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Something Lost, Something Gained in Texas Premises Liability Claims

by Deborah E Lewis

 

The course has now changed for some slip and fall claims brought against nonsubscriber employers by their employees.

The Texas Supreme Court, in its response to a certified question from the Court of Appeals for the Fifth Circuit concerning conflicting court precedent, has clarified and confirmed various key issues of premises liability law.  Texas' highest court has ruled that, subject to two limited exceptions, an employer generally does not have a duty to warn or protect its employees from an unreasonably dangerous premises condition that is open and obvious or known to the employee.  Austin v. Kroger Texas, L.P., 2015 WL 3641066 *1 (Tex. June 12, 2015).  The Court clarified its prior precedent and confirmed that an employer's premises liability duty to its employee is the same as a landowner's duty to an invitee.  Id. at *4.  Because the duties are the same, like a landowner's duty to an invitee, an employer's premises-liability duty to its employee includes only the duty to protect or warn the employee against concealed hazards of which the employer is aware, or reasonably should have been aware, but the employee is not.  Id. at *3.  

In Austin, the plaintiff, an employee of Kroger, a nonsubscriber, sustained injury after falling on an oily substance on a restroom floor.  The plaintiff contended that a particular product Kroger typically provided to help clean up floor spills (Spill Magic) was not available at the time, but he admitted that he recognized the danger the oily substance presented on the floor.  Despite his careful "baby steps" as he mopped the area, the plaintiff slipped on the oily substance, fractured his leg and dislocated his hip.  Plaintiff alleged theories of premises liability, negligent activity and negligent failure to provide a "necessary instrumentality".  

Under his premises liability theory, the plaintiff disputed the relevance of his awareness of the dangerous condition, and argued that his awareness had no bearing on Kroger's duty to make safe or warn of a dangerous condition.  Instead, plaintiff contended, his awareness of the condition should only affect whether he had proportionate responsibility.  Arguing further, plaintiff noted that because Kroger was a nonsubscriber employer, Kroger could not raise a proportionate responsibility defense.  In essence, the plaintiff argued that Kroger owed him a duty to make safe, or warn against, the dangerous condition and at the same time Kroger should have no viable key defenses because it could not argue that the plaintiff being aware of the situation could have taken measures to protect himself (proportionate responsibility).  

The Court rejected plaintiff's argument.  While it remains Texas law that the nonsubscriber employer cannot use contributory negligence or assumption of the risk (now proportionate responsibility concepts) as defenses against its employee, the Court concluded and announced that the employee still bears the burden to prove the existence of a duty the nonsubscriber employer owes the employee.  Id. at *1.  The reason, explained the Court, is that a nonsubscriber employer's liability may be different because it cannot rely on certain defenses but it has the same duty as a landowner to an invitee.  Id. at *4.  Thus, the plaintiff in this case still had to establish that Kroger owed him a duty in the context of an open and obvious dangerous condition in the restroom.

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