Late last week, the Texas Supreme Court clarified duties of employers for premises defects and declared that they have multiple duties to invitees/employees who come onto their property facing known dangerous conditions.

The issue arose because Kroger did not have workers' compensation insurance and thus an injured employee had to prove negligence against Kroger to recover. Randy Austin was an employee of Kroger whose job required him to clean up spills. An oily liquid leaked through the Mesquite store's ventilation duct after another employee power-washed condensers, creating spills in both the men's and women's restrooms. Austin, the "floor clean-up person," was directed to clean the spills, and the standard procedure was to utilize a powdery absorbent product, broom and dustpan, but some or all of those tools were not available to Austin at the time. He resorted to using a mop, which proved inadequate, causing him to eventually slip, fracture his femur, dislocate his hip, spend nine months in the hospital, undergo six surgeries and have a leg two inches shorter than the other.

Austin sued, and the case eventually ended up in Federal Court, which granted a summary judgment (dismissal) to Kroger because of the general legal rule: the injured visitor/employee cannot recover if he is aware of the defect - i.e. if the danger is open and obvious. The Texas Supreme Court, however, said that the employer's duties do not end there if requiring the employee to proceed into the dangerous arena is unreasonable and an injury is foreseeable.

For guidance the Court provided two examples/exceptions. First, the "Criminal-Activity Exception" – where if an owner knows that "a violent brawl was imminent between drunk, belligerent patrons and had ample time and means to defuse the situation," it has a continuing duty even if the premises visitor or employee knows of the danger and could anticipate that the person "is unable to take measures to avoid the risk." Second, the "Necessary-Use Exception" – concerning individuals like Mr. Austin who knew full-well of the dangers of cleaning up such spills, but the employer cannot escape liability if it fails "to provide necessary equipment, training or supervision." In other words, Kroger "required him to remedy" the dangerous situation without what Kroger itself deemed necessary tools.

Bottom line: While there still exists the defense of "providing an adequate warning of the dangers" – the premises owner or employer cannot turn its face away from its other duties – i.e.to provide the tools necessary to work safely.

This case now goes back to the lower court to determine the truth of the employee’s allegation that the appropriate tools were not provided – i.e., whether the employer owes a duty to "protect the employee from the unreasonably dangerous condition despite the employee’s awareness."

Case: Randy Austin v. Kroger Texas, LP, No 14-0216, opinion delivered June 12, 2015.