S.B. No. 4
AN ACT
1-1 relating to products liability.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Title 4, Civil Practice and Remedies Code, is
1-4 amended by adding Chapter 82 to read as follows:
1-5 CHAPTER 82. PRODUCTS LIABILITY
1-6 Sec. 82.001. DEFINITIONS. In this chapter:
1-7 (1) "Claimant" means a party seeking relief, including
1-8 a plaintiff, counterclaimant, or cross-claimant.
1-9 (2) "Products liability action" means any action
1-10 against a manufacturer or seller for recovery of damages arising
1-11 out of personal injury, death, or property damage allegedly caused
1-12 by a defective product whether the action is based in strict tort
1-13 liability, strict products liability, negligence,
1-14 misrepresentation, breach of express or implied warranty, or any
1-15 other theory or combination of theories.
1-16 (3) "Seller" means a person who is engaged in the
1-17 business of distributing or otherwise placing, for any commercial
1-18 purpose, in the stream of commerce for use or consumption a product
1-19 or any component part thereof.
1-20 (4) "Manufacturer" means a person who is a designer,
1-21 formulator, constructor, rebuilder, fabricator, producer,
1-22 compounder, processor, or assembler of any product or any component
1-23 part thereof and who places the product or any component part
2-1 thereof in the stream of commerce.
2-2 Sec. 82.002. MANUFACTURER'S DUTY TO INDEMNIFY. (a) A
2-3 manufacturer shall indemnify and hold harmless a seller against
2-4 loss arising out of a products liability action, except for any
2-5 loss caused by the seller's negligence, intentional misconduct, or
2-6 other act or omission, such as negligently modifying or altering
2-7 the product, for which the seller is independently liable.
2-8 (b) For purposes of this section, "loss" includes court
2-9 costs and other reasonable expenses, reasonable attorney fees, and
2-10 any reasonable damages.
2-11 (c) Damages awarded by the trier of fact shall, on final
2-12 judgment, be deemed reasonable for purposes of this section.
2-13 (d) For purposes of this section, a wholesale distributor or
2-14 retail seller who completely or partially assembles a product in
2-15 accordance with the manufacturer's instructions shall be considered
2-16 a seller.
2-17 (e) The duty to indemnify under this section:
2-18 (1) applies without regard to the manner in which the
2-19 action is concluded; and
2-20 (2) is in addition to any duty to indemnify
2-21 established by law, contract, or otherwise.
2-22 (f) A seller eligible for indemnification under this section
2-23 shall give reasonable notice to the manufacturer of a product
2-24 claimed in a petition or complaint to be defective, unless the
2-25 manufacturer has been served as a party or otherwise has actual
3-1 notice of the action.
3-2 (g) A seller is entitled to recover from the manufacturer
3-3 court costs and other reasonable expenses, reasonable attorney
3-4 fees, and any reasonable damages incurred by the seller to enforce
3-5 the seller's right to indemnification under this section.
3-6 Sec. 82.004. INHERENTLY UNSAFE PRODUCTS. (a) In a products
3-7 liability action, a manufacturer or seller shall not be liable if:
3-8 (1) the product is inherently unsafe and the product
3-9 is known to be unsafe by the ordinary consumer who consumes the
3-10 product with the ordinary knowledge common to the community; and
3-11 (2) the product is a common consumer product intended
3-12 for personal consumption, such as sugar, castor oil, alcohol,
3-13 tobacco, and butter, as identified in Comment i to Section 402A of
3-14 the Restatement (Second) of Torts.
3-15 (b) For purposes of this section, the term "products
3-16 liability action" does not include an action based on manufacturing
3-17 defect or breach of an express warranty.
3-18 Sec. 82.005. DESIGN DEFECTS. (a) In a products liability
3-19 action in which a claimant alleges a design defect, the burden is
3-20 on the claimant to prove by a preponderance of the evidence that:
3-21 (1) there was a safer alternative design; and
3-22 (2) the defect was a producing cause of the personal
3-23 injury, property damage, or death for which the claimant seeks
3-24 recovery.
3-25 (b) In this section, "safer alternative design" means a
4-1 product design other than the one actually used that in reasonable
4-2 probability:
4-3 (1) would have prevented or significantly reduced the
4-4 risk of the claimant's personal injury, property damage, or death
4-5 without substantially impairing the product's utility; and
4-6 (2) was economically and technologically feasible at
4-7 the time the product left the control of the manufacturer or seller
4-8 by the application of existing or reasonably achievable scientific
4-9 knowledge.
