FHMBK analyzes the recent legislative session’s contributions to Texas’ ongoing tort reform effort.
2011 TORT REFORM LEGISLATION
The 2011 session of the Texas Legislature produced two new laws that further the legislative tort reform efforts that began in 2003:
I. HB 274 – Effective September 1, 2011
A. Article 1 amends §22.004, Texas Government Code, to add a new subsection (g) that provides for the Supreme Court of Texas to adopt rules for dismissal of causes of action that have no basis in fact or law. It further amends Chapter 30 of the Texas Civil Practices & Remedies Code to add §30.021, which provides that a prevailing party in a dismissal of a lawsuit pursuant to §22.004(g) of the Texas Government Code shall be awarded costs and reasonable and necessary attorneys’ fees.
B. Article 2 amends §22.004, Texas Government Code, to add a new subsection (h) that provides for the Supreme Court of Texas to adopt rules to promote prompt, efficient and cost-effective resolution of civil actions in which the total damages claimed do not exceed $100,000. The Rule shall address the need for lowering discovery costs and a procedure for ensuring that these lawsuits will be expedited by the court system.
C. Article 3 amends §51.014, Texas Civil Practices & Remedies Code, to provide that a trial court, by written order, may permit an appeal from an order that is not otherwise appealable if:
(1) The order to be appealed involves a controlling question of law as to which there is a substantial ground for a difference of opinion, and,
(2) An immediate appeal from the order may materially advance the ultimate termination of the litigation, and,
(3) The appeal will not stay the proceedings unless the parties agree to a stay or the trial court orders a stay.
The appellate court will have discretion to accept or reject such interlocutory appeals and that appellate court decision can be reviewed by the Supreme Court of Texas.
D. Article 4 amends §42.001(5) and (6), Texas Civil Practices & Remedies Code to expand the damages recoverable in the event of an offer of settlement pursuant to Chapter 42 of the Texas Civil Practices & Remedies Code, as follows:
(1) Reasonable “litigation costs” will now include:
(a) Court costs,
(b) Reasonable deposition costs,
(c) Reasonable fees for not more than two testifying expert witnesses, and
(d) Reasonable attorney’s fees, provided however
(2) The “litigation costs” that may be awarded to any party may not be greater than the total amount that the claimant would recover before adding an award of litigation costs under this Chapter if the claimant prevails, or subtracting as an offset an award of litigation costs under this Chapter if the defendant prevails.
E. Article 5 amends §33.004 of the Texas Civil Practices & Remedies Code by adding subsection (d) to provide that:
(d) A defendant may not designate a person as a responsible third party with respect to a claimant’s cause of action after the applicable limitations period on the cause of action has expired with respect to the responsible third party if the defendant has failed to comply with its obligations, if any, to timely disclose that the person may be designated as a responsible third party under the Texas Rules of Civil Procedure.
II. SB 1160
This Bill modifies Chapter 75, Texas Civil Practices & Remedies Code, by adding §75.007, which provides generally that:
(b) An owner, lessee, or occupant of land does not owe a duty of care to a trespasser on the land, and is not liable for any injury to a trespasser on the land, except that an owner, lessee, or occupant owes a duty to refrain from injuring a trespasser willfully, wantonly, or through gross negligence.
(c) Notwithstanding Subsection (b), an owner, lessee, or occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land if:
(1) the place where the artificial condition exists is one upon which the owner, lessee, or occupant knew or reasonably should have known that children were likely to trespass;
(2) the artificial condition is one that the owner, lessee, or occupant knew or reasonably should have known existed, and that the owner, lessee, or occupant realized or should have realized involved an unreasonable risk of death or serious bodily harm to such children;
(3) the injured child, because of the child’s youth, did not discover the condition or realize the risk involved intermeddling with the condition or coming within the area made dangerous by the condition;
(4) the utility to the owner, lessee, or occupant of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with risk to the child involved; and
(5) the owner, lessee, or occupant failed to exercise reasonable care to eliminate the danger or otherwise protect the child.