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.