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.