Recent Evolution of the Duty to Provide a Safe Workplace in Texas
Texas is the only state where employers are not required to provide worker's compensation to employees. As a result, a large body of law has evolved from the litigation that ensues when an employee of a non-subscriber to worker's comp sues his employer. This paper looks at the recent evolution of that body of law and its relation to premise liability law.
In order to protect employees, Texas has long held that there is a non-delegable duty to provide a safe workplace. While this rule seems pretty cut and dry, determining what that duty really entails has proven to be a challenge for Texas judges and lawyers. Thus, to try to understand what this duty involves, one must look to the cases for guidance.
Employer Has No Duty to Train, Warn or Equip Employee Against Commonly Known Hazards
The Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) is an often-cited case when this issue arises. In that case, the plaintiff worked at a grocery store. Part if his job was to carry groceries out to people’s cars. While doing this, he accidentally slammed his hand in a door jam of someone’s car. He then asserted that his employer, Kroger, had failed to provide him with a safe workplace.
Finding for the employer, the Texas Supreme Court opined:
An employer has a duty to use ordinary care in providing a safe workplace. It must, for example, warn an employee of the hazards of employment and provide needed safety equipment or assistance. However, an employer is not an insurer of its employees' safety. It owes no duty to warn of hazards that are commonly known or already appreciated by the employee. It has no duty to provide equipment or assistance that is unnecessary to the job's safe performance. And, when an employee's injury results from performing the same character of work that employees in that position have always done, an employer is not liable if there is no evidence that the work is unusually precarious. Kroger had no duty to warn Elwood of a danger known to all and no obligation to provide training or equipment to dissuade an employee from using a vehicle doorjamb for leverage.
Two years after the Elwood case the Supreme Court revisited the issue in Jack in the Box, Inc. v. Sikes 221 S.W.3d 566 (Tex.2007). In this case the employee was supposed to use a company truck to haul things. Only, the lift gate was not working. The employee sought and obtained permission to use it anyway. He then grabbed a ladder, climbed up higher than the gate and jumped down into the back of the truck. He injured his knee upon landing. In deciding this case, the Texas Supreme Court held “The dangers associated with the use of a ladder to climb over a lift gate are common and obvious to anyone.” Id. At 568. And so it seemed clear that if the hazard was commonly known, the employer owed no duty to the employee.
However, it was not so cut-and-dry. In deciding Sikes, the Texas Supreme Court distinguished a case where the Tyler Court of Appeals recognized the duty to provide a safe workplace and had held that the employee had a claim for failure of the employer to provide the proper equipment to do the job and failure to provide proper assistance. The Kroger Co. v. Keng, 976 S.W.2d 976 S.W.2d 882, 9Tex.App.—Tyler, 1998), affirmed 23 S.W.3rd 347 (Tex.2000). Distinguishing Keng, the Sikes Court stated:
“But Keng differs substantially from this case. In Keng, the employee was ordered by her supervisor to move boxes out of a freezer despite the fact that her normal job duties were to wait on customers, make sandwiches, and sell pastries. Prior to moving the boxes, the employee told her manager that doing so was not part of her job duties but was again ordered to move the boxes.” Id. At 568-569.
Thus, although Sikes found no duty, the Court made a distinction here. An employee like Sikes who is injured doing something that is a regular part of his job has no basis to claim he was injured due to an unsafe workplace whereas, an employee, like Keng, who asked to do something outside of her normal tasks does have a claim.
Chiseling Away at The Duty to Provide a Safe Workplace
Over the next couple years, it seemed like the Texas Supreme Court was slowly eroding away the duty to provide a safe workplace. In Brookshire Grocery Co. v. Goss, 262 S.W.3rd 793 (Tex.2008), The Supreme Court found against an employee who tripped over a low boy cart while maneuvering in a small freezer. There, the plaintiff asserted that Kroger had a duty to warn her that “entering a confined space such as the cooler with a lowboy cart there is dangerous, because you may get into a situation where you will injure yourself.” In finding against her and reversing the judgment she obtained at trial, the Court opined: “an employer owes no duty to warn of hazards commonly known or already appreciated by the employee.” Id. At 795.
In 2009, The Texas Supreme Court extended this “no duty” for known risks defense to third parties. Nabors Drilling U.S.A. v. Escoto, 288 S.W.3d 401 (Tex.2009)(“an employer owes no duty to third parties to train its employees on the risks of fatigue or prevent injuries caused by the fatigue of its off-duty employees.” Id. at 404).
