Note, The Tennessee Products Liability Act, 9 Mem.St.U.L.Rev. 105, 126 (1978). See also Abbott v. American Honda Motor Co., 682 S.W.2d 206, 211 (Tenn.App. 1984) (upholding jury instruction on the state of the art: "The language used by the trial judge closely followed that of the statute and was in conformity with our case law. See Ellithorpe, supra, at 519.

In cases decided prior to McIntyre, Tennessee courts had repeatedly held that the mere assertion of the plaintiff's negligence did not bar recovery in a strict products liability action brought in Tennessee. E.g., Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 521 (Tenn. 1973) ("Ordinary negligence, defined generally as the failure to exercise the care of a reasonably prudent man, is not a proper defense to strict liability actions."); Abbott v. American Honda Motor Co., 682 S.W.2d 206, 209 (Tenn.Ct.App. 1984) ("[C]ontributory negligence cannot be applied as a defense to strict liability."); see Sterling v. Velsicol Chem. Corp., 647 F. Supp. 303, 31314 (W.D.Tenn. 1986) (applying Tennessee law), aff'd in part, rev'd in part, 855 F.2d 1188, 1192 (6th Cir. 1988); Holt v. Stihl, Inc., 449 F. Supp. 693, 694 (E.D.Tenn. 1977) (applying Tennessee law). The Tennessee Supreme Court recognized two justifications for this rule: (1) "allowing ordinary negligence to bar strict liability would defeat the purposes for which the theory of strict liability was created"; and (2) "Tennessee courts have never allowed contributory negligence as a defense . . . to conduct which is culpable regardless of the care exercised by the defendant."

In determining whether a defendant has been afforded that right, the jury charge will be "viewed in its entirety" or "considered as a whole." Otis v. Cambridge Mutual Fire Insurance Co. 850 S.W.2d 439, 446 (Tenn. 1992); Abbott v. American Honda Motor Co. Inc., 682 S.W.2d 206, 209 (Tenn. App. 1984). In that respect, the State says that when the jury charge in this case is considered as a whole, the defendant was not deprived of his right to a correct and complete charge of the law because the correct and applicable standard was embodied in the life sentence instruction.

"Instead, we review the entire charge just as the jury would, Memphis St. Ry. v. Wilson, 69 S.W. 265, 265 (Tenn. 1901); Abbott v. American Honda Motor Co., 682 S.W.2d 206, 209 (Tenn.Ct.App. 1984), and we will not invalidate it as long as it fairly defines the legal issues involved in the case and does not mislead the jury." Grissom, 817 S.W.2d at 685 (citing Smith v. Parker, 373 S.W.2d 205, 209 (Tenn.

We begin our review of the challenged jury instructions with the understanding that we do not measure a trial court's jury instruction against the standard of perfection. Grissom v. Metropolitan Government of Nashville, 817 S.W.2d 679, 685 (Tenn.Ct.App. 1991) (citing Davis v. Wilson, 522 S.W.2d 872, 884 (Tenn.Ct.App. 1974)). "Instead, we review the entire charge just as the jury would, Memphis St. Ry. v. Wilson, 108 Tenn. 618, 69 S.W. 265, 265 (1901); Abbott v. American Honda Motor Co., 682 S.W.2d 206, 209 (Tenn.Ct.App. 1984), and we will not invalidate it as long as it fairly defines the legal issues involved in the case and does not mislead the jury." Grissom, 817 S.W.2d at 685 (citing Smith v. Parker, 213 Tenn. 147, 373 S.W.2d 205, 209 (1963); Illinois Cent. R. Co. v. Spence, 93 Tenn. 173, 23 S.W. 211, 215 (1893)).

In re Estate of Elam, 738 S.W.2d 169, 174 (Tenn. 1987); Benson v. Tennessee Valley Elec. Coop., 868 S.W.2d 630, 642-43 (Tenn.Ct.App. 1993). Our task on appeal is to review the instructions in their entirety, see Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992); Abbott v. American Honda Motor Co., 682 S.W.2d 206, 209 (Tenn.Ct.App. 1984), and to examine the challenged instruction in context to determine whether the instructions, as a whole, fairly and accurately embody the parties' theories.

Cortazzo v. Blackburn, 912 S.W.2d 735, 745 (Tenn. Ct. App. 1995). Instructions must be viewed as a whole, In re Estate of Elam, 738 S.W.2d at 174; Memphis St. Ry. v. Wilson, 108 Tenn. 618, 620, 69 S.W. 265, 265 (1902); Abbott v. American Honda Motor Co., 682 S.W.2d 206, 209 (Tenn. Ct. App. 1984), and the challenged portion of the instructions should be considered in light of its context. Gorman v. Earhart, 876 S.W.2d 832, 836 (Tenn.

Cortazzo v. Blackburn, 912 S.W.2d 735, 745 (Tenn.Ct.App. 1995). Instructions must be viewed as a whole, In re Estate of Elam, 738 S.W.2d at 174; Memphis St. Ry. v. Wilson, 108 Tenn. 618, 620, 69 S.W. 265, 265 (1902); Abbott v. American Honda Motor Co., 682 S.W.2d 206, 209 (Tenn.Ct.App. 1984), and the challenged portion of the instructions should be considered in light of its context. Gorman v. Earhart, 876 S.W.2d 832, 836 (Tenn.

Rather, such instructions have predominantly been given in products liability cases. See, e.g., Clarksville-Montgomery County Sch. Sys. v. U.S. Gypsum Co., 925 F.2d 993, 1005 (6th Cir.1991); Boyd v. Celotex Corp., 951 F.2d 348, 1991 WL 278967, at *2 (6th Cir.1991) (unpublished); Abbott v. Am. Honda Motor Co., Inc., 682 S.W.2d 206, 208, 211 (Tenn.Ct.App. 1984) (proceeding at trial solely on theory of strict liability). Indeed, the two cases and the provision of the Tennessee code cited in support of Defendant's requested instruction concern products liability actions. Clarksville-Montgomery County Sch. Sys., 925 F.2d at 995; Kerley, 553 S.W.2d at 81 (wrongful death suit "predicated upon the theory of strict liability and negligent design"); Tenn. Code Ann. § 29-28-104 (establishing presumptions for products liability actions). Although the plaintiff in Kerley asserted both product liability and negligence claims, that case does not squarely support Defendant's requested instruction.

Preliminarily, this instruction is a fair and accurate statement of the law. See Tenn. Code Ann. § 29-28-105(a), (b);Abbott v. American Honda Motor Co., 682 S.W.2d 206, 211 (Tenn.Ct.App. 1984). We are unpersuaded by Clarksville's analysis which isolates the portion of the jury charge referring to "industry standards" and attempts to construct a basis for reversal.