In 1974, the Court ruled that evidence about whether a car’s occupant was wearing a seat belt was not admissible in an auto-accident case. Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974). Today, the Court overrules that decision.

It explained that the legal background motivating that rule had changed. First, Texas no longer has a contributory-negligence system, under which a plaintiff could be absolutely barred from recovery if they were even the slightest degree negligent. It now has a system of comparative negligence, with a plaintiff’s recovery merely reduced by the percentage of their own fault — unless that fault exceed 50%.¹

Second, the Court noted that mandatory seat-belt laws began, and became more strict, after its 1974 ruling. Given that change, the Court referred to its prior holding as “a vestige of a bygone legal system and an oddity in light of modern societal norms.”

The Court rejected the argument that intervening statutes had, implicitly through silence, approved the blanket rule against the admission of seatbelt evidence. In 1985, while approving Texas’s first mandatory-seatbelt law, the Legislature had passed a prohibition on the admission of evidence about seatbelt use that was even broader than the Court’s. But in 2003, the Legislature repealed that provision while making other changes. The Court saw this repeal — without adding other language about the seat-belt question — as the Legislature choosing for its part to be silent. Thus, the Court rejected the argument that the Legislature had weighed in either way.

The Court holds that normal rules of evidence should apply, leaving the details to be sorted out in the usual way:

Today’s holding opens the door to a category of evidence that has never been part of our negligence cases, but we need not lay down a treatise on how and when such evidence should be admitted. Seat-belt evidence has been unique only in that it has been categorically prohibited in negligence cases. With that prohibition lifted, our rules of evidence include everything necessary to handle the admissibility of seat-belt evidence. As with any evidence, seat-belt evidence is admissible only if it is relevant. … The defendant can establish the relevance of seat-belt nonuse only with evidence that nonuse caused or contributed to cause the plaintiff’s injuries. And the trial court should first consider this evidence, for the purpose of making its relevance determination, outside the presence of the jury. … Expert testimony will often be required to establish relevance, but we decline to say it will be required in all cases. And, of course, like any other evidence, even relevant seat-belt evidence is subject to objection and exclusion under Rule 403.

The Court also considered how this should be handled for children who are not wearing seat belts, concluding that it can be proper for a jury to consider both whether an adult in the car bears some responsibility for that injury, as well as whether the child was acting as would an “ordinarily prudent child of [the same] age, intelligence, experience and capacity.”

And the Court addressed whether the jury should be asked who caused the accident (what the Court calls “occurrence-causing conduct) and then asked separately who caused each person’s injury (“injury-causing conduct”). The Court said no, that both kinds of fault should be folded into a single apportionment question. “There is nothing about injury-causing conduct that renders it incompatible with being considered alongside occurrence-causing conduct in one responsibility apportionment for the harm suffered by the plaintiff.”

In 2010, a drilling rig owned by Transocean and developed by BP exploded in the Gulf of Mexico, leading to months of subsurface oil leakage, damage to coastal communities and industries, and other serious claims. In the parties’ drilling contract, Transocean was to be responsible for above-surface pollution risks while BP was to be responsible for subsurface pollution risks. Another provision of the contract required Transocean to provide "additional insured" protection to BP.

BP sued over the scope of this "additional insured" coverage, arguing that Transocean’s insurers must cover BP’s losses, regardless whether the specific cause was above or below the surface.

The Fifth Circuit originally ruled in favor of BP, concluding that the insurance policy itself did not limit the scope of coverage afforded to BP and that, under EVANSTON INSURANCE COMPANY v. ATOFINA PETROCHEMICALS, INC., No. 03-0647, it should not look beyond the text of that document to find a limitation to coverage. On rehearing, however, the Fifth Circuit withdrew its opinion and chose to certify this question to the Texas Supreme Court to authoritatively address two questions under Texas law:

1. Does ATOFINA compel a finding that BP is covered for these damages?

2. Does the doctrine of contra proferentem (that is, construing a contract against the person who drafted it) apply even in a sophisticated commercial context?

The Texas Supreme Court reached the opposite result, basing its decision on a less restrictive reading of ATOFINA, one that is compatible with the idea that an insurance policy can effectively “incorporate” another document needed to understand its scope:

Texas law has long allowed insurance policies to incorporate other documents by reference, and policy language dictates the extent to which another document is so incorporated. The policies here provide additional-insured coverage automatically where required and as obligated by written contract in which an insured has agreed to assume the tort liability of another party. Because BP is not named as an insured in the Transocean policies or any certificates of insurance, the insurance policies direct us to the additional-insured provision in the Drilling Contract to determine the existence and scope of coverage. Applying the only reasonable construction of that provision, we conclude that, as it pertains to the damages at issue, BP is an additional insured under the Transocean policies only to the extent of the liability Transocean assumed for above-surface pollution.

Having concluded that BP is covered by Transocean’s policies only to the extent that the drilling contract required, the Court answered the first question no, that there is no coverage.

The Court did not reach the second question about the contra preferentum doctrine because that rule applies only to ambiguous text, and it saw no ambiguity here.

A farming company (FPL) got into a dispute with an environmental-wastewater company (EPS) that was injecting wastewater into the deep subsurface where it, allegedly, ended up beneath FPL's property. The farming company sued the enviornmental-wastewater company for trespass, that trespass taking place in the deep subsurface water table beneath its land.