Specific Danger vs General Danger
In 2011, The Houston Court of Appeals weighed in in the case of Griffin v. Shell Oil, 401 S.W.3d 150, (Tex.App.—Houston[1st Dist.] 2011). In that case, an employee was sent to fetch something from a basement storage shed that the employees all referred to as “the swamp.” “The swamp” was known for standing water, poor lighting, and general debris. Griffin alleged that in June 2007, while working as an employee of CFI Mechanical, Inc., a subcontractor, he sustained personal injuries after tripping and falling over a pallet, which had been “randomly” placed on the floor of the storage room. Even though every employee was aware of the mess known as “the swamp,” the court held the employer liable. In doing so they stated: “Although Shell did present evidence that Griffin was aware of the general dangers that existed in the storage room, Griffin presented evidence that the specific defects were ever-changing. Thus… Griffin was not faced with specific obvious hazards that he already knew about.” Id at 217.
The Griffin opinion created a distinction in that just knowing something was generally dangerous is not enough on the part of the plaintiff was not enough to avail the employer with a no duty defense when the Plaintiff must go into harm’s way to do his job. This defense that the Court rejected sounds in premise liability law. Under premise liability law, a plaintiff cannot recover if the plaintiff is aware of the dangerous condition due to it being open and obvious. Clearly, this indicated that there is more to the duty to provide a safe workplace than a mere premise liability duty.
Exceptions to No Duty
Since Griffin, the Courts have recognized more exceptions from the no-duty-where-the-risk-is-commonly-known” rule. In Odom v Kroger Texas, L.P., 2014 WL 585329 United States District Court N.D.Tex., the Federal Court held: “Kroger ignores the fact that employers owe duties to their employees that are separate and apart from premises liability principles.” Id.
In West Star Transportation, Inc. v. Robison, 457 S.W.3d 178, (Tex.App—Amarillo, 2015, pet den’d), the Amarillo Court opined as follows: “Although an employer is not an insurer of his employee's safety at work, every employer owes its employees a primary, continuing, and nondelegable duty to use ordinary care in providing a reasonably safe work place.” Id. at 186. Thus, making it clear that the duty to provide a safe workplace was separate from a mere premise liability duty.
In that case, a truck driver fell off the back of his truck and died while climbing on the back of his truck trying to strap down a load under a tarp. The Amarillo Court went on to say that an employer cannot avoid liability by simply claiming no duty when the employer created the unsafe work environment and required the injured employee to work under such conditions.
“Accordingly, an employer may not place an employee in an unreasonably dangerous work environment without taking appropriate precautions. Furthermore, although an employer owes no duty to warn of hazards that are commonly known or already appreciated by the employee, liability cannot be avoided by merely alleging the hazard is known or appreciated when the employer has created a work environment where an employee is required to perform a task in an unsafe manner.” Id. at 186.
In 2015, the Houston Court of Appeals made the distinction clearer:
“The supreme court has held that employers in Texas owe certain continuous, non-delegable duties to their employees. Among these are the duties to (1) furnish a reasonably safe place to work, (2) warn employees of hazards of their employment that are not commonly known or already appreciated, (3) supervise employees' activities, (4) hire competent co-employees, (5) furnish reasonably safe instrumentalities with which to work, and (6) provide safety regulations. An employer must also train employees in the safe use and handling of products and equipment used in and around an employer's premises or facilities. An employer must exercise ordinary care, based on standard negligence principles, in carrying out these duties.” Kroger Co. v. Milanes, 474 S.W.3d 321 (Tex.App.—Houston[14th Dist.]2015, no pet.)
The trend now appears to be to recognize just how expansive the duty to provide a safe workplace really is. In a 2015 Federal Court decision, the court expanded the duty beyond the physical confines of the job site. In Sena v. Landstar Transportation Logistics, Inc., U.S. Dist. Texas El Paso, 2015 WL 3454432, a truck driver was forced to drive during a severe snow and ice storm that had swept across North Texas. He asked not to go but was told he had to. An accident then followed. After filing a lawsuit, the case was removed to Federal Court under diversity jurisdiction. The defendant moved to dismiss for failure to state a viable cause of action. Effectively, the defense claimed they owed no duty because everyone knows how dangerous stormy cold weather is to drive in. The Federal Court held that the plaintiff had stated a viable cause of action for failure to provide a safe workplace. Thus, the workplace that the employer must exercise ordinary care to make safe included the highway upon which an employee truck driver was required to drive.
In conclusion, the duty to provide a safe workplace incorporates aspects of premise liability but is a separate duty. The overall theme to these cases and whether there is a duty appears to be this: If the risk is one the employee must undergo on a regular basis as a part of the job and can be easily avoided by the employee, there may be no duty. However, if the employee is required to do something out of the ordinary or something that is inherently dangerous, there is a non-delegable duty to provide a safe workplace and an employer cannot hide behind the no duty rule simply by saying the employee was aware of the danger. If the employer knows what he is asking the employee to do is dangerous or has hidden defects, then the employer has a duty to make it safe for the plaintiff to do the job either by adequately training the employee or providing the necessary equipment to enable him to do the job safely.
ABOUT THE AUTHOR: Sharon Simmons-Cantrell
Sharon Simmons-Cantrell is a shareholder and head of the pre-litigation department at Simmons and Fletcher, P.C.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.