By Uher                                         H.B. No. 1202

      75R3341 MLS-F                           

                                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 real property.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Chapter 75, Civil Practice and Remedies Code, is

 1-6     amended to read as follows:

 1-7              CHAPTER 75.  LIMITATION OF LANDOWNERS' LIABILITY

 1-8                      SUBCHAPTER A.  GENERAL PROVISIONS

 1-9           Sec. 75.001.  DEFINITIONS.  In this chapter:

1-10                 (1)  "Charitable use" means the use of premises by:

1-11                       (A)  an organization exempt from federal income

1-12     tax under Section 501(a) of the Internal Revenue Code of 1986 (26

1-13     U.S.C. Section 501); or

1-14                       (B)  a homeowners association as defined by

1-15     Section 528(c) of the Internal Revenue Code of 1986 (26 U.S.C.

1-16     Section 528).  ["Agricultural land" means land that is located in

1-17     this state and that is suitable for:]

1-18                       [(A)  use in production of plants and fruits

1-19     grown for human or animal consumption, or plants grown for the

1-20     production of fibers, floriculture, viticulture, horticulture, or

1-21     planting seed;]

1-22                       [(B)  forestry and the growing of trees for the

1-23     purpose of rendering those trees into lumber, fiber, or other items

1-24     used for industrial, commercial, or personal consumption; or]

 2-1                       [(C)  domestic or native farm or ranch animals

 2-2     kept for use or profit.]

 2-3                 (2)  "Claimant" means a party, including a plaintiff,

 2-4     counterclaimant, cross-claimant, or third-party claimant, seeking

 2-5     recovery of damages.

 2-6                 (3)  "Governmental unit" has the meaning assigned by

 2-7     Section 101.001.

 2-8                 (4)  "Gross negligence" means:

 2-9                       (A)  a specific intent by the defendant to cause

2-10     substantial injury to the claimant; or

2-11                       (B)  an act or omission:

2-12                             (i)  which when viewed objectively from the

2-13     standpoint of the actor at the time of its occurrence involves an

2-14     extreme degree of risk, considering the probability and the

2-15     magnitude of the potential harm to others; and

2-16                             (ii)  of which the actor has actual,

2-17     subjective awareness of the risk involved, but nevertheless

2-18     proceeds with conscious indifference to the rights, safety, or

2-19     welfare of others.

2-20                 (5)  "Landowner" means an owner, lessee, or occupant of

2-21     the premises or a person who manages or has control of the

2-22     premises.

2-23                 (6)  "Nonbusiness purpose" means:

2-24                       (A)  recreation; or

2-25                       (B)  a charitable use.

2-26                 (7)  "Premises" includes real property and any

2-27     improvements to the real property [land], roads, water,

 3-1     watercourse, private ways, and buildings, structures, machinery,

 3-2     and equipment attached to or located on the real property [land],

 3-3     road, water, watercourse, or private way.

 3-4                 (8) [(3)]  "Recreation" means any [an] activity

 3-5     undertaken for the purpose of physical exercise, education,

 3-6     relaxation, or pleasure, including activities such as sports,

 3-7     hunting, fishing, swimming, boating, camping, picnicking, hiking,

 3-8     pleasure driving, nature study, cave exploration, jogging, [and]

 3-9     waterskiing and other water sports, and viewing or enjoying

3-10     natural, historical, archeological, scenic, or scientific sites.

3-11                 [(4)  "Governmental unit" has the meaning assigned by

3-12     Section 101.001.]

3-13               (Sections 75.002-75.020 reserved for expansion

3-14         SUBCHAPTER B.  GENERAL LIMITATIONS ON LANDOWNERS' LIABILITY

3-15           Sec. 75.021 [75.002].  LIABILITY LIMITED.  (a)  A landowner

3-16     [An owner, lessee, or occupant of agricultural land]:

3-17                 (1)  does not owe a duty of care to a trespasser on the

3-18     premises [land]; and

3-19                 (2)  is not liable for any injury to a trespasser on

3-20     the premises [land], except for an injury proximately caused by the

3-21     wilful or wanton acts or gross negligence of [by] the landowner

3-22     [owner, lessee, or other occupant of agricultural land].

3-23           (b)  If a landowner [an owner, lessee, or occupant of

3-24     agricultural land] gives permission to another to enter the

3-25     premises for a nonbusiness purpose [recreation], the landowner

3-26     [owner, lessee, or occupant], by giving the permission, does not:

3-27                 (1)  assure that the premises are safe for that

 4-1     purpose;

 4-2                 (2)  owe to the person to whom permission is granted a

 4-3     greater degree of care than is owed to a trespasser on the

 4-4     premises;  or

 4-5                 (3)  assume responsibility or incur liability for any

 4-6     injury to any individual or property caused by any act of the

 4-7     person to whom permission is granted.

