BILL ANALYSIS

C.S.H.B. 1971

By: Jackson, Jim

Judiciary & Civil Jurisprudence

Committee Report (Substituted)

BACKGROUND AND PURPOSE

Interested parties observe that a landowner usually has no liability for injury to a person who trespasses on the landowner's property.  Recent developments in legal commentary have created some doubt regarding the state of the law on this issue.  C.S.H.B. 1971 seeks to address this issue by providing that a land possessor, with certain exceptions, is not liable for injury and does not owe a duty of care to a trespasser except through gross negligence.

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.

ANALYSIS

C.S.H.B. 1971 amends the Civil Practice and Remedies Code to establish that an owner, lessee, or occupant of land does not owe a duty of care to a trespasser on the land and is not liable for any injury to a trespasser on the land, except that an owner, lessee, or occupant owes a duty to refrain from injuring a trespasser wilfully, wantonly, or through gross negligence.  The bill establishes that an owner, lessee, or occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land if the place where the artificial condition exists is one upon which the owner, lessee, or occupant knew or reasonably should have known that children were likely to trespass; the artificial condition is one that the owner, lessee, or occupant knew or reasonably should have known existed, and that the owner, lessee, or occupant realized or should have realized involved an unreasonable risk of death or serious bodily harm to such children; the injured child, because of the child's youth, did not discover the condition or realize the risk involved in intermeddling with the condition or coming within the area made dangerous by the condition; the utility to the owner, lessee, or occupant of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with the risk to the child involved; and the owner, lessee, or occupant failed to exercise reasonable care to eliminate the danger or otherwise protect the child. 

C.S.H.B. 1971 exempts an owner, lessee, or occupant of land from liability to a trespasser for damages arising from actions of the owner, lessee, or occupant that are justified under provisions of law relating to the protection of persons or property.  The bill establishes that its provisions do not affect certain provisions of law relating to the limitation of landowners' liability and do not create or increase the liability of any person.  The bill defines "trespasser."

EFFECTIVE DATE

On passage, or, if the bill does not receive the necessary vote, September 1, 2011.

COMPARISON OF ORIGINAL AND SUBSTITUTE

C.S.H.B. 1971 differs from the original in a provision establishing that an owner, lessee, or occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land by omitting a provision included in the original establishing that the provision applies to a child younger than 16 years of age.

C.S.H.B. 1971, in a provision listing the conditions under which an owner, lessee, or occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land, differs from the original by specifying in one of these conditions that the injured child, because of the child's youth, did not discover the condition or realize the risk, whereas the original provides in this condition only that the injured child did not discover the condition or realize the risk.

C.S.H.B. 1971 omits a provision included in the original establishing that a child who is at least 14 years of age is presumed to appreciate the risk of highly dangerous artificial conditions on land and authorizing this presumption to be overcome under a certain condition.