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At a Glance:
Austin v. Kroger Texas, LP
June 12, 2015
465 S.W.3d 193
Published Opinion

Austin v. Kroger Texas, LP

Supreme Court of Texas.

Randy AUSTIN, Appellant,


KROGER TEXAS, L.P., Appellee

No. 14–0216


Argued December 9, 2014


Opinion delivered: June 12, 2015


Attorneys & Firms

Matthew Joseph Kita, Attorney at Law, Dallas, for Appellant Randy Austin.

Dale Wainwright, Bracewell & Giuliani, LLP, Austin, Charles R. ‘Skip’ Watson Jr., Locke Lord LLP, Austin, for Appellee Kroger Texas, L.P.

Deborah J. Race, Ireland Carroll & Kelley, P.C., Tyler, for Amicus Curiae Brookshire Grocery Co., Daryl Flood, Inc. and Quiktrip Corporation.

*198 Brian A. Sheguit, The Bassett Firm, Dallas, for Amicus Curiae Mission Petroleum Carriers, Inc.

Javier Espinoza, The Espinoza Law Firm, PLLC, San Antonio, for Amicus Curiae San Antonio Trial Lawyers Association.

Peter M. Kelly, Kelly, Durham & Pittard, L.L.P., Houston, for Amicus Curiae Texas Trial Lawyers Association.


Justice Brown joined except as to Part IV.

Texas employers have a duty to exercise reasonable care to provide their employees with a safe place to work. Like all others who own or operate land, employers generally may fulfill their premises-liability duties to invitees either by eliminating any unreasonably dangerous condition or by adequately warning of the risks. In this case, the employer, which had opted out of the Texas workers’ compensation system, sought to eliminate the danger, but the employee who was responsible for the task was himself injured while doing so. The employer could not have eliminated the danger without assigning the task to an employee, and the employee concedes that he was fully aware of the risks. Addressing a certified question from the United States Court of Appeals for the Fifth Circuit,1 we clarify that, under Texas law, (1) subject to two limited exceptions, an employer generally does not have a duty to warn or protect its employees from unreasonably dangerous premises conditions that are open and obvious or known to the employee; and (2) under this general rule, the Texas Workers’ Compensation Act’s (TWCA) waiver of a nonsubscribing employer’s common law defenses does not eliminate an employee’s burden of proving that the employer owed him a duty as an element of a premises liability claim. We also conclude that contemporaneous negligent activity by the employer is not necessary to an employee’s instrumentalities claim.



Randy Austin fell while mopping a restroom floor at the Kroger store where he worked in Mesquite, Texas. An oily liquid had leaked through the store’s ventilation ducts after another Kroger employee power-washed the store’s condenser units, creating spills in both the men’s and women’s restrooms. Consistent with Austin’s duties as a self-described “floor clean-up person,” Austin’s supervisor directed him to clean the spills. Kroger’s safety handbook recommends that employees clean spills using a “Spill Magic” system that involves a powdery absorbent product, a broom, and a dustpan. According to the handbook, using this system reduces the likelihood of a slip-and-fall by 25%. Contrary to the handbook’s instruction to store managers, however, the system was not available at the store that day. Austin thus attempted to clean the liquid with a mop. Austin successfully cleaned the women’s room and then moved to the men’s room, where the brownish liquid covered about 80% of the floor. Recognizing the danger that the slippery liquid presented, he placed “wet floor” signs around the area and carefully took “baby steps” as he moved throughout the spill. *199 After successfully cleaning 30% to 40% of the spill, Austin slipped in the remaining liquid and fell, fracturing his femur and dislocating his hip. As a result, he spent nine months in the hospital and underwent six surgeries, leaving his left leg two inches shorter than his right.

