Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
, 2015)
-1-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
Texas workers' compensation system, sought attempted to clean the liquid with a mop.
to eliminate the danger, but the employee Austin successfully cleaned the women's
who was responsible for the task was himself room and then moved to the men's room,
injured while doing so. The employer could where the brownish liquid covered about 80%
not have eliminated the danger without of the floor. Recognizing the danger that the
assigning the task to an employee, and the slippery liquid presented, he placed “wet
employee concedes that he was fully aware of floor” signs around the area and carefully
the risks. Addressing a certified question from took “baby steps” as he moved throughout the
the United States Court of Appeals for the spill.
Fifth Circuit,1 we clarify that, under Texas
law, (1) subject to two limited exceptions, an [465 S.W.3d 199]
employer generally does not have a duty to
warn or protect its employees from After successfully cleaning 30% to 40% of the
unreasonably dangerous premises conditions spill, Austin slipped in the remaining liquid
that are open and obvious or known to the and fell, fracturing his femur and dislocating
employee; and (2) under this general rule, the his hip. As a result, he spent nine months in
Texas Workers' Compensation Act's (TWCA) the hospital and underwent six surgeries,
waiver of a nonsubscribing employer's leaving his left leg two inches shorter than his
common law defenses does not eliminate an right.
employee's burden of proving that the
employer owed him a duty as an element of a Austin's employer, Kroger Texas L.P., had
premises liability claim. We also conclude elected not to subscribe to the Texas workers'
that contemporaneous negligent activity by compensation system.2 Austin sued Kroger in
the employer is not necessary to an state court, asserting claims for negligence,
employee's instrumentalities claim. gross negligence, and premises liability. In
support of his negligence claim, Austin
I. alleged that Kroger had engaged in negligent
activities3 and had failed to provide a
Background “necessary instrumentality”—specifically, the
Spill Magic system.4 Kroger removed the case
Randy Austin fell while mopping a restroom to federal district court, which granted
floor at the Kroger store where he worked in Kroger's motion for summary judgment on all
Mesquite, Texas. An oily liquid had leaked of Austin's claims. The Fifth Circuit Court of
through the store's ventilation ducts after Appeals affirmed as to Austin's negligent
another Kroger employee power-washed the activity5 and gross negligence6 claims, but
store's condenser units, creating spills in both reversed and remanded the necessary-
the men's and women's restrooms. Consistent instrumentalities claim because the district
with Austin's duties as a self-described “floor court had “failed to consider whether ... [that
clean-up person,” Austin's supervisor directed theory] is sufficient to support a stand-alone
him to clean the spills. Kroger's safety ordinary negligence claim.” 746 F.3d at 197.
handbook recommends that employees clean As to Austin's premises-liability claim, the
spills using a “Spill Magic” system that Fifth Circuit found that the “nature and
involves a powdery absorbent product, a scope” of an employer's duty to provide its
broom, and a dustpan. According to the employees with a safe workplace is “arguably
handbook, using this system reduces the unclear” under Texas law “when an employee
likelihood of a slip-and-fall by 25%. Contrary is aware of the hazard or risk at issue.” Id. at
to the handbook's instruction to store 199. Concluding that “[i]t is best to leave the
managers, however, the system was not resolution of these matters to the good
available at the store that day. Austin thus
-2-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
judgment of the highest state court,” the Fifth assumption of the risk as a defense. Tex. Lab.
Circuit certified the following question: Code § 406.033(a) (providing that, in an
action against a nonsubscribing employer, “it
Pursuant to Texas law, is not a defense that: (1) the employee was
including § 406.033(a)(1)–(3) guilty of contributory negligence; (2) the
of the Texas Labor Code, can an employee assumed the risk of injury or death;
employee recover against a non- or (3) the injury or death was caused by the
subscribing employer for an negligence of a fellow employee”). If Austin's
injury caused by a premises awareness and assumption of the risks are
defect of which he was fully relevant here, they can be relevant only to the
aware but that his job duties question of whether Kroger owed Austin a
required him to remedy? Put duty at all. If Kroger owed Austin a duty, its
differently, does the employee's breach of that duty would result in liability for
awareness of the defect all of Austin's damages, regardless of Austin's
eliminate the employer's duty to awareness of the risks or any negligence on
maintain a safe workplace? Austin's part.
