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Texas: Non-Subscribing Employer Not Liable for Injuries Caused by Open, Obvious Dangerous Condition

June 19, 2015 (2 min read)







Answering a certified question from the United States Court of Appeals for the Fifth Circuit, the Supreme Court of Texas held that, under Texas law, (1) subject to two limited exceptions not relevant to the case, an employer generally does not have a duty to warn or protect its employees from unreasonably dangerous premises conditions that are open and obvious or known to the employee; and (2) under this general rule, the Texas Workers’ Compensation Act’s (TWCA) waiver of a nonsubscribing employer’s common law defenses did not eliminate an employee’s burden of proving that the employer owed him a duty. Accordingly, an employee, who fell while mopping a slippery restroom floor at his employer’s premises, could not recover against the employer, which had opted out of the Texas workers’ compensation system, 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 noted that the TWCA prohibited nonsubscribing employers from raising the defenses of contributory negligence and assumption of the risk and that the prohibition, therefore, was intended to encourage employers to subscribe to the workers’ compensation system. Nonetheless, the TWCA did not create an “especially punitive litigation regime for non-subscribing employers.” Generally, employees still had to prove all the elements of a common law negligence claim to prevail against nonsubscribing employers. Here the employee failed to do so. The employee had contended that the Court should recognize a distinct duty in cases where an employee was injured while performing a task that the employer specifically assigned to the employee. The Court declined to do so.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

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

See Austin v. Kroger Texas, L.P., 2015 Tex. LEXIS 559 (June 12, 2015) [2015 Tex. LEXIS 559 (June 12, 2015)]

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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