1-1 By: Parker, et al. S.B. No. 4
1-2 (In the Senate - Filed January 14, 1993; January 14, 1993,
1-3 read first time and referred to Committee on Economic Development;
1-4 January 26, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 11, Nays 0;
1-6 January 26, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Parker x
1-10 Lucio x
1-11 Ellis x
1-12 Haley x
1-13 Harris of Dallas x
1-14 Harris of Tarrant x
1-15 Leedom x
1-16 Madla x
1-17 Rosson x
1-18 Shapiro x
1-19 Wentworth x
1-20 COMMITTEE SUBSTITUTE FOR S.B. No. 4 By: Parker
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to products liability.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Title 4, Civil Practice and Remedies Code, is
1-26 amended by adding Chapter 82 to read as follows:
1-27 CHAPTER 82. PRODUCTS LIABILITY
1-28 Sec. 82.001. DEFINITIONS. In this chapter:
1-29 (1) "Claimant" means a party seeking relief, including
1-30 a plaintiff, counterclaimant, or cross-claimant.
1-31 (2) "Products liability action" means any action
1-32 against a manufacturer or seller for recovery of damages arising
1-33 out of personal injury, death, or property damage allegedly caused
1-34 by a defective product whether the action is based in strict tort
1-35 liability, strict products liability, negligence,
1-36 misrepresentation, breach of express or implied warranty, or any
1-37 other theory or combination of theories.
1-38 (3) "Seller" means a person who is engaged in the
1-39 business of distributing or otherwise placing, for any commercial
1-40 purpose, in the stream of commerce for use or consumption a product
1-41 or any component part thereof.
1-42 (4) "Manufacturer" means a person who is a designer,
1-43 formulator, constructor, rebuilder, fabricator, producer,
1-44 compounder, processor, or assembler of any product or any component
1-45 part thereof and who places the product or any component part
1-46 thereof in the stream of commerce.
1-47 Sec. 82.002. MANUFACTURER'S DUTY TO INDEMNIFY. (a) A
1-48 manufacturer shall indemnify and hold harmless a seller against
1-49 loss arising out of a products liability action, except for any
1-50 loss caused by the seller's negligence, intentional misconduct, or
1-51 other act or omission, such as negligently modifying or altering
1-52 the product, for which the seller is independently liable.
1-53 (b) For purposes of this section, "loss" includes court
1-54 costs and other reasonable expenses, reasonable attorney fees, and
1-55 any reasonable damages.
1-56 (c) Damages awarded by the trier of fact shall, on final
1-57 judgment, be deemed reasonable for purposes of this section.
1-58 (d) For purposes of this section, a wholesale distributor or
1-59 retail seller who completely or partially assembles a product in
1-60 accordance with the manufacturer's instructions shall be considered
1-61 a seller.
1-62 (e) The duty to indemnify under this section:
1-63 (1) applies without regard to the manner in which the
1-64 action is concluded; and
1-65 (2) is in addition to any duty to indemnify
1-66 established by law, contract, or otherwise.
1-67 (f) A seller eligible for indemnification under this section
1-68 shall give reasonable notice to the manufacturer of a product
2-1 claimed in a petition or complaint to be defective, unless the
2-2 manufacturer has been served as a party or otherwise has actual
2-3 notice of the action.
2-4 (g) A seller is entitled to recover from the manufacturer
2-5 court costs and other reasonable expenses, reasonable attorney
2-6 fees, and any reasonable damages incurred by the seller to enforce
2-7 the seller's right to indemnification under this section.
2-8 Sec. 82.003. LIABILITY OF CERTAIN VACCINE MANUFACTURERS AND
2-9 SELLERS. (a) A manufacturer or seller of a vaccine is not liable
2-10 in a products liability action based on an alleged marketing or
2-11 design defect if adequate warning or instruction is provided.
2-12 (b) This section applies only to a vaccine manufactured and
2-13 labeled in accordance with the terms of an approval or license
2-14 issued by, or other requirements of, the federal Food and Drug
2-15 Administration and which is:
2-16 (1) included in the Vaccine Injury Table of the
2-17 National Vaccine Program prescribed by 42 U.S.C. Section 300aa-14
2-18 or any valid regulation promulgated under that section; or
2-19 (2) a vaccine for use against or treatment of human
2-20 immunodeficiency virus infection or acquired immune deficiency
2-21 syndrome.
2-22 (c) This section is not declarative by implication or
2-23 otherwise of the common law with respect to any product and shall
2-24 not be construed to restrict the courts of this state in developing
2-25 the common law with respect to any product which is not subject to
2-26 this section.
