The Texas Supreme Court Voids the Unlawful Acts Doctrine


A recent Supreme Court of Texas case considered the viability of the common law “unlawful acts doctrine” as an affirmative defense in personal injury litigation.

The case, Dugger V. Arredondo was decided on August 30, 2013.

Under the unlawful acts doctrine, a personal injury victim could not recover damages, if it is shown that at the time of the injury, plaintiff was involved in an illegal act that contributed to the injury.

The court decided, that the legislature’s adoption of the proportionate responsibility law under Chapter 33 of the Civil Practice and Remedies Code was clear in its manifestation of intention that responsibility should be apportioned under the statute, and that the common-law doctrine was inconsistent with the scheme.

The case arose from a wrongful death lawsuit that was filed after the death of a man who had become unconscious from taking narcotic drugs and drinking alcohol. The man’s friend who he was partying with knew of the narcotics use, but failed to disclose that information to paramedics after 911 was called.

The proportionate responsibility scheme in Texas requires a plaintiff’s conduct to be measured against the conduct of others regarding the cause of his or her injuries.

The court held that the legislature had enacted the proportionate responsibility legislation in which plaintiffs actions are taken into account in calculating a recovery, but do not bar recovery unless the plaintiff’s actions account for more than 50% of the responsibility or to satisfy the elements of a statutory affirmative defense in section 93.001.

Accordingly, the common law unlawful acts doctrine is not now available as an affirmative defense in personal injury and wrongful death cases in Texas. The provisions of Chapter 33 control the responsibilities for plaintiffs and others actions and personal injury cases in Texas.

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