Austin’s employer, Kroger Texas L.P., had elected not to subscribe to the Texas workers’ compensation system.2 Austin sued Kroger in state court, asserting claims for negligence, gross negligence, and premises liability. In support of his negligence claim, Austin alleged that Kroger had engaged in negligent activities3 and had failed to provide a “necessary instrumentality”—specifically, the Spill Magic system.4 Kroger removed the case to federal district court, which granted Kroger’s motion for summary judgment on all of Austin’s claims. The Fifth Circuit Court of Appeals affirmed as to Austin’s negligent activity5 and gross negligence6 claims, but reversed and remanded the necessary-instrumentalities claim because the district court had “failed to consider whether ... [that theory] is sufficient to support a stand-alone ordinary negligence claim.” Id. at 199. Concluding that “[i]t is best to leave the resolution of these matters to the good judgment of the highest state court,” the Fifth Circuit certified the following question:

Pursuant to Texas law, including § 406.033(a)(1)–(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?

Id. at 204.


The Parties’ Arguments

The parties’ arguments in this case reflect the significance of characterizing the question as involving Kroger’s “duty” to its employees. Outside of the employment context, a landowner7 sued for premises *200 liability may rely on an invitee’s awareness of the dangerous condition as evidence of the invitee’s own negligence and proportionate responsibility, as a defense to the invitee’s claims. See TEX. LAB. CODE § 406.033(a) (providing that, in an action against a nonsubscribing employer, “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”). If Austin’s awareness and assumption of the risks are relevant here, they can be relevant only to the question of whether Kroger owed Austin a duty at all. If Kroger owed Austin a duty, its breach of that duty would result in liability for all of Austin’s damages, regardless of Austin’s awareness of the risks or any negligence on Austin’s part.

Kroger argues that this Court’s recent “trilogy” of employer-employee tort cases confirms that an employer has no duty to warn or protect employees against “hazards that are commonly known or already appreciated by the employee.” See Goss demonstrate that, although the TWCA waives a nonsubscribing employer’s defenses, it does not relieve the employee of the burden of proving that the employer owed a duty.

Austin contends that Kroger is relying on the old “no-duty rule,” which this Court abolished in the employment-law context sixty years ago, see Parker, Austin contends, his awareness of the dangerous condition does not affect Kroger’s legal duty. Instead, his awareness can be relevant only to whether he was negligent and thus to his proportionate responsibility, which the TWCA prohibits Kroger from raising as a defense. Thus, according to Austin, Kroger cannot rely on Austin’s awareness of the danger at all.

*201 Reviewing the parties’ arguments, the Fifth Circuit concluded that the cases on which the parties rely represent “arguably conflicting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex.2004)).


Defining the Premises–Liability Duty

We begin by noting that the Fifth Circuit’s alternative iteration of its certified question asks, “[D]oes the employee’s awareness of the defect eliminate[s] the employer’s duty to maintain a safe workplace?” The answer to that question is “no.” As Kroger concedes, neither the obviousness of a danger nor an employee’s awareness of it “eliminates” an employer’s duty to “provide a safe workplace.” That duty always exists, but the question here is whether that duty includes a more specific duty to warn or protect employees against obvious or known hazards. We therefore begin by addressing the specific duties that comprise an employer’s duty to provide a safe workplace in the context of premises-liability claims. We conclude that, with two notable exceptions, an employer’s premises-liability duty to its employee includes only the duty to protect or warn the employee against concealed hazards of which the employer is aware, or reasonably should have been aware, but the employee is not. We then discuss how these principles operate in light of the TWCA’s waiver of defenses and our abolition of the no-duty rule in Parker.

A. The Duty to Warn

We endeavor here to answer three questions: (1) whether an employer’s premises liability to employees differs from other landowners’ premises liability to invitees; (2) whether a landowner’s duty to invitees is a duty to “make safe,” or a duty to “warn,” or a duty to “make safe or warn”; and (3) whether an invitee’s knowledge of a dangerous condition goes to the “duty” element of the plaintiff’s case or to the defendant’s proportionate-responsibility defenses or to both, especially in light of the TWCA’s waiver of defenses. We conclude that (1) employers owe employees the same premises-liability duty that other landowners owe to their invitees; (2) in most cases, the landowner’s premises-liability duty is to either make safe or warn invitees of concealed dangers of which the landowner is or should be aware but the invitee is not; and (3) in most cases, a landowner owes no duty to protect an invitee against a dangerous condition that is open and obvious or known to the invitee, and the TWCA’s waiver of defenses does not relieve a plaintiff of the burden of proving that the defendant owed a duty.

