Editor's Note: This letter to the editor first appeared in the Houston Chronicle, Sept. 14, 2013

By Hugh Rice Kelly

Lisa Falkenberg’s column, “Courts wouldn’t be there for Abbott today,” (Page B1, Friday) has a number of errors, but I will deal with only one.

“Joint and several liability,” better known as “proportionate responsibility,” simply means that a defendant is liable only for that proportion of fault attributed to that defendant by judge or jury, unless the defendant is found to be more than 50 percent at fault, in which case that defendant might be liable for all the damages due the plaintiff.  This law, like each of the tort reforms enacted in Texas during the past two decades, is eminently fair.

If a party is found 40 percent at fault for causing the plaintiff’s injury, why should that party pay more than 40 percent of the damages?

Contrary to Falkenberg’s assertion, the remedies that would be available to Attorney General Abbott today are the same as the remedies that were available to him in 1984.

The circumstances related to Attorney General Abbott’s injury in 1984 are known: his injury occurred when a tree fell on him while he was jogging, the damages were high, and the causation certain and the risk of a negligence finding against the homeowner and his tree service were substantial.  Both defendants were solvent and both were insured. The defendants reportedly paid $3 million to settle the case.

If a similar injury were to occur today to a recent law school graduate, there is no reason to believe, and no evidence to suggest, that a different result would occur under current Texas law.

Hugh Rice Kelly, is general counsel for Texans for Lawsuit Reform-Houston

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