If that scenario sounds familiar, it may be because this case is making its second visit to the Texas Supreme Court. In 2011

This case is making its second visit to the Supreme Court. The first time, the court of appeals held that the farming company could not sue for trespass because the State regulator had issued a permit. The Texas Supreme Court reversed, holding that the permit was not a bar to civil liability. FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C., No. 09-1010

On remand, the court of appeals ruled that the farming company should get a new trial. Part of its reasoning was that the jury charge was defective because it required the plaintiff farming company to prove a lack of consent to recover for trespass. In the court of appeals’s holding, that was an affirmative defense on which the defendant should have had the burden to establish the presence of consent.

With this opinion, the Texas Supreme Court disagreed. It surveyed a line of its own cases, going back to the days of the Republic, which described consent as part of the definition of trespass itself. Responding to FPL’s citation to some courts of appeals that used the term “affirmative defense” to describe the question of consent, the Court suggested that may have been discussing just the general concept that a defendant who did prove consent would defeat the claim, no matter whose burden of proof it actually way. As such, those courts may have “perhaps hastily used the term ‘affirmative defense’ to describe this proposition.” (The Court also notes that “[t]here is no pattern jury charge for a trespass to real property cause of action in Texas.” One suspects that might change.)

Having held that a plaintiff in a trespass claim does bear the burden to prove the lack of consent, the Court concluded that the jury charge here was not erroneous. Because this part of the Court’s decision was sufficient for the defendant to prevail, and because the Court was rendering judgment rather than sending the case back for a new trial, the Court saw no need in this case to reach the broader question of whether Texas law imposes a duty on a landowner to avoid causing this kind of “deep subsurface wastewater migration” beneath neighboring land.

When Wells Fargo began a foreclosure process on a home-equity loan, this homeowner fought by back filing what the Court calls a “separate and original proceeding” (a phrase that will come into play in its reasoning). In that separate suit, the homeowners sought injunctive relief, asserted fraud claims, and sought relief under the UDJA. Wells Fargo, in response, sought its own declaration and asked for attorney’s fees under the UDJA.

The trial court ultimately ruled for Wells Fargo and awarded it attorney’s fees under the UDJA. The homeowners appealed, arguing that Wells Fargo did not assert a valid declaratory claim. The court of appeals agreed — but to strike down the fees, it had to go a step further. Either side can recover under the UDJA, so to reverse the award, the court of appeals also had to determine whether the homeowners had a valid UDJA claim. It concluded that neither side had a valid UDJA claim and, thus, that there was no basis for a fee award.

The Supreme Court reversed. On the procedural question, it ruled that the homeowners' challenge to the award was fatally incomplete. Because they had not challenged whether his own UDJA claim was valid, the court of appeals could not reach that question sua sponte. And, thus, the basis for the court of appeals’s ruling was invalid.

That led to a constitutional question: Can a lender recover attorney’s fees in this situation, consistent with Texas’s constitutional provisions about home-equity lending?

The Court held that the key was that this was a “separate and original proceeding.” Rather than defending the lender’s original suit (in which, the Court suggests, no fees would have been available), the homeowners filed this separate proceeding.

This is a negligent-spoliation case. After a contested hearing before trial, the district court ordered that a spoliation instruction would be given to the jury. When it came time to approve the jury charge, however, the defendant did not renew this objection. The court of appeals held that this waived any complaint about spoliation.

The Supreme Court disagreed. It held that the objections made before trial were clear enough, and clearly enough ruled upon, that the question of whether some spoliation question was proper had been adequately preserved. (It noted that there was no challenge here to the precise wording of the instruction, a challenge that might have required a different type of objection or ruling.)

The plaintiff contends that a car accident was caused by the headlights of a police car, which was at the time being moved and was facing oncoming traffic. The County invoked sovereign immunity. The question on appeal is whether this situation withs within the “use of property” exception in the Texas Tort Claims Act.

The Supreme Court held that it does fit the exception and, thus, that a waiver of sovereign immunity had been pleaded. The key fact turned out to be that, in this case, the police car was being operated (“relocat[ed]”) at the time of the accident.

The County argued that an accident caused by headlights alone could not fit within the waiver, citing a Houston case from 2007 in which that court found immunity against an accident claimed to have been caused by a parked police car with its emergency lights activated. Texas DPS v. Grisham, 232 S.W.3d 822 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The driver in that case claimed the accident was caused by the fact that they had to change lanes to comply with state law. That court of appeals, however, held that the police car in question was not in “use” merely by virtue of being parked with its emergency lights on.

In this case, the Supreme Court was expressly careful not to either approve or disapprove the holding of Grisham. (“Although we express no opinion as to the substance of the Grisham panel’s analysis, we decline to follow its reasoning here.”). That may be a question for another day.

To decide this case, the Supreme Court chose merely to distinguish Grisham, noting that the police car here was unquestioningly being operated at the time. This was not a parked car, it was a car in motion.

The Court also rejected the County’s argument that the accident was caused by the “illegal conduct” of the driver, an illegality based on the Transportation Code requirement to change lanes or reduce speed when approaching a parked emergency vehicle. This car, it noted, was not parked. And the ultimate effect of such a finding would, the Court noted, be merely to reduce proportionate responsibility; there is not a general bar to suit based on “illegal conduct.”