SOUTHEAST TEXAS RECORD

The Texas Supreme Court recently declared that, under state law, an employee can’t recover against an employer for an injury caused by a known premises defect.

In March 2014, the Fifth Circuit Court of Appeals sent a certified question to the high court, asking whether an employee can recover against an employer that doesn’t subscribe to worker’s compensation for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy?

On June 12 Supreme Court justices found that although Texas employers have a duty to provide a safe workplace, essentially the employee’s awareness of the defect eliminates the employer’s liability.

The finding stems from a lawsuit brought by Mesquite resident Randy Austin against Kroger Texas, LP in state court.

Austin fell while mopping a Kroger bathroom floor, fracturing his femur and dislocating his hip – injuries that required six surgeries and left his left leg two inches shorter than his right, court records show.

An oily liquid had leaked through the store’s ventilation ducts after another employee power-washed the store’s condenser units, creating spills in both the men and women’s restrooms.

Austin’s supervisor told him to clean up the mess. Kroger’s safety handbook recommends that employees clean spills using a “Spill Magic” system, a powdery absorbent product that was not available for use on the day of the incident.

Austin successfully mopped up the women’s restroom before moving on the men’s, where the brownish liquid covered 80 percent of the floor. He placed wet floor signs around the area and took “baby steps” as he moved through the spill, court records state.

About halfway through, Austin slipped, leading to his suit against Kroger – a non-subscriber to the Texas workers’ compensation system.

In his suit, Austin alleges Kroger was grossly negligent and failed to provide him with the Spill Magic system. Kroger removed the case to federal court and a district judge granted the company’s motion for summary judgment.

On appeal, the Fifth Circuit affirmed the lower court’s ruling on Austin’s gross negligence claim but reversed the ruling on his claim that Kroger failed to provide Magic Spill, court records show.

Also, on Austin’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 an employee is aware of the hazard or risk at issue,” court records state.

“Under Texas law, an employee generally cannot ‘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,’” writes Justice Jeffrey Boyd.

Justices opined that 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.

Three months prior to the opinion, the Texas Trial Lawyers Association filed an amicus brief, arguing that giving non-subscribers, such as Kroger, immunity for all but premises liability and negligent-activity claims will violate Texas public policy by discouraging participation in the worker’s compensation system.

“Kroger would like nothing more than for this court to rule that the duties it owes its employees are precisely coterminous with the duties it owes business invitees,” states the TTLA brief.

TTLA president Bryan Blevins, who is also a partner at Provost Umphrey in Beaumont, filed the brief.

Attorney Matthew Kita represents Austin.

Kroger is represented by attorneys Donna C. Peavler, Dale Wainwright, Bryan Kyle Briscoe, Charles R. 'Skip' Watson Jr. and Mike A. Hatchell.

Texas Supreme Court case No. 14-0216