Supreme Court of Texas.
THE KROGER CO., Petitioner,
Sonja KENG, Respondent.
Argued Jan. 12, 2000.
Decided May 11, 2000.
Rehearing Overruled Aug. 24, 2000.
Attorneys & Firms
*347 Evelyn T. Ailts, Houston, for Petitioner.
G. Wesley Urquhart, Manville, D. Craig Oliver, Houston, for Respondent.
Justice HANKINSON delivered the opinion of the Court.
The issue presented is whether a nonsubscriber to workers’ compensation insurance is entitled to a jury question regarding its employee’s alleged comparative responsibility for his or her injuries. Sonja Keng sued Kroger Company, a workers’ compensation nonsubscriber, for work-related injuries. The trial court rendered judgment on the jury’s verdict for Keng, and Kroger appealed. Kroger complained that the trial court erred in refusing to submit a comparative-responsibility question to the jury. The court of appeals affirmed, holding that the comparative-responsibility statute does not apply to Keng’s claim, and that Kroger, as a nonsubscriber, is prohibited from using its employee’s alleged negligence as a defense. Texas Labor Code § 406.033 precludes a finding of contributory negligence, which is a prerequisite to determining the parties’ comparative responsibility, we hold that a nonsubscribing employer is not entitled to a jury question on its employee’s alleged comparative responsibility. We therefore affirm the court of appeals’ judgment.
Keng, a Kroger employee, suffered injuries while removing pie boxes from the shelves of a deli freezer at a Kroger store in Houston. As she started down the ladder she was using to remove the boxes from the freezer’s top shelf, three boxes fell and hit her back, knocking her off the ladder and causing her to hit her chest on the cart below. Keng sued Kroger, a workers’ compensation nonsubscriber, alleging that the store’s negligence proximately caused her injuries. Kroger denied the allegations and responded that Keng’s conduct either caused or contributed to the incident, entitling Kroger to protection *348 under the comparative-responsibility statute.1 See Act of June 2, 1987, 70th Leg., 1 st C.S., ch. 2, § 2.04, 1987 Tex. Gen. Laws 40 (“In an action to recover damages for negligence ... a claimant may recover damages only if his percentage of responsibility is less than or equal to 50 percent”) (amended 1995) (current version at TEX. CIV. PRAC. & REM.CODE § 33.001).
The parties tried the case to a jury. Kroger’s proposed charge requested two jury questions: (1) whether the negligence, if any, of Keng, Kroger, or both proximately caused the occurrence; and (2) if the jury found that more than one party’s negligence caused the occurrence, the percentage of negligence to attribute to each party. The trial court refused to submit Kroger’s proposed charge, choosing instead to submit questions concerning only Kroger’s alleged negligence. The jury found Kroger negligent and awarded Keng $30,000 in damages. The trial court rendered judgment on the verdict.
Kroger appealed, complaining that factually insufficient evidence supported the verdict and that the trial court erred in refusing to submit a comparative-responsibility question to the jury. The court of appeals affirmed. Id.
Kroger petitioned this Court for review. We granted Kroger’s petition to resolve a conflict among the courts of appeals concerning the propriety of submitting a comparative-responsibility question to the jury. Compare 992 S.W.2d 447 (Tex.1999).
Kroger acknowledges that Texas Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504 (Tex.1995), supports its position.
Keng disagrees. She contends that comparative responsibility is the legislative successor to, and a natural subset of, contributory negligence, which section 406.033. Moreover, Keng urges that allowing a comparative-responsibility question would remove the very penalty—the abrogation of certain common-law defenses—that the Legislature intended would encourage employers to subscribe to workers’ compensation insurance.
Whether Miears, 232 S.W.2d at 675.
section 406.033 penalizes nonsubscribers by precluding them from asserting certain common-law defenses in their employees’ personal-injury actions:
(a) In an action against an employer who does not have workers’ compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee.
TEX. LAB.CODE § 406.033(a).
To put the Legislature’s intent in enacting Garcia, 893 S.W.2d at 511.
To discourage employers from making that choice, the Legislature included within the Act a penalty provision, similar to TEX. LAB.CODE § 406.033).
Id. § 406.033(c). Comparative responsibility is not identified as an available defense.
In arguing that the comparative-responsibility statute should nonetheless apply, Kroger emphasizes that comparative responsibility is a statutory defense, while TEX. CIV. PRAC. & REM.CODE 33.012). Kroger argues that by enacting this statutory scheme, the Legislature contemporaneously revived, without explanation, a nonsubscribing employer’s ability to rely on its employee’s comparative responsibility as a defense. We disagree.
In enacting TEX. LAB.CODE § 406.033. The Legislature has not changed this structure since 1917, when it deleted proportionate reduction, the equivalent of comparative responsibility, from the penalty statute.
Although the Legislature has had many opportunities since it enacted the comparative-negligence scheme in 1973 to amend Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138, 139 (1962) (repeal by implication is not favored).
We also disagree with Kroger’s contention that Miears, 232 S.W.2d at 675.
Contributory negligence contemplates an injured person’s failure to use ordinary care in regard to his or her own safety. See Southern Pac. Transp. Co. v. Allen, 525 S.W.2d 300, 305 (Tex.Civ.App.–Houston [14 Dist.] 1975, no writ).
Kroger’s proposed jury charge contemplated a contributory-negligence finding. Kroger’s second question requested that the jury assess the parties’ comparative responsibility. But, according to Kroger’s *352 instruction, the jury was to make that assessment only if it first found that both Kroger and Keng were negligent. Hence by Kroger’s own acknowledgment, a finding of contributory negligence is a prerequisite to a finding of comparative responsibility. Yet, section 406.033 effectively prohibits an employer from relying on the statutory comparative-responsibility defense.
Finally, in resolving whether the comparative-responsibility statute applies in an nonsubscriber case, we need not determine, as Kroger urges, whether a suit under section 406.033 precludes a contributory-negligence finding, the provisions of the comparative-responsibility statute that could implicate an employee’s conduct necessarily cannot apply in a nonsubscriber case.
Our opinion in Garcia is misplaced.
It is evident from the Workers’ Compensation Act’s scheme and section 406.033’s bar against nonsubscribing employers relying on an employee’s negligence as a defense.
We therefore hold that a nonsubscribing employer is not entitled to a jury question on its employee’s alleged comparative responsibility. We disapprove of the court *353 of appeals’ opinion in 992 S.W.2d 447 (Tex.1999), to the extent it holds otherwise. Because the trial court did not err in refusing to submit Kroger’s requested comparative-responsibility jury question, we affirm the court of appeals’ judgment.
The parties’ arguments apply to both the 1987 comparative-responsibility statute and the 1995 amendment.