ZEM C.S.H.B. 1202 75(R)BILL ANALYSIS


CIVIL PRACTICES
C.S.H.B. 1202
By: Uher
5-6-97
Committee Report (Substituted)



BACKGROUND 

Over the last twenty years, changes in law have made property owners
liable for a wide range of risks and activities.  For example, property
owners may be held liable for harm caused by criminal conduct beyond their
control or for injuries sustained by persons who knowingly, but
unreasonably, encounter a known risk.  Recent efforts to moderate this
trend have had limited success. 

Under general practices of common law, a property owner may not be held
liable for harm caused by the criminal actions of third parties not under
the property owner's control.  An exception required business property
owners to take reasonable steps to protect customers from known criminal
activity.  In the 1980's, this exception was greatly expanded to include
nearly any harm criminals may cause to anyone in the vicinity of the
property, no matter how remote or unforeseeable the risk.  Indeed, even
the criminals have sued property owners for negligent security measures. 

Similarly, 'assumption of the risk' doctrines have eroded.  In the past, a
property owner had limited immunity from a claimant who willingly exposed
himself to a known risk or dangerous condition.  The law assumed the
common sense notion that the claimant, and not the landowner, was in the
best position to avoid immediate harm to himself.  The law protected
innocent victims, but not voluntary participants in a dangerous activity.
Statutory changes and court decisions, however, have made 'assumption of
the risk' only a part of the overall formula in calculating liability. 

The recreational use statute encourages a private landowner to allow the
public greater access to his property by limiting the landowners'
liability.  Deficiencies in the law, however, undercut that goal.  The
current statute separately states parallel standards for owners of
agricultural property and owners of other property, inviting litigation
over artificial distinctions between types of land. Finally, it does not
encourage activities involving children and nonprofit groups, which has
discouraged private property owners from inviting church groups, youth
organizations, and other nonprofit activities. 

PURPOSE

C.S.H.B. 1202 seeks to restore common law notions of limitations on
landowner liability. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Designates Sections 75.001, 75.002, 75.003, and 75.004 of the
Civil Practice and Remedies Code, as Subchapter A, Chapter 75, Civil
Practice and Remedies Code, and adds a new subchapter heading as follows: 

SUBCHAPTER A. LIMITATION ON LANDOWNERS' LIABILITY FOR RECREATIONAL  USE OF
AGRICULTURAL LAND 

SECTION 2.  Amends Chapter 75, Civil Practice and Remedies Code, by adding
Subchapters B, C, and D as follows: 

SUBCHAPTER B. LIMITATION OF LANDOWNERS' LIABILITY FOR RECREATIONAL  USE OF
NON-AGRICULTURAL LAND 

 Sec. 75.021.  Defines  "landowner," "premises" and "recreation."

 Sec. 75.022.  Provides that the subchapter applies only to liability of a
landowner for use of non-agricultural land for recreation. 

 Sec. 75.023. Provides that a landowner does not, by giving permission to
enter the premises, assure the safety of the premises, owe a greater
degree of care than is owed to a trespasser, or assume responsibility or
liability for any injury to an individual or property. 

 Sec. 75.024. Provides that this subchapter does not provide immunity for
deliberate, wilful, or malicious injury, that it does not affect the
doctrine of attractive nuisance, and that it applies only to a landowner
who does not charge for entry to the premises or charges only for
incidental expenses that total annually not more than the ad valorem taxes
for the previous year. Clarifies that this subchapter does not create any
liability and that Sections 75.003 and75.004 do not apply to a claim under
this subchapter. 

SUBCHAPTER C. LIABILITY OF LANDOWNERS GENERALLY

 Sec. 75.051.  Defines "claimant", "landowner", and"premises".

 Sec. 75.052.  Sets forth the liability of a landowner as to a trespasser.
Provides that a landowner is only liable for an injury to a trespasser if
it was proximately caused by wilful or wanton acts or gross negligence of
the landowner. 

 Sec. 75.053  Sets forth the liability of a landowner as to a licensee.
Provides that a landowner is only liable for injury to a licensee if it
was proximately caused by wilful or wanton acts or gross negligence of the
landowner or the landowner has knowledge of a dangerous condition which
the landowner as failed to make safe or failed to warn. 

