TX: High Court Addresses Premises Liability Duties

Texas is the only state in the country that has voluntary workers’ compensation; employers can subscribe to it or not as they see fit.  An employee of a non-subscribing employer, Kroger, as part of his duties, was mopping up a very slick substance in Kroger’s bathroom.  He slipped and seriously injured himself.

The Fifth Circuit certified the following question concerning the premises liability claim to the Texas Supreme Court:  “Pursuant to Texas law . . . 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?” Importantly, because Texas law forbids an employer who opts out of the workers’ compensation system from asserting an employee’s contributory negligence or assumption of the risk as a defense, if Kroger owed plaintiff a duty of care, and if it breached that duty, it would be liable for the all of the damages, regardless of plaintiff’s negligence or assumption of the risk.   

The court provided the following answer to the certified question:

Under Texas law, an employee generally cannot “recover against a nonsubscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.” As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. “The employee’s awareness of the defect” does not “eliminate the employer’s duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third-party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee’s awareness of the danger, and the [workers’ compensation act] will prohibit a nonsubscribing employer from raising defenses based on the employee’s awareness.

The case is Austin v. Kroger Tex., L.P., __ S.W.3d __, 2015 WL 3641066 (Tex. June 12, 2015). Shannon Ramirez at LeClair Ryan has more in Virtual Strategy.