Personal Injury, Wrongful Death and Other Torts
When someone is injured through the actions of another, they deserve reasonable compensation for their injuries. But whether it was a car accident, slip and fall or other type of lawsuit, by the mid-1980s personal injury trial lawyers had pushed Texas law out of balance.
Common-sense tort reforms have helped ensure injured Texans still receive the compensation they are due without creating opportunities for lawsuit abuse and massive paydays for personal injury trial lawyers. The Texas Legislature has continued to ensure state laws are fair and honest by passing the following bills:
2021: Curbing Abusive Commercial Vehicle Lawsuits
Plaintiff lawyers developed an unfair strategy to maximize results in commercial vehicle lawsuits. This scheme resulted in several massive judgments in Texas and created a litigation vortex that encouraged more lawsuits and caused insurance premiums to skyrocket.
Using irrelevant safety records and employment practices, plaintiff attorneys painted commercial vehicle owners as a danger to the motoring public, seeking to instill fear and engage jurors’ “fight or flight” instinct. In many cases, this evidence didn’t pertain to the facts of the specific case—it was irrelevant and intended only to prejudice the jury—but was admitted nevertheless by inexperienced or biased trial judges.
House Bill 19 protects the rights of Texans who are truly injured in a commercial vehicle accident, while reducing opportunities for trial lawyers to manipulate evidence at trial to seek millions in damages in cases where the commercial vehicle owner was not at fault or the plaintiff was not injured. The bill helps ensure the “rules of the road” for highway accident cases are applied in a uniform and fair manner in all Texas courtrooms.
- A defendant can request a two-part trial in any case involving a commercial vehicle. Two-part trials are already used in both civil and criminal cases in Texas.
- If the defendant elects a two-part trial, the negligence of the driver, the negligence of the employer in maintaining the vehicle and compensatory damages are determined in the first phase of trial. In some cases, the employer’s negligent entrustment of the vehicle to the driver is also determined in the first phase. Liability for and the amount of exemplary damages for all causes of action are determined in the second phase of trial.
- The well-established law of negligence per se in regard to evidence of regulatory violations is codified for commercial vehicle cases.
- Photos and videos of the vehicles involved in the accident are presumed to be admissible into evidence.
- The Texas Department of Insurance must conduct a six-year study on the effect of the bill on insurance rates and availability and report its findings to the Legislature before each regular session.
2021: Pandemic Liability Protections
As COVID-19 proved, pandemics are fluid situations that require everyone to adapt to changing guidance and protocols. Businesses that follow state and federal safety protocols need assurance they will not be subject to an onslaught of lawsuits for alleged exposure, whether to COVID-19 or a future pandemic. At the same time, the law must encourage businesses to follow safety protocols to protect employees and customers.
Senate Bill 6 provides reasonable retroactive civil liability protections for businesses, religious institutions, non-profit entities, healthcare providers, first responders and educational institutions.
Concerning businesses, SB 6 establishes common-sense liability protections for Texans who, in good faith, do their best to comply with appropriate health and safety guidelines. The bill does not protect bad actors who intentionally or with gross negligence put other Texans in harm’s way. The bill:
- Protects a person from liability for exposing an individual to a pandemic disease unless the person knowingly failed to implement applicable health and safety guidelines or flagrantly disregarded the guidelines.
- Protects a person from liability if the person in good faith substantially complied with an applicable rule, order or declaration of the governor, legislature, a state agency or a local governmental entity that was in conflict with another rule, order or declaration.
- Shields public and private higher education institutions from liability for canceling or modifying a course, program or activity because of the pandemic emergency.
- Protects manufacturers, designers, distributors, sellers, labelers or donors of products used to combat a pandemic disease unless they acted with actual malice.
The bill implements the following with regard to healthcare providers:
- Protections apply to care rendered to known or suspected COVID-19 patients and to care affected by the pandemic.
- Conduct is governed by gross negligence or a willful and wanton standard that mirrors Texas’ Good Samaritan law and emergency care protections. The bill does not provide unchecked liability protection; it simply broadens the current emergency room standard to COVID-19 patients and situations where the defendant proves that COVID-19 was the producing cause of the alleged negligent care.
- Liability protections are retroactive to March 13, 2020, when Gov. Abbott declared COVID-19 a public health emergency.
2011: Limiting Landowner Liability to Trespassers
Texas common law has always provided that a property owner owes no duty of care to a trespasser, except in very narrow and well-defined circumstances. However, a recent publication by the American Law Institute (ALI)—an organization of judges, law professors and lawyers—had the potential to change this. ALI regularly publishes Restatements of the Law, treatises on legal subjects to inform judges and lawyers about general principles of common law. Over the years, Texas courts have occasionally followed the Restatement’s approach to legal issues. A recent edition of the Restatement of the Law of Torts proposed a new and expansive standard for determining when a landowner owes compensation to a trespasser for an injury sustained on the landowner’s property.
