the Tennessee Legislature in passing Tenn. Code Ann. s.
                  28--314 was to insulate contractors, architects, engineers and the like from
                  liability for their defective construction or design of improvements to realty
                  where either the occurrence giving rise to the cause of action or the injury
                  happens more than four years after the substantial completion of the
                  improvement. Id. at 251.

The Tennessee Suprem Court looked at this statute in Watts v. Putnam County, 525 S.W.2d 488 (Tenn.
                    e

1975). The Court noted that the legislature “intended that architects, engineers, etc. not besubject to lawsuits

for the reasonscontemplatedbytheAct except for these injuries which occur w four yearsafter substantial
                                                                           ithin

completion, and such lawsuits must be brought in any event not later than five years after substantial

completion of the improvement.” Id. at 492. This conclusion is harsh, but it is demanded under the statutory

scheme. Id.



          The legislature has the constitutional power to enact statutes of repose which, by definition, have the

possible effect of barring a claim before it accrues. Wyatt at 104. See also Jones v. Five Star Engineering,

Inc., 717 S.W.2d 882, 883 (Tenn.1986) (upholding constitutionality of TPLA statute of repose); Harrison v.



                                                         6
Schrader, 569 S.W.2d 822 (Tenn.1978); Harmon v. Angus R. Jessup Assoc., Inc., 619 S.W.2d 522

(Tenn.1981). The Legislature creates such immunities for thepublic good, with the goal of making goods and

services more available and m affordable. It is a policy decision which benefits both potential defendants
                             ore

and potential plaintiffs. W a plaintiff is injured by the fault of a non-im
                           hen                                             mune defendant and an immune

defendant, the consequence of the immunity will fall on either theplaintiff or thenon-immune defendant(s). The

Tennessee Supreme Court in Ridings opted for suchconsequence tofall upon thenon-imm defendant(s).
                                                                                   une



        The statute of repose found at Tenn. Code Ann. §28-3-202 w enacted for the above-stated
                                                                  as

purposes. It the role of the legislature, not this Court, to pass on the wisdom of that purpose. Hargraves v.

Brackett Stripping Machine Co., 317 F.Supp. 676, 683 (E.D.Tenn.1970). A statute of repose is similar to a

blanket immunity (such as the employers immunity fromsuit in Ridings) as both can act as a complete bar to

a plaintiff bringing suit even before such cause of action accrues. In this arena of attribution of fault to non-

parties, this Court sees no reason to distinguish between a blanket statutory immunity and immunity pursuant

to a statute of repose.



        The Court in Ridings stated that fault may be attributed only to those persons against whom the

plaintiff has a cause of action in tort. As a statute of repose bars not only the remedy but also the right, it can

therefore be said that a plaintiff does not have a cause of action against a defendant immune under a statute

of repose. Therefore, under the rationale of Ridings, fault may not be attributed to a defendant immune from

suit pursuant to astatute of repose. For theforegoing reasons we find that the trial court did not err in refusing

to allow the jury to consider the apportionment of fault to non-parties Architect and Contractor.



        This Court would further point out that statutes of repose differ from statutes of limitation and this

opinion in no way addresses the issue of whether fault maybeattributed toa non-party against whoma statute

of limitations has run.



                                          III. Jury Instructions



        Appellant contends that the trial court erred in failing to instruct the jury with Tennessee Pattern Jury

Instruction 12.10 regarding the distinction between an independent contractor and an agent. A trial court

                                                        7
should give a requested instruction if it is supported by evidence, if it embodies a party’s theory of the case,

if it is a correct statement of the law and if its substance has not already been included in other parts of the

charge. Hayesv. G 216 Tenn. 39, 390S.W 213, 214(1965); Austin v. Mem
                 ill,                 .2d                           phis, 684 S.W.2d 624 (Tenn.

App. 1984).



        The following excerpts are taken from the trial court’s instructions to the jury.

                 The plaintiff also contends that the defendant, M     artin Manor Associates,
                 Limited, owned and m     aintained Southwood Apartment Drive and that this
                 driveway was in a dangerous location. As a result, the plaintiff is entitled to
                 recover against Martin M    anor.
                                                         ***
                 A party is at fault is you find that the party w negligent and that the
                                                                      as
                 negligence was a legal cause of the injury or damage for which a claim is
                 made.
                                                         ***
                 The allegations made against Martin Manor are that it constructed the
                 driveway at a location different fromthat authorized by the City of Martin and
                 that the drivewaywasin adifferent location becausethere w not adequate
                                                                               as
                 visibility of and for vehicles turning into the driveway from Harrison Road.

                 An owner of property which abuts a public street and who has created an
                 access way connecting its property to the public street for its private benefit
                 must exercise due care to construct and maintain the access way in a
                 reasonable and safe condition and is liable for injuries directly and
                 proximately resulting from its failure to reasonably do so.
                                                       ***
                 Martin Manor denies that the driveway is located in a dangerous place and
                 asserts that the driveway was built by the contractor who built the apartment
                 complex at a location selected by the architect.

