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From Products Liability Law Daily, March 10, 2014

Selection of options by shuttle bus owner and rental car company does not make them designers

By Pamela C. Maloney, J.D.

Neither the owner of an airport shuttle bus nor the bus owner’s franchisor (a car rental company) were liable for injuries to a passenger who was ejected from a bus window during an accident because neither company was a designer of the product as defined by the Tennessee Products Liability Act (TPLA), the Tennessee Court of Appeals determined. The appeals court also found that there was ample evidence to support the jury verdict and that jury instructions on allocation of fault were proper (Lake v. Memphis Landsmen, LLC, March 7, 2014, Farmer, D.).

Background. The passenger sustained a severe brain injury when a concrete truck collided with the shuttle bus in which he was riding and he was ejected through a window. The passenger and his wife filed negligence and TPLA claims against Metrotrans, the manufacturer of the bus, Hehr International, Inc., the manufacturer of the bus’s windows, Memphis Landsmen, LLC, the owner of the bus, and Budget Rent a Car System Inc., the bus owner’s franchisor, contending that the bus was unsafe because it was not equipped with passenger seatbelts, it had side windows made of tempered glass rather than laminated glass, and it provided perimeter seating instead of forward-facing rows. The passenger and his wife settled with the truck driver prior to trial, after which the jury determined that the passenger and his wife had suffered damages of over $8.5 million and that the driver of the concrete truck was 100 percent at fault for the accidents. None of the other defendants were found liable. On a second appeal to the Tennessee Supreme Court on the preemption issues raised, the state high court determined that the evidence on the perimeter seat claim was sufficient to avoid summary judgment and remanded the case. On remand, the passenger and his wife challenged the findings of fault and the jury instructions on apportionment of fault to the non-party truck driver, as well as the dismissal of claims against Landsmen and Budget.

Designer liability. The passenger and his wife argued that Landsmen and Budget were designers of the shuttle bus and were, therefore, included within the TPLA’s definition of manufacturer. The evidence showed that pursuant to Budget’s specifications, Landsmen ordered the shuttle bus without passenger seatbelts or forward-facing seating, even though the bus’s manufacturer offered both options. This was not sufficient for the court to consider these companies designers or manufacturers of the shuttle bus. Strict liability for designers was appropriate in instances in which a company exercises strict control over the design and testing of a product, even though the product is not manufactured by the company; it was not appropriate when the consumer merely makes design specifications. In addition, TPLA provides that the product must be in a defective condition when it leaves the manufacturer’s control. In this case, the shuttle bus never left the control of Landsmen and Budget.

Comparative fault. The passenger and his wife also challenged the jury’s finding that the driver of the concrete truck was 100 percent at fault, as well as the court’s placement of the truck’s driver on the jury verdict form. Based on testimony by an accident reconstruction expert, the court found that the accident occurred because the concrete truck failed to yield the right-of-way to the shuttle bus. Despite the passenger’s argument that the case involved two separate impacts: (1) the concrete truck’s collision with the shuttle bus, and (2) the shuttle bus’s collision with a light pole, which ejected the passenger from the bus (which the passenger argued was the proximate cause of his injuries), the court found that the initial collision was clearly a substantial factor in bringing about the passenger’s injuries, which were a reasonably foreseeable result of the truck driver’s negligence. According to the court, the passenger failed to cite any rule or policy that should relieve the truck driver of liability.

The court went on to find that under Tennessee’s comparative fault principles and the non-party defense, which allows juries to apportion fault to a culpable person even though they were not a party to the lawsuit, the trial court had properly included the truck driver’s name on the verdict form. The court rejected the passenger’s argument that the jury should have been informed as to the consequences of assigning 100 percent of the fault to a non-party which, in this case, meant the passenger would be unable to recover any of the awarded damages. The court stated that the policy that drove the Tennessee Supreme Court to adopt comparative negligence in the first place—establishing a closer link between liability and fault—supported withholding this information from the jury. If the jury knew that a plaintiff would not be able to recover its full award from one negligent actor, the percentage of negligence the jury allocated to another negligent actor from whom the plaintiff could recover might be inflated.

The case number is W2011-00660-COA-RM-CV.

Attorneys: C. Phillip M. Campbell (Apperson Crump) for Clifton A. Lake. Kenneth R. Rudstrom (Spicer Rudstrom PLLC) for Memphis Landsmen, LLC. Molly A. Glover (Burch, Porter & Johnson, PLLC) for Metrotrans Corp. Kirk A. Caraway (Allen, Summers, Simpson, Lillie & Gresham) for Budget Rent A Car System, Inc.

Companies: Memphis Landsmen, LLC; Metrotrans Corp.; Budget Rent A Car System, Inc.

MainStory: TopStory DesignManufacturingNews SCLIssuesNews DefensesLiabilityNews MotorEquipmentNews TennesseeNews

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