The Wait is Over: Supreme Court of Texas Weighs in on the Nonsubscribing Employer's Duty to Warn

On June 12, the Supreme Court of Texas provided the long-awaited answer to the certified questions from the United States Court of Appeals for the Fifth Circuit in Austin v. Kroger Texas L.P., 746 F.3d 191 (2014). In that case, the Fifth Circuit certified two questions to the Texas Supreme Court regarding the duty of nonsubscribing employers to warn of open and obvious hazards. In summary, the Supreme Court of Texas' answer to the certified questions is that pursuant to Texas law, "an employee generally cannot 'recover against a nonsubscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.' "

Although the Texas Supreme Court continues to recognize, and has repeatedly addressed, that an employer still owes its employees a duty to maintain the employer's premises in a reasonably safe condition, that duty does not require the employer to warn of or eliminate hazardous conditions that are either open and obvious, or otherwise known to the employee. While recognizing that Section 406.033 of the Texas Labor Code prohibits a nonsubscriber from raising the defenses of contributory negligence and assumption of risk, and noting that an employee’s awareness of an unreasonable could be relevant to those defenses, the Texas Supreme Court set forth a general "that . . . may permit an employer to avoid liability despite the [Texas Workers' Compensation Act's] waiver of those defenses."

With the answer to the certified questions provided by the Texas Supreme Court, nonsubscribing employers finally have much-needed guidance on this particular issue. For the Supreme Court of Texas' complete certified answer, including analysis and rationale, see the following link: No. 14-0216