In the latest chapter of the ongoing proceedings in the lawsuit filed by Randy J. Austin against his former employer, Kroger Texas, L.P., the United States Court of Appeals for the Fifth Circuit has yet again remanded the case back to the United States District Court for the Northern District of Texas for further proceedings. In short, The Fifth Circuit held that the District Court failed to recognize Kroger’s duty to provide Austin with a necessary instrumentality for the safe performance of his “customary work,” did not properly consider whether the lacking instrumentality in question was a necessary instrumentality, and improperly excluded evidence submitted by Austin by applying the incorrect legal standard set forth in the Federal Rules of Civil Procedure.

Nonsubscribing employers, who are very familiar with the previous holdings in this lawsuit, will recall that Austin was employed by Kroger at one of its stores in Mesquite, Texas, when he slipped and fell while mopping liquid from a restroom floor at the store. Kroger’s safety handbook recommended that a product called “Spill Magic” be provided to and utilized by store employees when cleaning up liquid spills, but on the day in question, the Mesquite store did not have any Spill Magic available for Austin’s use. As a result of Austin’s fall, he spent nine months in the hospital and underwent six separate surgeries.

After the District Court initially granted summary judgment on the causes of action asserted by Austin in his lawsuit, the Fifth Circuit originally upheld the summary judgment on all causes of action other than the negligence/necessary instrumentalities cause of action, which was remanded back to the District Court. On remand, the District Court refused to consider an expert report prepared by one of Austin’s retained experts which had been provided to Kroger a week before Kroger’s second motion for summary judgment was filed.

The Fifth Circuit recognized that the District Court set forth three grounds for granting Kroger’s motion for summary judgment: (1) Kroger had no duty to provide Spill Magic since Austin failed to create a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality; (2) Kroger had no duty to provide Austin with a necessary instrumentality while he was performing “customary work;” and (3) Austin did not create a genuine issue of material fact as to whether Kroger’s failure to provide Spill Magic caused his injuries.

In its holding, the Fifth Circuit disagreed with the District Court’s first ground for granting summary judgment, finding that a genuine issues of material fact issue existed as to whether Spill Magic was a necessary instrumentality. Because of this, the Fifth Circuit held that summary judgment was not appropriate.

Secondly, the Fifth Circuit also disagreed with the District Court’s second ground for summary judgment, holding that since employees may recover for injuries sustained in the course of their customary work for a nonsubscriber employee, and Austin’s slip and fall would be a foreseeable consequence of Kroger’s failure to provide Spill Magic, summary judgment was not appropriate. The Fifth Circuit recognized that although an employer has no duty to provide unnecessary instrumentalities to an employee, a duty does exist on the part of the employer to provide instrumentalities which were necessary for the safe performance of the employee’s customary work. In rejecting Kroger’s argument and the District Court’s holding that there was no duty at all to provide an employee necessary instrumentalities for the safe performance of routine jobs, the Fifth Circuit did recognize that whether there is a breach of such duty is an entirely different matter.

Finally, the Fifth Circuit considered whether Austin created a genuine issue of material fact as to whether the lack of access to Spill Magic was the actual cause of his injuries. The Fifth Circuit noted that an expert report provided by Austin to Kroger shortly before its most recent motion for summary judgment was filed, but was not filed with the District Court, was not considered by the District Court in reaching its conclusion that Austin did not raise a genuine issue of material fact on causation. The Fifth Circuit held that the District Court abused its discretion in preventing Austin from introducing his expert’s report since the District Court erroneously relied upon Federal Rule of Civil Procedure 59(e) in support of its holding, instead of relying on Federal Rule of Civil Procedure 54(b), which sets forth a less stringent standard for reconsideration of interlocutory orders. Because of the District Court’s abuse of discretion on this issue, the Fifth Circuit vacated that portion of the District Court’s order and remanded the matter to the District Court for reconsideration of Austin’s argument under the correct Rule and standard.

Undoubtedly, nonsubscribing employers will anxiously await the District Court’s reconsideration of the issues set forth in the Fifth Circuit’s opinion. Until all appeals have been ruled upon and a final holding is received from the District Court, nonsubscribing employers should continue ensuring that their employees have access to all necessary instrumentalities for the performance of their work, including “routine” and “customary” job duties.