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Recent Supreme Court Case Regarding Premises Liability: Austin v. Kroger Texas, L.P.

By: Amy Agnew

On June 12, 2015, the Texas Supreme Court issued the opinion in No. 14-0126, Austin v. Kroger Texas, L.P., regarding a certified question from the Court of Appeals for the Fifth Circuit.[1]  See Austin v. Kroger Texas, L.P., --- S.W.3d – (2015), 2015 WL3641066. 

The Fifth Circuit requested the court answer the following:

“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?”  Id. at *2

Here, the Texas Supreme Court clarified in its opinion that, “under Texas law, (1) subject to two limited exceptions[2], an employer generally does not have a duty to warn or protect its employees from unreasonably dangerous premises conditions that are open and obvious or known to the employee; and (2) under this general rule, the Texas Worker’s Compensation Act’s (TWCA) waiver of a nonsubscribing employer’s common law defenses does not eliminate an employee’s burden of proving that the employer owed him a duty as an element of a premises liability claim.” Id. at *1.

What is crucial about this opinion is the landowner’s duty to an invitee regarding dangerous conditions that are open and obvious or known to the invitee. 

In its analysis, the court concluded that “(1) employers owe employees the same premises-liability duty that other landowners owe to their invitees; (2) in most cases, the landowner’s premises-liability duty is to either make safe or warn invitees of concealed dangers of which the landowner is or should be aware but the invitee is not; and (3) in most cases, a landowner owes no duty to protect an invitee against a dangerous condition that is open and obvious or known to the invitee.” Id. at *3

Generally, “the Court has repeatedly described a landowner’s duty as a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Id. at *5

However, what is the extent of a landowner’s duty when the unreasonably dangerous condition is open and obvious or known to the invitee? 

Again, this is a crucial question that was answered by the Court in this opinion.  In its discussion of this issue, the Court reiterated that a landowner is not an insurer of an invitee’s safety.  Further, when the condition is open and obvious or known to the invitee, the landowner is not in a better position to discover the condition than the invitee.  Additionally, “when invitees are aware of dangerous premises conditions – whether because the danger is obvious or because the landowner provided adequate warning – the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter the landowner’s premises.” Id.

A landowner has “no duty to take safety measures beyond those that an ordinary, reasonable landowner would take.  What a reasonable landowner would do is often a jury question, but sometimes it is not.  The Court has recognized that, in most circumstances, a landowner who provides an adequate warning acts reasonably as a matter of law, and since there is no need to warn against obvious or known dangers, a landowner generally has no duty to warn of hazards that are open and obvious or known to the invitee.” Id.

[1] The underlying facts of this case are that Plaintiff, an employee of Defendant, fell while mopping a restroom floor at the store where he worked.  Recognizing the danger of the slippery liquid on the floor that he was attempting to clean up, Plaintiff had placed wet floor signs around the area as well as stepping carefully as he moved throughout the spill.  Despite cleaning a portion of the spill, Plaintiff slipped and fell in the remaining liquid on the floor and sustained injuries.  Defendant, as Plaintiff’s employer, had opted out of the Texas Workers’ Compensation System, and Plaintiff filed his lawsuit asserting claims of premises liability, negligence and gross negligence.  Id. at *1.

[2] The two limited exceptions are the criminal-activity exception and the necessary-use exception. Id at *6-8.