75R13549 MLS-F By Uher, Hawley, Patterson, Junell, Allen, H.B. No. 1202 et al. Substitute the following for H.B. No. 1202: By Bosse C.S.H.B. No. 1202 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the liability of certain persons for injury to others 1-3 that occurs on certain real property. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Sections 75.001, 75.002, 75.003, and 75.004, 1-6 Civil Practice and Remedies Code, are designated as Subchapter A, 1-7 Chapter 75, Civil Practice and Remedies Code, and a new subchapter 1-8 heading is added to read as follows: 1-9 SUBCHAPTER A. LIMITATION OF LANDOWNERS' LIABILITY FOR 1-10 RECREATIONAL USE OF AGRICULTURAL LAND 1-11 SECTION 2. Chapter 75, Civil Practice and Remedies Code, is 1-12 amended by adding Subchapters B, C, and D to read as follows: 1-13 SUBCHAPTER B. LIMITATION OF LANDOWNERS' LIABILITY FOR 1-14 RECREATIONAL USE OF NONAGRICULTURAL LAND 1-15 Sec. 75.021. DEFINITIONS. In this subchapter: 1-16 (1) "Landowner" means a person or entity with the 1-17 right to control the premises. 1-18 (2) "Premises" includes real property, other than 1-19 agricultural land, and any improvements to real property, other 1-20 than agricultural land. 1-21 (3) "Recreation" means any noncommercial activity 1-22 undertaken for the purpose of physical exercise, education, 1-23 relaxation, or pleasure. This definition shall be liberally 1-24 construed. 2-1 Sec. 75.022. SCOPE OF SUBCHAPTER. This subchapter applies 2-2 only to the liability of a landowner for the use of land, other 2-3 than agricultural land, for recreation. 2-4 Sec. 75.023. LIABILITY LIMITED. If a landowner gives 2-5 permission to another to enter the premises for recreation, the 2-6 landowner, by giving permission, does not: 2-7 (1) assure that the premises are safe for that 2-8 purpose; 2-9 (2) owe to the person to whom the permission is 2-10 granted a greater degree of care than is owed to a trespasser on 2-11 the premises; or 2-12 (3) assume responsibility or incur liability for any 2-13 injury to any individual or property caused by any act of the 2-14 person to whom permission is granted. 2-15 Sec. 75.024. APPLICATION AND EFFECT OF SUBCHAPTER. 2-16 (a) This subchapter does not relieve any landowner of any 2-17 liability that would otherwise exist for deliberate, wilful, or 2-18 malicious injury to a person or to property. 2-19 (b) This subchapter does not affect the doctrine of 2-20 attractive nuisance. 2-21 (c) This subchapter applies only to a landowner who: 2-22 (1) does not charge for entry to the premises; or 2-23 (2) charges for certain incidental expenses related to 2-24 the recreational use of the premises, but whose total charges 2-25 collected in the previous calendar year for all recreational use of 2-26 the entire premises of the landowner are not more than the total 2-27 amount of ad valorem taxes imposed on the premises for the previous 3-1 calendar year. 3-2 (d) This subchapter does not create any liability. 3-3 (e) Sections 75.003 and 75.004 do not apply to a claim 3-4 subject to this subchapter. 3-5 (Sections 75.025-75.050 reserved for expansion 3-6 SUBCHAPTER C. LIABILITY OF LANDOWNERS GENERALLY 3-7 Sec. 75.051. DEFINITIONS. In this subchapter: 3-8 (1) "Claimant" means a party, including a plaintiff, 3-9 counterclaimant, cross-claimant, or third-party claimant, seeking 3-10 recovery of damages. 3-11 (2) "Landowner" means a person or entity with the 3-12 right to control the premises. 3-13 (3) "Premises" includes real property and any 3-14 improvements to real property. 3-15 Sec. 75.052. LIABILITY OF LANDOWNER TO TRESPASSER. A 3-16 landowner is liable for an injury to a trespasser on the premises 3-17 only if the injury is proximately caused by the wilful or wanton 3-18 acts or gross negligence of the landowner. 3-19 Sec. 75.053. LIABILITY OF LANDOWNER TO LICENSEE. A 3-20 landowner is liable for an injury to a licensee on the premises if: 3-21 (1) the injury is proximately caused by the wilful or 3-22 wanton acts or gross negligence of the landowner; or 3-23 (2) the landowner has knowledge of a dangerous 3-24 condition on the premises of which the licensee is unaware and the 3-25 landowner failed to: 3-26 (A) make the dangerous condition safe; or 3-27 (B) warn the licensee of the existence of the 4-1 dangerous condition. 