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Civil Practice and Remedies Code § 33.003






§ 33.003 Civil Practice & Remedies Code of Texas

and

The Tort Standards of Causation in Court’s Charges

Walter P. Wolfram

September 1, 2000

In 1995, the 74th Legislature of the State Texas gained its mark as the “Tort Reform Legislature.” One of the crown jewels of that legislature is Chapter 33, Civil Practice & Remedies Code which establishes our present statutory scheme for contribution and comparative fault in tort cases. This paper addresses §33.003, which mandates that

The trier of fact . . . shall determine the percentage of responsibility . . . with respect to each person’s causing or contributing to cause in anyway the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these . . . .” (Emphasis supplied).

Facially, this portion of Chapter 33 establishes a new causation standard — one of simple causation in fact, unimpaired with the actor’s “foreseeability” as contained in the causation standard of “proximate cause.” This new standard of causation expressly applies to negligence and product liability cases. With the use of the phrase “other conduct or activity that violates an applicable legal standard,” it applies to an almost limitless scope of tort cases. This standard obviates the use of “proximate cause” and its requirement of “foreseeability.” Chapter 33 of the Code applies to tort cases only (See §33.002).

In attempting to determine the “legislative intent” with respect to this or other legislation, the Texas courts resort to standard interpretation techniques. The first is to look to the plain language of the statute. In Fitzgerald v Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 42 Tex. Sup. Ct. J. 985 (Tex. 1999) the Texas Supreme Court held:

When interpreting statutes we try to give effect to legislative intent. “Legislative intent remains the polestar of statutory construction.” However, it is cardinal law in Texas that a court construes a statute, “first, by looking to the plain and common meaning of the statute’s words.” If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision’s words and terms. Further, if a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to create ambiguity. As our Court said long ago: When the purpose of a legislative enactment is obvious from the language of the law itself, there is nothing left to construction. In such case it is vain to ask the courts to attempt to liberate an invisible spirit, supposed to live concealed within the body of the law…There are sound reasons we begin with the plain language of a statute before resorting to rules of construction. For one, it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent. Also, ordinary citizens should be able to rely on the plain language of a statute to mean what it says. Moreover, when we stray from the plain language of a statute, we risk encroaching on the Legislature’s function to decide what the law should be.

Also, see National Liability and Fire Ins. Co. v Allen, 15 S.W.3d 525, 43 Tex. Sup. Ct. J. 690 (Tex. 2000):

In construing a statute, our objective is to determine and give effect to the Legislature’s intent. See Albertson’s, 984 S.W.2d at 960; Liberty Mutual. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). We first look at the statute’s plain and common meaning. See Fitzgerald v. Advanced Spine Fixation, 996 S.W.2d 864, 865 (Tex.1999); Albertson’s, 984 S.W.2d at 960. We presume that the Legislature intended the plain meaning of its words. See Fleming Foods v. Rylander, 6 S.W.3d 278, 282 (Tex.1999). If possible, we must ascertain the Legislature’s intent from the language it used in the statute and not look to extraneous matters for an intent the statute does not state. See Seay v. Hall, 677 S.W.2d 19, 25 (Tex.1984).

Applying these rules of statutory interpretation, we look to the plain meaning of the words used. From that view, it is clear what the legislature meant to say. The mandate is for the trier of fact to determine the percentage of responsibility of the actors involved in the incident giving rise to the lawsuit. That determination is shaped by who “caused or contributed to cause in any way” the harm for which damages are sought. So, we know that the standard of causation is inextricably intertwined in the determination of the “percentage of responsibility.” The term is defined,

“Percentage of responsibility” means that percentage, stated in whole numbers, attributed by the trier of fact to each claimant, each defendant, each settling person, or each responsible third party with respect to causing or contributing to cause in any way, whether by negligent act or omission, by defective or unreasonably dangerous product, by other conduct or activity violative of the applicable legal standard, or by any combination of the foregoing, the personal injury, property damage, death, or other harm for which recovery of damages is sought. (§33.011(4))(Emphasis supplied).

It is used 12 times in Chapter 33: §§ 33.001; 33.003; 33.012(a); 33.013(a); 33.013(b); 33.013(c); 33.015(a); 33.015(b); 33.015(c); 33.016(b); 33.016(c); and 33.016(d). The definition and its use at §33.003 apply this standard to both plaintiffs and defendants alike. It does not attempt to direct a different standard of causation to the plaintiff and another to the defendant. It is difficult to imagine that the legislature did not intend to mean exactly what it stated in §33.003 when it said that the percentage of responsibility was to be determined by those who “cause or contribute to cause in any way” the harm for which the recovery of damages is sought. This highly defined term is used throughout the entire chapter. The only questions that remain are whether the use of the defined term in §33.003 is mandatory and what is the breadth and scope of the torts impacted by this new standard of causation.

