Thank You For Submiting Feedback!
Texas employers have a duty to exercise reasonable care to provide their employees with a safe place to work. Like all others who own or operate land, employers generally may fulfill their premises-liability duties to invitees either by eliminating any unreasonably dangerous condition or by adequately warning of the risks.
Randy Austin fell while mopping a restroom floor at the Kroger store where he worked in Mesquite, Texas. An oily liquid had leaked through the store's ventilation ducts after another Kroger employee power-washed the store's condenser units, creating spills in both the men's and women's restrooms. Consistent with Austin's duties as a self-described "floor clean-up person," Austin's supervisor directed him to clean the spills. Kroger's safety handbook recommends that employees clean spills using a "Spill Magic" system that involves a powdery absorbent product, a broom, and a dustpan. According to the handbook, using this system reduces the likelihood of a slip-and-fall by 25%. Contrary to the handbook's instruction to store managers, however, the system was not available at the store that day. Austin thus attempted to clean the liquid with a mop. Austin successfully cleaned the women's room and then moved to the men's room, where the brownish liquid covered about 80% of the floor. Recognizing the danger that the slippery liquid presented, he placed "wet floor" signs around the area and carefully took "baby steps" as he moved throughout the spill. After successfully cleaning 30% to 40% of the spill, Austin slipped in the remaining liquid and fell, fracturing his femur and dislocating his hip. As a result, he spent nine months in the hospital and underwent six surgeries, leaving his left leg two inches shorter than his right. Austin's employer, Kroger Texas L.P., had elected not to subscribe to the Texas workers' compensation system. Austin sued Kroger in state court, asserting claims for negligence, gross negligence, and premises liability. In support of his negligence claim, Austin alleged that Kroger had engaged in negligent activities and had failed to provide a "necessary instrumentality"—specifically, the Spill Magic system. Kroger removed the case to federal district court, which granted Kroger's motion for summary judgment on all of Austin's claims. The Fifth Circuit Court of Appeals affirmed as to Austin's negligent activity and gross negligence claims, but reversed and remanded the necessary-instrumentalities claim because the district court had "failed to consider whether . . . [that theory] is sufficient to support a stand-alone ordinary negligence claim." 746 F.3d at 197. As to 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." The Fifth Circuit certified a question before the court.
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?
The court held that the employee could not recover against the non-subscribing employer for the injury caused by the premises defect of which he was fully aware but that his job duties required him to remedy; the employer's duty to maintain a reasonably safe workplace did not obligate the employer to eliminate or warn of dangerous conditions that were open and obvious or otherwise known to the employee.