1. Employers and Other Landowners

We first clarify and confirm that, generally,8 an employer has the same *202 premises-liability duty to its employees as other landowners have to invitees on their premises. An invitee is “one who enters the property of another ‘with the owner’s knowledge and for the mutual benefit of both.’ ” Parker, 565 S.W.2d at 512. Other than that brief rift, the Court has treated employers as having the same premises-liability duties as all other landowners, and we confirm that approach today.

In answering the Fifth Circuit’s certified question, we thus consider the premises-liability duties of landowners to invitees generally. The certified question’s reference to “a nonsubcribing employer” and to the TWCA’s waiver of a nonsubscriber’s defenses, therefore, has no bearing on our analysis of an employer’s duty. While an employer’s liability may differ from that of other landowners due to the statutory waiver of its defenses, see Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex.2000), its premises-liability duty is the same as that owed by landowners to invitees generally.

2. The Duty to Make Safe or Warn

At different times, this Court has described a landowner’s premises-liability duty to invitees as a duty to make reasonably safe,9 a duty to warn,10 or a duty to make safe or warn.11 While potentially confusing, these descriptions are not at odds with each other. A landowner has a duty to exercise reasonable care to make the premises safe for invitees. Obviously, the landowner can satisfy this duty by eliminating the dangerous condition or by mitigating the condition so that it is no longer unreasonably dangerous. See Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex.2004). The Court has struggled to characterize the rule, however, in cases in which the landowner’s provision of a warning or the invitee’s knowledge of the risk was not *203 sufficient to make the premises reasonably safe. Today we clarify that these cases present discrete exceptions to the general rule.

a. The General Rule

Applying the general rule, the Court has repeatedly described a landowner’s duty as a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not. See, e.g., Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747 (Tex.1973) (discussing landowner’s “superior position to know of or discover hidden dangerous conditions on his premises”); see also RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 51 cmt. t (2012) (addressing landowner’s “superior knowledge of the dangerous condition”).

When the condition is open and obvious or known to the invitee, however, the landowner is not in a better position to discover it. When invitees are aware of dangerous premises conditions—whether because the danger is obvious or because the landowner provided an adequate warning—the condition will, in most cases, no longer pose an unreasonable risk because the law presumes that invitees will take reasonable measures to protect themselves against known risks, which may include a decision not to accept the invitation to enter onto the landowner’s premises. See, e.g., RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 51 cmt. a (2012) (observing that reasonable care “only requires attending to the foreseeable risks in light of the then-extant environment, including foreseeable precautions by others”); Khan, 138 S.W.3d at 295.

This general rule is also consistent with the Court’s recognition that a landowner’s duty to invitees is not absolute. A landowner “is not an insurer of [a] visitor’s safety.” Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex.1999).

b. Exceptions to the General Rule

We use the qualifiers “generally,” “ordinarily,” and “in most cases” while discussing the general rule because the Court has struggled at times with cases in which it concluded that the provision of a warning or the obvious nature of the danger was not sufficient to make the premises reasonably safe as a matter of law. See, e.g., 746 F.3d at 204.

Today we reaffirm the general rule while clarifying and confirming the existence of two exceptions that the Court has recognized when the landowner’s provision of an otherwise adequate warning is legally insufficient to make the premises reasonably safe. The first exception may arise when a dangerous condition results from the foreseeable criminal activity of third parties. We will refer to this as the criminal-activity exception. The second exception may arise when the invitee necessarily must use the unreasonably dangerous premises, and despite the invitee’s awareness and appreciation of the dangers, the invitee is incapable of taking precautions that will adequately reduce the risk. We will refer to this as the necessary-use exception. In cases involving these exceptions, we have held that the obviousness of the danger and the invitee’s appreciation of it may be relevant to a landowner’s defense based on the invitee’s proportionate responsibility, but they do not relieve the landowner of its duty to make the premises reasonably safe.

