Grocer had no duty to warn employee of lowboy danger, Texas SC says

Steve Korris Sep. 10, 2008, 3:46am

Texas Supreme Court

AUSTIN – Wood County District Judge Timothy Boswell shouldn't have held trial on a claim that Brookshire Grocery Company caused back injuries that worker Barbara Goss suffered in trying to step over a "lowboy" cart, the Texas Supreme Court ruled Aug. 29.

"To the extent that stepping over a lowboy is dangerous, it is a danger apparent to anyone, including Goss," all nine justices agreed in an unsigned opinion.

A lowboy stands about 42 inches high, measures about two and a half feet by five feet, and rolls on four wheels.

Goss stepped over one as she entered a freezer, but on the way out her shin struck the lowboy and she hurt herself grabbing a shelf to stop her fall.

Jurors in Boswell's court found Brookshire negligent and awarded Goss damages for pain, anguish, loss of earning capacity, physical impairment and medical expenses.

The Sixth District appeals court affirmed the verdict, holding that Brookshire owed Goss a duty to warn of safe handling of lowboys.

According to the Supreme Court, Boswell and the Sixth District should have spotted similarities to earlier decisions, Elwood and Skiles, that limited the duty to warn.

Elwood, a Kroger worker, grabbed a customer's car for leverage as he tried to catch a cart running downhill. A car door closed on his hand.

The court held that "Kroger had no duty to warn Elwood of a danger known to all."

The court held that an employer "owes no duty to warn of hazards that are commonly known or already appreciated by the employee."

Skiles, a Jack in the Box worker, couldn't reach hamburgers in a delivery truck due to a broken gate so he jumped the gate with a ladder. He crashed.

The court held that "any dangers associated with using a ladder to jump over a lift gate were obvious to Skiles."

Likewise in the Goss case, the justices found no unusual danger.

"A stationary, loaded lowboy is easily visible, and Goss saw it upon entering the cooler," they wrote.

"Goss had both previously encountered lowboys in the course of her work and was able to safely navigate around this lowboy when she entered the cooler," they wrote.

They reversed the Sixth District and rendered judgment for Brookshire.

Deborah Race, Charley Ainsworth, Charles Clark and Mike Hatchell represented Brookshire.

Michael Jung, Jeff Ward and George Boll represented Goss.

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