Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court

No. 14-0216
TAMES

RANDY AUSTIN v. KROGER TEXAS, L.P.

Oral argument was held on December 9, 2014. The Court issued an opinion resolving the case on June 12, 2015. File Closed

In the news...

Tracking 2 articles about this case.

April 4, 2014

Does an employee’s awareness of a premises defect eliminate the employer’s duty to maintain a safe workplace? [Apr. 4, 2014]

from SCOTXblog

Opinion

June 12, 2015

Boyd
Hecht
Green
Johnson
Willett
Guzman
Lehrmann
Devine
Brown

Justice Boyd delivered the opinion of the Court, in which Justice Johnson, Justice Guzman, Justice Lehrmann, and Justice Devine joined, and in which Chief Justice Hecht, Justice Green, Justice Willett, and Justice Brown joined except as to Part IV.View Electronic Briefs | Oral Argument | Video PDF

 

Court of Appeals

None

Trial Court

None

Docket Entries

Date Event Outcome  
2015-07-23 Case Stored  
2015-07-10 Amicus Curiae Brief received  
2015-06-12 Opinion issued   Certified question answered by the Court
  This case was awaiting the Court's decision after oral argument between March 12, 2015 and June 12, 2015.  
2015-03-12 Amicus Curiae Brief received (Amicus Curiae)  
  This case was awaiting the Court's decision after oral argument between December 15, 2014 and March 12, 2015.  
2014-12-15 Letter brief (Petitioner)  
2014-12-12 Letter brief (Respondent)  
2014-12-09 Oral argument  
2014-12-02 Amicus Curiae Brief received (Amicus Curiae)  
2014-10-15 Amicus Curiae Brief received  
2014-09-29 Oral Argument Submission Form from Attorney received  
2014-09-29 Oral Argument Submission Form from Attorney received  
2014-09-26 Case set for oral argument   Case set for oral argument
2014-09-18 Reply Brief (Appellant in case)  
2014-08-13 Motion for Extension of Time to File Brief filed  
2014-08-13 Motion for Extension of Time disposed.   Filing granted
2014-08-04 Brief on the Merits (Appellee in case)  
2014-07-25 Motion for Extension of Time to File Brief filed  
2014-07-25 Motion for Extension of Time disposed.   Filing granted
2014-06-17 Motion for Extension of Time disposed.   Filing granted
2014-06-17 Motion for Extension of Time to File Brief filed  
2014-05-28 Motion for Extension of Time to File Brief filed  
2014-05-28 Motion for Extension of Time disposed.   Filing granted
2014-05-15 Brief on the Merits (Appellant in case)  
2014-04-24 Call received  
2014-04-23 Electronic communication sent to Party  
2014-04-17 Motion for Extension of Time to File Brief filed  
2014-04-17 Miscellaneous motion disposed. See Remarks.   Filing dismissed as moot
2014-04-17 Motion for Extension of Time disposed.   Filing granted
2014-04-07 Motion to Abate filed  
2014-04-04 Certified Question accepted
2014-04-04 Certified Question disposed   Certified Question accepted
2014-04-04 Brief on the Merits Requested  
2014-04-01 Notice of Appearance  
2014-03-24 Case Record Filed  
2014-03-24 Notice requesting filing fee  
2014-03-24 Certified Question filed  

Parties

Party Counsel Role
Kroger Texas, L.P.
Mr. Bryan Kyle Briscoe
Mr. Charles R. 'Skip' Watson Jr.
Mr. Mike A. Hatchell
Ms. Donna C. Peavler
Mr. Dale Wainwright
Appellee
Austin, Randy
Mr. Matthew Joseph Kita
Appellant

Amici Curiae

Amicus Curiae Counsel
Daryl Flood, Inc.
Ms. Deborah J. Race
Mission Petroleum Carriers, Inc.
Mr. Brian A. Sheguit
Brookshire Grocery Co.
Ms. Deborah J. Race
Quiktrip Corporation
Ms. Deborah J. Race
San Antonio Trial Lawyers Association
Mr. Javier Espinoza
Harold McCall Jr.
Texas Trial Lawyers Association
Mr. Peter M. Kelly

What duty does an employer owe to an employee regarding a premises defect?

This is a slip-and-fall case with a twist: The injured person was an employee who was cleaning up the spill:

Kroger's Safety Handbook provided that store management should "make certain that the Spill Magic Spill Response Stations [were] adequately supplied at all times" and available in numerous places throughout the store. Spill Magic allows an employee to clean a liquid spill with a broom and dustpan, and — according to Kroger's Safety Handbook — reduces the likelihood of a slip-and-fall by 25 percent. Because there was no Spill Magic on premises that day, Austin cleaned the spill with a dry mop instead. When Austin moved on to the men's restroom, he saw that the same substance covered about 80 percent of the floor. Austin placed "Wet Floor" signs inside and outside of the room, and proceeded to mop the spill for about thirty to thirty-five minutes. Austin took "baby steps" in and out of the restroom to change out the mop head numerous times, and successfully removed about thirty to forty percent of the liquid.

At about 10:30 a.m., while continuing to remedy the spill, Austin fell. He sustained a left femur fracture and severely dislocated his hip. He spent nine months in the hospital and underwent six surgeries, and his left leg is now two inches shorter than his right.

The employer did not subscribe to the Texas Workers Compensation system, so the claim falls through to common law.

The federal court decided that at least part of the case — a conventional negligence theory based on failure to provide the employee with "a necessary instrumentality" (the Spill Magic) — should be remanded to the federal district court for further proceedings. What it did not know was whether the premises liability theory was also viable — or whether that theory is precluded under Texas law.

So, it has certified the question:

Pursuant to Texas law, including §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 him to remedy? Put differently, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?

The Fifth Circuit detailed its analysis of the underlying "tension" within these branches of Texas tort law in its opinion certifying the questions.

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