4-2 Sec. 75.054. LIABILITY OF LANDOWNER TO INVITEE. A landowner 4-3 is liable for an injury to an invitee on the premises if: 4-4 (1) the injury is proximately caused by the wilful or 4-5 wanton acts or gross negligence of the landowner; or 4-6 (2) the landowner: 4-7 (A) knew or should have known of the existence 4-8 of a dangerous condition on the premises of which the invitee is 4-9 unaware; and 4-10 (B) failed to exercise ordinary care to correct 4-11 or warn of an unreasonable risk of harm created by the dangerous 4-12 condition on the premises. 4-13 Sec. 75.055. STATUS OF CLAIMANT. The status of a claimant 4-14 as a trespasser, licensee, or invitee under this subchapter is a 4-15 question of law. 4-16 (Sections 75.056-75.080 reserved for expansion) 4-17 SUBCHAPTER D. LIMITATION OF LANDOWNERS' LIABILITY FOR CRIMINAL 4-18 ACTS OF THIRD PARTY 4-19 Sec. 75.081. DEFINITIONS. In this subchapter: 4-20 (1) "Landowner" means a person or entity who has the 4-21 right to control the safety and security of the premises. 4-22 (2) "Third party" means a person who is not subject to 4-23 the right of control or supervision of the landowner. 4-24 Sec. 75.082. LIABILITY LIMITED. (a) Except as provided by 4-25 Subsection (b), a landowner does not have a duty to: 4-26 (1) prevent the criminal acts of a third party; or 4-27 (2) protect a person from the criminal acts of a third 5-1 party. 5-2 (b) A landowner may be liable to a person other than a 5-3 trespasser at law for property damage, personal injury, or death 5-4 caused by the reasonably foreseeable criminal act of a third party 5-5 on the premises if: 5-6 (1) the landowner knew or should have known that the 5-7 condition of the premises posed a significant and unreasonable risk 5-8 of harm from the criminal act of a third party to the person; 5-9 (2) the landowner failed to exercise ordinary care to 5-10 protect the person from a significant and unreasonable risk of harm 5-11 from the criminal act of a third party to the person lawfully on 5-12 the premises; and 5-13 (3) the landowner's failure was a proximate cause of 5-14 the property damage, personal injury, or death. 5-15 Sec. 75.083. APPLICATION. (a) This subchapter does not 5-16 affect a landowner's liability if: 5-17 (1) the criminal act was committed by a person subject 5-18 to the right of control or supervision of the landowner; 5-19 (2) the landowner is criminally responsible as a party 5-20 to the criminal act under Chapter 7, Penal Code; 5-21 (3) the criminal act occurred at a location where, at 5-22 the time of the criminal act, the landowner was maintaining a 5-23 nuisance under Chapter 125 or common law; 5-24 (4) the criminal act resulted from the landowner's 5-25 violation of a statutory duty relating to security devices in 5-26 rental housing under Subchapter D, Chapter 92, Property Code; 5-27 (5) the landowner may be liable for: 6-1 (A) the breach of a written warranty concerning 6-2 the safety of the premises; or 6-3 (B) the breach of an affirmative statement made 6-4 by the landowner to a prospective employee concerning the safety of 6-5 the premises and reduced to writing by the employer within seven 6-6 days after the employment of the employee in the following form: 6-7 THESE PREMISES HAVE ____ HAVE NOT ____ BEEN 6-8 SUBJECT TO ONE OR MORE CRIMINAL ACTS OF A THIRD PARTY 6-9 IN THE FORM OF CRIMINAL HOMICIDE, KIDNAPPING, SEXUAL 6-10 OFFENSE, OR ASSAULT.; 6-11 (6) the claimant's cause of action is for a toxic tort 6-12 as defined by Section 33.011(7); or 6-13 (7) the claimant is a resident of, and the criminal 6-14 act was committed at, an institution, as that term is defined under 6-15 Section 242.002, Health and Safety Code. 6-16 (b) Sections 75.003 and 75.004 do not apply to a claim 6-17 subject to this subchapter. 6-18 SECTION 3. Section 75.002(c), Civil Practice and Remedies 6-19 Code, is repealed. 6-20 SECTION 4. This Act takes effect September 1, 1997, and 6-21 applies only to an action filed on or after that date. An action 6-22 filed before the effective date of this Act is governed by the 6-23 applicable law in effect immediately before that date, and that law 6-24 is continued in effect for that purpose. 6-25 SECTION 5. The importance of this legislation and the 6-26 crowded condition of the calendars in both houses create an 6-27 emergency and an imperative public necessity that the 7-1 constitutional rule requiring bills to be read on three several 7-2 days in each house be suspended, and this rule is hereby suspended.