(1) The Criminal–Activity Exception

The seminal case in which this Court defined a landowner’s duty with regard to protecting invitees against third *205 parties’ criminal activities is id. at 753, the Court described the contours of the specific duty a landowner owes with respect to third-party criminal acts:

As a rule, “a person has no legal duty to protect another from the criminal acts of a third person.” An exception is that “[o]ne who controls ... premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee.” ...


... A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable.

Mellon Mortg. Co. v. Holder, 5 S.W.3d 654 (Tex.1999).14

More recently, when the plaintiff in Timberwalk duty:

Generally, a premises owner has no duty to protect invitees from criminal acts by third parties. We have recognized an exception when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable....


... We hold that Del Lago had a duty to protect Smith because Del Lago had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons and had ample time and means to defuse the situation.

Del Lago, 307 S.W.3d at 767–69.

The Court rejected the resort owner’s argument that it had no duty to protect the plaintiff from the risks because the danger was as obvious and known to the plaintiff as it was to the resort owner. Id.

Clarifying the arguable conflict in the Court’s precedents, we hold that Eagle Trucking Co. v. Tex. Bitulithic Co., 612 S.W.2d 503, 507 (Tex.1981).

(2) The Necessary–Use Exception

A second exception to the general rule arises from the Court’s decision in Id. at 515–16. Under section 361,

[a] possessor of land who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon *207 that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care (a) could have discovered the condition and the risk involved, and (b) could have made the condition safe.


In addition, however, the Court abolished the “no-duty rule” in all landowner-invitee cases, using language that is difficult to construe as anything other than the adoption of a new general rule. Id. at 521.

As we have mentioned, despite this rather clear language, the Court has since repeatedly restated and applied the general no-duty rule in the landowner-invitee context, without overruling the decision in Parker rule as an exception that applies when the facts demonstrate that (1) it was necessary that the invitee use the unreasonably dangerous premises and (2) the landowner should have anticipated that the invitee was unable to avoid the unreasonable risks despite the invitee’s awareness of them. As the Court observed in Parker:

One’s conduct after he is possessed of full knowledge, under the circumstances may be justified or deemed negligent depending upon such things as the plaintiff’s status, the nature of the structure, the urgency or lack of it for attempting to reach a destination, the availability of an alternative, one’s familiarity or lack of it with the way, the degree and seriousness of the danger, the availability of aid from others, the nature and degree of the darkness, the kind and extent of a warning, and the precautions taken under the circumstances by a plaintiff in walking down the passageway.

Parker, a landowner generally has no duty to protect or warn an invitee against unreasonable dangers that are open and obvious or otherwise known to the invitee.

*208 Id. at 520–21.

3. Robinson and the TWCA’s waiver of defenses

This is not the first time we have attempted to clarify and resolve the apparent conflict between Del Lago, and the “no-duty rule.”

a. Parker and Del Lago

The Court’s abolition of the no-duty rule in Parker, 565 S.W.2d at 516–19. It was this confusion that led the Court to adopt the no-duty rule:

There are two legal theories, wholly aside from the plaintiff’s own negligence, for denying liability in a suit against an owner or occupier of land brought by an invitee for injuries growing out of open and obvious dangers thereon. One rests on the judicial concept that there is no breach of any duty the landowner owes to his invitees. The other arises out of the doctrine of volenti non fit injuria—voluntary encountering of risk—which is regarded as a defense to all negligence actions.... The failure of counsel to segregate and separately preserve all of these questions in pleadings in the trial courts and in briefs in the appellate courts, thereby offering the appellate *209 courts no alternative except to decide the cases before them on the questions presented, and the tendency of the appellate courts to group them in analyzing the evidence, or to seek the most obvious and simplest solution, has led to much confusion in the decided cases. In greatly similar fact situations some are decided on the basis of no breach of duty by the defendant, some on the basis of voluntary encountering of risk by the plaintiff, some on the basis of the contributory negligence of the plaintiff, and some on the basis of two or more of these factors without distinction between them. This has led to what appears to be conflicting results.

