Personal Injury in Texas: what needs order before action, treatment records, and insurance positioning

Texas personal injury law reflects a deliberate policy choice. The state legislature spent much of the early 2000s implementing tort reform measures — capping punitive damages, tightening expert witness standards, and implementing specific rules for particular injury types. Texas courts give significant deference to this legislative framework, and personal injury plaintiffs in Texas operate within a tighter set of constraints than counterparts in states with fewer statutory restrictions on tort recovery.

Premises Liability: Three Tiers of Duty

Texas remains one of the few states that maintains the traditional common-law distinction between invitees, licensees, and trespassers in premises liability cases. The distinction determines the duty the property owner owes:

• Invitees — people with express or implied invitation for a business or public purpose (store customers, restaurant patrons): property owner owes a duty of reasonable care, including inspecting for unknown dangers and warning of or remedying them.
• Licensees — social guests and others with permission but no business purpose: property owner owes a duty to warn of known dangers but no duty to inspect for unknown ones.
• Trespassers — no permission: duty only to refrain from willful injury, with an exception for discovered trespassers in a position of peril.

Whether a visitor was an invitee or licensee is frequently contested. A neighbor who stops by uninvited during a party shifts from invitee to licensee status. A delivery driver at the back door of a business may be an invitee; the same driver walking around the property outside the delivery route may not be. The classification determines whether the homeowner's duty required inspection or merely warning.

The 51% Bar and How Texas Juries Apply It

Texas's modified comparative fault with a 51% bar (Tex. Civ. Prac. & Rem. Code § 33.001) means plaintiffs who contributed more than half the fault for their own injury recover nothing. In premises liability and other personal injury cases, this rule creates a defense strategy centered on finding ways to attribute at least 51% fault to the plaintiff. Obvious danger arguments (the plaintiff should have seen it), assumption of risk arguments (the plaintiff knew the risk and proceeded anyway), and contributory negligence arguments (the plaintiff failed to take obvious precautions) are all used to push fault attribution across the 50% threshold.

Texas also allows designation of responsible third parties — a defendant can identify others (not parties to the lawsuit) as bearing fault, and the jury then allocates fault among all of them. If the non-party third parties collectively absorb enough fault, the defendant's individual share drops and the plaintiff's recovery amount decreases accordingly.

Punitive Damages: A Capped System

Texas caps exemplary (punitive) damages under Tex. Civ. Prac. & Rem. Code § 41.008 at the greater of: (1) two times the economic damages plus an amount not to exceed $750,000 in non-economic damages; or (2) $200,000. This cap does not apply to claims involving felonious conduct, intentional torts, or certain statutory claims. Punitive damages in Texas also require clear and convincing evidence (a higher standard than the preponderance standard governing compensatory damages) that the defendant acted with actual malice or gross negligence — defined as conscious indifference to the rights, safety, or welfare of others.

Dog Bites: One-Bite Rule in Texas

Texas follows the "one bite rule" — the negligence approach rather than strict liability. A dog owner is liable for bite injuries only if: (1) the owner knew or should have known the dog had dangerous propensities (prior aggression, prior bites); and (2) the owner was negligent in failing to restrain the dog. Unlike California's strict liability rule that imposes liability for a first bite regardless of prior history, Texas requires proof of prior knowledge. A dog's first bite typically does not impose liability on the owner — though the specific facts (the dog's behavior before the bite, its breed, whether it was confined) can establish prior awareness of dangerousness short of an actual prior bite.

Products Liability: The Texas Framework

Texas products liability claims can be brought under negligence and strict liability theories. The Texas Products Liability Act (Tex. Civ. Prac. & Rem. Code § 82.001 et seq.) provides a framework with several notable features: a seller (not the manufacturer) is generally not liable unless the seller also manufactures or assembles the product, or the manufacturer is not subject to Texas jurisdiction, or the seller provided inaccurate product information. This seller's exception has significantly reduced liability for retailers in Texas product cases compared to states without similar protections.