-3-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
Austin contends that Kroger is relying on the neither the obviousness of a danger nor an
old “no-duty rule,” which this Court abolished employee's awareness of it “eliminates” an
in the employment-law context sixty years employer's duty to “provide a safe workplace.”
ago, see Sears, Roebuck & Co. v. Robinson, That duty always exists, but the question here
154 Tex. 336, 280 S.W.2d 238 (1955), and in is whether that duty includes a more specific
all landowner-invitee cases nearly forty years duty to warn or protect employees against
ago, see Parker v. Highland Park, Inc., 565 obvious or known hazards. We therefore
S.W.2d 512 (Tex.1978). Under Robinson and begin by addressing the specific duties that
Parker, Austin contends, his awareness of the comprise an employer's duty to provide a safe
dangerous condition does not affect Kroger's workplace in the context of premises-liability
legal duty. Instead, his awareness can be claims. We conclude that, with two notable
relevant only to whether he was negligent and exceptions, an employer's premises-liability
thus to his proportionate responsibility, duty to its employee includes only the duty to
which the TWCA prohibits Kroger from protect or warn the employee against
raising as a defense. Thus, according to concealed hazards of which the employer is
Austin, Kroger cannot rely on Austin's aware, or reasonably should have been aware,
awareness of the danger at all. but the employee is not. We then discuss how
these principles operate in light of the
[465 S.W.3d 201] TWCA's waiver of defenses and our abolition
of the no-duty rule in Robinson and Parker .
Reviewing the parties' arguments, the Fifth
Circuit concluded that the cases on which the A. The Duty to Warn
parties rely represent “arguably conflicting
Texas Supreme Court precedent.” 746 F.3d at We endeavor here to answer three questions:
197. We accepted the certified question as an (1) whether an employer's premises liability
opportunity to provide greater certainty in to employees differs from other landowners'
this important area of the law. Reviewing this premises liability to invitees; (2) whether a
Court's precedents, we endeavor to clarify landowner's duty to invitees is a duty to
where helpful and resolve apparent conflicts “make safe,” or a duty to “warn,” or a duty to
where needed. We do so mindful that our “make safe or warn”; and (3) whether an
decisions regarding common law duties invitee's knowledge of a dangerous condition
involve “complex considerations of public goes to the “duty” element of the plaintiff's
policy including ‘social, economic, and case or to the defendant's proportionate-
political questions and their application to the responsibility defenses or to both, especially
facts at hand.’ ” Nabors Drilling, U.S.A., Inc. in light of the TWCA's waiver of defenses. We
v. Escoto, 288 S.W.3d 401, 410 (Tex.2009) conclude that (1) employers owe employees
(quoting Humble Sand & Gravel, Inc. v. the same premises-liability duty that other
Gomez, 146 S.W.3d 170, 182 (Tex.2004) ). landowners owe to their invitees; (2) in most
cases, the landowner's premises-liability duty
III. is to either make safe or warn invitees of
concealed dangers of which the landowner is
Defining the Premises–Liability Duty or should be aware but the invitee is not; and
(3) in most cases, a landowner owes no duty
We begin by noting that the Fifth Circuit's to protect an invitee against a dangerous
alternative iteration of its certified question condition that is open and obvious or known
asks, “[D]oes the employee's awareness of the to the invitee, and the TWCA's waiver of
defect eliminate[s] the employer's duty to defenses does not relieve a plaintiff of the
maintain a safe workplace?” The answer to burden of proving that the defendant owed a
that question is “no.” As Kroger concedes, duty.
