By: Parker, et al. S.B. No. 4
A BILL TO BE ENTITLED
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) "Claimant"
1-7 means a party seeking relief, including a plaintiff,
1-8 counter-claimant, 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's fees,
2-10 and any reasonable damages.
2-11 (c) Damages awarded by the trier of fact shall, on final
2-12 judgement, be deemed reasonable for purposes of this section.
2-13 (d) For purposes of this section, a wholesale distributor
2-14 or 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's
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. 82.003. LIABILITY OF CERTAIN VACCINE MANUFACTURERS AND
3-7 SELLERS. (a) A manufacturer or seller of a vaccine is not liable
3-8 in a products liability action based on an alleged marketing or
3-9 design defect if adequate warning or instruction is provided.
3-10 (b) This section applies only to a vaccine manufactured and
3-11 labeled in accordance with the terms of an approval or license
3-12 issued by, or other requirements of, the federal Food and Drug
3-13 Administration and which is:
3-14 (1) included in the Vaccine Injury Table of the
3-15 National Vaccine Program prescribed by 42 United States Code
3-16 Section 300aa-14 or any valid regulation promulgated under that
3-17 section; or,
3-18 (2) a vaccine for use against or treatment of Human
3-19 Immuno-deficiency Virus or Acquired Immune Deficiency Syndrome.
3-20 (c) This section is not declarative, by implication or
3-21 otherwise, of the common law with respect to any product and shall
3-22 not be construed to restrict the courts of this state in developing
3-23 the common law with respect to any product which is not subject to
3-24 this section.
3-25 Sec. 82.004. INHERENTLY UNSAFE PRODUCTS. (a) In a products
4-1 liability action, a manufacturer or seller shall not be liable if:
4-2 (1) the product is inherently unsafe and the product
4-3 is known to be unsafe by the ordinary consumer who consumes the
4-4 product with the ordinary knowledge common to the community; and
4-5 (2) the product is a common consumer product intended
4-6 for personal consumption, such as sugar, castor oil, alcohol,
4-7 tobacco, and butter, as identified in Comment i to Section 402A of
4-8 the Restatement (Second) of Torts.
4-9 (b) For purposes of this section, the term "products
4-10 liability action" does not include an action based on manufacturing
4-11 defect or breach of an express warranty.
4-12 Sec. 82.005. DESIGN DEFECTS. (a) In a product liability
4-13 action in which a claimant alleges a design defect, the burden is
4-14 on the claimant to prove by a preponderance of the evidence that:
4-15 (1) there was a safer alternative design; and
4-16 (2) the defect was a producing cause of the personal
4-17 injury, property damage or death for which the claimant seeks
4-18 recovery.
4-19 (b) In this section, "safer alternative design" means a
4-20 product design other than the one actually used that in reasonable
4-21 probability:
4-22 (1) would have prevented or significantly reduced the
4-23 risk of the claimant's personal injury, property damage or death
4-24 without substantially impairing the product's utility; and
4-25 (2) was economically and technologically feasible at
5-1 the time the product left the control of the manufacturer or seller
5-2 by the application of existing or reasonably achievable scientific
5-3 knowledge.
5-4 (c) This section does not supersede or modify any statute,
5-5 regulation or other law of this state or of the United States that
5-6 relates to liability for, or to relief in the form of, abatement of
5-7 nuisance, civil penalties, cleanup costs, cost recovery, an
5-8 injunction or restitution, that arises from contamination or
5-9 pollution of the environment.
5-10 (d) This section does not apply to:
5-11 (1) a cause of action based on a toxic or
5-12 environmental tort as defined by Section 33.013 (c) (2) and (3),
5-13 Civil Practice and Remedies Code; or
5-14 (2) a drug or device, as those terms are defined in the
5-15 federal Food, Drug and Cosmetic Act, 21 U.S.C. Section 321.