2-27 Sec. 82.004. INHERENTLY UNSAFE PRODUCTS. (a) In a products
2-28 liability action, a manufacturer or seller shall not be liable if:
2-29 (1) the product is inherently unsafe and the product
2-30 is known to be unsafe by the ordinary consumer who consumes the
2-31 product with the ordinary knowledge common to the community; and
2-32 (2) the product is a common consumer product intended
2-33 for personal consumption, such as sugar, castor oil, alcohol,
2-34 tobacco, and butter, as identified in Comment i to Section 402A of
2-35 the Restatement (Second) of Torts.
2-36 (b) For purposes of this section, the term "products
2-37 liability action" does not include an action based on manufacturing
2-38 defect or breach of an express warranty.
2-39 Sec. 82.005. DESIGN DEFECTS. (a) In a products liability
2-40 action in which a claimant alleges a design defect, the burden is
2-41 on the claimant to prove by a preponderance of the evidence that:
2-42 (1) there was a safer alternative design; and
2-43 (2) the defect was a producing cause of the personal
2-44 injury, property damage, or death for which the claimant seeks
2-45 recovery.
2-46 (b) In this section, "safer alternative design" means a
2-47 product design other than the one actually used that in reasonable
2-48 probability:
2-49 (1) would have prevented or significantly reduced the
2-50 risk of the claimant's personal injury, property damage, or death
2-51 without substantially impairing the product's utility; and
2-52 (2) was economically and technologically feasible at
2-53 the time the product left the control of the manufacturer or seller
2-54 by the application of existing or reasonably achievable scientific
2-55 knowledge.
2-56 (c) This section does not supersede or modify any statute,
2-57 regulation, or other law of this state or of the United States that
2-58 relates to liability for, or to relief in the form of, abatement of
2-59 nuisance, civil penalties, cleanup costs, cost recovery, an
2-60 injunction, or restitution that arises from contamination or
2-61 pollution of the environment.
2-62 (d) This section does not apply to:
2-63 (1) a cause of action based on a toxic or
2-64 environmental tort as defined by Sections 33.013(c)(2) and (3); or
2-65 (2) a drug or device, as those terms are defined in
2-66 the federal Food, Drug and Cosmetic Act (21 U.S.C. Section 321).
2-67 (e) This section is not declarative, by implication or
2-68 otherwise, of the common law with respect to any product and shall
2-69 not be construed to restrict the courts of this state in developing
2-70 the common law with respect to any product which is not subject to
3-1 this section.
3-2 Sec. 82.006. FIREARMS AND AMMUNITION. (a) In a products
3-3 liability action brought against a manufacturer or seller of a
3-4 firearm or ammunition that alleges a design defect in the firearm
3-5 or ammunition, the burden is on the claimant to prove, in addition
3-6 to any other elements that the claimant must prove, that:
3-7 (1) the actual design of the firearm or ammunition was
3-8 defective, causing the firearm or ammunition not to function in a
3-9 manner reasonably expected by an ordinary consumer of firearms or
3-10 ammunition; and
3-11 (2) the defective design was a producing cause of the
3-12 personal injury, property damage, or death.
3-13 (b) The claimant may not prove the existence of the
3-14 defective design by a comparison or weighing of the benefits of the
3-15 firearm or ammunition against the risk of personal injury, property
3-16 damage, or death posed by its potential to cause such injury,
3-17 damage, or death when discharged.
3-18 SECTION 2. Subchapter A, Chapter 16, Civil Practice and
3-19 Remedies Code, is amended by adding Section 16.012 to read as
3-20 follows:
3-21 Sec. 16.012. PRODUCTS LIABILITY: MANUFACTURING EQUIPMENT.
3-22 (a) In this section:
3-23 (1) "Claimant," "products liability action," "seller,"
3-24 and "manufacturer" have the meanings assigned by Section 82.001.
3-25 (2) "Manufacturing equipment" means equipment and
3-26 machinery used in the manufacturing, processing, or fabrication of
3-27 property but does not include agricultural equipment or machinery.
3-28 (b) Except as provided by Subsection (c), a claimant must
3-29 commence a products liability action against a manufacturer or
3-30 seller of manufacturing equipment before the end of 15 years after
3-31 the date of the sale of the equipment by the defendant.
3-32 (c) If a manufacturer or seller expressly represents that
3-33 the manufacturing equipment has a useful safe life of longer than
3-34 15 years, a claimant must commence a products liability action
3-35 against that manufacturer or seller of the equipment before the end
3-36 of the number of years represented after the date of the sale of
3-37 the equipment by that seller.
3-38 (d) This section does not reduce a limitations period that
3-39 applies to a products liability action involving manufacturing
3-40 equipment that accrues before the end of the limitations period
3-41 under this section.
3-42 (e) This section does not extend the limitations period
3-43 within which a products liability action involving manufacturing
3-44 equipment may be commenced under any other law.
