Wrongful Death Blog

CHAPTER 128. LIMITATION ON SUITS AGAINST FIREARMS OR AMMUNITION MANUFACTURER, TRADE ASSOCIATION, OR SELLER

Sec. 128.001.  LIMITATION ON RIGHT TO BRING SUIT OR RECOVER DAMAGES.  (a)  In this section, “governmental unit” means:

(1)  a political subdivision of the state, including a municipality or county;  and

(2)  any other agency of government whose authority is derived from the laws or constitution of this state.

(b)  Except as provided by Subsection (c), a governmental unit may not bring suit against a firearms or ammunition manufacturer, trade association, or seller for recovery of damages resulting from, or injunctive relief or abatement of a nuisance relating to, the lawful design, manufacture, marketing, or sale of firearms or ammunition to the public.

(c)  A governmental unit on behalf of the state or any other governmental unit may bring a suit described by Subsection (b) if the suit is approved in advance by the legislature in a concurrent resolution or by enactment of a law.  This subsection does not create a cause of action.

(d)  Nothing in this section shall prohibit a governmental unit from bringing an action against a firearms manufacturer, trade association, or seller for recovery of damages for:

(1)  breach of contract or warranty as to firearms or ammunition purchased by a governmental unit;

(2)  damage or harm to property owned or leased by the governmental unit caused by a defective firearm or ammunition;

(3)  personal injury or death, if such action arises from a governmental unit’s claim for subrogation;

(4)  injunctive relief to enforce a valid ordinance, statute, or regulation;  or

(5)  contribution under Chapter 33, Civil Practice and Remedies Code.

(e)  Nothing in this section shall prohibit the attorney general from bringing a suit described by Subsection (b) on behalf of the state or any other governmental unit.  This subsection does not create a cause of action.

 
Added by Acts 1999, 76th Leg., ch. 597, Sec. 1, eff. Sept. 1, 1999.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing

CHAPTER 139. PERSONAL INJURY TO CERTAIN PERSONS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 139.001.  DEFINITIONS.  In this chapter:

(1)  “Claimant” means a person described by Section 139.002(1) or (2) who makes a claim to which this chapter applies.

(2)  “Incapacitated person” has the meaning assigned by Section 601, Texas Probate Code.
Added by Acts 1999, 76th Leg., ch. 1228, Sec. 1, eff. Sept. 1, 1999.

 
Sec. 139.002.  SCOPE OF CHAPTER.  This chapter applies only to a suit on a claim for damages arising from personal injury:

(1)  to an incapacitated person;  or

(2)  in which the personal injury has resulted in the substantial disablement of the injured person.
Added by Acts 1999, 76th Leg., ch. 1228, Sec. 1, eff. Sept. 1, 1999.
SUBCHAPTER B. STRUCTURED SETTLEMENT OFFER

Sec. 139.101.  WRITTEN OFFER REQUIRED.  An offer of structured settlement made after a suit to which this chapter applies has been filed must be:

(1)  made in writing;  and

(2)  presented to the attorney for the claimant.

 
Added by Acts 1999, 76th Leg., ch. 1228, Sec. 1, eff. Sept. 1, 1999.
Sec. 139.102.  PRESENTATION TO CLAIMANT.  (a)  As soon as practicable after receiving the offer under Section 139.101, but not later than any expiration date that may accompany the quotation that outlines the terms of the structured settlement offered, the attorney receiving the offer shall present the offer to the claimant or the claimant’s personal representative.

(b)  To the extent reasonably necessary to permit the claimant or the claimant’s personal representative to make an informed decision regarding the acceptance or rejection of a proposed structured settlement, the attorney shall advise the claimant or the claimant’s personal representative with respect to:

(1)  the terms, conditions, and other attributes of the proposed structured settlement;  and

(2)  the appropriateness of the structured settlement under the circumstances.