5-16 (e) This section is not declarative, by implication or
5-17 otherwise, of the common law with respect to any product and shall
5-18 not be construed to restrict the courts of this state in developing
5-19 the common law with respect to any product which is not subject to
5-20 this section.
5-21 Sec. 82.006. FIREARMS AND AMMUNITION. (a) In a products
5-22 liability action brought against a manufacturer or seller of a
5-23 firearm or ammunition that alleges a design defect in the firearm
5-24 or ammunition, the burden is on the claimant to prove, in addition
5-25 to any other elements that the claimant must prove, that:
6-1 (1) the actual design of the firearm or ammunition was
6-2 defective, causing the firearm or ammunition not to function in a
6-3 manner reasonably expected by an ordinary consumer of firearms or
6-4 ammunition; and
6-5 (2) the defective design was a producing cause of the
6-6 personal injury, property damage, or death.
6-7 (b) The claimant may not prove the existence of the
6-8 defective design by a comparison or weighing of the benefits of the
6-9 firearm or ammunition against the risk of personal injury, property
6-10 damage, or death posed by its potential to cause such injury,
6-11 damage, or death when discharged.
6-12 SECTION 2. Subchapter A, Chapter 16, Civil Practice and
6-13 Remedies Code, is amended by adding Section 16.012 to read as
6-14 follows:
6-15 Sec. 16.012. PRODUCTS LIABILITY: MANUFACTURING EQUIPMENT.
6-16 (a) In this section:
6-17 (1) "Claimant," "products liability action," "seller,"
6-18 and "manufacturer" have the meanings assigned by Section 82.001.
6-19 (2) "Manufacturing equipment" means equipment and
6-20 machinery used in the manufacturing, processing, or fabrication of
6-21 property, but this section does not include agricultural equipment
6-22 or machinery.
6-23 (b) Except as provided by Subsection (c), a claimant must
6-24 commence a products liability action against a manufacturer or
6-25 seller of manufacturing equipment before the end of 15 years after
7-1 the date of the sale of the equipment by the defendant.
7-2 (c) If a manufacturer or seller expressly represents that
7-3 the manufacturing equipment has a useful safe life of longer than
7-4 15 years, a claimant must commence a products liability action
7-5 against that manufacturer or seller of the equipment before the end
7-6 of the number of years represented after the date of the sale of
7-7 the equipment by that seller.
7-8 (d) This section does not reduce a limitations period that
7-9 applies to a products liability action involving manufacturing
7-10 equipment that accrues before the end of the limitations period
7-11 under this section.
7-12 (e) This section does not extend the limitations period
7-13 within which a products liability action involving manufacturing
7-14 equipment may be commenced under any other law.
7-15 (f) This section applies only to the sale, and not to the
7-16 lease, of manufacturing equipment.
7-17 SECTION 3. TRANSITION. (a) Sections 82.002 through 82.004,
7-18 Civil Practices and Remedies Code, as added by this Act, apply only
7-19 to a cause of action commenced on or after the effective date of
7-20 this Act. A cause of action commenced before the effective date of
7-21 this Act is governed by the law in effect at the time the action
7-22 accrued and that law is continued in effect for that purpose.
7-23 (b) Sections 16.012, 82.005 and 82.006, Civil Practices and
7-24 Remedies Code, as added by this Act, apply only to a cause of
7-25 action that accrues on or after the effective date of this Act. A
8-1 cause of action that accrued before the effective date of this Act
8-2 is governed by the law in effect at the time the action accrued and
8-3 that law is continued in effect for that purpose.
8-4 (c) Section 82.001, Civil Practices and Remedies Code, as
8-5 added by this Act, takes effect on the effective date of this Act.
8-6 SECTION 4. This Act takes effect September 1, 1993.
8-7 SECTION 5. The importance of this legislation and the
8-8 crowded condition of the calendars in both houses create an
8-9 emergency and an imperative public necessity that the
8-10 constitutional rule requiring bills to be read on three several
8-11 days in each house be suspended, and this rule is hereby suspended.