By: Fraser S.B. No. 428
97S0300/1
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the liability of landowners and others to certain
1-2 persons for personal injuries or property damage.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Sections 75.001 through 75.004, Civil Practice
1-5 and Remedies Code, are designated as Subchapter A of Chapter 75,
1-6 Civil Practice and Remedies Code, and a new heading is added to
1-7 read as follows:
1-8 SUBCHAPTER A. GENERAL LIMITATIONS ON LANDOWNERS' LIABILITY
1-9 SECTION 2. Sections 75.001 and 75.002, Civil Practice and
1-10 Remedies Code, are amended to read as follows:
1-11 Sec. 75.001. DEFINITIONS. In this chapter:
1-12 (1) "Charitable use" means the use of premises by:
1-13 (A) an organization exempt from federal income
1-14 tax under Section 501(a) of the Internal Revenue Code of 1986; or
1-15 (B) a homeowners association as defined by
1-16 Section 528(c) of the Internal Revenue Code of 1986 ["Agricultural
1-17 land" means land that is located in this state and that is suitable
1-18 for:]
1-19 [(A) use in production of plants and fruits
1-20 grown for human or animal consumption, or plants grown for the
1-21 production of fibers, floriculture, viticulture, horticulture, or
1-22 planting seed;]
1-23 [(B) forestry and the growing of trees for the
2-1 purpose of rendering those trees into lumber, fiber, or other items
2-2 used for industrial, commercial, or personal consumption; or]
2-3 [(C) domestic or native farm or ranch animals
2-4 kept for use or profit].
2-5 (2) "Claimant" means a party, including a plaintiff,
2-6 counterclaimant, cross-claimant, or third-party claimant, seeking
2-7 recovery of damages.
2-8 (3) "Governmental unit" has the meaning assigned by
2-9 Section 101.001.
2-10 (4) "Gross negligence" means:
2-11 (A) a specific intent by the defendant to cause
2-12 substantial injury to the claimant; or
2-13 (B) an act or omission:
2-14 (i) which when viewed objectively from the
2-15 standpoint of the actor at the time of its occurrence involves an
2-16 extreme degree of risk, considering the probability and magnitude
2-17 of the potential harm to others; and
2-18 (ii) of which the actor has actual,
2-19 subjective awareness of the risk involved but nevertheless proceeds
2-20 with conscious indifference to the rights, safety, or welfare of
2-21 others.
2-22 (5) "Landowner" means an owner, lessee, or occupant of
2-23 premises or a person who manages or controls the premises.
2-24 (6) "Nonbusiness purpose" means:
2-25 (A) recreation; or
3-1 (B) a charitable use.
3-2 (7) "Premises" includes real property, land and any
3-3 improvements to the land, roads, water, watercourse, private ways,
3-4 and buildings, structures, machinery, and equipment attached to or
3-5 located on the land, road, water, watercourse, or private way.
3-6 (8) [(3)] "Recreation" means any [an] activity
3-7 undertaken for the purpose of physical exercise, education,
3-8 relaxation, or pleasure, including activities such as sports,
3-9 hunting, fishing, swimming, boating, camping, picnicking, hiking,
3-10 pleasure driving, nature study, cave exploration, jogging, [and]
3-11 waterskiing and other water sports, and viewing or enjoying
3-12 natural, historical, archeological, scenic, or scientific sites.
3-13 [(4) "Governmental unit" has the meaning assigned by
3-14 Section 101.001.]
3-15 Sec. 75.002. LIABILITY LIMITED. (a) A landowner [An owner,
3-16 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
4-1 [owner, lessee, or occupant], by giving the permission, does not:
4-2 (1) assure that the premises are safe for that
4-3 purpose;
4-4 (2) owe to the person to whom permission is granted a
4-5 greater degree of care than is owed to a trespasser on the
4-6 premises; or
4-7 (3) assume responsibility or incur liability for any
4-8 injury to any individual or property caused by any act of the
4-9 person to whom permission is granted.
4-10 (c) [If an owner, lessee, or occupant of real property other
4-11 than agricultural land gives permission to another to enter the
4-12 premises for recreation, the owner, lessee, or occupant, by giving
4-13 the permission, does not:]
4-14 [(1) assure that the premises are safe for that
4-15 purpose;]
4-16 [(2) owe to the person to whom permission is granted a
4-17 greater degree of care than is owed to a trespasser on the
4-18 premises; or]
4-19 [(3) assume responsibility or incur liability for any
4-20 injury to any individual or property caused by any act of the
4-21 person to whom permission is granted.]
4-22 [(d)] Subsections (a) and[,] (b)[, and (c)] shall not limit
4-23 the liability of a landowner [an owner, lessee, or occupant of real
4-24 property] who has been grossly negligent or has acted with
4-25 malicious intent or in bad faith.
5-1 SECTION 3. Subsections (a), (b), and (c), Section 75.003,
5-2 Civil Practice and Remedies Code, are amended to read as follows:
5-3 (a) This chapter does not relieve any landowner [owner,
5-4 lessee, or occupant of real property] of any liability that would
5-5 otherwise exist for deliberate, wilful, or malicious injury to a
5-6 person or to property.
