Texas Supreme Court Clarifies Nonsubscriber Liability

The Texas Supreme Court released an opinion June 12, 2015 in a nonsubscriber case regarding an employer’s duty to maintain a safe workplace when its employee is aware of a premises defect. In Austin v. Kroger Texas, L.P., plaintiff Randy Austin was a utility clerk for Kroger and was charged with ensuring that the restrooms and floors of the store were clean. On the date of his injury, Austin’s manager informed him that air conditioning units had been cleaned earlier in the day and asked that Austin clean up puddles of liquid in the restrooms. Austin was in the process of cleaning the liquid when he slipped and fell, fracturing his femur and dislocating his hip.

Austin sued Kroger and brought negligence, gross negligence, and premises liability claims against Kroger. Kroger removed the case to federal district court, which granted Kroger’s motion for summary judgment on all three causes of action. The Fifth Circuit affirmed the district court’s decision on the negligence claims, but certified a question to the Texas Supreme Court regarding the premises liability issue. Specifically, the federal appellate court asked:

Pursuant to Texas law, including § 406.033(a)(1)–(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?

Kroger argued that an employer has no duty to warn or protect employees against hazards that are commonly known or already appreciated by the employee. Kroger also asserted that while a nonsubscriber is prohibited from asserting the employee’s negligence or assumption of the risk as a defense, it does not relieve the employee of the burden of proving that the employer owed a duty. Austin argued that the Court had previously abolished the “no-duty” rule in the employer/employee context. He also claimed that since Kroger was barred from raising proportional responsibility with regard to his own negligence, his awareness of the danger was irrelevant.

The Court stated the employee’s awareness of the a defect does not eliminate the employer’s duty to maintain a safe workplace. The Court stated that that duty always existed, but the more specific question was “whether that duty includes a more specific duty to warn or protect employees against obvious or known hazards.” It held that, other than the criminal-activity and necessary-use exceptions, an employer’s premises-liability duty to its employee includes only the duty to protect or warn the employee against concealed hazards of which the employer is aware, or reasonably should have been aware, but the employee is not. The Court also held that while the Texas Labor Code prohibits nonsubscribing employers from raising certain defenses, employees still must prove a nonsubscribing employer had a duty in order to establish a common law cause of action.

In one of the more notable aspects of the opinion, the court addressed Austin’s “necessary instrumentalities” claim. In addition to his premises-liability claim, Austin alleged that Kroger negligently caused his fall by engaging in negligent activities and by negligently failing to provide a “necessary instrumentality,” a solution to coagulate a spilled liquid that Kroger’s employee handbook required be available at the store. The certified question only addresses Austin’s premises-liability claim. Without deciding the merits of Austin’s instrumentalities claim, the Court addresses one of Kroger’s arguments that touches on the relationship between the instrumentalities claim and the premises-liability claim – that the instrumentalities claim must fail because a premises condition, rather than any of Kroger’s contemporaneous activities, caused Austin’s fall. His claim, then, the company argues, exclusively is one for premises liability. But in contrast to typical premises-liability claims, when the landowner is also an employer and the invitee is also its employee, this additional relationship may give rise to additional duties, such as a duty to provide necessary equipment, training, or supervision. Austin’s instrumentalities claim invokes one of these additional duties: the duty to furnish reasonably safe equipment necessary for performance of the job. To hold otherwise would create disparate treatment of employees’ instrumentalities claims depending on whether the employer owned or operated the premises where the employee worked. Only an employer that has control over the premises where the employee is injured has a premises-liability duty to the employee, but the duty to provide necessary and safe instrumentalities applies to employers generally. If the rule Kroger advocates were adopted, employees injured on their employers’ premises by the employer’s failure to provide necessary and safe equipment would have to try their claims under a premises-liability theory of recovery, while employees injured on premises not owned by their employers would have to prosecute the same breach of duty under a general negligence theory of recovery—two different claims with different proof requirements.