Austin v. Kroger Texas, L.P.
No. 14-0216
Case Note written by Tyler Frankel, Articles Editor.
JUSTICE BOYD delivered the opinion of the Court, in which JUSTICE JOHNSON, JUSTICE GUZMAN, JUSTICE LEHRMANN, and JUSTICE DEVINE joined, and in which CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE WILLETT, and JUSTICE BROWN joined except as to Part IV.
In this case, Randy Austin (the employee) fell while mopping a restroom floor at the Kroger where he worked in Mesquite, Texas. The employee was a self-described “floor clean-up person” whose supervisor instructed him to clean up two oil-like spills, one in the women’s bathroom and one in the men’s bathroom. Kroger’s safety handbook indicated that employees who clean these types of spills should do so using a “Spill Magic” system that involves a powdery absorbent product, a broom, and a dustpan. This system likely reduces the chances of a slip-and-fall by about 25% (according to the Kroger handbook). But, this system was not available at the store the day the employee was instructed to clean the spills, thus the employee attempted to clean the spills with a mop. After successfully cleaning the women’s bathroom, the employee began to carefully clean the men’s bathroom. The employee successfully cleaned about 30% of the spill before he slipped and fell in the remaining amount of liquid, resulting in a fractured femur, a dislocated hip, and a nine-month hospital stay. During the employee’s hospital stay, he underwent six surgeries, leaving his left leg two inches shorter than his right.
Kroger, the employee’s employer, had elected not to subscribe to the Texas workers’ compensation system. The employee sued in state court, asserting claims for negligence, gross negligence, and premises liability. In support of his negligence claim, the employee alleged that Kroger had engaged in negligent activities and failed to provide a necessary instrumentality—namely, the Spill Magic System. Kroger removed the case to federal district court, which granted Kroger’s motion for summary judgment on all of the employee’s claims. The Fifth Circuit affirmed as to the employee’s negligent activity and gross negligence claims, but reversed and remanded the necessary-instrumentalities claim. Regarding the employee’s premises liability claim, the Fifth Circuit found that the nature and scope of an employer’s duty to provide its employees with a safe workplace is arguably unclear under Texas law when the employee is aware of the hazard of risk at issue, thus leading to the Fifth Circuit certifying a question to the Texas Supreme Court.
Issues: (1) The Fifth Circuit asked the Texas Supreme Court to address the following certified question: 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? (2) Whether contemporaneous negligent activity by the employer is necessary to an employee’s instrumentalities claim.
The Texas Supreme Court addressed the Fifth Circuit’s certified question, clarifying that, under Texas law, (1) subject to two limited exceptions, an employer generally does not have a duty to warn or protect its employees from unreasonably dangerous premises conditions that are open and obvious or known to the employee; and (2) under this general rule, the Texas Workers’ Compensation Act’s (TWCA) waiver of a non-subscribing employer’s common law defenses does not eliminate an employee’s burden of proving that the employer owed him a duty as an element of a premises liability claim. The court reasoned that, generally, an employer has the same premises-liability duty to its employees as other landowners have to its invitees on their premises—which is the duty to make safe or (adequately) warn. Moreover, it reasoned that the TWCA’s waiver has no effect on an employer’s duty, only on their liability, due to the statutory waiver of defenses. Therefore, even if an employer has waived the TWCA, the employee must still prove that the employer owed him a duty of care. Furthermore, the court then held that the two exceptions to this general rule were (1) the criminal activity exception, which may arise when a dangerous condition results from the foreseeable criminal activity of third parties; and (2) the necessary-use exception, which may occur when the invitee necessarily must use the unreasonably dangerous premises, despite the invitee’s awareness and appreciation of the dangers, the invitee is incapable of taking precautions that will adequately reduce the risk. The court held that the employee’s case did not fall under one of the two exceptions and declined to create a new one. Thus, based on the general rule, Kroger satisfied its duty.
The court then turned to the employee’s necessary-instrumentalities claim. While this issue was not part of the certified question, part of the court addressed it at Kroger’s request. Kroger alleged that the claim fails as a matter of law. While the court declined to decide the merits of the employee’s instrumentalities claim, it did address one of Kroger’s arguments dealing with the relationship between the instrumentalities claim and the premises-liability claim. The court held that an employer owes additional duties to its premises-liability duties to its employees, including the duty to provide the employees with necessary instrumentalities. It held that contemporaneous negligent activity is not an element of an instrumentalities claim, but rather this type of claim may be founded on nonfeasance or misfeasance. The court reasoned that while only an employer that has control over the premises where the employee is injured has a premises-liability duty, the duty to provide necessary and safe instrumentalities applies generally to employers.
In its final answer, the court stated that, under Texas law, an employee cannot recover against a nonsubscribing employer for an injury caused by a premises defect of which he is fully aware but that his job duties required him to remedy. Employers, like landowners to invitees, have the duty to maintain their premises in a reasonably safe condition for their employees, but employers will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they should be or are aware of. If an exception applies (one of the two explained above), the employer may owe a duty to protect the employee from the reasonably safe condition despite the employee’s awareness, and the TWCA will prohibit a nonsubscribing employer from raising defenses based on the employee’s awareness.