SUPREME COURT OF TEXAS FINDS NON-SUBSCRIBERS HAVE NO DUTY TO WARN EMPLOYEE OF OPEN AND OBVIOUS PREMISES DEFECT
Last Friday, in Austin v. Kroger Texas, L.P., 2015 WL 3641066 (Tex. June 12, 2015), the Supreme Court of Texas answered a question certified by the Fifth Circuit finding that under Texas law, an employee injured on the job cannot recover against his employer if he was fully aware of the injury-causing premises defect.
The Fifth Circuit sought guidance on how to proceed in a suit filed by a former employee of Kroger Texas, LP who broke his leg at one of the company's stores in Texas. Kroger does not subscribe to the Texas Workers' Compensation Act. Because it is a non-subscriber to worker’s compensation, it can be sued for workplace injuries and is barred under state law from raising the standard negligence defenses of contributory negligence and assumption of risk.
The Court’s ruling concluded that an employee generally cannot recover against an employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy. Despite this conclusion, the Court maintained that employers have a duty to maintain their premises in a reasonably safe condition for their employees and warn of concealed dangers. However, there is no liability for “open and obvious dangers.”
The Texas court declined Kroger's request to review Plaintiff’s necessary instrumentalities claim, which has been remanded back to the trial court. Kroger argued that the premises defect claim should be evaluated under the same standards applied to non-employee slip-and-fall claims. The Court ultimately concluded that an employer owes no duty to warn or maintain a safe workplace in the context of an open or obvious danger and, that because Plaintiff was aware of the dangerous condition at the time of his accident, his premises liability claim fails as a matter of law.