Chapter 18-2 Determination of Percentage of Responsibility

• Jurisdiction: United States

18-2 Determination of Percentage of Responsibility

The trier of fact must determine the percentage of responsibility "with respect to each person's causing or contributing to cause in any way the harm for which recovery of damages is sought" for each claimant, each defendant, each settling person and each responsible third party.¹²

18-2:1 Determination Made as to "Each Cause of Action"

Chapter 33 requires this determination to be made as to "each cause of action assert-ed."¹³ Despite the reference to "cause of action," this provision does not require a separate apportionment question following each question on a legal theory of recovery.¹⁴ In other words, it does not require the jury to "compare all parties alleged to have been negligent in one question, compare all parties alleged to have distributed a defective product in a separate question, and so on."¹⁵

Instead, "cause of action" in the statute refers to "the entire set of facts giving rise to a single right of recovery, regardless of the specific legal theory of recovery."¹⁶ The practice in Texas is to submit a series of liability questions (if more than one theory of recovery is alleged) followed by a single apportionment question.¹⁷ This includes any pre-occurrence conduct which, under Sec. 33.003(a) caused or contributed to cause the personal injuries sought or under 33.011(4) caused or contributed to cause the death.¹⁸

18-2:2 Determination Made as to Each Claimant, Defendant, Settling Person, and Responsible Third Party

The apportionment question must include a line for each claimant, defendant, settling person and responsible third party.¹⁹

A claimant is defined as "a person seeking recovery of damages," including a "plaintiff, counterclaimant, cross-claimant, or third-party plaintiff."²⁰ In a case in which a party seeks recovery of damages on behalf of another person (e.g., suits on behalf of a minor and wrongful death actions), the term includes both the person who was injured, died, or whose property was damaged and the person seeking recovery on his or his behalf.²¹

A person who seeks recovery on behalf of another is barred from recovery if the person on behalf of whom recovery is sought is more than 50% responsible.²² Although the Texas Supreme Court has not answered the question, it appears that, where the total fault of both the person seeking recovery and the fault of the person through whom the plaintiff claims exceeds 50%, recovery may also be barred.²³

A defendant is defined as "any...