Passion. Preparation. Persistence.

Has the Fifth Circuit Redefined a Non-Subscriber’s Duty to its Employees?

On Behalf of | Oct 18, 2013 | Firm News

The Fifth Circuit ruled that an employee should be allowed to sue his employer for a work-related injury, even though he was aware that a spilled substance could cause him to fall.

Randy Austin worked as a “floor clean-up person” at Kroger in Mesquite, Texas. He slipped and fell while cleaning a brown, oily liquid that had leaked out of the store’s ventilation system onto most of the floor of the men’s restroom.

Mr. Austin broke his left femur and severely dislocated his hip. He spent nine months in the hospital and underwent six surgeries. His left leg is now two inches shorter than his right.

Mr. Austin filed suit against the grocer in federal court. He claimed that Kroger, a non-subscriber, failed to provide safe work premises by neglecting to restock a “Spill Magic” product that the store routinely used to safely clean spills.

Kroger contended that Mr. Austin had a “subjective awareness” of the risk of cleaning the spill, and that it had “no duty” to warn him of the potential dangers. The U.S. District Court in Dallas ruled in Kroger’s favor, and Mr. Austin appealed the case to the 5th U.S. Circuit Court of Appeals in New Orleans.


In a unanimous ruling Friday, the appellate court reversed the district court’s ruling. The appellate held that “a nonsubscribing employer cannot escape liability in Texas based solely on its employee’s knowledge of the risk at issue.”

The court also ruled that Mr. Austin’s job required him to clean up the bathroom floor, and that he did not have an option to “refuse to accept the risk by either not coming onto the premises or by leaving.” Mr. Austin’s “injury arises out of an unusually large, particularly slick spill that he had no choice but to confront.”

The appellate court upheld the lower court’s dismissal of Mr. Austin’s gross negligence claim against Kroger, but the case was remanded to District Court to determine if Mr. Austin’s “ordinary negligence” claim should stand.


This holding is troubling because it appears to redefine the scope of an employer’s duty to provide safety equipment for its employees. This Court broadens the duty for an employer and makes Texas employers who provide any safety measures to employees the insurers of their employees’ safety. If the Court’s opinion stands, it will directly contradict explicit holdings of the Texas Supreme Court which state that an employer is not an insurer of its employees.

The holding is currently on appeal and we are closely following the decision.


FindLaw Network