Texas Employers Have No Duty to Protect Against Obvious Dangers


By Roy Maurer July 14, 2015

The Texas Supreme Court ruled that, under state law, an employer does not generally have a duty to protect its employees from unreasonably dangerous conditions on its property that are open and obvious or that are known to the employees.

Texas employers still have a duty to provide employees with a safe place to work and may fulfill their premises-liability duties either by eliminating hazards or by adequately warning of the risks. But employers satisfy that duty by eliminating or warning of hidden dangers, the court clarified. Open and obvious dangers of which the employee is aware—such as in the case that was before the court—do not give rise to a duty to warn or to remediate.

In Austin v. Kroger Texas, No 14-0216, an employee responsible for eliminating a hazard—mopping up an oily spill—fell and injured himself in the process.

Randy Austin fell while mopping a restroom floor at a Kroger store in Mesquite. He fractured his femur, dislocated his hip and underwent numerous surgeries.

Austin had to prove negligence by Kroger to recover damages because the grocery chain doesn’t have workers’ compensation insurance. Texas is the only state that does not require companies to buy workers’ compensation insurance, and about one-third of Texas employers are not part of the workers’ comp system.

Austin sued, and the case eventually ended up in the U.S. Fifth Circuit Court of Appeals, which granted a summary judgment to Kroger but asked the Texas Supreme Court to clarify state law on the matter of whether an employee can recover damages for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.

The high court’s answer: Under state law, an employee injured on the job cannot recover against his employer if he was fully aware of the injury-causing premises hazard.

“We conclude that, with two notable exceptions, an employer’s premises-liability duty to its employee includes only the duty to protect or warn the employee against concealed hazards of which the employer is aware, or reasonably should have been aware, but the employee is not,” the court said.

The first exception arises when a dangerous condition results from the “foreseeable criminal activity of third parties,” in which the employer should have anticipated that the harm would occur despite the worker’s knowledge of the risks and could have anticipated that the person was “unable to take measures to avoid the risk.”

The second exception arises when the employee is aware of the dangers of the job but is not provided the “necessary equipment, training or supervision.” The court clarified that employers must provide the tools necessary to work safely.

The case now goes back to the lower court to determine the truth of Austin’s allegation that the appropriate tools to clean up the spill were not provided.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy


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