Premises Liability Update: When the Invitee is an Employee
By: Amy Agnew
A typical premises liability case concerns an invitee, who is a customer, who gets injured on the premises of a business. A recent appellate court opinion discusses premises liability in a slightly different scenario, when the invitee is an employee and the employer is a non-subscriber to the Texas Worker’s Compensation Act. This opinion also focuses on an employee’s knowledge of the dangerous condition and appreciation of risks versus the premises owner’s actual knowledge of the dangerous condition.
On February 12, 2015, the Second Court of Appeals in Fort Worth issued its opinion in Duncan v. First Texas Homes and First Texas Homes, Inc., __ S.W.3d _ , No. 02-12-00464-CV, WL 600854 (Tex.App.—Fort Worth, Feb. 12, 2015). Duncan, a construction superintendent, sued his employers, First Texas Homes and First Texas Homes, Inc. (“First Texas Homes”), for injuries he sustained during his employment. Duncan contended he was injured when he fell down exterior stairs while leaving an office trailer at a construction site in Frisco, Texas. Duncan claimed the trailer door swung outwards, and the way the platform and stairs were designed left him varying distances to the edge of the platform depending on which way he exited the trailer and locked the door. Id. at *1.
First Texas Homes filed a traditional and no-evidence motion for summary judgment, which the trial court granted. Duncan appealed. Id. at *2. Duncan asserted that there was a fact issue as whether or not he had actual knowledge of the dangerous condition posed by the platform, and, even if he did have knowledge, the trial court erred by concluding that his knowledge relieved First Texas Homes of their duty to warn or to make the alleged dangerous condition safe. Id. at *3.
First Texas Homes argued in its motion for summary judgment that it owed no duty to warn Duncan of the alleged dangerous condition because of Duncan’s knowledge of the condition, mainly his eleven years of experience and frequent use of the stairs. It further asserted Duncan understood any risk associated with going up and down the stairs.
However, Duncan claimed that his knowledge of the risk associated with going up and down the stairs was irrelevant for premises liability situations because Texas had abolished the ‘no duty’ doctrine and said doctrine was only relevant in determining if Duncan was comparatively negligent. Additionally, Duncan asserted First Texas Homes could not use comparative negligence as a defense because it is a non-subscriber to the Texas Workers’ Compensation Act.
The appellate court noted that the nature and scope of a non-subscribing employer’s duty to its employee in a premises liability case is unclear, and, as a result, the appellate court assumed without deciding an employer’s duty to provide a safe workplace in reaching its determination in this matter.
In light of this, the appellate court determined that First Texas Homes failed to establish that Duncan knew of or appreciated the risk of harm created by the insufficient clearance of the door in relation to the platform’s edge. Duncan’s deposition testimony that he had walked up and down the stairs for two years without any problems was not enough to establish that he knew of the hazard. Instead, Duncan testified in his deposition that he did not observe any problems with the stairs before the accident and seldom left the way he did on the day he fell. The appellate court determined that First Texas Homes failed to show there was no genuine issue of fact as to whether Duncan knew of or appreciated the hazard created by the stairs and platform. Id.
According to this appellate court’s opinion, an employer/premises owner must provide more evidence of knowledge or appreciation of the risk of harm than just testimony of an employee’s use the alleged defect on the premises. There should be some evidence establishing knowledge of the alleged hazard created by the defect, and any appreciation of risks based on the employee’s experience.
Duncan also argued in his appeal there was in fact evidence that First Texas Homes had actual and constructive knowledge of the alleged dangerous condition, i.e, the stairs and platform to the trailer. In determining liability in a premises case, it is important to determine whether or not the premises owner had actual or constructive knowledge of the alleged dangerous condition. Id. at *5.
Here, Duncan provided as evidence the deposition testimony of Robert Hernandez, the area manager for First Texas Homes. Mr. Hernandez testified that he had difficulty entering and exiting the trailer due to the platform and steps. Mr. Hernandez testified that he was concerned there was not enough room on the platform to safely open and close the door. Mr. Hernandez also expressed his concerns to Bill Durham, the director for construction for First Texas Homes. Mr. Hernandez testified he was told as long as the stairs and platform were in compliance, then they were not going to be modified. Id.
As a result of such testimony, the appellate court determined there was enough evidence for a fact issue as to First Texas Homes’ actual knowledge of the alleged dangerous condition because two of its other employees, Mr. Durham and Mr. Hernandez, had knowledge of the dangerous condition of the platform. Id. (citing Wal-Mart Stores, Inc. v. Chavez, 81 S.W.3d 862, 864 (Tex.App.—San Antonio 2002, no pet.)). Id. It is enough evidence for a premises owner to have actual knowledge of a dangerous condition if one of its other employees has knowledge of it.
The appellate court also sustained Duncan’s additional grounds for his appeal and reversed and remanded the trial court’s summary judgment. Id. at 10.
 In its analysis, the appellate court discussed that an employer’s duty to its employees is identical to that of a premises owner’s to an invitee. The appellate court noted that an employer is not an insurer of the employee’s safety and has no duty to warn an employee of dangers that are commonly known or already appreciated by the employee unless there is evidence that the work is unusually precarious. Id. at *3 (citing Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006)).
 The United States Court of Appeals for the Fifth Circuit has certified a question to the Texas Supreme Court regarding the issue of whether an employee can recover against a non-subscribing employer for an injury and if the employee’s awareness of the defect eliminates the employer’s duty to maintain a safe workplace. Austin v. Kroger Tex. L.P., 746 F.3d 191, 204 (5th Cir. 2014). Id. at *4.