CHAPTER 82. PRODUCTS LIABILITY
CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 82. PRODUCTS LIABILITY
Sec. 82.001. DEFINITIONS. In this chapter:
(1) "Claimant" means a party seeking relief, including a
plaintiff, counterclaimant, or cross-claimant.
(2) "Products liability action" means any action against a
manufacturer or seller for recovery of damages arising out of
personal injury, death, or property damage allegedly caused by a
defective product whether the action is based in strict tort
liability, strict products liability, negligence,
misrepresentation, breach of express or implied warranty, or any
other theory or combination of theories.
(3) "Seller" means a person who is engaged in the business of
distributing or otherwise placing, for any commercial purpose, in
the stream of commerce for use or consumption a product or any
component part thereof.
(4) "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.
Added by Acts 1993, 73rd Leg., ch. 5, Sec. 1, eff. Sept. 1, 1993.
Sec. 82.002. MANUFACTURER'S DUTY TO INDEMNIFY. (a) A
manufacturer shall indemnify and hold harmless a seller against
loss arising out of a products liability action, except for any
loss caused by the seller's negligence, intentional misconduct,
or other act or omission, such as negligently modifying or
altering the product, for which the seller is independently
liable.
(b) For purposes of this section,"'loss" includes court costs
and other reasonable expenses, reasonable attorney fees, and any
reasonable damages.
(c) Damages awarded by the trier of fact shall, on final
judgment, be deemed reasonable for purposes of this section.
(d) For purposes of this section, a wholesale distributor or
retail seller who completely or partially assembles a product in
accordance with the manufacturer's instructions shall be
considered a seller.
(e) The duty to indemnify under this section:
(1) applies without regard to the manner in which the action is
concluded; and
(2) is in addition to any duty to indemnify established by law,
contract, or otherwise.
(f) A seller eligible for indemnification under this section
shall give reasonable notice to the manufacturer of a product
claimed in a petition or complaint to be defective, unless the
manufacturer has been served as a party or otherwise has actual
notice of the action.
(g) A seller is entitled to recover from the manufacturer court
costs and other reasonable expenses, reasonable attorney fees,
and any reasonable damages incurred by the seller to enforce the
seller's right to indemnification under this section.
Added by Acts 1993, 73rd Leg., ch. 5, Sec. 1, eff. Sept. 1, 1993.
Sec. 82.003. LIABILITY OF NONMANUFACTURING SELLERS. (a) A
seller that did not manufacture a product is not liable for harm
caused to the claimant by that product unless the claimant
proves:
(1) that the seller participated in the design of the product;
(2) that the seller altered or modified the product and the
claimant's harm resulted from that alteration or modification;
(3) that the seller installed the product, or had the product
installed, on another product and the claimant's harm resulted
from the product's installation onto the assembled product;
(4) that:
(A) the seller exercised substantial control over the content of
a warning or instruction that accompanied the product;
(B) the warning or instruction was inadequate; and
(C) the claimant's harm resulted from the inadequacy of the
warning or instruction;
(5) that:
(A) the seller made an express factual representation about an
aspect of the product;
(B) the representation was incorrect;
(C) the claimant relied on the representation in obtaining or
using the product; and
(D) if the aspect of the product had been as represented, the
claimant would not have been harmed by the product or would not
have suffered the same degree of harm;
(6) that:
(A) the seller actually knew of a defect to the product at the
time the seller supplied the product; and
(B) the claimant's harm resulted from the defect; or
(7) that the manufacturer of the product is:
(A) insolvent; or
(B) not subject to the jurisdiction of the court.
(b) This section does not apply to a manufacturer or seller
whose liability in a products liability action is governed by
Chapter 2301, Occupations Code. In the event of a conflict,
Chapter 2301, Occupations Code, prevails over this section.
(c) If after service on a nonresident manufacturer through the
secretary of state in the manner prescribed by Subchapter C,
Chapter 17, the manufacturer fails to answer or otherwise make an
appearance in the time required by law, it is conclusively
presumed for the purposes of Subsection (a)(7)(B) that the
manufacturer is not subject to the jurisdiction of the court
unless the seller is able to secure personal jurisdiction over
the manufacturer in the action.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 5.02, eff. Sept. 1,
2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
1351, Sec. 2(a), eff. September 1, 2009.
Sec. 82.004. INHERENTLY UNSAFE PRODUCTS. (a) In a products
liability action, a manufacturer or seller shall not be liable
if:
(1) 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
(2) the product is a common consumer product intended for
personal consumption, such as:
(A) sugar, castor oil, alcohol, tobacco, and butter, as
identified in Comment i to Section 402A of the Restatement
(Second) of Torts; or
(B) an oyster.
(b) For purposes of this section, the term "products liability
action" does not include an action based on manufacturing defect
or breach of an express warranty.
Added by Acts 1993, 73rd Leg., ch. 5, Sec. 1, eff. Sept. 1, 1993.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1146, Sec. 1, eff. September 1, 2007.
Sec. 82.005. DESIGN DEFECTS. (a) In a products liability
action in which a claimant alleges a design defect, the burden is
on the claimant to prove by a preponderance of the evidence that:
(1) there was a safer alternative design; and
(2) the defect was a producing cause of the personal injury,
property damage, or death for which the claimant seeks recovery.
(b) In this section, "safer alternative design" means a product
design other than the one actually used that in reasonable
probability:
(1) would have prevented or significantly reduced the risk of
the claimant's personal injury, property damage, or death without
substantially impairing the product's utility; and
(2) was economically and technologically feasible at the time
the product left the control of the manufacturer or seller by the
application of existing or reasonably achievable scientific
knowledge.
