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July 1, 2008

Texas Supreme Court Applies Proportionate Responsibility Law to Implied Warranty Theory

JCW Electronics, Inc. v. Garza, a June 27 decision of the Texas Supreme Court, arose out of the death of Rolando Montez, who was arrested for public intoxication and jailed In the Port Isabel jail.  He made a call to his mother, Pearl Garza, to arrange for bail.  He made the call from his jail cell on a phone provided by JCW Electronics, Inc.  JCW had installed the collect-only phones for inmates under a contract with the city police department.  Montez was found dead in his cell, hanging from the phone cord, on the day he was to be released.  Ms. Garza sued the police department and JCW.  The jury in the case generally found for Garza on negligence, misrepresentation,  and breach of implied warranty of fitness theories, and attributed 60 percent of the liability to Montez, 25 percent to the city, and 15 percent to JCW.  JCW moved for judgment, arguing that the finding of 60 percent fault on the part of Montez barred recovery on all claims under Chapter 33 of the Texas Civil Practice and Remedies Code, which provides for the apportionment of responsibility among those responsible in "any cause of action based on tort."  Tex. Civ. Prac. & Rem. Code § 33.002(a)(1)Texas law provides that a claimant is not entitled to recover "if his percentage of responsibility is greater than 50 percent."  Tex. Civil Practice and Remedies Code § 33.001.  The key issue in the case was whether the implied warranty of fitness counted as an "action based on tort."  Applying the 1995 version of the Texas proportionate responsibility law, the Texas Supreme Court concluded that the implied warranty theory was a tort theory within the meaning of the statute and held that the plaintiff was barred from recovery under all theories of recovery, including the implied warranty theory.

MKS

July 1, 2008 | Permalink

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