Texas Supreme Court Clarifies Employer Liability on Obvious risk in Workplace Injuries

It's not too often that we hear of an employer being able to escape liability for a workplace injury, where the injury does, in fact, happen to an employee and it happens in the workplace. Below, we'll discuss a case where an employer did just that, however.

The majority of states mandate workers' compensation coverage for all employers. Texas is one state that allows employers to opt out of the Texas Workers' Compensation Act (TWCA). When an employer opts out, however, it is precluded from using certain affirmative defenses that may otherwise be available and may also be sued for workplace injury.

Kroger Texas, L.P. had opted out of the TWCA.  A Kroger employee slipped and fell on an oily substance and broke his leg. This particular employee was responsible for cleaning up spills on the floor, and he was, in fact, directed by his supervisor to clean up such spills. Though the employee was supposed to use a certain cleaning system to reduce the likelihood of persons slipping and falling, the employee instead attempted to clean up the liquid with a mop.  He recognized the danger that the spill presented, and fell while cleaning up the spill and fractured his femur and dislocated his hip, which left him with permanent disabilities.

The employee sued for various negligence claims in addition to a necessary instrumentalities claim. The lower courts dismissed the various negligence claims. Kroger requested the Texas Supreme Court clarify a grey area of law regarding employer work-place related injuries. Specifically, the Fifth Circuit Court of Appeals certified the following question to the Court:

"…[C]an 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? Put differently, does the employee's awareness of the defect eliminate the employer's duty to maintain a safe workplace?"

The Texas Supreme Court held, in Austin v. Kroger Texas, L.P., No. 14-0216 (Tex. Sup. Ct. June 12, 2015) that an employer has a duty to maintain its premises in a reasonably safe condition for employees and warn employees of concealed dangers. However, an employee generally cannot recover against an employer for an injury caused by a premises defect which he was fully aware of and that his job duties required him to remedy.   

Employers should always take care to maintain safe workplaces, address premises defects immediately upon knowledge, and inform employees of any defects or dangerous conditions once known. These three actions will assist in negating liability. For additional information regarding this case or safe workplace policies, please contact Mellissa A. Schafer in Hinshaw's Los Angeles office.