3-45 (f) This section applies only to the sale and not to the
3-46 lease of manufacturing equipment.
3-47 SECTION 3. (a) Sections 82.002 through 82.004, Civil
3-48 Practice and Remedies Code, as added by this Act, apply only to a
3-49 cause of action commenced on or after the effective date of this
3-50 Act. A cause of action commenced before the effective date of this
3-51 Act is governed by the law in effect at the time the action
3-52 accrued, and that law is continued in effect for that purpose. For
3-53 purposes of Section 82.003, Civil Practice and Remedies Code, a
3-54 cause of action is commenced when a claim is filed pursuant to the
3-55 requirements of the federal National Vaccine Injury Compensation
3-56 Program, 42 U.S.C. 300aa-10 et seq.
3-57 (b) Sections 16.012, 82.005, and 82.006, Civil Practice and
3-58 Remedies Code, as added by this Act, apply only to a cause of
3-59 action that accrues on or after the effective date of this Act. A
3-60 cause of action that accrued before the effective date of this Act
3-61 is governed by the law in effect at the time the action accrued,
3-62 and that law is continued in effect for that purpose.
3-63 (c) Section 82.001, Civil Practice and Remedies Code, as
3-64 added by this Act, takes effect on the effective date of this Act.
3-65 SECTION 4. This Act takes effect September 1, 1993.
3-66 SECTION 5. The importance of this legislation and the
3-67 crowded condition of the calendars in both houses create an
3-68 emergency and an imperative public necessity that the
3-69 constitutional rule requiring bills to be read on three several
3-70 days in each house be suspended, and this rule is hereby suspended.
4-1 * * * * *
4-2 Austin,
4-3 Texas
4-4 January 26, 1993
4-5 Hon. Bob Bullock
4-6 President of the Senate
4-7 Sir:
4-8 We, your Committee on Economic Development to which was referred
4-9 S.B. No. 4, have had the same under consideration, and I am
4-10 instructed to report it back to the Senate with the recommendation
4-11 that it do not pass, but that the Committee Substitute adopted in
4-12 lieu thereof do pass and be printed.
4-13 Parker,
4-14 Chairman
4-15 * * * * *
4-16 WITNESSES
4-17 FOR AGAINST ON
4-18 ___________________________________________________________________
4-19 Name: Shannon Ratliff
4-20 Representing: Texas Civil Justice League
4-21 City: Austin x
4-22 Name: J. Donald Bowen
4-23 Representing: Texas Trial Lawyers
4-24 City: Houston x
4-25 Name: Wade Thomason
4-26 Representing: American Lung Assoc. of Texas
4-27 City: Austin x
4-28 Name: Joel S. Dunnington, M.D.
4-29 Representing: Texas Interagency Council on Smoking & Health
4-30 City: Houston x
4-31 Name: Eric Solberg
4-32 Representing: Doc (Drs. Ought To Care)
4-33 City: Houston x
4-34 Name: Cindy Antolik
4-35 Representing: American Cancer Society
4-36 City: Austin x
4-37 Name: Tom Smith
4-38 Representing: Public Citizen
4-39 City: Austin x
4-40 Name: Mark Ellison
4-41 Representing: Department of Agriculture
4-42 City: Austin x
4-43 Name: Reggie James
4-44 Representing: Consumers Union
4-45 City: Austin x
4-46 Name: H. P. Whitworth
4-47 Representing: Texas Chemical Council
4-48 City: Austin x
4-49 Name: Rob Looney
4-50 Representing: Mid. Cont. Oil & Gas
4-51 City: Austin x
4-52 Name: Joe C. Tooley
4-53 Representing: Texas Assoc. of Defense Counsel
4-54 City: Dallas x
4-55 NAME: James H. Holmes, III
4-56 Representing: Texas Assoc. Defense Counsel
4-57 City: Dallas x
4-58 NAME: Ralph Wayne
4-59 Representing: Texas Civil Justice League
4-60 City: Austin x
4-61 NAME: Durwood Tucker
4-62 Representing: Texas Farm Bureau
4-63 City: Austin x
4-64 NAME: Michael White
4-65 Representing: Greater Houston Partnership
4-66 City: Houston x
4-67 NAME: Gerald Holtzman
4-68 Representing: Jobs for Texas
4-69 City: Houston x
4-70 NAME: Robert Howden
5-1 Representing: Nat. Fed. of Ind. Businessmen
5-2 City: Austin x
5-3 NAME: Larry Milner
5-4 Representing: Texas Chamber of Commerce
5-5 City: Austin x
5-6 NAME: Chris Shields
5-7 Representing: Texas Chamber of Commerce
5-8 City: Austin x