§ 93.001.Assumption of the Risk: Affirmative Defense

Two affirmative defences, and each is confined by a demanding causation requirement.

It is an affirmative defence to a civil action for personal injury or death that the plaintiff, at the time the cause of action arose, was:

committing a felony, for which the plaintiff has been finally convicted, that was the sole cause of the damages; or committing or attempting to commit suicide, and the plaintiff's conduct was the sole cause of the damages.

"Sole cause" is the limiting element in both. Any contributing cause defeats the defence, and it is a far higher bar than comparative responsibility, under which the plaintiff's conduct merely reduces or bars recovery at 51 percent.

The felony branch requires a final conviction. An allegation of criminal conduct, a charge, or even an unappealed guilty plea short of finality does not establish it.

The suicide branch has its own proviso, and it is substantial. If the suicide or attempt was caused in whole or in part by a failure on the part of any defendant to comply with an applicable legal standard, it shall not be a defense.

That preserves claims against those with a duty to prevent it — a jail failing to observe an at-risk inmate, a hospital failing to supervise a patient. Their failure is exactly what the proviso describes.

Subsection (b) excludes workers' compensation actions and actions against an insurer based on a contract of insurance, a statute, or common law. Subsection (c): in an action to which this section applies, it prevails over any other law.