Slip and fall claims are not limited to guests and customers.  If you are an employee, and your employer is a non-subscriber of workers compensation coverage in Texas, a slip and fall used to mean big bucks.  Maybe not anymore.

The Texas Supreme Court has recently changed- or clarified- the law with respect to non-subscriber slip and fall claims.  Responding to a certified question from the Fifth Circuit, the Texas Supreme Court recently confirmed that an employer has the same duty to an employee as it does to an invitee.  Austin vs. Kroger Texas, L.P. 2015 WL 3641066 (Tex. June 12, 2015).  Based upon Austin, an employer’s duty to an employee is to warn or protect against hidden hazards of which the employer knows or should know, but the employee is not aware. In the present case, because Austin was aware of the condition that caused his fall, he was unable to establish that Kroger had a duty to warn him of a dangerous condition.

In Austin, an employee was aware of an oily substance on a bathroom floor.  The product Kroger typically used to clean spills was not available, and knowing the substance was dangerous, the employee attempted to clean up the substance by using a mop.  As he was mopping the area, he fell and suffered injuries.  He subsequently sued Kroger, as a non-subscriber, seeking damages related to his fall.  He argued that his knowledge of the substance was irrelevant to Kroger’s responsibility.  Kroger had opted out of insurance coverage for employees, and, therefore, Austin argued that Kroger could not raise a proportionate responsibility test (In Texas, sole negligence of the employee or a finding of no negligence/no duty for the employer are the only defenses in non-subscriber cases).

The Texas Supreme Court told Austin he was going down the wrong slippery slope.  Even though the defenses to a non-subscriber have not changed (see, Texas is not all about big business), an employee still must prove that that the employer owed him a duty.  Therefore, Austin still had the duty to prove that Kroger owed him a duty relating to the condition on the floor being open and obvious.  The court opined that because Austin was aware of the condition, Kroger had no duty to warn of it being dangerous.

The lesson?  If you are non-subscriber in Texas, and you have dirty floors, you may come out clean.