Texas Tort Law Reform: An Introduction

JusticeTexas Lieutenant Governor Dan Patrick recently spoke to business and community leaders in Waco about why people want to relocate their lives and businesses to Texas. One of the reasons he cited was tort reform. Texas is known as a tort reform state, but what exactly does that mean?

First, what is a "tort?" Simply put, laws about torts govern injuries caused by one person to another. Although the injuries are usually physical, they also cover financial damage, property damage, emotional injuries, and the loss of civil rights. Tort laws cover how an injured person is able to recover compensation for such injuries and obtain justice through the civil law system.

Second, what is "tort reform?" Put simply, tort reform means revising tort laws to limit how much a plaintiff (the injured person) can obtain as the result of a tort law claim. This especially applies to medical malpractice claims against providers such as doctors, hospitals, clinics, nursing homes, and others. It also applies to other types of tort cases, primarily known as personal injury cases. Proponents of medical-malpractice tort reform believe that limits (caps) on damages that an injured plaintiff can obtain will encourage doctors both to remain in Texas and move to Texas.

Premises Liability

The Texas legislature and Texas Supreme Court have limited a person's ability to recover when they are injured on someone else's property. For example, if a person slips and falls while shopping at a store due to a slippery substance on the ground, that person will generally have to show that the company had actual knowledge that the slippery substance was present or show constructive knowledge of its presence. Over recent years, the Texas appeallate courts have made it much more difficult for an injured person to show that the company had constructive knowledge of the thing that injured the person.

Additionally, the Texas legislature passed a law in 1996 that limits a contractor's ability to recover for injuries sustained at a workplace when the contractor's injury arises from his or her construction, repair, modification, or renovation of the property involved in the accident. The Texas Supreme Court held that as long as the injury-causing defect is related to the contractor's work, then the law can protect the property owner from having to pay any damages at all. In recent years, the overbreadth of this law and its over-application by the courts have been called into question.

Comparative Negligence

Tort reform in Texas also limits comparative negligence claims. Comparative negligence refers to situations in which both parties have some degree of negligence. Some state laws limit compensation to plaintiffs who were injured by a defendant who was 100 percent negligent. Other states, known as "comparative negligence states," allow proportional awards. For example, if the plaintiff is found to be 20 percent negligent and the defendant is found to be 80 percent negligent, the plaintiff's verdict or settlement award is reduced by 20 percent.

Texas is slightly different from other comparative negligence states. A plaintiff can recover damages only if his or her degree of negligence is found to be 50 percent or less responsible for the injuries. A plaintiff found to be 51 percent negligent would not receive damages, even if the injury or loss was severe.

Lawsuits Against Government Entities

Reform of tort laws in Texas also has resulted in changes that affect lawsuits against entities such as state, county and local governments.

Many states protect government entities against lawsuits from individuals who were physically injured or suffered other losses on government property or because of negligent actions by government employees. This is known as "sovereign immunity." In 1969, the Texas Tort Claims Act changed state law, allowing individuals to file private lawsuits against government entities. However, the act limits damages that can be obtained from such lawsuits.

In addition, the law limits the circumstances under which an injured person can file a private lawsuit. It says that government agencies are liable for property damage, injury and death if the injury, death or damage was the result of a motor vehicle accident and if the government employee responsible would be personally liable under Texas law.

Although it provides legal options not available to injured people in sovereign immunity states, the law limits how much an injured individual may receive from a successful personal injury claim. An injured individual can receive up to $250,000 per person or $500,000 as a result of suits against municipalities and the state for physical injury or death. The law also limits awards to $200,000 per person and $300,000 per accident in lawsuits against all other government entities. Additionally, some agencies, such as schools, are covered by special laws.

Texas Advance Directives Act

This controversial law limits the liability of physicians who terminate life-sustaining treatment. The law requires an individual provider or facility to send written notice to a patient's family or designee notifying them that continuing treatment would make no difference to the condition of the patient. After 10 days, physicians can stop treatment without permission.

This law, passed in 1999, is also known as the Texas Futile Care Act. The law includes provisions for notifying or involving families in decisions about their loved ones. It also requires facilities to seek other institutions that might provide care. The law also allows for appeals to the relevant state court so that a judge may issue an extension, preventing the hospital from terminating treatment. If the process is followed correctly, hospitals that terminate life support for patients have no liability under civil law and will face no charges under criminal law.

Conclusion: Who Benefits From Tort Reform?

Texas has been a tort reform state for some time. However, the benefits of tort reform are realized primarily by insurance companies. Individuals seeking full compensation for serious injuries, property damage, and the deaths of loved ones may find that the law restricts their ability to obtain justice through the legal system.

Because of Texas tort reform, it is more important than ever to have experienced counsel when considering a personal injury or wrongful death claim in Texas. An experienced attorney can advise you about your legal rights and lead you through the myriad of laws governing an injured person's recovery in Texas.