The Texas Lawbook

Workers at thousands of Texas businesses who are seriously injured on the job may find it harder to sue their employers for damages after an accident.

The Supreme Court of Texas, in a potentially precedent-setting decision issued last week, slammed the courthouse door on damages for many employees hurt while working in hazardous situations. The case affects employees of companies that have opted out of the state’s workers’ compensation system.

The justices unanimously ruled that millions of workers at the approximately 144,000 noninsured Texas businesses are no longer able to seek compensation in such cases.

But the ruling — which is a huge loss for workers under the “premises liability” law — is a bit of a two-edged sword.

In that same opinion, the high court stunned lawyers by stating that employees should be able to recover damages under a separate “negligence” law if the employer failed to provided proper equipment, training or supervision that could have prevented the injury.

Such negligence claims with potentially major damage awards have not been previously available to workers in Texas.

Texas is the only state that does not require companies to be part of their state workers’ comp system. About a third of Texas employers don’t buy workers’ comp insurance. Kroger, Wal-Mart, Albertson’s, Taco Bell and Whole Foods are some of the biggest.

Legal experts say the ruling was intended to provide clearer guidance for litigation between workers and those employers.

Mopping accident

The case in question began in July 2009 when Randy Austin, a longtime maintenance employee for Kroger in Mesquite, fell while mopping oil that had leaked onto a restroom floor.

The Kroger handbook recommended cleaning such spills with the powdery absorbent product Spill Magic, which was estimated to reduce the likelihood of a slip-and-fall by 25 percent, according to court records.

Spill Magic was unavailable, however, so Austin cleaned the restrooms with a regular mop. As he cleaned the women’s restroom, Austin slipped and fell, fracturing his femur and dislocating his hip.

Austin spent nine months in the hospital and underwent six surgeries, which left his left leg 2 inches shorter than his right.

When Kroger refused to compensate him the amount he believed he deserved, Austin sued in federal court in Dallas. U.S. District Judge Jane Boyle rejected both Austin’s negligence and premises liability claims.

The federal court of appeals asked the Texas Supreme Court to clarify state law on the matter.

Future litigation

Lawyers for Kroger contend the ruling significantly strengthens the legal position of all businesses in all future premises liability litigation involving injured workers.

“Most importantly, it dispels the misconception among the plaintiff’s bar that Texas ‘punishes’ Texas employers who opt out of the workers’ compensation system,” said Dallas appellate attorney Donna Peavler, who argued the case for Kroger.

While lawyers who represent workers admit the premises liability part of the decision is terrible for their clients, they eagerly point to the justices’ view that Judge Boyle should reconsider Austin’s negligence claim.

“We have never addressed the interaction between premises-liability and an employer’s other general negligence duties. We do so now,” wrote Justice Jeffrey S. Boyd, who delivered the 34-page opinion. “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.”

For a longer version of this article, please visit TexasLawbook.net

Contact the Law Office of O'Toole & Sbarbaro, P.C. today if you have a workers' compensation or a Social Security disability case.

http://www.otoole-sbarbaro.com

Phone: 303-595-4777

We are located in the Denver Metro area.

226 West 12th Avenue Denver, Colorado 80204

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