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Federal Courts Identify a Gap in Texas Non-Subscriber Law

The Case:Caution Tripping.JPG

Austin v. Kroger Texas L.P., No. 12-10772, 2014 WL 1142325 (5th Cir. Mar. 21, 2014).

The Issue:

Due to what they perceived as a gap in Texas law, the Federal Court of Appeals for the Fifth Circuit recently decided to certify the following question related to an employer's duty to the Texas Supreme Court:

"Pursuant to Texas law, including § 406.033(a)(1)-(3) of the Texas Labor Code, can 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?"

There are two lines of cases at issue in this case. The first line of cases deals with an employer's duty to warn an employee of hazards. The Texas Supreme Court ruled in those cases that an employer owes no duty to "warn of hazards that are commonly known or already appreciated by the employee" or "provide equipment or assistance that is unnecessary to the job's safe performance" and "when an employee's injury results from performing the same character of work that employees in that position have always done, an employer is not liable if there is no evidence that the work is unusually precarious."

The second line of cases deals with the duty of a land owner to warn invitees, which includes customers or employees of a business, of unreasonable risk of harm. The Texas Supreme Court in those cases ruled "a plaintiff's knowledge, whether it is derived from a warning or from the facts, even if the facts display the danger openly and obviously, is a matter that bears upon his own negligence; it should not affect the defendant's duty."

In analyzing both types of cases, the Fifth Circuit came to the conclusion that the current case does not fall neatly under either type of case and, therefore, has asked the Texas Supreme Court to resolve the aforementioned question. Stay tuned for the Texas Supreme Court's ruling and how this will affect non-subscribers.

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