McKee, 271 S.W.2d at 393.

Further contributing to the confusion was the common law’s treatment of assumption of the risk and contributory negligence as absolute bars to recovery. See Dixon, 682 S.W.2d at 533).

It is this “oddity” that the Court has referred to as the no-duty rule—a rule that required plaintiffs to negate their own knowledge of the risk in all premises-liability cases, regardless of whether that fact was relevant to the existence of a duty or to defenses like assumption of the risk and contributory negligence. See Parker, 565 S.W.2d at 516–17. As the Court has twice clarified:

The rule [in Parker] that the plaintiff does not have the burden to obtain findings that disprove his own fault does not, however, mean that a plaintiff is excused from proving the defendant had a duty and breached it. A plaintiff does not have the burden to prove and obtain findings that he lacked knowledge and appreciation of a danger; he must, however, prove the defendant had a duty and breached it.

Id. at 217.15

Although the common law affirmative defenses of assumption of the risk16 and contributory negligence no longer *210 exist under Texas law, the underlying concepts remain relevant under Texas’s proportionate-responsibility statute. See TEX. CIV. PRAC. & REM. CODE §§ 33.001, .003. In other words, although these are no longer affirmative defenses that act as an absolute bar to recovery, they remain defensive issues on which defendants, not plaintiffs, bear the burden of proof.

b. Robinson

Even before the Court abolished the no-duty rule in Robinson, 280 S.W.2d at 239–40.

Just as Keng, 23 S.W.3d at 352.

*211 In rejecting the no-duty rule for nonsubscribing-employer cases, the Robinson to the extent it conflicts with those holdings and with our recognition of the criminal-activity and necessary-use exceptions in this case.

c. The TWCA

As discussed above, the TWCA prohibits nonsubscribing employers from raising the defenses of contributory negligence and assumption of the risk, which are now subsumed under the proportionate-responsibility statute. Moritz, 257 S.W.3d at 217 (“Whether ... a duty exists is a question of law for the court; it is not for the jury to decide under comparative negligence or anything else.”).

Moreover, the general rule does not render the statutory waiver ineffective for at least two reasons. First, landowners may assert an invitee’s negligence based on conduct other than the invitee’s awareness of the risk, and the TWCA’s waiver prohibits a nonsubscribing employer from relying on any such conduct to do so. See Keng, 23 S.W.3d at 351–52.

Although the TWCA’s waiver of defenses is intended to encourage employers to subscribe to the workers’ compensation system, the TWCA does not create an “especially punitive litigation regime for non-subscribing employers.” Tex. W. Oaks, 371 S.W.3d at 187). This burden, of course, includes the burden to prove that a defendant had a duty to the plaintiff, which is the issue that our general rule and exceptions address.

B. No new exception

Having clarified the general rule that an employer or landowner owes no duty to protect or warn an employee or invitee against unreasonably dangerous premises conditions that are open and obvious or otherwise known to the employee or invitee, and the criminal-activity and necessary-use exceptions that preserve that duty under limited circumstances, we now address Austin’s argument that we should recognize a new exception in this case. Specifically, Austin asserts that we should recognize a distinct duty in cases where an employee is injured while performing a task that the employer specifically assigned to the employee. We decline to do so.

Both Parker, the Court quoted a comment from the Second Restatement stating that a landlord’s duty with respect to common areas

is not always satisfied by warning the lessee or others of the dangerous condition, and ... knowledge of such persons of the danger will not always prevent their recovery. Where, for example, the entrance to an apartment house is dangerously defective, and there is no other available entrance, the third person may be expected to use it notwithstanding any warning, or even his own knowledge of the danger.


