Special Project:
Richard L. Durbin, Mark S. Pulliam, and Michael J. Thibodeaux, Special Project – Texas Tort Law in Transition, 57 Texas L. Rev. 381 (1979).

Tort law allocates the cost of accidents among various potential cost bearers. Tort law has undergone significant changes – from initially placing the entire cost on the person who caused the accident to fault-oriented allocation in the 1960’s to strict liability of accidents caused by defective products. Another change resulted from societal pressure when some states adopted comparative negligence, including Texas in 1973. While some of the statute’s provisions are explicit and well constructed, others are still problematic. The Texas Supreme Court took actions to correct these problems by first simplifying negligence actions and then substituting the talisman “article 2212a” for policy analysis in its decisions producing results that are explicable, but not adequately explained. The court’s failure to construct and articulate a policy framework for it’s decision is more critical in products liability. The products liability “policies” on which most courts and commentators rely, fully justify the substitution of the theory of strict products liability for the theory of negligence in defective products cases, but they do not provide an analytical basis for defining the limits or operation of products liability. This special project attempts to identify these problems and to offer a framework for analyzing them.