5-7 (b) The [This chapter does not affect the] doctrine of
5-8 attractive nuisance[, except that the doctrine] may not be the
5-9 basis for liability of a landowner [an owner, lessee, or occupant
5-10 of agricultural land] for any injury to a person engaged in a
5-11 nonbusiness purpose on the premises [trespasser over the age of 16
5-12 years].
5-13 (c) Except for a governmental unit, this chapter applies
5-14 only to a landowner [an owner, lessee, or occupant of real
5-15 property] who:
5-16 (1) does not charge for entry to the premises;
5-17 (2) charges for entry to the premises, but whose total
5-18 charges collected in the previous calendar year for all
5-19 recreational use of the entire premises of the landowner [owner,
5-20 lessee, or occupant] are not more than twice the total amount of ad
5-21 valorem taxes imposed on the premises for the previous calendar
5-22 year; or
5-23 (3) has liability insurance coverage in effect on an
5-24 act or omission described by Section 75.004(a) and in the amounts
5-25 equal to or greater than those provided by that section.
6-1 SECTION 4. Subsections (a) and (b), Section 75.004, Civil
6-2 Practice and Remedies Code, are amended to read as follows:
6-3 (a) Subject to Subsection (b), the liability of a landowner
6-4 [an owner, lessee, or occupant of land] for an act or omission by
6-5 the landowner [owner, lessee, or occupant] relating to the premises
6-6 that results in damages to a person who has entered the premises is
6-7 limited to a maximum amount of $500,000 for each person and $1
6-8 million for each single occurrence of bodily injury or death and
6-9 $100,000 for each single occurrence for injury to or destruction of
6-10 property.
6-11 (b) This section applies only to a landowner [an owner,
6-12 lessee, or occupant of land] who has liability insurance coverage
6-13 in effect on an act or omission described by Subsection (a) and in
6-14 the amounts equal to or greater than those provided by Subsection
6-15 (a). The coverage may be provided under a contract of insurance or
6-16 other plan of insurance authorized by statute.
6-17 SECTION 5. Chapter 75, Civil Practice and Remedies Code, is
6-18 amended by adding Subchapter B to read as follows:
6-19 SUBCHAPTER B. LIMITATION OF LANDOWNER'S LIABILITY FOR
6-20 CRIMINAL ACTS OF ANOTHER PERSON
6-21 Sec. 75.051. APPLICABILITY. This subchapter does not apply
6-22 to a cause of action for a toxic tort as defined by Section
6-23 33.011(7).
6-24 Sec. 75.052. LIABILITY LIMITED. (a) A landowner is not
6-25 liable for property damage or damages arising from the personal
7-1 injury or death of a claimant that results from a criminal act
7-2 unless:
7-3 (1) the landowner was grossly negligent; and
7-4 (2) the landowner's gross negligence was a proximate
7-5 cause of the criminal act.
7-6 Sec. 75.053. EXEMPTION LIMITED. (a) The exemption provided
7-7 by Section 75.052 does not apply if:
7-8 (1) the criminal act was committed by an employee of
7-9 the landowner;
7-10 (2) the landowner is criminally responsible as a party
7-11 to the criminal act under Chapter 7, Penal Code;
7-12 (3) the criminal act occurred at a location where, at
7-13 the time of the criminal act, the landowner was maintaining a
7-14 common nuisance under Chapter 125 and had not made reasonable
7-15 attempts to abate the nuisance; or
7-16 (4) the criminal act resulted from the landowner's
7-17 intentional or knowing violation of a statutory duty under
7-18 Subchapter D, Chapter 92, Property Code, and the criminal act
7-19 occurred after the statutory deadline for compliance with that
7-20 duty.
7-21 (b) In an action arising out of a criminal act committed by
7-22 an employee of the landowner, the landowner may be liable for
7-23 damages, but only if:
7-24 (1) the landowner authorized the doing and the manner
7-25 of the act;
8-1 (2) the employee was unfit and the landowner acted
8-2 with gross negligence in employing or retaining the employee;
8-3 (3) the employee was employed in a managerial capacity
8-4 and was acting in the scope of the employee's employment; or
8-5 (4) the landowner or a manager of the landowner
8-6 ratified or approved the act.
8-7 SECTION 6. (a) This Act takes effect September 1, 1997, and
8-8 applies to all actions:
8-9 (1) filed on or after the effective date of this Act;
8-10 or
8-11 (2) pending on the effective date of this Act and in
8-12 which the trial, or any new trial or retrial following motion,
8-13 appeal, or otherwise, begins on or after that date.
8-14 (b) In an action filed before the effective date of this
8-15 Act, a trial, new trial, or retrial that is in progress on the
8-16 effective date of this Act is governed by the applicable law in
8-17 effect immediately before that date, and that law is continued in
8-18 effect for that purpose.
8-19 SECTION 7. The importance of this legislation and the
8-20 crowded condition of the calendars in both houses create an
8-21 emergency and an imperative public necessity that the
8-22 constitutional rule requiring bills to be read on three several
8-23 days in each house be suspended, and this rule is hereby suspended.