 
Added by Acts 1999, 76th Leg., ch. 1228, Sec. 1, eff. Sept. 1, 1999.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing

LIABILITY FOR NEGLIGENT HIRING BY IN-HOME SERVICE COMPANIES AND RESIDENTIAL DELIVERY COMPANIES

Sec. 145.001.  DEFINITIONS.  In this chapter:

(1)  “In-home service company” means a person who employs a person to enter another person’s residence and for a fee repair:

(A)  an appliance;

(B)  the residence’s heating, air-conditioning, and ventilation system;

(C)  the residence’s plumbing system;  or

(D)  the residence’s electrical system.

(1-a)  “Residence” means a person’s principal or ordinary home or dwelling place and includes:

(A)  any garage that is attached to the home or dwelling place; and

(B)  any construction area that is attached to and accessible from the inhabited area or the attached garage of the home or dwelling place.

(2)  “Residential delivery company” means a person who employs a person to, for a fee:

(A)  deliver an item to another person’s residence;  and

(B)  enter the residence to place, assemble, or install the item.
Added by Acts 2003, 78th Leg., ch. 228, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 751, Sec. 1, eff. September 1, 2009.
Sec. 145.0015.  SHORT TITLE.  This chapter may be cited as the Sue Weaver Act.
Added by Acts 2009, 81st Leg., R.S., Ch. 751, Sec. 2, eff. September 1, 2009.
Sec. 145.002.  CRIMINAL HISTORY BACKGROUND CHECK.  Before associating with or hiring an officer, employee, or prospective employee in a position whose duties include entry into another person’s residence, an in-home service company or residential delivery company shall:

(1)  obtain from the Department of Public Safety or a private vendor all criminal history record information relating to an officer, employee, or prospective employee; or

(2)  ascertain that the person holds in good standing an occupational license issued by a licensing authority in this state that has, before issuing or renewing the license, performed a criminal history background check.
Added by Acts 2003, 78th Leg., ch. 228, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 751, Sec. 3, eff. September 1, 2009.
Sec. 145.003.  PRESUMPTION OF NO NEGLIGENCE.  (a)  This section applies only to an action against an in-home service company or residential delivery company that:

(1)  arises out of a criminal act or omission by an officer or employee of the company as to whom the company has obtained criminal history record information under Section 145.002(1);

(2)  is brought by or on behalf of a person whose home the officer or employee entered while in the performance of the employee’s job duties, without regard to where the criminal act or omission occurred; and

(3)  seeks damages from the company for the negligent hiring of the officer or employee.

(b)  In an action to which this section applies, an in-home service company or residential delivery company is rebuttably presumed to have not acted negligently if:

(1)  at the time a person was hired, the company obtained criminal history record information regarding the officer or employee under Section 145.002(1); and

(2)  the criminal history record information shows that, in the 20 years preceding the date the information was obtained for a felony or in the 10 years preceding the date the information was obtained for a Class A or Class B misdemeanor, the officer or employee had not been convicted of, or placed on deferred adjudication for:

(A)  an offense in this state classified as:

(i)  an offense against the person or the family;

(ii)  an offense against property; or

(iii)  public indecency; or

(B)  an offense in another jurisdiction that would be classified in a category described by Paragraph (A) if the offense had occurred in this state.

(c)  A residential delivery company or an in-home service company that sends two or more employees together into a residence shall be deemed to have complied with the requirement in Section 145.002 as long as at least one of those employees has been checked as described in Section 145.002 and, while they are in the residence, that employee accompanies and directly supervises any employee who has not been checked, and the residential delivery company or in-home service company maintains a record of the identity of any such nonchecked employee for at least two years.
Added by Acts 2003, 78th Leg., ch. 228, Sec. 1, eff. Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 751, Sec. 4, eff. September 1, 2009.
Sec. 145.004.  PRESUMPTION OF NO NEGLIGENCE FOR PERSONS UTILIZING A RESIDENTIAL DELIVERY COMPANY OR IN-HOME SERVICE COMPANY.  A person who contracts with a residential delivery company to deliver an item or who contracts with an in-home service company to place, assemble, repair, or install an item referred to in Section 145.001(1), is rebuttably presumed to have not acted negligently in doing so if:

