—Kroger slip-and-fall decision is good news for employers, contends Shannon R. Ramirez in blog post commentary on recently decided case
HOUSTON, Texas (8/19/15)—A June decision by the Texas Supreme Court — responding to a certified question from the Fifth Circuit — clarifies that an employee who is injured on the job cannot recover against their employer if the worker was fully aware of the premises conditions that caused the injury, even if the employer opted out of the state workers’ compensation system, according to a new blog post commentary by Shannon R. Ramirez, a litigation partner in LeClairRyan’s Houston office. LeClairRyan was not involved with the Kroger case.
In Austin vs. Kroger Texas, L.P. 2015 WL 3641066, employee Randy Austin, a self-described “floor clean-up person,” fell while mopping a restroom floor at the Kroger store in Mesquite. The chain’s safety handbook recommends using a “Spill Magic” cleanup powder, broom and dustpan system that reduces the likelihood of a slip-and-fall by 25 percent, but the system was not available and Austin attempted to clean up with a mop, according to court documents. He fell, suffered injuries and subsequently sued Kroger – which does not subscribe to the Texas workers’ compensation system – as a non-subscriber, seeking damages related to his fall.
But the plaintiff “was going down the wrong slippery slope,” according to Ramirez, in a recent posting on the firm’s blog, eplirisk.com, which focuses on employment practices liability insurance matters.
“Even though the defenses to a non-subscriber have not changed (see, Texas is not all about big business), an employee still must prove that that the employer owed him a duty,” she writes in the post, Navigating the Slippery Floor. “Therefore, Austin still had the burden to prove that Kroger owed him a duty relating to the condition on the floor being open and obvious. The court opined that because Austin was aware of the condition, Kroger had no duty to warn of it being dangerous.”
So, despite the dirty floors, Kroger came out clean in this case, she noted. “In Texas, sole negligence of the employee, or a finding of no negligence/no duty for the employer, are the only defenses in non-subscriber cases,” explained Ramirez, whose practice includes products liability, premises liability, employment litigation, business litigation and construction defect.
The full blog post is available at eplirisk.com
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