 4-8           (c)  [If an owner, lessee, or occupant of real property other

 4-9     than agricultural land gives permission to another to enter the

4-10     premises for recreation, the owner, lessee, or occupant, by giving

4-11     the permission, does not:]

4-12                 [(1)  assure that the premises are safe for that

4-13     purpose;]

4-14                 [(2)  owe to the person to whom permission is granted a

4-15     greater degree of care than is owed to a trespasser on the

4-16     premises; or]

4-17                 [(3)  assume responsibility or incur liability for any

4-18     injury to any individual or property caused by any act of the

4-19     person to whom permission is granted.]

4-20           [(d)]  Subsections (a) and [,] (b) [, and (c)] shall not

4-21     limit the liability of a landowner [an owner, lessee, or occupant

4-22     of real property] who has been grossly negligent or has acted with

4-23     malicious intent or in bad faith.

4-24           Sec. 75.022 [75.003].  Application and Effect of Chapter.

4-25     (a)  This chapter does not relieve any landowner [owner, lessee, or

4-26     occupant of real property] of any liability that would otherwise

4-27     exist for deliberate, wilful, or malicious injury to a person or to

 5-1     property.

 5-2           (b)  The [This chapter does not affect the] doctrine of

 5-3     attractive nuisance[, except that the doctrine] may not be the

 5-4     basis for liability of a landowner [an owner, lessee, or occupant

 5-5     of agricultural land] for any injury to a person engaged in a

 5-6     nonbusiness purpose on the premises [trespasser over the age of 16

 5-7     years].

 5-8           (c)  Except for a governmental unit, this chapter applies

 5-9     only to a landowner [an owner, lessee, or occupant of real

5-10     property] who:

5-11                 (1)  does not charge for entry to the premises;

5-12                 (2)  charges for entry to the premises, but whose total

5-13     charges collected in the previous calendar year for all

5-14     recreational use of the entire premises of the owner, lessee, or

5-15     occupant are not more than twice the total amount of ad valorem

5-16     taxes imposed on the premises for the previous calendar year; or

5-17                 (3)  has liability insurance coverage in effect on an

5-18     act or omission described by Section 75.023(a) [75.004(a)] and in

5-19     the amounts equal to or greater than those provided by that

5-20     section.

5-21           (d)  This chapter does not create any liability.

5-22           (e)  Except as otherwise provided, this chapter applies to a

5-23     governmental unit.

5-24           (f)  This chapter does not waive sovereign immunity.

5-25           (g)  To the extent that this chapter limits the liability of

5-26     a governmental unit under circumstances in which the governmental

5-27     unit would be liable under Chapter 101, this chapter controls.

 6-1           Sec. 75.023 [75.004].  Limitation on Monetary Damages for

 6-2     Private Landowners.  (a)  Subject to Subsection (b), the liability

 6-3     of a landowner [an owner, lessee, or occupant of land] for an act

 6-4     or omission by the landowner [owner, lessee, or occupant] relating

 6-5     to the premises that results in damages to a person who has entered

 6-6     the premises is limited to a maximum amount of $500,000 for each

 6-7     person and $1 million for each single occurrence of bodily injury

 6-8     or death and $100,000 for each single occurrence for injury to or

 6-9     destruction of property.

6-10           (b)  This section applies only to a landowner [an owner,

6-11     lessee, or occupant of land] who has liability insurance coverage

6-12     in effect on an act or omission described by Subsection (a) and in

6-13     the amounts equal to or greater than those provided by Subsection

6-14     (a).  The coverage may be provided under a contract of insurance or

6-15     other plan of insurance authorized by statute.

6-16           (c)  This section does not affect the liability of an insurer

6-17     or insurance plan in an action under Article 21.21, Insurance Code,

6-18     or an action for bad faith conduct, breach of fiduciary duty, or

6-19     negligent failure to settle a claim.

6-20           (d)  This section does not apply to a governmental unit.

6-21               (Sections 75.024-75.050 reserved for expansion

6-22           SUBCHAPTER C.  LIMITATION OF LANDOWNERS' LIABILITY FOR

6-23                       CRIMINAL ACTS OF ANOTHER PERSON

6-24           Sec. 75.051.  APPLICABILITY.  This subchapter does not apply

6-25     to a cause of action for a toxic tort as defined by Section

6-26     33.011(7).

6-27           Sec. 75.052.  LIABILITY LIMITED.  A landowner is not liable

 7-1     for property damage or damages arising from the personal injury or

 7-2     death of a claimant that results from a criminal act on the

 7-3     landowner's premises unless:

 7-4                 (1)  the landowner was grossly negligent; and

 7-5                 (2)  the landowner's gross negligence was a proximate

 7-6     cause of the criminal act.

