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Don’t Fall, This Fall

On Behalf of | Nov 23, 2015 | Firm News

The Case

Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015).


Kroger, a non-subscriber to the Texas Workers’ Compensation plan, was the employer of Plaintiff, Randy Austin. In the process of power-washing the condenser units on the store’s roof, an oily spill leaked into the store’s restrooms. Austin was tasked with cleaning up these spills.

Traditionally, Kroger usually provides “Spill Magic” to employees, “The product is supposed to reduce the likelihood of a slip-and-fall by 25%.” Id. at 198. However, no Spill Magic was available on the day of the incident. Utilizing a mop and “wet floor” signs, Austin first cleaned the women’s bathroom before beginning to clean the men’s. Upon completing approximately a third of the cleaning in the men’s room, Austin slipped and fell, sustaining a fractured femur and dislocated hip. His injuries required nine months of hospitalization, six surgeries, and resulted in Austin’s left leg being two inches shorter than his right.

Austin filed suit against Kroger in state court, alleging negligence, gross negligence, and premises liability. Kroger removed the case to federal district court, which granted Kroger’s Motion for Summary Judgment and dismissed all of Austin’s claims with prejudice. The Court’s ruling was based primarily on Austin’s subjective awareness of the dangers associated with the spill.

On appeal by Austin, the Fifth Circuit Court of Appeals affirmed in part, but reversed and remanded to the district court to consider whether an employer’s mere failure to provide a “necessary instrumentality” supported an ordinary negligence claim. In affirming the lower court’s ruling, the Fifth Circuit decided an employer’s duty to provide a safe work place was unclear when an employee was aware of the risks and hazards.

Outside of the employment context, a landowner has a defense to an invitee’s premise liability claims if the invitee is aware of the dangerous condition. However, a non-subscribing employer is barred from the assertion that an employee was contributorily negligent or that the employee assumed the risk of harm.

The Fifth Circuit certified the following question to the Supreme Court of Texas:

“Under 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 remedy? Alternatively, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?” [Emphasis added]

The Court’s Analysis

Kroger argued that Austin’s awareness of the risks, as admitted by Austin, removed Kroger’s duty to warn or to protect Austin from those risks.

Austin responded by arguing that his awareness of the dangerous condition did not affect Kroger’s legal duty to warn.

The Supreme Court found that an employer needs to warn only of concealed hazards of which the employer is aware, or reasonably should be aware, but the employee is not.

The Court concluded that:

(1) employers owe employees the same premises liability duty that other landowners owe to invitees;

(2) generally, the premises liability duty requires a landowner to make safe or warn of concealed dangers that the landowner is aware of or should be aware of but the invitee is not; and

(3) there is no duty to warn against open and obvious dangers.

A landowner may satisfy these duties by either making the premises safe or providing an adequate warning. The policy supporting this rule is based on the belief that the landowner is in the best position to discover the dangers. Conversely, the invitee is in a better position when the condition is open and obvious or the invitee knows of the condition.

The Court applied the following limited exceptions to preserve the duty to warn against open and obvious dangers, contrary to the general rule:

(1) criminal activity of third parties foreseeable by lessor; and

(2) necessary use of unreasonably dangerous premises and independent of the invitee’s recognition and appreciation of the dangers, invitee is unable to take precautions that reduce the risks involved.

Regarding the first exception, dangers foreseeably stemming from third parties’ criminal conduct may provide liability for inviter’s, regardless of the invitee’s knowledge of the risks. See Timberwalk Apartments, Partner, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998). An invitee’s knowledge of such a condition does not remove the land owner’s duty to take reasonable steps to make the premises safe, even though proportional liability is assessed based on the invitee’s knowledge.

The second exception is best understood in application. The Court cites Parker v. Highland Park, Inc., which involved a lessee descending a dark and narrow stairwell who, upon recognition of the dangers presented by the lack of lighting, took mitigating steps by utilizing a flashlight to illuminate the area. See Parker v. Highland Park, Inc., 565 S.W.2d 514 (Tex. 1978). Despite these precautionary steps, the stairwells layout included several platforms as well as a sharp turn, lessee’s memory did not account for this and thus injury resulted. The lessee recovered in Parker because the Supreme Court of Texas held the lessor was negligent failing to maintain adequate lighting in the stairwell, regardless of the lessee’s subjective choice to walk down the stairs.


The “no-duty” rule is still a valid defense to a non-subscriber case. The rule provides that an employer does not have a duty to warn or protect against dangers that are open and obvious or known to the employee. Texas does not have an exception to this rule in situations where an employer instructed the employee to perform a task that is dangerous because, as an “employment-at-will” state, an employee always has the option to decline to perform an assigned task and incur the consequences of that decision. If an employee performs a task having the same character as their regular duties and cannot prove the work is unusually precarious, the employer is not liable for injuries the employee sustains while performing those tasks.


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