The language is mandatory: §33.003 states that “the trier of fact shall determine the percentage of responsibility….” Recently, the Texas Supreme Court has indicated that the term “shall” is not always mandatory.

We generally construe the word “shall” as mandatory, unless legislative intent suggests otherwise. See Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 936 (Tex.1983). In determining whether the Legislature intended a provision to be mandatory or directory, we consider the plain meaning of the words used, as well as the entire act, its nature and object, and the consequences that would follow from each construction. See Schepps, 652 S.W.2d at 936 (citing Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (Tex.1956)). Generally, courts construe a statutory provision as mandatory when the power or duty to which it relates is for the public good. See State v. City of Greenville, 726 S.W.2d 162, 169 (Tex.App.–Dallas 1986, writ ref’d n.r.e.). Further, just because a statutory requirement is mandatory does not mean that compliance with it is jurisdictional. See, e.g., Hines v. Hash, 843 S.W.2d 464, 467 (Tex.1992).

Albertson’s Inc. v Sinclair, 984 S.W.2d 958, 42 Tex. Sup. Ct. J. 358 (Tex. 1999). In applying this standard, the presumption that the language is mandatory is bolstered by the express terms of §311.016 of the Code Construction Act, which states that the use of the term “shall” imposes a duty-in short, §33.003 is mandatory.

Scope of Application is Broad: §33.003 clearly was intended to apply to negligence and product liability cases because it so states. §33.002(h) of the same act provides that Chapter 33 applies to an action brought under the Deceptive Trade Practices-Consumer Protection Act (DTPA). §33.002 provides that Chapter 33 applies to tort cases. The scope of Chapter 33 appears to be broad enough to encompass all of the common law tort actions and the most prevalent statutory torts such as claims brought under the DTPA, Article 21.21 of the Insurance Code, the RCLA and Debt Collection Act. §17.50 of the DTPA establishes the standard of causation as “producing cause;” the

the standard of causation under Article 21.21 of the Insurance Code and §392.001 et seq of the Finance Code (formerly the Debt Collection Act, Article 5069-11.01 et seq) was “resulting from” and “sustained as a result of .” §27.004(h) , Property Code (Residential Construction Liability Act, RCLA) provided a standard of causation of “proximate cause,” which encompasses “foreseeability.” Since the statutory causes of action are torts, their standards of causation have been preempted in the same way that negligence and products liability case have been preempted. (See Stewart Title Guaranty Co. v Sterling, 822 S.W.2d 1 (Tex 1991), fn., on the classification of DTPA claims as torts).

How does this new standard of causation manifest itself? Presently the PJC formulates jury questions that inquire “whose negligence, if any, was a proximate cause of the occurrence or event in question.” The negligence inquiry remains the same; however, the standard of causation shifts from “proximate cause” and it attendant restriction of “foreseeability” to one of “causing or contributing to cause in any way.” Let me suggest that the jury questions in negligence and DTPA cases may hereafter resemble the following:

Negligence Case Jury Question

“Whose negligence, if any, of those listed below caused or contributed to cause in any way, the harm for which recovery of damages is sought? State the percentage of negligence in whole numbers that you may find as to each person listed below, placing your answers in the space provided. The percentages stated must total 100%.

DTPA Jury Question

(Plaintiff’s Question)

Did the false, misleading or deceptive acts or practices, if any, of Don Davis cause or contribute to cause in any way the harm for which recovery of damages is sought?

(Defendant’s Question)

Did the conduct of the Plaintiff cause or contribute to cause in any way, the harm for which recovery of damages is sought by him?

(Conditional submission)

Find the percentages of responsibility respectively in whole numbers of the plaintiff and the defendant in causing or contributing to cause in any way the harm for which damages are being sought. Answer by placing the percentages found as to each party in the spaces provided below. The percentages found must total 100%.

Similar adjustments on the standards of liability in all tort cases may be done which are hereafter submitted to a jury.

I have found that no Texas case that manifests a changed standard of causation in tort cases resulting from the language of §33.003. The case of Mellon Mortgage Company v Holder, 5 S.W.3rd 654 (Tex 1999) presented the court with an ideal opportunity to do so. Instead, the Supreme Court discussed the standards of duty, breach of duty, and foreseeability as suggested in Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). It seems clear from the plurality opinion in Mellon Mortgage Company that a portion of the court desires to restrict the scope of the jury’s power to determine the scope of duty, breach of duty, causation and foreseeability while the legislature appears to have gone the other direction with a “cause in fact” standard to be determined solely by the trier of fact-the jury.

In sum, §33.003 mandates a changed standard of causation in most tort cases in Texas, including statutory tort cases such as cases brought under the DTPA., Article 21.21, the RCLA, and the Debt Collection Act . The issue ultimately will be presented to the appellate courts of Texas for determination when the plaintiffs’ bar requests a proper question for submission to the jury in a court’s charge involving a tort claim.