-4-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
1. Employers and Other Landowners duty is the same as that owed by landowners
to invitees generally.
We first clarify and confirm that, generally, 8
an employer has the same 2. The Duty to Make Safe or Warn
S.W.3d at 295. Ordinarily, the landowner (1965) (observing that landowner must “give
need not do both, and can satisfy its duty by such warning that the [invitee] may decide
providing an adequate warning even if the intelligently whether or not to accept the
unreasonably dangerous condition remains. invitation, or may protect himself against the
See Williams, 940 S.W.2d at 584 (holding danger if he does accept it”). This is why the
that landowner “had a duty to warn or make Court has typically characterized the
safe, but not both”); see also TXI Operations, landowner's duty as a duty to make safe or
L.P. v. Perry, 278 S.W.3d 763, 765 warn of unreasonably dangerous conditions
(Tex.2009) (observing that defendant could that are not open and obvious or otherwise
have satisfied its duty by either repairing known to the invitee. See, e.g., Escoto, 288
pothole or providing adequate warning sign). S.W.3d at 412 ; Goss, 262 S.W.3d at 794 ;
This general rule is consistent with the Moritz, 257 S.W.3d at 216 ; Islas, 228 S.W.3d
reasons for imposing a duty on landowners in at 651 ; Khan, 138 S.W.3d at 295.
the first place. The landowner is typically in a
better position than the invitee to be aware of This general rule is also consistent with the
hidden hazards on the premises, so the law Court's recognition that a landowner's duty to
mandates that the landowner take invitees is not absolute. A landowner “is not
precautions to protect invitees against such an insurer of [a] visitor's safety.” Del Lago
hazards, to the extent the landowner is or Partners, Inc. v. Smith, 307 S.W.3d 762, 769
should be aware of them.See Shell Chem. Co. (Tex.2010) (quoting Restatement (Second) of
v. Lamb, 493 S.W.2d 742, 747 (Tex.1973) Torts § 344 cmt. f). Instead, a landowner's
(discussing landowner's “superior position to premises-liability duties, like its negligence
know of or discover hidden dangerous duties, are limited to a duty to exercise
conditions on his premises”); see ordinary, reasonable care.
alsoRestatement (Third) of Torts: Liab. for
Physical & Emotional Harm § 51 cmt. t (2012) [465 S.W.3d 204]
(addressing landowner's “superior knowledge
of the dangerous condition”). Elwood, 197 S.W.3d at 794 (“An employer has
a duty to use ordinary care in providing a safe
When the condition is open and obvious or workplace.... However, an employer is not an
known to the invitee, however, the landowner insurer of its employees' safety.”).12 Thus, a
is not in a better position to discover it. When defendant has “no duty” to take safety
invitees are aware of dangerous premises measures beyond those that an ordinary,
conditions—whether because the danger is reasonable landowner would take. What a
obvious or because the landowner provided reasonable landowner would do is often a jury
an adequate warning—the condition will, in question, but sometimes it is not. The Court
most cases, no longer pose an unreasonable has recognized that, in most circumstances, a
risk because the law presumes that invitees landowner who provides an adequate warning
will take reasonable measures to protect acts reasonably as a matter of law, and since
themselves against known risks, which may there is no need to warn against obvious or
include a decision not to accept the invitation known dangers, a landowner generally has no
to enter onto the landowner's premises. See, duty to warn of hazards that are open and
e.g.,Restatement (Third) of Torts: Liab. for obvious or known to the invitee. See, e.g.,
Physical & Emotional Harm § 51 cmt. a Goss, 262 S.W.3d at 795 ; Moritz, 257 S.W.3d
(2012) (observing that reasonable care “only at 218 ; Islas, 228 S.W.3d at 651 ; Skiles, 221
requires attending to the foreseeable risks in S.W.3d at 568–69 ; Elwood, 197 S.W.3d at
light of the then-extant environment, 795 ; Khan, 138 S.W.3d at 295 ; Coastal
including foreseeable precautions by others”); Marine Serv. of Tex., Inc. v. Lawrence, 988
Restatement (Second) of Torts S § 343 cmt. b S.W.2d 223, 225 (Tex.1999).
