By: Seliger S.B. No. 1160
(In the Senate - Filed March 4, 2011; March 16, 2011, read
first time and referred to Committee on State Affairs;
March 28, 2011, reported favorably by the following vote: Yeas 8,
Nays 0; March 28, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the liability of a landowner for harm to a trespasser.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 75, Civil Practice and Remedies Code, is
amended by adding Section 75.007 to read as follows:
Sec. 75.007. TRESPASSERS. (a) In this section,
"trespasser" means a person who enters the land of another without
any legal right, express or implied.
(b) An owner, lessee, or occupant of land does not owe a duty
of care to a trespasser on the land and is not liable for any injury
to a trespasser on the land, except that an owner, lessee, or
occupant owes a duty to refrain from injuring a trespasser
wilfully, wantonly, or through gross negligence.
(c) Notwithstanding Subsection (b), an owner, lessee, or
occupant of land may be liable for injury to a child younger than 16
years of age caused by a highly dangerous artificial condition on
the land if:
(1) the place where the artificial condition exists is
one upon which the owner, lessee, or occupant knew or reasonably
should have known that children were likely to trespass;
(2) the artificial condition is one that the owner,
lessee, or occupant knew or reasonably should have known existed
and that the owner, lessee, or occupant realized or should have
realized involved an unreasonable risk of death or serious bodily
harm to such children;
(3) the injured child did not discover the condition
or realize the risk involved in intermeddling with the condition or
coming within the area made dangerous by the condition;
(4) the utility to the owner, lessee, or occupant of
maintaining the artificial condition and the burden of eliminating
the danger were slight as compared with the risk to the child
involved; and
(5) the owner, lessee, or occupant failed to exercise
reasonable care to eliminate the danger or otherwise protect the
child.
(d) A child who is at least 14 years of age is presumed to
appreciate the risk of highly dangerous artificial conditions on
land, but this presumption may be overcome if the claimant proves
that the child, at the time of the injury, did not have the ability
to appreciate the risk.
(e) An owner, lessee, or occupant of land whose actions are
justified under Subchapter C or D, Chapter 9, Penal Code, is not
liable to a trespasser for damages arising from those actions.
(f) This section does not affect Sections 75.001, 75.002,
75.0021, 75.003, or 75.004 or create or increase the liability of
any person.
SECTION 2. The change in law made by this Act applies only
to a cause of action that accrues on or after the effective date of
this Act. A cause of action that accrues before the effective date
of this Act is governed by the law in effect immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011.
* * * * *