On May 22, the Supreme Court of Texas analyzed the evidentiary requirements for a responsible third party designation under Chapter 33 of the Texas Civil Practice and Remedies Code in its decision in K&K Inez Properties v. Kolle.
While the decision is also notable for its application of the Chapter 41 exemplary damages cap, the Court’s analysis of Chapter 33’s RTP designation carries significant implications for practitioners navigating proportionate responsibility disputes in Texas.
The underlying dispute was between neighbors. Married landowners filed suit against their married neighbors and the neighbors’ jointly-owned company alleging violation of the Texas Water Code and multiple common law claims for flooding following construction of a dam and berms on the defendants’ neighboring property.
The defendants timely designated Victoria County as an RTP, alleging that “the water drainage issues [the plaintiffs] now complain of, if they exist, are the result of actions taken or required by Victoria County.” The trial court initially granted leave to designate Victoria County as an RTP but later struck the designation under Section 33.004(l), which provides that “[a]fter adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injury or damage.” The statute further provides that “[t]he court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person’s responsibility for the claimant’s injury or damage.”
On appeal, the defendants challenged the trial court’s striking the RTP designation, arguing that the trial court improperly required evidence of Victoria County’s liability rather than merely its responsibility. The Texas Supreme Court rejected this framing.
Examining Chapter 33’s definition of “responsible third party” as “any person who is alleged to have caused or contributed to causing in any way the harm … whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these,” the Court held that the statute’s use of the word “responsible” requires “more than a mere showing that the designated person caused (or contributed to cause) the plaintiff’s injury.” The Court reasoned, “[a] designated person is not ‘responsible’” unless the designating party demonstrates that the person “violated some applicable legal standard, including by negligent act or omission.”
Although the defendants adduced evidence that the county’s actions “may have caused or contributed to the flooding,” they presented no evidence that those actions “violated any applicable standard of care.” The defendants pointed to testimony describing the county’s decision to deepen waterways upstream as “imprudent,” but the Court held this insufficient: “Merely describing the County’s conduct as ‘imprudent,’ without more, is insufficient to raise a genuine fact issue as to whether the County violated an applicable standard of care.” Citing its 2025 opinion in Walgreens v. McKenzie, the Court emphasized that a negligence showing requires evidence of “the applicable standard of care” and “how the [defendant’s conduct] fell below that standard.”
The Texas Supreme Court’s analysis in Kolle gives two important guidelines for practitioners.
First, it establishes a definitive floor for RTP designations. Bare causation evidence is insufficient. The designating party must produce evidence identifying the applicable standard of care and demonstrating how the designated party’s conduct fell below it. Courts will likely reject conclusory characterizations of third-party conduct and demand evidence of an identifiable legal standard’s existence and breach.
Second, it cautions lawyers to prioritize discovery to develop the third party’s applicable standard of care early in the case and to develop evidence to support that standard. For example, retention of experts to establish the standard and its breach may be critical, rather than reliance on lay witnesses offering vague characterizations.
We note that while the Texas Supreme Court’s analysis was in the context of a motion to strike an RTP under 33.004(l), similar considerations likely apply when faced with an objection to an original motion to designate an RTP under 33.004(g) or at the charge conference during trial when the court must consider which parties’ conduct should be considered for proportionate responsibility.
In short, Kolle reminds practitioners to pay careful attention to evidentiary development, expert retention and discovery strategy for RTPs from the earliest stages of litigation.
Kevin T. Jacobs is the firmwide litigation section chair at Baker Botts. He is based in Houston.
Laura Shoemaker McGonagill is a Houston-based senior associate in the litigation section at Baker Botts.
