Fifth Circuit: non-subscriber can't always escape liability based on employee’s knowledge of defect; affirms summary judgment on gross negligence.

In Randy Austin v. Kroger Texas, L.P., Case No. 12-10772 (5th Cir. Sept. 27, 2013), the United States Court of Appeals for the Fifth Circuit held that a non-subscriber employer cannot escape liability based solely on an employee’s knowledge of the defect where that employee is required to confront the defect as a part of his employment.

Randy Austin was asked to clean up a brown liquid pooling in the men’s room after a store wide cleaning on the level above led to cleaning liquids infiltrating the ventilation system and leaking into the bathrooms below. After cleaning up a substantial portion of the liquid, Austin slipped and sustained a left femur fracture and dislocated hip. As a non-subscriber, Kroger could not assert Austin’s contributory negligence as a defense.

The trial court granted summary judgment in favor of his employer, Kroger, on the basis that as an invitee, Austin’s subjective knowledge of the spill precluded his recovery as a matter of law. The Fifth Circuit traced the evolution of the “no duty” rule (occupiers of premises owe ‘no duty’ where open and obvious dangers are known to the invitee) in Texas through its eventual abolition in Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978) and concluded that Austin’s subjective knowledge of the spill, standing alone, was not enough to support summary judgment in favor of Kroger.

The Fifth Circuit agreed with the trial court, however, that because of the high evidentiary standard that applies to gross negligence, “no reasonable juror could conclude that Kroger was consciously indifferent to the safety of its employees, or that he faced an extreme risk in performing a job he had done safely for years.”

RANDY J. AUSTIN v. KROGER TEXAS L.P., doing business as Kroger Store #209