Individual States 

TEXAS

ASSUMPTION OF RISK

Assumption of risk is part of the contributory negligence question, and can bar recovery in negligence and strict liability if the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it. GMC v. Sanchez, 997 S.W.2d 584 (Tex. 1999) .

CAPS ON NONECONOMIC DAMAGES

There are no exclusive Products Liability statutes under this category.

COLLATERAL SOURCE RULE

The collateral source rule bars a wrongdoer from offsetting its liability by insurance benefits independently procured by the injured party. In addition, manufacturer may also be liable for attorney's fees. Graco, Inc. v. Crc, Inc., 47 S.W.3d 742 (Tex. App. Dallas 2001) .

COMPARATIVE FAULT

In negligence actions, a claimant's recovery against a negligent defendant is barred if the claimant is more than 50 percent responsible for the occurrence or injury. Tex. Civ. Prac. & Rem. Code §33.001 .

If a claimants responsibility is 50 percent or less, the claimant's damages are reduced by the percentage of the claimant's responsibility. Tex. Civ. Prac. & Rem. Code §33.012 .

For strict liability actions that accrued prior to September 1, 1995, or are filed on or after September 1, 1996, a claimant's recovery against a strictly liable defendant is completely barred if the claimant is 60 percent responsible for the injury. Tex. Civ. Prac. & Rem. Code §33.001 .

If the claimant's percentage of responsibility is less than 60 percent, the claimant's damages are reduced by the claimant's percentage of responsibility. Tex. Civ. Prac. & Rem. Code §33.012 .

If the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to each settling person's percentage of responsibility. Tex. Civ. Prac. & Rem. Code §33.012 .

In Breach of Warranty actions, plaintiff's recovery is reduced as with comparative negligence. In addition, plaintiff can recover damages even where the plaintiff's fault constitutes a greater cause of the damages. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) .

ECONOMIC LOSS

Plaintiff cannot recover in strict liability for purely economic losses resulting from a defective product. Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977) .

Under the economic loss rule, economic damages are not recoverable unless they are accompanied by actual physical harm to persons or "other property". Hou-Tx, Inc. v. Landmark Graphics, 26 S.W.3d 103 (Tex.App.2000) .

However, even where plaintiff can prove damages to "other property", damages to the product itself remain a warranty claim. Only damage to persons or other property may be brought in tort. Equistar Chem. v. Dresser-Rand Co., 123 S.W.3d 584 (2003) .

The economic loss rule is applicable to replacement parts. Thus, replacement parts provided by the original seller do not make the original product "other property". Equistar Chem. v. Dresser-Rand Co., 123 S.W.3d 584 (2003) .

JOINT & SEVERAL LIABILITY

For causes of action filed on or after July 1, 2003, a defendant is only jointly and severally liable if its share of responsibility is greater than 50 percent or it is responsible for certain criminal acts. Tex. Civ. Prac. & Rem. Code §33.013 .

PUNITIVE DAMAGES

Actions filed on or after September 1, 2003: punitive damages may be awarded only if the plaintiff proves by clear and convincing evidence that the harm resulted from fraud, malice, or gross negligence. In addition, a jury finding must be unanimous on liability and the amount of punitive damages together. However, punitive damages may not be awarded in the absence of actual damages. Tex. Civ. Prac. & Rem. Code §§41.003, 41.004 .

For claims accruing on or after September 1, 1995, punitive damages are limited to the greater of:
(a) two times "economic damages" plus noneconomic damages up to $750,000 or;
(b) $200,000.

Tex. Civ. Prac. & Rem. Code §41.008 .

Defendant misconduct, settlement amounts for punitive damages, or prior punitive damages awards that defendant has actually paid for similar conduct is admissible when the defendant offers it in mitigation of punitive damages. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35 (Tex. 1998) .

For claims that accrue on or after September 1, 1995, a defendant is liable only for the punitive damages assessed against it. There is no joint or several liability for punitive damages. Tex. Civ. Prac. & Rem. Code §41.006 .

RIGHT TO CONTRIBUTION

A defendant who is jointly and severally liable for actual damages, and pays a percentage of the damages greater than his percentage of responsibility, then that defendant has a right of contribution for the overpayment against each other liable defendant to the extent that the other liable defendant has not paid the percentage of the damages equal to that other defendant's percentage of responsibility. Tex. Civ. Prac. & Rem. Code §33.015(a) .

As among themselves, each of the defendants who are jointly and severally liable is liable for the damages recoverable by the claimant for contributory negligence in proportion to his respective percentage of responsibility. Tex. Civ. Prac. & Rem. Code §33.015(b) .

If for any reason a liable defendant does not pay or contribute the portion of the damages required by his percentage of responsibility, the amount of the damages not paid or contributed by that defendant shall be paid or contributed by the remaining defendants who are jointly and severally liable for those damages. The additional amount to be paid or contributed by each of the defendants who is jointly and severally liable for those damages shall be in proportion to his respective percentage of responsibility. Tex. Civ. Prac. & Rem. Code §33.015(c) .

No defendant has a right of contribution against any settling person. Tex. Civ. Prac. & Rem. Code §33.015(d) .

SPECIAL DEFENSES

Under Texas law, a manufacturer is liable in a products-liability action only if the product was defective when it was manufactured and left the manufacturer's control. Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608 (Tex. 1996)

A manufacturer is not responsible for injuries caused by a substantial change to or alteration of the product, but the change or alteration must be one that could not be reasonably foreseen or expected. Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608 (Tex. 1996) .

In a products liability action in which a claimant alleges a design defect, the burden is on the claimant to prove that there was a safer alternative design; and the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery. Tex. Civ. Prac. & Rem. Code §82.005(a) .

State of the Art defense – product design defect will be determined within the context of the state of technical knowledge existing at the time the product was manufactured. Tex. Civ. Prac. & Rem. Code §82.005(b)(2) .

STATUTES OF LIMITATION

Causes of action for wrongful death, personal injury, or property damage must be brought within two years (whether strict liability or in negligence). Tex. Civ. Prac. & Rem. Code §16.003 .

Actions for breach of warranty under the Texas U.C.C. must be brought within four years of date of delivery of the product. Tex. Bus. & Com. Code Ann. §2.725 .

STATUTES OF REPOSE

For actions filed prior to July 1, 2003, a 15-year statute of repose protects manufacturers or seller of manufacturing equipment for causes of action accruing on or after September 1, 1993, unless the manufacturer expressly represents that the equipment has a useful, safe life of longer than 15 years. This does not extend the limitations period within which a products liability action involving the product may be commenced under any other law. Tex. Civ. Prac. & Rem. Code §16.012 .

Actions filed on or after July 1, 2003, a 15-year statute of repose protects all manufacturers or sellers of products, except where the manufacturer expressly represents that the product has a useful, safe life of longer than 15 years. Tex. Civ. Prac. & Rem. Code §16.012 .

STRUCTURED SETTLEMENT

There are no exclusive Products Liability statutes under this category.