CIVIL PRACTICE & REMEDIES CODE
CHAPTER 82. PRODUCTS LIABILITY
§ 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, § 1, eff. Sept. 1, 1993.
§ 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, § 1, eff. Sept. 1, 1993.
§ 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.
Added by Acts 2003, 78th Leg., ch. 204, § 5.02, eff. Sept. 1,
2003.
§ 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 sugar, castor oil, alcohol,
tobacco, and butter, as identified in Comment i to Section 402A of
the Restatement (Second) of Torts.
(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, § 1, eff. Sept. 1, 1993.
§ 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, § 1, eff. Sept. 1, 1993.
§ 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, § 1, eff. Sept. 1, 1993.
§ 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, § 5.02, eff. Sept. 1,
2003.
§ 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, § 5.02, eff. Sept. 1,
2003.
