Court of Appeals of Texas,

Houston (1st Dist.).

Maria VILLALOBOS, Appellant,

v.

FIESTA MART, INC., Appellee.

No. 01-93-00969-CV.

|

Oct. 6, 1994.

COHEN, Justice.

OPINION

*1 Villalobos appeals from a take-nothing judgement after a directed verdict in a non-jury trial. We affirm.

Appellant was an employee of Fiesta Mart, Inc. (Fiesta), which is not a subscriber to the Texas Workers Compensation Act. Appellant’s job was to walk around the store interviewing customers. During the scope and course of her employment, appellant allegedly slipped and fell on a slippery substance on the floor at Fiesta. Trial was to the court. At the close of appellant’s case, the judge granted Fiesta’s motion for directed verdict. The judge made findings of fact and conclusions of law stating that appellant had failed to establish a prima facie case.

In Qantel Business Sys. v. Custom Controls Co., 761 S.W.2d 302, 305 (Tex. 1988), the supreme court held that a motion for judgment at the close of the plaintiff’s case should be treated as if the trial judge had ruled on the the evidence.

Appellant asserts three legal errors: (1) the judge applied the wrong negligence standard; (2) the judge failed to impute appellant’s negligence to Fiesta; and (3) the judge failed to find that appellant was the sole proximate cause of her injury. The judge found that Fiesta did not have actual or constructive knowledge of an unsafe condition; that Fiesta exercised reasonable care to reduce or eliminate the alleged unsafe condition; and that Fiesta neither knew or could have known of the substance appellant slipped in. He concluded that appellant failed to prove Fiesta was negligent. These findings are conclusive because they have not been challenged. Cohen v. Sims, 830 S.W.2d 287, 288 (Tex. App.-Houston [14th Dist.] 1992, writ denied).

In her first point of error, appellant argues that the trial court improperly applied the “premises defect” standard for liability rather than an “ordinary negligence” standard. In support of this contention, appellant argues that appellant “was not an invitee of Fiesta Mart, Inc., she was an employee.” The difference, according to appellant, is that the “no duty” concept of denying liability is not applicable to “ordinary negligence” cases. Under the “no duty” principle, an owner or occupant of the premises does not owe a duty to a business invitee to protect him against dangerous conditions that are obvious. Sears, Roebuck & Co. v. Robinson, 280 S.W.2d 238, 240 (Tex. 1955).

Although appellant is correct that the “no duty” concept of denying liability is not applicable in a suit by an employee against an employer, id., the distinction is irrelevant. Fiesta did not argue that it had no duty to warn appellant, and the judgement in no way relied on the lack of such a duty. Rather, the judgement was based on the fact that appellant failed to show that Fiesta was negligent in the first place. Finally, even if the case had been decided on the basis of Fiesta’s lack of a duty to warn, appellant still failed to show that Fiesta breached that duty. Appellant’s first point of error is flawed in a more fundamental sense. Premises liability is not a cause of action separate from negligence; it merely establishes the particular standard of care that an owner of land must adhere to.

*2 Texas courts have held that employees are invitees while on the employer’s property. Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex. 1963); Moore v. J. Weingarten, Inc., 523 S.W.2d 445, 447 (Tex. Civ. App.-Beaumont 1975, writ ref’d n.r.e.) (a landowner’s duty toward his invitees is “in all material respects, identical with the nature of the duty of the master to use reasonable care to provide his servant with a reasonably safe place to work.”); Texas City Terminal Ry. v. Blaha, 502 S.W.2d 204, 206 (Tex. Civ. App.-Houston [1st Dist.] 1973, no writ). Thus, they have applied principles of premesis liability to cases in which employees sue their employers. See, e.g., Keetch v. Kroger, 845 S.W.2d 262, 264 (Tex. 1992). We hold that the judge applied the correct legal standard.

We overrule appellant’s first point of error.

Appellant asserts in her second point of error that the judge erred in failing to impute her negligence to Fiesta. This argument assumes that appellant was negligent. The judge found that appellant did not see the substance she slipped in, but he did not find appellant negligent. Thus, there is no negligence to impute to Fiesta.

We overrule appellant’s second point of error.

In her third point of error, appellant asserts that the judge erred by granting judgement for Fiesta without first finding that appellant was the sole proximate cause of her injuries.

In order to recover against a nonsubscribing employer under the Workers’ Compensation Act, an employee must show that the employer was negligent. TEX. LAB. CODE ANN. § 406.033(d) (Vernon Pamph. 1994).¹ The Act bars employers from asserting the common-law defenses of contributory negligence, assumption of the risk, and fellow-servant negligence. Id. If the employee makes out a prima facie case of negligence, the employer may assert the affirmative defense of sole proximate cause. Id.

The judge concluded that appellant produced no credible evidence that Fiesta knew of the slippery substance or failed to exercise reasonable care. Therefore, a finding of sole proximate cause was not required.

Point of error three is overruled.

Appellee’s request for sanctions under TEX. R. APP. P. 84 is denied.

The judgment is affirmed.

Justices MIRABAL and O’CONNOR also sitting.

	Footnotes
1		Appellant was injured in 1990. The then-current version of the Workers’ Compensation Act, which has been recodified in the Labor Code, contained a provision substantively identical to § 406.033(d). See Act of December 13, 1989, 71st Leg., 2d C.S., ch. 1, § 3.04, 1989 Tex. Gen. Laws 1, 15 (current version at TEX. LAB. CODE ANN. § 406.033(d) (Vernon Pamph. 1994).