-6-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
anticipated that the harm would occur despite that part of the land retained in
the invitee's knowledge of the risks. In such the lessor's control, if the lessor
cases, the invitee's appreciation of the danger by the exercise of reasonable
remains relevant to the landowner's care (a) could have discovered
proportionate-responsibility defenses, see Del the condition and the risk
Lago, 307 S.W.3d at 772–73, but it does not involved, and (b) could have
relieve the landowner of its duty to take made the condition safe.
reasonable steps to make the premises safe.
See Eagle Trucking Co. v. Tex. Bitulithic Co., Id. at 515 (quoting Restatement (Second) of
612 S.W.2d 503, 507 (Tex.1981). Torts § 361 ).
(2) The Necessary–Use Exception In addition, however, the Court abolished the
“no-duty rule” in all landowner-invitee cases,
A second exception to the general rule arises using language that is difficult to construe as
from the Court's decision in Parker, which anything other than the adoption of a new
predates the Court's later decisions restating general rule. Id. at 517 (“We now expressly
and applying the general rule. In Parker, the abolish the so-called no-duty concept in this
plaintiff fell while descending an improperly case and ... ‘henceforth in the trial of all
lighted staircase in a common area that she actions based on negligence....’ ”) (quoting
had to use to exit her sister's apartment. 565 Farley v. M M Cattle Co., 529 S.W.2d 751,
S.W.2d at 513. Because the plaintiff was 758 (Tex.1975) ). The Court enumerated its
aware of the darkness and the dangers it reasons for doing so, including its
presented, she took measures to mitigate the observations that (1) the no-duty rule “has
risks by having her sister hold a flashlight to contributed confusion which has defied the
illuminate the stairs and by taking careful efforts of our best scholars at explanation and
steps while holding on to the handrail. Id. at application”; (2) the Court, “based on logic,
514. Nevertheless, because the stairs included has already undermined the no-duty rule”
narrow, unevenly distributed steps and due to “[t]he inextricable mixing” of a
turned such that the flashlight could not defendant's duty and “a plaintiff's burden to
illuminate all the way down, the measures negate his own knowledge and appreciation”
were insufficient and the plaintiff fell. Id. The with “voluntary assumption of risk”; (3) “[t]he
Court adopted in that case the specific and legislature by its adoption in 1973 of the
narrow duty recognized in sections 360 and comparative negligence statute evidenced a
361 of the Restatement (Second) of Torts. Id. clear policy purpose to apportion negligence
at 515–16. Under section 361, according to the fault of the actors”; and (4)
“[t]he no-duty doctrine is so elusive that
[a] possessor of land who leases precedent is non-predictive and unhelpful.”
a part thereof and retains in his Id. at 517–18. The Court thus concluded that
own control any other part “[a] plaintiff's knowledge, whether it is
which is necessary to the safe derived from a warning or from the facts,
use of the leased part, is subject even if the facts display the danger openly and
to liability to his lessee and obviously, is a matter that bears upon his own
others lawfully upon the land negligence; it should not affect the
with the consent of the lessee or defendant's duty.” Id. at 521.
a sublessee for physical harm
caused by a dangerous As we have mentioned, despite this rather
condition upon clear language, the Court has since repeatedly
restated and applied the general no-duty rule
[465 S.W.3d 207] in the landowner-invitee context, without
-9-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
565 S.W.2d at 520. Although the Parker This is not the first time we have attempted to
Court concluded that these “are matters clarify and resolve the apparent conflict
which bear upon ‘the reasonableness of an between Robinson,Parker, and our more
actor's conduct in confronting a risk ... under recent decisions upholding the general rule.
