Federal: Employee of “Non-Subscribing” Texas Employer May Sue for Negligence; He Need Not Maintain Premises Liability Action

Construing Texas law, a federal district court has held that an employee of a “non-subscribing employer” under the Texas Workers’ Compensation Act could maintain a negligence action against the employer following a slip and fall incident as the employee attempted to retrieve shopping carts in the employer’s icy parking lot. The employer contended the employee could not maintain the action, but rather was limited to filing a premises liability claim.  The distinction was important; since the employer was a “non-subscriber” it could not utilize common law defenses, such as contributory negligence or assumption of the risk in any negligence action.  If the injured employee were required to proceed under the premises liability theory, those defenses would have been available. The district court, after providing a thorough review of the applicable case law from Texas, held that here the employee could sue in negligence.  Since the employer had raised no other defenses, the court granted plaintiff’s motion for summary judgment.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Odom v. Kroger Texas, L.P., 2014 U.S. Dist. LEXIS 18682 (N.D. Tex., Feb. 14, 2014) [2014 U.S. Dist. LEXIS 18682 (N.D. Tex., Feb. 14, 2014)]

See generally Larson’s Workers’ Compensation Law, § 102.01 [102.01]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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