Texas Supreme Court to review certified question from Fifth Circuit in Austin v. Kroger


The Supreme Court of Texas has accepted the Fifth Circuit’s certified question in Austin v. Kroger. The Fifth Circuit’s request for certification formally withdraws its previous controversial opinion. The case could have widespread implications for nonsubscriber premises liability claims.

The case involved an employee-janitor who was directed to clean up a spill in a restroom with a mop. There was no dispute that Austin knew of the spill and of course, cleaning up the spill was part of his ordinary job duties. Unfortunately, Austin slipped, fell and was injured. Austin filed suit against his employer on premises liability and other theories of negligence. United States District Judge Jane Boyle granted Kroger’s motion for summary judgment on the grounds that the case involved premises liability law and citing to various recent decisions of the Texas Supreme Court that nonsubscriber employers owe no duty with regard to known dangers.

In its first opinion, the Fifth Circuit reversed the summary judgment (except as it related to the plaintiff’s claim for punitive damages). Among other things, the Fifth Circuit pointed to the fact that Austin was not given “Spill Magic,” a substance Kroger recommended to its employees in the clean up of such spills. The opinion was regarded as controversial because it basically held Kroger was potentially liable for employing a janitor to clean up a known spill with a mop. The opinion was also arguably inconsistent with the several recent pronouncements of the Texas Supreme Court.

Kroger requested rehearing and also asked that the Fifth Circuit certify the question to the Texas Supreme Court for resolution because the case involved an important question of state law. In its new opinion, the Fifth Circuit lays out what it perceives as a conflict in Texas law and certified the following 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 Texas Supreme Court has agreed to review the case but is not bound by the Fifth Circuit’s phrasing of the issue presented.

This case represents an opportunity to clean up Texas nonsubscriber law on key issues relating to employee slip/trip-and-fall cases. All nonsubscriber employers should watch this case closely.

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