2009 Texas Code
CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
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.