(1)  the residential delivery company or in-home service company is in compliance with Section 145.003(b);  or

(2)  the person who contracts with the residential delivery company or in-home service company requests that the company obtain a criminal history background check described by Section 145.002 on any employee of the company being sent to deliver, place, assemble, repair, or install an item and the person’s request is in writing and is delivered to the company prior to the company’s employee being sent.  A copy of any such request shall be maintained for at least two years.
Added by Acts 2003, 78th Leg., ch. 228, Sec. 1, eff. Sept. 1, 2003.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing

CHAPTER 95. PROPERTY OWNER’S LIABILITY FOR ACTS OF INDEPENDENT CONTRACTORS AND AMOUNT OF RECOVERY

 Sec. 95.001.  DEFINITIONS.  In this chapter:

(1)  “Claim” means a claim for damages caused by negligence, including a counterclaim, cross-claim, or third party claim.

(2)  “Claimant” means a party making a claim subject to this chapter.

(3)  “Property owner” means a person or entity that owns real property primarily used for commercial or business purposes.

 
Added by Acts 1995, 74th Leg., ch. 136, Sec. 2, eff. Sept. 1, 1996.

 
Sec. 95.002.  APPLICABILITY.  This chapter applies only to a claim:

(1)  against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor;  and

(2)  that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.

 
Added by Acts 1995, 74th Leg., ch. 136, Sec. 2, eff. Sept. 1, 1996.
Sec. 95.003.  LIABILITY FOR ACTS OF INDEPENDENT CONTRACTORS.  A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:

(1)  the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports;  and

(2)  the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.

 
Added by Acts 1995, 74th Leg., ch. 136, Sec. 2, eff. Sept. 1, 1996.

 
Sec. 95.004.  EVIDENCE ADMISSIBLE.  In the trial of a case against a contractor, subcontractor, or property owner for personal injury, property damage, or death to a contractor, a subcontractor, or an employee of a contractor or subcontractor that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement, the trial judge, outside the presence of the jury, shall receive evidence of workers’ compensation benefits paid and shall deduct the amount of the benefits from the damages awarded by the trier of fact.  The deduction for workers’ compensation benefits does not apply unless the workers’ compensation carrier’s subrogation rights have been waived.
Added by Acts 1995, 74th Leg., ch. 136, Sec. 2, eff. Sept. 1, 1996.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing

CHAPTER 79. LIABILITY OF PERSONS ASSISTING IN HAZARDOUS OR DANGEROUS SITUATIONS

Sec. 79.001.  DEFINITIONS.  In this chapter:

(1)  “Hazardous material” means:

(A)  a substance classified as a hazardous material under state or federal law or under a rule adopted pursuant to state or federal law;  or

(B)  a chemical, petroleum product, gas, or other substance that, if discharged or released, is likely to create an imminent danger to individuals, property, or the environment.

(2)  “Person” means an individual, association, corporation, or other private legal entity.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 79.002.  HAZARDOUS MATERIALS.  (a)  Except in a case of reckless conduct or intentional, wilful, or wanton misconduct, a person is immune from civil liability for an act or omission that occurs in giving care, assistance, or advice with respect to the management of an incident that:

(1)  has already occurred;

(2)  is related to the storage or transportation of a hazardous material;  and

(3)  endangers or threatens to endanger individuals, property, or the environment as a result of the spillage, seepage, or other release of a hazardous material or as a result of fire or explosion involving a hazardous material.

