Supreme Court of Texas.
BROOKSHIRE GROCERY COMPANY, Petitioner,
Barbara GOSS, Respondent.
Aug. 29, 2008.
Attorneys & Firms
*793 John W. Alexander, Alexander & Boswell, Winnsboro, TX, for Petitioner.
George Alan Boll, Juneau, Boll, Ward & Carboy, P.L.L.C., Addison, TX, for Respondent.
Kimberly Paige Harris, Uloth & Peavler, L.L.P., Dallas, TX, AMA for Amicus Curiae.
A grocery store employee was injured when she attempted to maneuver around a loaded cart. A jury found that her employer’s negligence proximately caused the incident, and the court of appeals affirmed the trial court’s judgment. Because we conclude that any danger of stepping around such carts is commonly known, we hold that the employer had no duty to warn employees of the risk or provide specialized training to avoid that hazard. We reverse and render judgment that the employee take nothing.
In November 2002, Barbara Goss was working in the deli department of a Brookshire Grocery store, where she had been employed since 1999. She went to retrieve items from a deli cooler that had been packed with various carts stocked with food for the upcoming Thanksgiving holiday. To get what she needed, she had to maneuver around a “lowboy” loading cart stocked two to three feet high with frozen turkey and ham dinners.1 She successfully stepped over the cart and entered the cooler. After she retrieved what she needed, she turned around to leave the cooler and hit her shin on the lowboy, causing her to reach out for a shelf to prevent herself from falling. In doing so, she injured her back. She was immediately taken to the hospital and has since been under medical care.
Goss sued Brookshire, alleging that it failed to adequately warn employees of the risks of maneuvering around lowboy carts.2 The jury found Brookshire negligent and awarded Goss damages for physical pain and mental anguish, loss of earning capacity, physical impairment, and medical expenses. Brookshire appealed.3 The court of appeals affirmed the judgment, concluding that Brookshire owed Goss a duty to warn of the safe handling of lowboys and that its failure to warn of the attendant risks caused Goss’s injury. Id.
In Jack in the Box v. Skiles, we held that even when a dangerous condition is not part of an employee’s regular duties, there is no duty owed if the employee already knows about the danger. Id. at 568.
As in Elwood and Skiles, there was no evidence here that keeping a loaded lowboy in a cooler was unusually dangerous. A stationary, loaded lowboy is easily visible, and Goss saw it upon entering the cooler. To the extent that stepping over a lowboy is dangerous, it is a danger apparent to anyone, including Goss. Goss asserts that she should have been warned that “entering a confined space such as the cooler with a lowboy cart there is dangerous, because you may get into a situation where you will injure yourself.” But an employer owes no duty to warn of hazards commonly known or already appreciated by the employee, Elwood, 197 S.W.3d at 795.
Because we conclude that Brookshire owed no duty to warn Goss of a risk commonly known and appreciated, we grant the petition for review and, without hearing argument, we reverse the court of appeals’ judgment and render judgment for Brookshire. 60.2(c).
A lowboy cart measures roughly two-and-a-half feet by five feet and its bed sits about ten inches off the ground. It has four wheels and a handle on one end and measures about forty-two inches from the ground up.
Brookshire is a nonsubscriber under the Texas Worker’s Compensation Act; an employee suing Brookshire for personal injuries must prove that Brookshire’s negligence proximately caused those injuries. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006).
We previously denied Brookshire’s post-trial petition for writ of mandamus. See Id. at 72.