 Sec. 75.054  Sets forth the liability of a landowner as to an invitee.
Provides that a landowner is only liable for injury to an invitee if the
injury was proximately caused by the landowner's wilful or wanton acts or
gross negligence or the landowner knew or should have known about a
dangerous condition and has failed to exercise ordinary care to cure or
warn. 

 Sec. 75.055  Defines the status of a claimant under this chapter as a
matter of law. 

 
SUBCHAPTER C.  LIMITATION OF LANDOWNERS' LIABILITY FOR CRIMINAL ACTS  OF
THIRD PARTY 

 Sec. 75.081 Defines "Landowner", and "third party".

 Sec. 75.082  (a) Provides that, except as provided by Subsection (b), a
landowner has no duty to prevent the criminal acts of a third party or to
protect a person from criminal acts of a third party. 
 (b)  Sets out the criteria for a landowner's liability for reasonably
foreseeable criminal acts of a third party.  The landowner is only liable
if he knew or should have known  the premises posed a significant or
unreasonable risk of harm, the landowner failed to exercise ordinary care,
and the landowner's failure was a proximate cause of the injury. 

 Sec. 75.083  Provides that this subchapter does not affect a landowner's
liability if the  criminal act was committed by a person subject to
control or supervision of the landowner, the landowner is a criminally
responsible party to the act, the criminal act occurred where the
landowner was maintaining a nuisance, the criminal act resulted from the
landowner's violation of a duty relating to security devices, the cause of
action is for a toxic tort, or the claimant is a resident of and the act
was committed at an institution defined under Sec. 242.002 Health and
Safety Code.  Also provides that a landowner may be liable for a breach of
a written warranty concerning the safety of the premises or a breach of an
affirmative statement by the landowner to a prospective employee that was
reduced to writing.  Specifies that Sections 75.003 and 75.004 do not
apply to a claim under this subchapter. 

SECTION 3.  Repeals Section 75.002(c), Civil Practice and Remedies Code.

SECTION 4.  Effective date: September 1, 1997.  Applies prospectively;
savings clause. 

SECTION 5.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The committee substitute makes the following substantive changes:

SECTION 1 

The committee substitute redesignates Sections 75.001 - 75.004 as
Subchapter A of the Civil Practice and Remedies Code and adds a new
subchapter heading 

SECTION 2 

The committee substitute adds new Subchapters B, C, and D which define a
landowners' liability for the recreational use of nonagricultural land, a
landowners' liability generally, including his liability as to a
trespasser, a licensee, and an invitee, and a landowners' liability for
criminal acts of a third party. 

The committee substitute deletes provisions from the original bill which
would have amended the recreational use statute to include use of property
by charitable organizations and integrated the provisions of current law
regarding use of agricultural and non-agricultural land. Instead, the
committee substitute adds a separate Subchapter B to Chapter 75 regarding
recreational use of non-agricultural land and omits provisions on use of
property by charitable organizations. 

The committee substitute also omits provisions found in the original bill
amending current statutory defenses and establishing assumption of the
risk as an affirmative defense. 

The committee substitute adds Subchapter C to Chapter 75 describing a
landowner's duties to trespassers, licensees, and invitees, based on
recent court decisions. The committee substitute also adds a provision
allowing the court to determine a claimant's status as a trespasser,
licensee, or invitee. 

The committee substitute also removes provisions from the original bill
which would have limited a landowner's liability for criminal acts of a
third party to liability for the landowner's grossly negligent conduct.
Instead, the committee substitute restates the common law general rule
that a landowner does not have a duty to prevent harm caused by criminal
acts of a third party. The committee substitute provides that a landowner
may be liable, however, if the landowner knew or should have known of a
significant and unreasonable risk of harm from criminal acts of third
parties and then failed to exercise ordinary care to protect persons
lawfully on the premises. 

SECTION 3

The committee substitute repeals Sec. 75.002(c), dealing solely with use
of non-agricultural land. 


 SECTION 4

The committee substitute applies only to actions filed on or after the
effective date of the bill. The original bill would have applied to all
pending and future litigation.