(b)  This section does not apply to a person giving care, assistance, or advice for or in expectation of compensation from or on behalf of the recipient of the care, assistance, or advice in excess of reimbursement for expenses incurred.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 2003, 78th Leg., ch. 58, Sec. 3, eff. Sept. 1, 2003.
Sec. 79.003.  DISASTER ASSISTANCE.  (a)  Except in a case of reckless conduct or intentional, wilful, or wanton misconduct, a person is immune from civil liability for an act or omission that occurs in giving care, assistance, or advice with respect to the management of an incident:

(1)  that is a man-made or natural disaster that endangers or threatens to endanger individuals, property, or the environment;  and

(2)  in which the care, assistance, or advice is provided at the request of an authorized representative of a local, state, or federal agency, including a fire department, police department, an emergency management agency, and a disaster response agency.

(b)  This section does not apply to a person giving care, assistance, or advice for or in expectation of compensation from or on behalf of the recipient of the care, assistance, or advice in excess of reimbursement for expenses incurred.

 
Added by Acts 2003, 78th Leg., ch. 58, Sec. 1, eff. Sept. 1, 2003.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing

CHAPTER 72. LIABILITY OF MOTOR VEHICLE OWNER OR OPERATOR TO GUEST

Sec. 72.001.  LIMITED LIABILITY.  A person who is related to the owner or operator of a motor vehicle within the second degree by consanguinity or affinity, as determined under Chapter 573, Government Code, and who is being transported in the motor vehicle over a public highway of this state as a guest without payment for the transportation has a cause of action against the owner or operator of the motor vehicle for injury, death, or loss in an accident only if the accident was intentional on the part of the owner or operator or was caused by his heedlessness or reckless disregard of the rights of others.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 1991, 72nd Leg., ch. 561, Sec. 7, eff. Aug. 26, 1991;  Acts 1995, 74th Leg., ch. 76, Sec. 5.95(27), eff. Sept. 1, 1995.
Sec. 72.002.  LIMITATION NOT APPLICABLE.  There is no limitation under this chapter on the liability of an owner or operator who is not related to the guest within the second degree by consanguinity or affinity.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 72.003.  EFFECT ON OTHER LIABILITY.  (a)  This chapter does not affect judicially developed or developing rules under which a person is or is not totally or partially immune from tort liability by virtue of family relationship.

(b)  This chapter does not relieve the owner or operator of a motor vehicle being demonstrated to a prospective purchaser or relieve a public carrier of responsibility for injuries sustained by a passenger being transported.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 72.004.  OFFSET FOR MEDICAL EXPENSES PAID.  (a)  The owner or operator or his liability insurance carrier is entitled to an offset against any award made to the guest on a liability claim in an amount equal to the amount paid by the owner, operator, or insurance carrier for medical expenses of the guest.

(b)  This section does not authorize a direct action against a liability insurance carrier.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing

FORUM NON CONVENIENS

Sec. 71.051.  FORUM NON CONVENIENS.  (a)  Repealed by Acts 2003, 78th Leg., ch. 204, Sec. 3.09.

(b)  If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action.  In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether:

(1)  an alternate forum exists in which the claim or action may be tried;

(2)  the alternate forum provides an adequate remedy;

(3)  maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;

(4)  the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff’s claim;

(5)  the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and

(6)  the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.

(c)  The court may set terms and conditions for staying or dismissing a claim or action under this section as the interests of justice may require, giving due regard to the rights of the parties to the claim or action.  If a moving party violates a term or condition of a stay or dismissal, the court shall withdraw the order staying or dismissing the claim or action and proceed as if the order had never been issued.  Notwithstanding any other law, the court shall have continuing jurisdiction for purposes of this subsection.

(d)  A request for stay or dismissal under this section is timely if it is filed not later than 180 days after the time required for filing a motion to transfer venue of the claim or action. The court may rule on a motion filed under this section only after a hearing with notice to all parties not less than 21 days before the date specified for the hearing.  The court shall afford all of the parties ample opportunity to obtain discovery of information relevant to the motion prior to a hearing on a motion under this section.  The moving party shall have the responsibility to request and obtain a hearing on such motion at a reasonable time prior to commencement of the trial, and in no case shall the hearing be held less than 30 days prior to trial.

