Impact of Lost Product Under Tennessee Products Liabilty Law

In Tatham v. Bridgestone Americas Holding, Inc., No. W2013-02604-SC-R11-CV (Tenn. Oct. 30, 2015), plaintiff brought a product liability action against defendants after her tire blew out and caused her to have a car accident, breaking her back. Plaintiff purchased rear tires for her vehicle from Firestone Complete Auto Care. She chose the tires because they were “the best value,” but could not remember whether the sales associate discussed any warranties with her. After having the tires installed, plaintiff never tested the air pressure and did not recall running over anything or having any problems with the tires. Less than three months after purchasing the tires, plaintiff was driving on the interstate when one of the tires suddenly failed, causing her to hit the guardrail and flip her car. According to a witness driving behind plaintiff, plaintiff was driving normally and a piece of black was flapping from the tire before the accident. When plaintiff’s car began to veer off the road, the witness saw something black that looked like pieces of a blow-out come out from under plaintiff’s car.

After the accident, a wrecker service towed plaintiff’s car, and her insurance company informed her the car was totaled. At the recommendation of her insurance company, plaintiff signed the title of her car over to the wrecker service, who subsequently destroyed the vehicle and tire. At this time, plaintiff had not yet hired an attorney. Eventually plaintiff did retain counsel and brought this product liability action on the grounds of strict liability, negligence, and breaches of the implied warranty of fitness, implied warranty of merchantability, and duty to warn.

Defendants moved for summary judgment two times, which the trial court denied. Defendants appealed, citing three issues: 1) whether the case should have been dismissed as a sanction for spoliation of evidence with regards to the destruction of the tire; 2) whether the trial court should have granted summary judgment as to causation and the issue of whether the tire was defective or unreasonably dangerous; and 3) whether the trial court should have granted summary judgment because Tennessee allegedly does not recognize the apparent manufacture doctrine.

Spoliation of Evidence

Defendants’ first argument was that the trial court should have dismissed plaintiff’s complaint because plaintiff destroyed the tire at issue. Here, Defendants asserted that the trial court improperly used plaintiff’s intentionality, or lack thereof, as the determining factor for whether sanctions should be enforced.

Tennessee Rule of Civil Procedure 34A.02 allows trial courts to impose Rule 37 sanctions on a party who “discards, destroys, mutilates, alters, or conceals evidence.” While historically sanctions for spoliation of evidence have hinged on whether the spoiling party acted with intentionality or an improper purpose, especially in regards to the specific sanction of a negative inference being drawn, the Court here rejected this approach. “In light of both Rule 34A.02 and the long-standing recognition…of a trial court’s inherent authority and wide discretion in imposing sanctions to ensure fundamental fairness and the proper administration of justice,” the Supreme Court held that “intentional misconduct is not a prerequisite for a trial court to impose sanctions for the spoliation of evidence, including that of a negative inference.” Instead, the Court held that “the analysis for the possible imposition of any sanction for the spoliation of evidence should be based upon a consideration of the totality of the circumstances.” The analysis of whether to impose sanctions should not be based on intentionality alone, but should be viewed on a case-by-case basis, and that the trial court should consider the following factors:

(1) the culpability of the spoliating party in causing the destruction of the evidence, including evidence of intentional misconduct or fraudulent intent;

(2) the degree of prejudice suffered by the non-spoliating party as a result of the absence of the evidence;

(3) whether, at the time the evidence was destroyed, the spoliating party knew or should have known that the evidence was relevant to pending or reasonably foreseeable litigation; and

(4) the least severe sanction available to remedy any prejudice caused to the non-spoliating party.

In the present matter, the Court pointed out that the tire was destroyed as part of a routine post-accident process, that plaintiff had not engaged in litigation or hired an attorney yet, and that she was not completely sure that the tire was going to be destroyed. Further, because of the timeline, neither party had the opportunity to examine the tire, plaintiff was not at any advantage, and defendants’ expert had access to the same information as plaintiff’s. While the trial court only mentioned intentionality in its ruling and did not explicitly reference any other factor, the Court affirmed the trial court’s refusal to impose a sanction, holding that it could not “conclude from the record that the trial court based its ruling on an incorrect legal standard.”

Causation and Defective or Unreasonably Dangerous Tire

Defendants’ second argument was that plaintiff could not establish causation or that the tire was defective or unreasonably dangerous without the tire itself. Further, defendants asserted that for the unreasonably dangerous condition claim, plaintiff would have to proceed under the prudent manufacturer test rather than the consumer expectation test, as they alleged that tires are a “complex” product. The Supreme Court rejected both of these arguments.

First, the Court found that a tire was not “complex” for purposes of making an unreasonably dangerous product claim. The Court noted that “the general driving populace understands the basic function and purpose of a tire,” and that therefore the court could consider the consumer expectation test in regards to plaintiff’s claim.

As to plaintiff’s ability to show causation and that the product was defective or unreasonably dangerous, the Court pointed to the evidence offered by plaintiff through the testimony of both the witness and plaintiff’s expert. The witness to the accident testified that plaintiff was driving normally, that there was black flapping under the car, and that what appeared to be pieces of a blow-out flew from under plaintiff’s car. Further, plaintiff’s expert testified that, based on the witness statements and his previous experience, there was likely a manufacturing defect related to the tread of the tire separating from the rest of the tire. The Court held that, through this evidence, plaintiff had created genuine issues of material fact as to whether the tire was defective and caused the accident, and the trial court was thus correct to deny summary judgment.

Apparent Manufacturer Doctrine

The final issue defendants raised here was whether the trial court erred in applying the apparent manufacturing doctrine, as defendants asserted that this doctrine has not been adopted in Tennessee. Under this doctrine, a company may be held “vicariously liable for an injury even when that company is not the actual manufacturer of the product.”

In support of its motion for summary judgment, defendants alleged that they were not the manufacturers of the tire in question, but that a Chinese company had in fact made the tire. In its order denying summary judgment, the trial court applied the apparent manufacturer doctrine to one of the defendants in the case, but the Supreme Court noted that this doctrine was only used as an alternative theory of liability. The trial court primarily relied on said defendant’s “potential liability as a seller,” as there was at least a genuine issue of material fact regarding whether defendant Bridgestone “had an opportunity to inspect the tire at issue and discover the defect alleged to have caused the accident.” Accordingly, because the trial court’s ruling was proper under Tennessee law for seller liability, the Supreme Court found that it “need not resolve the issue of application of the apparent manufacturer doctrine in Tennessee or with respect to Defendant Bridgestone.” Having found that the trial court acted properly regarding all the issues raised by defendants, the denial of summary judgment was affirmed.

This was clearly the correct result in this case. While destruction of the product in a product liability action is not ideal, in circumstances such as the ones at play in this case it should not bar a plaintiff from bringing a claim. Further, the absence of the product did not mean that there was no evidence or proof to be developed whatsoever. Witness testimony, expert testimony, and any remaining physical evidence could still be used by both parties to argue for and/or against liability. Both the trial court and the Supreme Court correctly found that this case should survive summary judgment and this plaintiff should have her day in Court.