Austin contends that the same reasoning should apply here, and that it would apply regardless of whether the Court employed an objective or subjective standard for evaluating the reasonableness of his conduct, because “it was objectively reasonable for an employee in his situation to attempt to perform his assigned task, notwithstanding the obvious dangers posed by th[e] condition” of the floor. Essentially, Austin argues that it was reasonable for him to undertake the risk of slipping in the oily liquid because, although he was aware of the risk, he undertook it at the instruction of his employer rather than by purely voluntary choice. While this argument has some appeal, we are not persuaded for several reasons.

First, Texas law treats Austin’s encounter with the spill as voluntary in nature, even though it was part of his work duties. See McKee, 271 S.W.2d at 396.

Second, Austin’s proposed exception is not compatible with our precedent that “when an employee’s injury results from performing the same character of work that employees in that position have always done, an employer is not liable if there is no evidence that the work is unusually precarious.” Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 251 (1943)). It is undisputed that mopping up spills is the same character of work that Austin—as the store’s self-described “floor clean-up person”—and other employees in his position have always done.

Third, the most efficient way for employers like Kroger to eliminate a dangerous condition like the spill in this case is to have a trained employee clean it, and it is the public policy in Texas to encourage them to do so. See, e.g., Moritz, 257 S.W.3d at 215, making landowners liable to employees for such conditions directly disincentivizes employers from hiring employees to remedy such conditions. We thus decline to recognize the new exception that Austin proposes.


Austin’s Necessary–Instrumentalities Claim

As noted above, in addition to his premises-liability claim, Austin alleged *215 that Kroger negligently caused his fall by engaging in negligent activities and by negligently failing to provide a “necessary instrumentality,” namely, the Spill Magic system that Kroger’s employee handbook required be available at the store. The Fifth Circuit affirmed the district court’s summary judgment for Kroger on Austin’s negligent-activities claim, agreeing with the district court’s holding that Austin’s injury arose from a premises condition rather than any contemporaneous activity by Kroger, and that Austin “cannot pursue both a negligent activity and a premises defect theory of recovery based on the same injury.” Id.

The Fifth Circuit’s certified question only addresses Austin’s premises-liability claim, and for that reason some Justices would not reach Austin’s necessary-instrumentalities claim. But Kroger asks us to reach the instrumentalities claim, asserting that the claim fails as a matter of law for several reasons. We decline to decide the merits of Austin’s instrumentalities claim, but in the interest of judicial efficiency we will address one of Kroger’s arguments, which touches on the relationship between the instrumentalities claim and the premises-liability claim. Specifically, Kroger argues that the instrumentalities claim must fail for the same reason the negligent-activities claim must fail: because a condition of the premises, rather than any of Kroger’s contemporaneous activities, caused Austin’s fall, his claim sounds exclusively in premises liability, and he can only recover on that claim or not at all. We do not agree.

In a typical premises-liability case, the landowner owes the invitee two duties: a duty to keep the premises reasonably safe and a duty not to injure the invitee through contemporaneous negligent activity. See, e.g., Keetch, 845 S.W.2d at 265.

But when the landowner is also an employer and the invitee is also its employee, this additional relationship may give rise to additional duties, such as a duty to provide necessary equipment, training, or supervision. See Keetch, 845 S.W.2d at 264. But we have never addressed the interaction between premises-liability claims and an employer’s *216 other general negligence duties. We do so now.

When an injury arises from a premises condition, it is often the case that any resulting claim sounds exclusively in premises liability, but that is not necessarily the case. An injury can have more than one proximate cause. Del Lago, 307 S.W.3d at 776 (distinguishing between allegations of “nonfeasance,” or the failure to act, and allegations of misfeasance, or improper actions).