(e)  The court may not stay or dismiss a plaintiff’s claim under Subsection (b) if the plaintiff is a legal resident of this state.  If an action involves both plaintiffs who are legal residents of this state and plaintiffs who are not, the court may not stay or dismiss the action under Subsection (b) if the plaintiffs who are legal residents of this state are properly joined in the action and the action arose out of a single occurrence.  The court shall dismiss a claim under Subsection (b) if the court finds by a preponderance of the evidence that a party was joined solely for the purpose of obtaining or maintaining jurisdiction in this state and the party’s claim would be more properly heard in a forum outside this state.

(f)  A court that grants a motion to stay or dismiss an action under the doctrine of forum non conveniens shall set forth specific findings of fact and conclusions of law.

(g)  Any time limit established by this section may be extended by the court at the request of any party for good cause shown.

(h)  In this section:

(1)  “Legal resident” means an individual who intends the specified political subdivision to be his permanent residence and who intends to return to the specified political subdivision despite temporary residence elsewhere or despite temporary absences, without regard to the individual’s country of citizenship or national origin.  The term does not include an individual who adopts a residence in the specified political subdivision in bad faith for purposes of avoiding the application of this section.

(2)  “Plaintiff” means a party seeking recovery of damages for personal injury or wrongful death.  In a cause of action in which a party seeks recovery of damages for personal injury to or the wrongful death of another person, “plaintiff” includes both that other person and the party seeking such recovery.  The term does not include a counterclaimant, cross-claimant, or third-party plaintiff or a person who is assigned a cause of action for personal injury, or who accepts an appointment as a personal representative in a wrongful death action, in bad faith for purposes of affecting in any way the application of this section.

(i)  This section applies to actions for personal injury or wrongful death.  This section shall govern the courts of this state in determining issues under the doctrine of forum non conveniens in the actions to which it applies, notwithstanding Section 71.031(a) or any other law.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing

DEATH OR INJURY CAUSED BY ACT OR OMISSION OUT OF STATE

Sec. 71.031.  ACT OR OMISSION OUT OF STATE.  (a)  An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:

(1)  a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;

(2)  the action is begun in this state within the time provided by the laws of this state for beginning the action; 

(3)  for a resident of a foreign state or country, the action is begun in this state within the time provided by the laws of the foreign state or country in which the wrongful act, neglect, or default took place;  and

(4)  in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.

(b)  Except as provided by Subsection (a), all matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.

(c)  The court shall apply the rules of substantive law that are appropriate under the facts of the case.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing

SURVIVAL

Sec. 71.021.  SURVIVAL OF CAUSE OF ACTION.  (a)  A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury.

(b)  A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person.  The action survives against the liable person and the person’s legal representatives.

(c)  The suit may be instituted and prosecuted as if the liable person were alive.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 71.022.  QUALIFICATION OF FOREIGN PERSONAL REPRESENTATIVE.  If the executor or administrator of the estate of a nonresident individual is the plaintiff in an action under this subchapter, the foreign personal representative of the estate who has complied with the requirements of Section 95, Texas Probate Code, for the probate of a foreign will is not required to apply for ancillary letters testamentary under Section 105, Texas Probate Code, to bring and prosecute the action.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing

Sec. 71.009.  EXEMPLARY DAMAGES.  When the death is caused by the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 71.010.  AWARD AND APPORTIONMENT OF DAMAGES.  (a)  The jury may award damages in an amount proportionate to the injury resulting from the death.

(b)  The damages awarded shall be divided, in shares as found by the jury in its verdict, among the individuals who are entitled to recover and who are alive at that time.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

Sec. 71.011.  DAMAGES NOT SUBJECT TO DEBTS.  Damages recovered in an action under this subchapter are not subject to the debts of the deceased.

Fears | Nachawati Attorneys & Councelors
Dallas: 4925 Greenville Avenue Suite 715, Dallas, TX 75206
Phone: (214)890-0711
Google Review | Website | SEO Company | Lawyer Marketing