Statute of Limitations (TEXAS)


Personal Injury - 2 yrs. [Civil Practice & Remedies Code § 16.003]

Wrongful Death - 2 yrs. [Civil Practice & Remedies Code § 16.003] (from date of death)

Property Damage - 2 yrs. [Civil Practice & Remedies Code § 16.003]

Contracts (Written and Oral) - 4 yrs [Civil Practice & Remedies Code § 16.004]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [Bus. & C. § 2.725]


In most cases, a cause of action accrues when a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur [Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003)]




Statute of Repose (Products) (TEXAS)


15 yrs. [V.T.C.A., Civil Practice & Remedies Code § 16.012].


Admissibility of Expert Testimony (TEXAS)


Dauber test is instructive/followed.  The underlying scientific technique or principle must be reliable.  There are many factors that a trial court may consider in making the threshold determination of admissibility, including: (1) the extent to which the theory has been (or can be) tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.  Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence. The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case [E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)].



Causes of Action (TEXAS)


Statutory Definition – “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 [Tex. Civ. Prac. & Rem. Code § 82.001].


Strict Liability – Texas has adopted Rest. (2nd) of Torts, 402A [Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995)].  In order to recover under a theory of strict liability a plaintiff must establish: (1) the defective and unreasonably dangerous condition of the defendant’s product; and (2) a causal connection between such condition and the plaintiff's injuries or damages [Lucas v. Texas Industries, Inc., 696 S.W.2d 372 (Tex. 1985)].


Negligence – A manufacturer who fails to exercise reasonable care in the manufacture of a product is subject to liability for physical harm caused by lawful use of the product in a manner and for a purpose for which it is supplied [Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex. 1978)].  In a product's liability action based on negligence, the focus is on the supplier's standard of care [Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995)].


Breach of Warranty – Texas has adopted the standard UCC express warranty [Tex. Bus. & Com. Code § 2.313]; implied warranty of merchantability [Tex. Bus. & Com. Code § 2.314]; implied warranty of fitness for particular purpose [Tex. Bus. & Com. Code § 2.315].  The statute is silent as to the question of third party beneficiaries of warranties; this issue is left to the courts for their determination [Tex. Bus. & Com. Code § 2.318].




Definition of “Defect” (TEXAS)


A product may be unreasonably dangerous because of a defect in manufacturing, design, or marketing [Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995)].


A product is defective where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him [Comments to Rest. (2nd) of Torts, 402A].


Also, see discussion below re: design defects.








Liability of Sellers (TEXAS)


An innocent seller is not strict liable unless the manufacturer is insolvent or is not subject to the jurisdiction of the court.  If, after service on a nonresident manufacturer through the secretary of state the manufacturer fails to answer or otherwise make an appearance, it is conclusively presumed 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 [Tex. Civ. Prac. & Rem. Code § 82.003].


Defenses (TEXAS)      


Comparative Negligence – Texas follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [Civil Practice & Remedies Code §§ 33.001; 33.012].  Applies to product liability actions [JCW Elecs., Inc. v. Garza, 257 S.W.3d 701 (Tex. 2008)].


Assumption of Risk – Absolute defense to a strict liability action; subsumed within contributory negligence in actions based on negligence or breach of warranty [Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984)].


Product Misuse – Unforeseeable misuse is an absolute defense to a strict liability action; subsumed within contributory negligence in actions based on negligence or breach of warranty [Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984)].


Product Alteration/Modification – A product is not in a defective condition, thus not unreasonably dangerous when sold, when the unreasonably dangerous condition is caused by a substantial change or alteration of the product after it is sold, and but for which unreasonably dangerous condition the event would not have occurred.  Substantial change or alteration means that the configuration or operational characteristics of the product are changed or altered by affirmative conduct of some person in a manner that the defendant could not have reasonably foreseen would occur in the intended or foreseeable use of the product. Substantial change or alteration does not include reasonably foreseeable wear and tear or deterioration [Woods v. Crane Carrier Co., 693 S.W.2d 377 (Tex. 1985)].


Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (TEXAS)


ELD is recognized/applied.  Strict liability does not apply to economic losses [Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex. 1977); Purina Mills, Inc. v. Odell, 948 S.W.2d 927 (Tex. App. 1997)].  When injury is only economic, action sounds in contract alone [Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986)]. 


Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (TEXAS)


If the plaintiff has no evidence of a specific design defect or manufacturing defect, he may offer evidence of the product's malfunction as circumstantial proof of the defect.  The testimony of a product’s user about the circumstances of the event complained of has been held sufficient to establish the product’s alleged malfunction [Sipes v. GMC, 946 S.W.2d 143 (Tex. App. 1997)].



Design Defects (TEXAS)                                                                                                


A product may be unreasonably dangerous because of a defect in manufacturing, design, or marketing [Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995)].


In a “design defect” product liability action, Plaintiff must 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 harm in question [Tex. Civ. Prac. & Rem. Code § 82.005].


“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 harm without substantially impairing the product’s utility; and (2) was economically and technologically feasible at the time the product left Defendant’s control by the application of existing or reasonably achievable scientific knowledge [Tex. Civ. Prac. & Rem. Code § 82.005].


Texas uses the risk/utility test.  In determining whether a product is unreasonably dangerous as designed, the factfinder must consider the utility of the product and the risk involved in its use.  The factors relevant to this determination include: (1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and (5) the expectations of the ordinary consumer.  No single factor needs to be proven on its own, so long as all factors working together point to a finding of unreasonable dangerousness.  Unreasonable dangerousness is generally a question of fact for the jury [Nester v. Textron, Inc., 2015 U.S. Dist. LEXIS 170811 (W.D. Tex. 2015)].


Failure to Warn (TEXAS)


A product may be unreasonably dangerous because of a defect in marketing.  A defendant’s failure to warn of a product's potential dangers when warnings are required is a type of marketing defect. Liability will attach if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.  The duty to warn applies only to hazards of which the consumer is unaware.  The inquiry whether a recognition of risk is within the ordinary knowledge common to the community is an objective standard. Likewise, whether a product has obvious dangers requires an objective standard [Caterpillar, Inc. v. Shears, 911 S.W.2d 379 (Tex. 1995)].


The essential factors of a legally adequate warning are as follows: (1) it must be in such form that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use; and (2) the content of the warning must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person [Lopez v. Aro Corp., 584 S.W.2d 333 (Tex. Civ. App. 1979)].


The presumption is that a consumer will read an adequate warning. The presumption may be rebutted if the manufacturer comes forward with contrary evidence that the presumed fact did not exist [Technical Chemical Co. v. Jacobs, 480 S.W.2d 602 (Tex. 1972)].


Independent Cause of Action for Evidence Spoliation (TEXAS)


Texas does not recognize spoliation as a tort cause of action[Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998)].