4-10 (c) This section does not supersede or modify any statute,
4-11 regulation, or other law of this state or of the United States that
4-12 relates to liability for, or to relief in the form of, abatement of
4-13 nuisance, civil penalties, cleanup costs, cost recovery, an
4-14 injunction, or restitution that arises from contamination or
4-15 pollution of the environment.
4-16 (d) This section does not apply to:
4-17 (1) a cause of action based on a toxic or
4-18 environmental tort as defined by Sections 33.013(c)(2) and (3); or
4-19 (2) a drug or device, as those terms are defined in
4-20 the federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321).
4-21 (e) This section is not declarative, by implication or
4-22 otherwise, of the common law with respect to any product and shall
4-23 not be construed to restrict the courts of this state in developing
4-24 the common law with respect to any product which is not subject to
4-25 this section.
5-1 Sec. 82.006. FIREARMS AND AMMUNITION. (a) In a products
5-2 liability action brought against a manufacturer or seller of a
5-3 firearm or ammunition that alleges a design defect in the firearm
5-4 or ammunition, the burden is on the claimant to prove, in addition
5-5 to any other elements that the claimant must prove, that:
5-6 (1) the actual design of the firearm or ammunition was
5-7 defective, causing the firearm or ammunition not to function in a
5-8 manner reasonably expected by an ordinary consumer of firearms or
5-9 ammunition; and
5-10 (2) the defective design was a producing cause of the
5-11 personal injury, property damage, or death.
5-12 (b) The claimant may not prove the existence of the
5-13 defective design by a comparison or weighing of the benefits of the
5-14 firearm or ammunition against the risk of personal injury, property
5-15 damage, or death posed by its potential to cause such injury,
5-16 damage, or death when discharged.
5-17 SECTION 2. Subchapter A, Chapter 16, Civil Practice and
5-18 Remedies Code, is amended by adding Section 16.012 to read as
5-19 follows:
5-20 Sec. 16.012. PRODUCTS LIABILITY: MANUFACTURING EQUIPMENT.
5-21 (a) In this section:
5-22 (1) "Claimant," "products liability action," "seller,"
5-23 and "manufacturer" have the meanings assigned by Section 82.001.
5-24 (2) "Manufacturing equipment" means equipment and
5-25 machinery used in the manufacturing, processing, or fabrication of
6-1 tangible personal property but does not include agricultural
6-2 equipment or machinery.
6-3 (b) Except as provided by Subsection (c), a claimant must
6-4 commence a products liability action against a manufacturer or
6-5 seller of manufacturing equipment before the end of 15 years after
6-6 the date of the sale of the equipment by the defendant.
6-7 (c) If a manufacturer or seller expressly represents that
6-8 the manufacturing equipment has a useful safe life of longer than
6-9 15 years, a claimant must commence a products liability action
6-10 against that manufacturer or seller of the equipment before the end
6-11 of the number of years represented after the date of the sale of
6-12 the equipment by that seller.
6-13 (d) This section does not reduce a limitations period that
6-14 applies to a products liability action involving manufacturing
6-15 equipment that accrues before the end of the limitations period
6-16 under this section.
6-17 (e) This section does not extend the limitations period
6-18 within which a products liability action involving manufacturing
6-19 equipment may be commenced under any other law.
6-20 (f) This section applies only to the sale and not to the
6-21 lease of manufacturing equipment.
6-22 SECTION 3. (a) Sections 82.002 through 82.004, Civil
6-23 Practice and Remedies Code, as added by this Act, apply only to a
6-24 cause of action commenced on or after the effective date of this
6-25 Act. A cause of action commenced before the effective date of this
7-1 Act is governed by the law in effect at the time the action
7-2 accrued, and that law is continued in effect for that purpose.
7-3 (b) Sections 16.012, 82.005, and 82.006, Civil Practice and
7-4 Remedies Code, as added by this Act, apply only to a cause of
7-5 action that accrues on or after the effective date of this Act. A
7-6 cause of action that accrued before the effective date of this Act
7-7 is governed by the law in effect at the time the action accrued,
7-8 and that law is continued in effect for that purpose.
7-9 (c) Section 82.001, Civil Practice and Remedies Code, as
7-10 added by this Act, takes effect on the effective date of this Act.
7-11 SECTION 4. This Act takes effect September 1, 1993.
7-12 SECTION 5. The importance of this legislation and the
7-13 crowded condition of the calendars in both houses create an
7-14 emergency and an imperative public necessity that the
7-15 constitutional rule requiring bills to be read on three several
7-16 days in each house be suspended, and this rule is hereby suspended.