Senate Bill 1160 codified the common law to preempt courts from adopting liberal provisions of the Restatement (Third) of Torts, which would have dramatically expanded trespassers’ rights to sue landowners when injured on the landowners’ property.
2003: Limiting Lawsuits Based on Migration of Air Particles
A provision in House Bill 4 of 2003 addressed lawsuits in which the plaintiff claimed that air molecules from a nearby defendant’s property were “trespassing” on the plaintiff’s property. This effectively created liability without injury based on the common law theory that any uninvited entry onto another person’s property is presumed to have injured the property owner. The 2003 law limits trespass actions for migration or transportation of an air contaminant (other than an odor) by requiring the plaintiff to show that the trespassing air molecule caused him actual and substantial damage.
2003: Protecting School Employees from Lawsuits
Prior to 2003, Texas law provided that a professional employee of a school district could not be held personally liable for any action that was within the employee’s scope of duties and involved his exercise of judgment or discretion unless:
- the employee used excessive force in disciplining a student, or
- the employee’s negligence resulted in bodily injury to a student.
In House Bill 4 of 2003, the Legislature expanded this statute to specifically adopt the Paul D. Coverdell Teacher Protection Act, which had been adopted by the U.S. Congress in 2001. The goal of the law was to reduce the number of lawsuits brought against teachers, administrators and other personnel based on decisions made to maintain order on school grounds. The act limits a school employee’s liability if:
- the employee was acting within the scope of employment,
- the employee’s actions were in conformity with federal, state and local laws,
- the employee was properly licensed or certified in Texas,
- the harm to the student was not caused by willful or criminal misconduct, gross negligence, reckless misconduct or a conscious indifference to the safety of the student, and
- the harm was not caused by the operation of a motor vehicle.
HB 4 also added a provision requiring that a school employee receive written notice of a lawsuit against him no later than 90 days before the suit is filed, reasonably describing the incident from which the claim arose. Additionally, if the school employee is found to be immune from liability, he is entitled to recover attorney’s fees and court costs from the person who filed the lawsuit.
1999, 2003: Protecting Good Samaritans from Lawsuits
For many years, the Texas Legislature has seen the value and necessity of services provided by charitable organizations. In the past, however, the vulnerability to personal liability arising from providing services through these organizations left many individuals hesitant to volunteer. As a result, Texas has had a Good Samaritan law on the books since 1987, providing that volunteers of a charitable organization are immune from civil liability for any act or omission resulting in death, damage or injury if the volunteer:
- acted in the course and scope of his duties (including as an officer, director or trustee within the organization),
- was not willfully negligent, and
- did not act with conscious indifference or reckless disregard for the safety of others.
The statute also protects the charitable organizations themselves and their paid employees by capping their liability at $500,000 for each person who was injured, and $1 million for each single occurrence of bodily injury or death.
The Legislature expanded on the Good Samaritan law in 1999 with the passage of Senate Bill 215, which extends liability protection to doctors and other healthcare providers who donate time and talent to treat people who are unable to afford medical care.
In 2003, the Legislature expanded the statute further in House Bill 4 to provide that the liability of a hospital or its employees is capped at $500,000 for an act or omission resulting in death or injury to a patient if the patient signs a written statement acknowledging that the hospital will provide care without the expectation of compensation, and the limitation on the recovery of damages is in exchange for receiving free services.
1999: Allowing Truthful Employment Recommendations
In the course of business, employers are often asked to provide recommendations or references for former employees. In Texas, employers were regularly sued for defamation after making a truthful statement about a former employee. In 1999, the Texas Legislature passed House Bill 341, protecting employers who disclose truthful information about a current or former employee from civil liability. If an employer responds to a request for an employment recommendation, he may be liable for defamation only if it is proven by clear and convincing evidence that the information was known by the employer to be false at the time the disclosure was made, or that the disclosure was made with malice or in reckless disregard for the truth or falsity of the information disclosed.
1995: Protecting Public Servants from Lawsuits
In House Bill 383 of 1995, the Texas Legislature expanded an existing law to provide that the liability of a public servant for an injury to a person or person’s property caused by the servant’s job-related acts would be limited to $100,000, so long as the state, a local government or an insurance company is obligated to pay that amount on the person’s behalf.
1995: Curtailing Property Owner Liability for Independent Contractor Acts
Before 1995, it was common for a property owner to be sued for an injury caused to an independent contractor’s employee who was performing services on the owner’s property, even when the owner had no control over the contractor and was unaware of any dangerous condition that might lead to an injury. In 1995, the Texas Legislature included in Senate Bill 28 a new law providing that a property owner would not be liable for personal injury, death or property damage to a contractor, subcontractor or their employees who construct, repair, renovate or modify an improvement to real property. This includes damage arising from the failure to provide a safe workplace, unless the property owner exercises control over the manner in which the work is performed and had actual knowledge of the danger or condition that caused harm, but failed to warn the injured person.