Over the past decade the Texas legislature has passed numerous laws that restrict the rights of Texans to recover damages when they have been injured by the by the negligent acts of other individuals or business entities. These laws are commonly known as “Tort Reform“. One of the Tort Reform laws passed in Texas impacts a person’s right to sue when they have been injured by a defective product. This limitation on products liability claims is contained in Chapter 82 of the Texas Civil Practice and Remedies Code.
Chapter 82 of the Texas Civil Practice and Remedies Code applies to any legal proceeding against a Seller or Manufacturer for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product regardless of whether the action is based in strict liability, negligence. misrepresentation, breach of an express or implied warranty, or any other theory or combination of theories.
A Seller means a person or business entity that is engaged in the business of distributing or otherwise placing in the stream of commerce, for any commercial purpose or for use or consumption, a product or any component part thereof. A Manufacturer means a person who is a designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce.
The statute restricts the right to sue non-manufacturing Sellers of products. A Seller that did not manufacture the product is not liable for harm caused to the injured person by that product unless the injured person proves:
- that the Seller participated in the design of the product;
- that the Seller altered or modified the product and the injury resulted from that alteration or modification;
- that the Seller installed the product, or had the product installed, on another product and the injury resulted from the product’s installation onto the assembled product;
- that the Seller exercised substantial control over the content of a warning or instruction that accompanied the product; that the warning or instruction was inadequate; and the injury resulted from the inadequacy of the warning or instruction;
- that the Seller made an express factual representation about an aspect of the product that was incorrect and the injured person relied on the representation in obtaining or using the product. The injured person must also prove that if the aspect of the product had been as represented, the injured person would not have been harmed by the product or would not have suffered the same degree of harm;
- that the Seller actually knew of a defect to the product at the time the Seller supplied the product and the injured person’s harm resulted from the defect; or
- that the Manufacturer of the product is insolvent.
Chapter 82 of the Texas Civil Practice and Remedies Code also classifies some products as inherently unsafe products. A Seller or Manufacturer of a product is not liable if the product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community and the product is a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, tobacco, butter or is an oyster.
The statute further imposes strict requirements to establish proof of a design defect with the product. In a products liability suit in which the injured person alleges a design defect, it must be proved that there was a safer alternative design and the design defect was a contributing cause of the injury, property damage, or death for which the recovery of damages is sought. A safer alternative design means a product design, other than the one actually used, that would have prevented or significantly reduced the risk of injury, property damage, or death without substantially impairing the product’s functionality. The safer alternative design must also be economically and technologically feasible at the time the product left the control of the Seller or Manufacturer based on existing scientific knowledge.