 7-7           Sec. 75.053.  EXEMPTION LIMITED.  (a)  The exemption provided

 7-8     by Section 75.052 does not apply if:

 7-9                 (1)  the criminal act was committed by an employee of

7-10     the landowner;

7-11                 (2)  the landowner is criminally responsible as a party

7-12     to the criminal act under Chapter 7, Penal Code;

7-13                 (3)  the criminal act occurred at a location where, at

7-14     the time of the criminal act, the landowner was maintaining a

7-15     common nuisance under Chapter 125 and had not made reasonable

7-16     attempts to abate the nuisance; or

7-17                 (4)  the criminal act resulted from the landowner's

7-18     intentional or knowing violation of a statutory duty under

7-19     Subchapter D, Chapter 92, Property Code, and the criminal act

7-20     occurred after the statutory deadline for compliance with that

7-21     duty.

7-22           (b)  In an action arising out of a criminal act committed by

7-23     an employee of the landowner, the landowner may be liable for

7-24     damages, but only if:

7-25                 (1)  the landowner authorized the doing and the manner

7-26     of the act;

7-27                 (2)  the employee was unfit and the landowner acted

 8-1     with gross negligence in employing or retaining the employee;

 8-2                 (3)  the employee was employed in a managerial capacity

 8-3     and was acting in the scope of the employee's employment; or

 8-4                 (4)  the landowner or a manager of the landowner

 8-5     ratified or approved the act.

 8-6           SECTION 2.  Section 87.002, Civil Practice and Remedies Code,

 8-7     as added by Chapter 604, Acts of the 74th Legislature, Regular

 8-8     Session, 1995, is amended by amending the heading and Subsection

 8-9     (a) to read as follows:

8-10           Sec. 87.002.  RECOVERY OF DAMAGES [FOR INJURY TO CONVICTED

8-11     PERSON] PROHIBITED.  (a)  A claimant who has been convicted of a

8-12     felony or misdemeanor may not recover damages for an injury or

8-13     property damage sustained during the commission of the felony or

8-14     misdemeanor if the injury or property damage would not have been

8-15     sustained but for the commission of the felony or misdemeanor.

8-16           SECTION 3.  Section 93.001, Civil Practice and Remedies Code,

8-17     is amended to read as follows:

8-18           Sec. 93.001.  AFFIRMATIVE DEFENSE.  (a)  It is an affirmative

8-19     defense to a civil action for damages for personal injury, property

8-20     damage, or  death that the plaintiff, at the time the cause of

8-21     action arose, was[:]

8-22                 [(1)  committing a felony, for which the plaintiff has

8-23     been finally convicted, that was the sole cause of the damages

8-24     sustained by the plaintiff; or]

8-25                 [(2)]  committing or attempting to commit suicide, and

8-26     the plaintiff's conduct in committing or attempting to commit

8-27     suicide was a [the sole] cause of the damages sustained;  provided,

 9-1     however, if the suicide or attempted suicide was caused in whole or

 9-2     in part by a failure on the part of any defendant to comply with an

 9-3     applicable legal standard, then such suicide or attempted suicide

 9-4     shall not be a defense.

 9-5           (b)  It is an affirmative defense to a civil action for

 9-6     damages for personal injury, property damage, or death arising out

 9-7     of a condition of real property that:

 9-8                 (1)  the plaintiff:

 9-9                       (A)  knew of the condition;

9-10                       (B)  realized the nature and extent of the danger

9-11     involved in encountering the condition; and

9-12                       (C)  voluntarily encountered the condition; or

9-13                 (2)  the condition was a dangerous condition that was

9-14     open and obvious in the exercise of ordinary care.

9-15           (c)  This chapter does not apply in any action brought by an

9-16     employee, or the surviving beneficiaries of an employee, under the

9-17     Workers' Compensation Law of Texas, or in an action against an

9-18     insurer based on a contract of insurance, a statute, or common law.

9-19           (d) [(c)]  In an action to which this chapter applies, this

9-20     chapter shall prevail over any other law.

9-21           SECTION 4.  (a)  This Act takes effect September 1, 1997, and

9-22     applies to all actions:

9-23                 (1)  filed on or after the effective date of this Act;

9-24     or

9-25                 (2)  pending on the effective date of this Act and in

9-26     which the trial, or any new trial or retrial following motion,

9-27     appeal, or otherwise, begins on or after that date.

 10-1          (b)  In an action filed before the effective date of this

 10-2    Act, a trial, new trial, or retrial that is in progress on the

 10-3    effective date of this Act is governed by the applicable law in

 10-4    effect immediately before that date, and that law is continued in

 10-5    effect for that purpose.

 10-6          SECTION 5.  The importance of this legislation and the

 10-7    crowded condition of the calendars in both houses create an

 10-8    emergency and an imperative public necessity that the

 10-9    constitutional rule requiring bills to be read on three several

10-10    days in each house be suspended, and this rule is hereby suspended.