Companies are routinely sued for “premises liability” claims. Examples include customer and employee slips, trips and falls. They also include cases where displayed merchandise falls and badly hurts a customer or employee. The classic example is an injury caused by merchandise falling from great height at a big box hardware store. These suits can be very costly in terms of your company’s time, money and reputation.
But last June, the Texas Supreme Court gave businesses defending these cases a very early Christmas present. In Austin v. Kroger the court reviewed a situation where a Kroger employee ventured into a store bathroom to mop up a spill of liquid. Recognizing the danger of wet and slippery floor, he placed a yellow wet floor sign and continued his work. Shortly afterwards he slipped and fell, fracturing his femur and dislocating his hip. Kroger does not carry workers’ compensation insurance, so the employee exercised his right to sue Kroger for negligence. We defend these cases all the time, and the deck is stacked against the employer. That is because the non-subscribing employer, under Texas law, loses many of the defenses it would typically be able to assert, as a punishment for not carrying workers comp insurance.
After working its way through the court system the suit was heard by the very business-friendly Texas Supreme Court. The court drastically changed the rules of these cases, by holding that an injured customer or employee general cannot recover if she was fully aware of the injury causing premises condition, or if the condition was open and obvious to her. Since the Kroger employee was admittedly aware of the danger of the slippery floor, he could not recover damages, even though cleaning the floor was a job requirement.
The court set out a couple of exceptions to this rule. And the opinion makes it clear that a business still must maintain its premises in a reasonably safe condition, and to warn of concealed dangers. Before the decision, injured employees and customers routinely argued, and courts routinely held, that the duty was to warn of all dangers, even if the person suing was aware of it.
The opinion goes into much more detail about the duties an employer still owes to maintain a safe workplace, etc. You can read the full opinion here . Or give us a call at 832-284-4013. We would be happy to talk to you about how the decision may impact your business.
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