                 The actions of the architect, Hnedek, Bobo, Gooch and Associates, and/or
                 the contractor, S. Webster Haining and Com pany, may beconsidered by you
                 in assessing whether the plaintiff has met her burden of establishing fault
                 against Martin Manor. You may not in making that determination assess fault
                 against the architect or contractor.

The jury instruction on the agent/contractor distinction would have been relevant if the jury was allowed to

assess fault to the Architect and Contractor. Under that scenario, the jury would need to know whether the

actions of the Architect or Contractor w attributableto M so as to apportion fault accordingly. However,
                                        ere              MA,

as the jury was correctly not permitted to assess fault to the non-parties, the issue of contractor versus agent

became irrelevant.



                 The jury was instructed that MMA w a defendant because it owned and maintained
                                                   as

the driveway is question. The trial judge also instructed the jury on the duty of an owner of property which

abuts a public street and who has created an access way connecting its property to the public street for its


                                                       8
private benefit. W MMA objected to such instruction at trial, such instruction has not been m an issue
                  hile                                                                       ade

on appeal. That instruction set out MM duties as the owner of the property. The jury was further told that
                                      A’s

MMA denies that the drivewayis locatedin adangerousplaceand assertsthat thedriveway wasbuilt by the

contractor who built the apartment complex at a location selected by the architect. The trial judge

then instructed the jurythat theactions of the Architect and/or theContractor may be consideredin assessing

whether the plaintiff has met her burden of establishing fault against MM but that they may not assess fault
                                                                         A

against the architect or contractor.



        The jury was instructed on the duties of MMA as ow of the property. They were told of M
                                                          ner                                  MA’s

contention that the driveway was built by Contractor and designed by Architect. They were then instructed to

consider the actions of those non-parties in assessing whether MMA was in fact a legal cause of the injuries

or damages. Although jury instruction 12.10 is a correct statement of the law, it does not appear to embody

MMA’s theory of the case. To the extent that MMA’s theory of the case embodied prohibiting the jury from

attributing thenon-parties fault toMMA, the trial judge’s other instructions adequately stated the law. The other

parts of the jury charge notified the jury that MM was pointing the finger at C
                                                  A                            ontractor and Architect and that

the jury was allowed to consider those non-parties’ actions in determining causation.



        For all the foregoing reasons, we find that the trial court did not err in failing to instruct the jury with

Tennessee Pattern Jury Instruction 12.10.



                                              IV. Jury Verdict



        Appellant’s final assertion of error is that the trial court erred in failing to grant a new trial where the

jury apportioned zero percent fault to the drivers involved in the automobile collision. Appellant contends that

the verdict of the jury wasagainst the weight of theevidence. Appellant points totheevidence that Blake failed

to activate her headlights on a dark, rainy December afternoon. Blake was having difficulty seeing from her

position in the car that afternoon and Blake may have been traveling in excess of the posted speed limit.

Appellant also points to the testimony of Mr. Snyder that Maddox took his eyes off the roadway long enough

to wave a greeting to Mr. Snyder.




                                                        9
         In reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the

evidence or to decide where the preponderance lies, but are limited to determining whether there is material

evidence to support the verdict; and in determining whether thereis material evidence to support the verdict,

the appellate court is required to take the strongest legitim view of all the evidence in favor of the verdict,
                                                             ate

to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain theverdict, and

to discard all the contrary. Crabtree Masonry Co., Inc. v. C&R Construction, Inc., 575 S.W.2d 4, 5 (Tenn.

1978).



         Upon reviewing the evidence in this case under the principles expressed above, we have concluded

that the verdict of the jury is supported by the evidence. There was testimony that the presence of a hill near

the location of the access road obstructs the vision of motorists approaching the intersection, or entering or

exiting the access road. There was testimony that other accidents took place at the location prior to the

accident givingriseto this suit. There wastestimony that the problemcouldhavebeencorrected by relocation

of the access road to the place originally designated in the plat submitted to the City of Martin. The City of

Martin received numerous complaints from members of the public and even a city Alderman expressing

concern about the danger of the hidden entrance way. Mrs. McM and other members of the apartment
                                                             inn

community discussed the dangerous access road with the MMA managers.



         There was am evidence concerning the obstruction of visibility at the accident site, including
                     ple

evidence of prior accidents in the same place. Taking thestrongest legitimate view of all the evidence in favor

of the verdict, allowing all reasonable inferences to sustain the verdict, and discarding all the contrary, the

jury’s verdict which assessed no fault to the drivers is supported by the evidence. For the foregoing reasons,

we hold that the trial court did not err in failing to grant a newtrial in this matter.



                                                V. Conclusion



         The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed to Appellant, for which

execution may issue if necessary.




                                                         10
                            HIGHERS, J.

CONCUR:



CRAWFORD, P.J., W.S.



FARMER, J.




                       11