As Austin’s employer, Kroger owed Austin duties in addition to its premises-liability duty and its duty not to engage in negligent activities, including the duty to provide Austin with necessary instrumentalities. See Del Lago, 307 S.W.3d at 776 (discussing misfeasance and nonfeasance). Because contemporaneous negligent activity is not necessary to an instrumentalities claim, the absence of contemporaneous activity does not necessarily bar an instrumentalities claim.23

To hold otherwise would create disparate treatment of employees’ instrumentalities claims depending on whether the employer owned or operated the premises where the employee worked. Only an employer that has control over the premises where the employee is injured has a premises-liability duty to the employee, but the duty to provide necessary and safe instrumentalities applies to employers generally. See Elwood, 197 S.W.3d at 794 (“To establish negligence, a party must establish a duty, a breach of that duty, and damages proximately caused by the breach.”). We see no reason why employees injured by a breach of the same duty should have to prove different elements to recover. We therefore reject Kroger’s argument that its lack of any negligent activity contemporaneous with Austin’s fall defeats Austin’s instrumentalities claim as a matter of law.



For the reasons we have explained, we provide the following answer to the Fifth Circuit’s certified question: Under 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.” As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. “The employee’s awareness of the defect” does not “eliminate the employer’s duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third-party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee’s awareness of the danger, and the TWCA will prohibit a nonsubscribing employer from raising defenses based on the employee’s awareness.



TEX. CONST. Art. V, § 3–c(a) (“The supreme court [has] jurisdiction to answer questions of state law certified from a federal appellate court.”); TEX. R. APP. P. 58 (certified questions of law).


See TEX. LAB. CODE § 406.002 (providing that “an employer may elect to obtain workers’ compensation insurance coverage” and thus be “subject to” the Texas Workers’ Compensation Act).


See, e.g., State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) (“A negligent activity claim requires that the claimant’s injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity.”).


See, e.g., Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975) (“It is well established that an employer has certain nondelegable and continuous duties to his employees,” including “the duty to furnish reasonably safe instrumentalities with which employees are to work.”).


The district court held, and the Fifth Circuit agreed, that Austin’s injury arose from a premises condition rather than any contemporaneous activity by Kroger, and Austin “cannot pursue both a negligent activity and a premises defect theory of recovery based on the same injury.” 746 F.3d at 196–97.


The Fifth Circuit agreed with the district court’s holding that “no reasonable juror could conclude that Kroger was consciously indifferent to the safety of its employees, or that [Austin] faced an extreme risk in performing a job he had done safely for years.” Id. at 196 n. 2.


A premises-liability duty may apply to the owner of the premises or to another party who operates or exercises control over the premises. See, e.g., Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex.2008). We use the term “landowner” in this opinion to refer to all such parties.


We use the term “generally” here to acknowledge circumstances in which an employee may not be an “invitee” on the employer’s premises. For example, if an employee, acting outside the scope of employment, enters the employer’s premises without the employer’s knowledge and not for their mutual benefit, the employee might be a licensee or even a trespasser. We need not decide that issue here.


E.g., Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995).


E.g., Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex.2004).


E.g., State v. Williams, 940 S.W.2d 583, 584 (Tex.1996).


See also Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996) (“An employer is not an insurer of its employees’ safety at work; however, an employer does have a duty to use ordinary care in providing a safe work place.”).


In 162 S.W.3d at 551 n. 2.


In Id.


In TXI, 278 S.W.3d at 765.


The common law assumption-of-the-risk doctrine we refer to here involves implied assumptions of risk and not express, contractual assumption of the risk or statutory assumption-of-the-risk defenses. See, e.g., TEX. CIV. PRAC. & REM. CODE § 93.001.


See also TEX. CIV. PRAC. & REM. CODE §§ 33.001–.017 (proportionate-responsibility statute).


This Court has cited Lawrence, 44 S.W.3d at 549.


See Elwood, 197 S.W.3d at 795 (“[Employer] had no duty to warn [employee] of a danger known to all and no obligation to provide training or equipment to dissuade an employee from using a vehicle doorjamb for leverage.”).


Some courts of appeals have applied Hernandez, 374 S.W.2d at 197.


In Id.


We do not decide here whether a single injury could give rise to both a premises-liability claim and a negligent-activity claim if both the condition of the premises and the contemporary activities of the premises owner proximately cause the injury.


We do not decide which, if any, of the limitations on an employer’s premises-liability duty may also apply to its instrumentalities duty.

End of Document