Ruling against worker could set a state precedent
But justices also say employees can sue if they can link injuries to employer negligence
Workers at tens of thousands of Texas businesses who are seriously injured on the job will now find it more difficult to sue their employers for damages.
The Texas Supreme Court, in a potentially precedentsetting decision issued recently, slammed shut the courthouse door to most employees who are hurt while working in clearly hazardous situations for 144,000 Texas companies that do not participate in — or subscribe to — the state’s workers’ compensation system.
But the justices, in the same case, ruled for the first time that those same workers can sue if they can prove their injuries were the result of employers’ negligent behavior.
The state’s highest court was asked to decide when the millions of Texas workers at the so-called non-subscribing businesses may sue employers for onthe-job injuries under the state’s premises liability laws, which govern damages that occur on a person’s or company’s property.
Texas is the only state that does not require companies to be part of their state’s workers’ comp system, which administers disability payments to injured employees. More than one-third of Texas employers, including Wal-Mart Stores, Whole Foods and Taco Bell, don’t participate in the Texas state system.
Lawyers following the case differ widely on which side — workers or businesses — got the better end of the deal.
Karl Seelbach, an Austin lawyer who represents nonsubscriber employers, said the court’s decision essentially eliminates the ability of workers at nonsubscribing companies to seek compensation for injuries under the long-standing legal theory
known as premises liability, is a major victory for most businesses, including home improvement stores, food services, food products, manufacturing, retail and restaurants.
“This, in turn, should help lower the overall cost of litigation and provide defense attorneys with leverage to resolve their cases at an earlier stage,” Seelbach said.
But lawyers for workers say a majority of justices appear to create a whole new right for employees at non-subscribing businesses to recover damages by showing injuries were the result of negligence and could have been prevented if the employer provided the proper equipment, training or supervision.
Such a legal claim of negligence with the potential for major damage awards against the employer has not been previously available to those workers in Texas, lawyers said.
The case in question began in July 2009 when Randy Austin, a longtime maintenance employee for a Kroger supermarket in Mesquite, fell while mopping a restroom floor. Kroger management instructed Austin to clean a slippery oil liquid that leaked through the store’s ventilation ducts, according to court documents.
Fractured femur
The Kroger handbook recommended cleaning such spills with the powdery absorbent product “Spill Magic,” which was estimated to reduce the likelihood of a slip and fall by 25 percent, according to court records. Spill Magic was unavailable that day, however, so Austin cleaned the restrooms with a regular mop instead.
As he cleaned the women’s restroom, Austin slipped and fell, fracturing his femur and dislocating his hip. As a result of the injury, Austin spent nine months in a hospital and underwent six surgeries, which left his left leg 2 inches shorter than his right, the opinion said.
Austin sued Kroger in federal court in Dallas when the grocery chain didn’t offer to compensate him at the amount he believed he deserved. U.S. District Judge Jane Boyle rejected Austin’s negligence and premises liability claims. The federal court of appeals asked the Texas Supreme Court to clarify state law on the matter.
“Employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee,” wrote Justice Jeffrey Boyd, who delivered the 34-page opinion.
Kroger lawyers
Lawyers for Kroger contend the ruling significantly strengthens the legal position of all businesses in all future premises liability litigation involving injured workers.
“Most importantly, it dispels the misconception among the plaintiff’s bar that Texas ‘punishes’ Texas employers who opt out of the workers’ compensation system,” said Dallas appellate attorney Donna Peavler, who argued the case for Kroger.
While lawyers who represent workers admit the premise’s liability part of the decision is terrible for their clients, they eagerly point to the justices’ view that Judge Boyle should reconsider Austin’s negligence claim about whether Kroger is at fault for not providing Austin the Spill Magic product to clean up the mess.
“We have never addressed the interaction between premises-liability and an employer’s other general negligence duties. We do so now,” Justice Boyd wrote. “As Austin’s employer, Kroger owed Austin duties in addition to its premises-liability duty and its duty not to engage in negligent activities, including the duty to provide Austin with necessary instrumentalities.”
Matthew Kita, a Dallas lawyer who represented Austin on appeal, said the state Supreme Court for the first time “provided a how-to manual” for workers at nonsubscriber companies on how to get judges to allow injury claims to move forward to trial.
“The question of whether an employer breached its duty to provide adequate equipment, supervision or training is inherently a fact-specific issue,” Kita said.
More of these cases
“By confirming that these duties exist separate and apart from the duty to warn of unsafe conditions on the premises, the Supreme Court assured that we are going to see a lot more of these cases going to trial, which is exactly what the Legislature intended,” he added.
Guy Choate, a San Angelo lawyer who represents injured workers, said he has mixed feelings about the court’s decision.
“It was frightening that four members of the court held that employers in Texas could create conditions so dangerous and the condition of employment so onerous that there would be no way for the employee to recover,” Choate said. “But it was heartening that five members of the court understood there could be (treacherous) conditions created for employees.”