Basics of Texas Tort Law

Joint And Several Liability

Tex. Civ. Practice & Remedies Code §33.013

Each liable defendant is jointly and severally liable for damages recoverable by the claimant if the defendant’s percentage of responsibility is greater than 50% or the defendant acted with specific intent to do harm and committed a felony (murder, kidnapping, etc.)

A defendant who is jointly and severally liable is only liable for damages after the total award is reduced by the plaintiff’s percentage of responsibility and the dollar amounts of all settlements.

Comparative Fault

Tex. Civ. Practice & Remedies Code Chapter 33

A plaintiff may not recover damages if his percentage of responsibility is greater than 50%
Plaintiff’s damages are reduced by his percentage of responsibility
Negligence of settling defendants is submitted in liability question
Negligence of designated responsible third parties is submitted in liability question

Responsible Third Parties

Defendants can designate parties not sued by the plaintiff as responsible third parties. The negligence of designated responsible third parties is submitted in the liability question.

A responsible third party is defined to mean “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, . . . by other conduct or activity that violates an applicable legal standard, or by a combination of these.” Tex. Civ. Prac. & Rem. Code Ann. § 33.011(6); Galbraith Eng'g Consultants, Inc., v. Pochucha, 290 S.W.3d 863, 865-66 (Tex. 2009).

A court is required to grant leave to designate the named person as a responsible third party unless another party files an objection on or before the 15th day after the date the motion is served. Tex. Civ. Prac. & Rem. Code Ann. § 33.004(f). If an objection is timely filed, the court shall grant leave to designate unless the objecting party establishes: (1) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil Procedure; and (2) after having been granted leave to replead, the defendant failed to plead sufficient facts. Tex. Civ. Prac. & Rem. Code Ann. § 33.004(g).

Immigration Status

Generally not admissible.

In TXI Transp. Co. v. Hughes, 306 S.W.3d 230 (Tex. 2010), the Truck driver/defendant:

was an undocumented Mexican immigrant
lied on his employment application
lied to get his CDL
was convicted of immigration violation and deported
lied in his deposition about his immigration status

Judgment for the plaintiff was reversed because the trial court allowed this evidence to be admitted. The driver’s immigration status was held not relevant.

“A witness's immigration status is not admissible to impugn the witness' character for truthfulness. Appeals to racial and ethnic prejudices, whether explicit and brazen or veiled and subtle, cannot be tolerated because they undermine the very basis of the judicial process.”

In Republic Waste v. Martinez, 335 S.W.3d 401 (Tex. App. Houston 2011), the trial judge excluded evidence of the deceased worker's illegal immigrant status and the jury returned a verdict for survivors. The Court of Appeals held that evidence of the deceased worker's illegal immigrant status was properly excluded. Although immigration status could be a relevant consideration in determining pecuniary loss damages, the usefulness of the evidence was limited. The probative value of an immigration raid (two weeks after his death), as well the deceased worker's illegal immigrant status, was slight. Had the illegal immigrant status evidence been admitted, the jury would have been required to essentially guess whether the deceased would ever have been deported.

Seat Belt Usage

Tex. Transp. Code § 545.413 (2010)

A person commits an offense if the person is at least 15 years of age, is riding in a passenger vehicle while the vehicle is being operated, is occupying a seat that is equipped with a safety belt, and is not secured by a safety belt. A person commits an offense if the person operates a passenger vehicle that is equipped with safety belts and allows a child, who is younger than 17 years of age, to ride in the vehicle without requiring the child to be secured by a safety belt.

A statute providing that the use or nonuse of a safety belt is not admissible evidence in a civil trial has been repealed. Such use or nonuse will typically not be admitted into evidence unless it is clear injuries were more severe as a result of the failure to use a seatbelt. In Thomas v. Uzoka, 290 S.W.3d 437 (Tex.App. Houston [1st Dist], 2009) the court submitted to the jury the negligence of deceased driver who was not wearing a seatbelt. Jury found deceased negligent (2% fault).

Cell Phone Use

Drivers under the age of 18 are prohibited from using wireless communications devices.

School bus operators are prohibited from using cell phones while driving if children are present.

Drivers are prohibited from using handheld devices in school crossing zones.

Dallas, San Antonio, Austin, Amarillo, Galveston, El Paso, Missouri City, and Stephenville are among the Texas cities that have enacted local distracted driving laws.

Texas Gov. Rick Perry vetoed the Legislature’s plan to ban text messaging for all drivers.

Perry called the distracted driving legislation a “government effort to micromanage the behavior of adults.”

Admission of Medical Charges

Tex. Civ. Prac. & Rem. Code § 41.0105

In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

On July 1, 2011, the Texas Supreme Court handed down Haygood v. Escabedo, No. 09-0377 2011 Tex. Lexis 514 (Tex., July 1, 2011) that construes the “paid or incurred” statute on damages, Texas Civil Practice and Remedies Code, §41.0105. In Haygood, Haygood’s medical bills had been reduced from $110,069.12 to $27,793.42 because he was a Medicaid recipient. The trial court denied Escabedo’s motion to exclude evidence of any amount above what was paid or owed after the Medicaid reduction. The jury awarded $110,069.12 for past medical expenses and the trial court granted judgment for that amount. The Tyler Court of Appeals held §41.0105 precluded evidence of or recovery for any amount over what Haygood paid or will be liable for. The Supreme Court agreed.

The Court explained that Section 41.0105 prevents recovery of medical expenses that exceed what has been paid and for which the plaintiff will not be liable. The collateral source rule will not allow recovery of medical expenses that a health care provider is not entitled to charge the plaintiff. “Actually paid and incurred” means those expenses that have been or will be paid; it excludes that part of the amount charged for which the provider has no right to be paid. Moreover, §41.0105 precludes evidence of that part of the amounts charged that are not recoverable.

Amounts that exceed “actually paid or incurred” are not probative of damages. The Legislature intended that juries should receive only evidence relevant to recovery. Only evidence of recoverable medical charges is admissible at trial.

On September 29, 2011, in Cavazos v. Pay & Save, Inc., 2011 Tex. App. LEXIS 7845 (Tex.App-Amarillo 2011), the Amarillo Court of Appeals expanded on Haygood by stating that any calculation of what was paid or incurred precedes any reduction for the plaintiff's percentage of responsibility and the plaintiff must first prove to the jury what was paid or incurred to arrive at a verdict.

These two cases drastically change recovery of medical expenses in Texas. The burden of proving what was paid or incurred has shifted to the plaintiff, and only evidence of what was paid or incurred is now admissible.