(c) This section does not supersede or modify any statute,
regulation, or other law of this state or of the United States
that relates to liability for, or to relief in the form of,
abatement of nuisance, civil penalties, cleanup costs, cost
recovery, an injunction, or restitution that arises from
contamination or pollution of the environment.
(d) This section does not apply to:
(1) a cause of action based on a toxic or environmental tort as
defined by Sections 33.013(c)(2) and (3); or
(2) a drug or device, as those terms are defined in the federal
Food, Drug, and Cosmetic Act (21 U.S.C. Section 321).
(e) This section is not declarative, by implication or
otherwise, of the common law with respect to any product and
shall not be construed to restrict the courts of this state in
developing the common law with respect to any product which is
not subject to this section.
Added by Acts 1993, 73rd Leg., ch. 5, Sec. 1, eff. Sept. 1, 1993.
Sec. 82.006. FIREARMS AND AMMUNITION. (a) In a products
liability action brought against a manufacturer or seller of a
firearm or ammunition that alleges a design defect in the firearm
or ammunition, the burden is on the claimant to prove, in
addition to any other elements that the claimant must prove,
that:
(1) the actual design of the firearm or ammunition was
defective, causing the firearm or ammunition not to function in a
manner reasonably expected by an ordinary consumer of firearms or
ammunition; and
(2) the defective design was a producing cause of the personal
injury, property damage, or death.
(b) The claimant may not prove the existence of the defective
design by a comparison or weighing of the benefits of the firearm
or ammunition against the risk of personal injury, property
damage, or death posed by its potential to cause such injury,
damage, or death when discharged.
Added by Acts 1993, 73rd Leg., ch. 5, Sec. 1, eff. Sept. 1, 1993.
Sec. 82.007. MEDICINES. (a) In a products liability action
alleging that an injury was caused by a failure to provide
adequate warnings or information with regard to a pharmaceutical
product, there is a rebuttable presumption that the defendant or
defendants, including a health care provider, manufacturer,
distributor, and prescriber, are not liable with respect to the
allegations involving failure to provide adequate warnings or
information if:
(1) the warnings or information that accompanied the product in
its distribution were those approved by the United States Food
and Drug Administration for a product approved under the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), as
amended, or Section 351, Public Health Service Act (42 U.S.C.
Section 262), as amended; or
(2) the warnings provided were those stated in monographs
developed by the United States Food and Drug Administration for
pharmaceutical products that may be distributed without an
approved new drug application.
(b) The claimant may rebut the presumption in Subsection (a) as
to each defendant by establishing that:
(1) the defendant, before or after pre-market approval or
licensing of the product, withheld from or misrepresented to the
United States Food and Drug Administration required information
that was material and relevant to the performance of the product
and was causally related to the claimant's injury;
(2) the pharmaceutical product was sold or prescribed in the
United States by the defendant after the effective date of an
order of the United States Food and Drug Administration to remove
the product from the market or to withdraw its approval of the
product;
(3)(A) the defendant recommended, promoted, or advertised the
pharmaceutical product for an indication not approved by the
United States Food and Drug Administration;
(B) the product was used as recommended, promoted, or
advertised; and
(C) the claimant's injury was causally related to the
recommended, promoted, or advertised use of the product;
(4)(A) the defendant prescribed the pharmaceutical product for an
indication not approved by the United States Food and Drug
Administration;
(B) the product was used as prescribed; and
(C) the claimant's injury was causally related to the prescribed
use of the product; or
(5) the defendant, before or after pre-market approval or
licensing of the product, engaged in conduct that would
constitute a violation of 18 U.S.C. Section 201 and that conduct
caused the warnings or instructions approved for the product by
the United States Food and Drug Administration to be inadequate.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 5.02, eff. Sept. 1,
2003.
Sec. 82.008. COMPLIANCE WITH GOVERNMENT STANDARDS. (a) In a
products liability action brought against a product manufacturer
or seller, there is a rebuttable presumption that the product
manufacturer or seller is not liable for any injury to a claimant
caused by some aspect of the formulation, labeling, or design of
a product if the product manufacturer or seller establishes that
the product's formula, labeling, or design complied with
mandatory safety standards or regulations adopted and promulgated
by the federal government, or an agency of the federal
government, that were applicable to the product at the time of
manufacture and that governed the product risk that allegedly
caused harm.
(b) The claimant may rebut the presumption in Subsection (a) by
establishing that:
(1) the mandatory federal safety standards or regulations
applicable to the product were inadequate to protect the public
from unreasonable risks of injury or damage; or
(2) the manufacturer, before or after marketing the product,
withheld or misrepresented information or material relevant to
the federal government's or agency's determination of adequacy of
the safety standards or regulations at issue in the action.
(c) In a products liability action brought against a product
manufacturer or seller, there is a rebuttable presumption that
the product manufacturer or seller is not liable for any injury
to a claimant allegedly caused by some aspect of the formulation,
labeling, or design of a product if the product manufacturer or
seller establishes that the product was subject to pre-market
licensing or approval by the federal government, or an agency of
the federal government, that the manufacturer complied with all
of the government's or agency's procedures and requirements with
respect to pre-market licensing or approval, and that after full
consideration of the product's risks and benefits the product was
approved or licensed for sale by the government or agency. The
claimant may rebut this presumption by establishing that:
(1) the standards or procedures used in the particular
pre-market approval or licensing process were inadequate to
protect the public from unreasonable risks of injury or damage;
or
(2) the manufacturer, before or after pre-market approval or
licensing of the product, withheld from or misrepresented to the
government or agency information that was material and relevant
to the performance of the product and was causally related to the
claimant's injury.
(d) This section does not extend to manufacturing flaws or
defects even though the product manufacturer has complied with
all quality control and manufacturing practices mandated by the
federal government or an agency of the federal government.
(e) This section does not extend to products covered by Section
82.007.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 5.02, eff. Sept. 1,
2003.