principles of contributory negligence,’ ” id. Here, Austin argues that it cannot be that
(quoting Farley, 529 S.W.2d at 758 ), the Kroger owes him “no duty” with respect to the
Court's subsequent decisions have repeatedly slip-and-fall risk because this Court has
recognized that, despite Parker, a landowner abolished the “no-duty rule.” See Del Lago,
generally has no duty to protect or warn an 307 S.W.3d at 772 ; Parker, 565 S.W.2d at
invitee against unreasonable dangers that are 514–15 ; Robinson, 280 S.W.2d at 241–42.
open and obvious or otherwise known to the We previously rejected this argument,
invitee. however, and attempted to clarify our
precedent on multiple occasions. See, e.g.,
-10-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
Moritz, 257 S.W.3d at 216–18 ; Dixon v. Van courts, thereby offering the
Waters & Rogers, 682 S.W.2d 533, 533–34 appellate
(Tex.1984). We attempt to provide further
clarification here, especially as it relates to [465 S.W.3d 209]
Robinson and the TWCA's defense waivers,
and we do so by beginning with a more courts no alternative except to
thorough discussion of Parker,Del Lago, and decide the cases before them on
the “no-duty rule.” the questions presented, and the
tendency of the appellate courts
a. Parker and Del Lago to group them in analyzing the
evidence, or to seek the most
The Court's abolition of the no-duty rule in obvious and simplest solution,
Parker was aimed at correcting a common has led to much confusion in the
misapplication of the burdens of proof in decided cases. In greatly similar
premises-liability cases. Some confusion had fact situations some are decided
arisen because, while plaintiffs bear the on the basis of no breach of duty
burden of proving the existence of a duty, by the defendant, some on the
certain “no duty” arguments bleed into basis of voluntary encountering
defensive issues—such as assumption of the of risk by the plaintiff, some on
risk and contributory negligence—on which the basis of the contributory
defendants bear the burden of proof.See negligence of the plaintiff, and
Moritz, 257 S.W.3d at 216–18 ; Dixon, 682 some on the basis of two or
S.W.2d at 533–34 ; McKee v. Patterson, 153 more of these factors without
Tex. 517, 271 S.W.2d 391, 393 (1954), distinction between them. This
abrogated by Parker, 565 S.W.2d at 516–19. has led to what appears to be
It was this confusion that led the Court to conflicting results.
adopt the no-duty rule:
McKee, 271 S.W.2d at 393.
There are two legal theories,
wholly aside from the plaintiff's Further contributing to the confusion was the
own negligence, for denying common law's treatment of assumption of the
liability in a suit against an risk and contributory negligence as absolute
owner or occupier of land bars to recovery. See id. ; Dugger v.
brought by an invitee for Arredondo, 408 S.W.3d 825, 830 (Tex.2013).
injuries growing out of open and Whether the obviousness of a risk meant that
obvious dangers thereon. One the defendant owed no duty or that the
rests on the judicial concept that plaintiff had assumed the risk or that the
there is no breach of any duty plaintiff bore some responsibility for his
the landowner owes to his injury, the result was the same: the plaintiff
invitees. The other arises out of could not recover at all. This made it difficult
the doctrine of volenti non fit for Texas courts to distinguish between these
injuria—voluntary encountering three concepts, see Parker, 565 S.W.2d at
of risk—which is regarded as a 516, and resulted in an “oddity that had
defense to all negligence uniquely developed in Texas,” the placing of
actions.... The failure of counsel an absolute burden on the plaintiff “to negate
to segregate and separately his own knowledge and his own appreciation
preserve all of these questions of a danger” as part of his case-in-chief.
in pleadings in the trial courts Moritz, 257 S.W.3d at 216 (quoting Dixon,
and in briefs in the appellate 682 S.W.2d at 533 ).
-11-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
It is this “oddity” that the Court has referred Lago, 307 S.W.3d at 772 (discussing
to as the no-duty rule—a rule that required replacement of contributory negligence by
plaintiffs to negate their own knowledge of proportionate-responsibility statute).17 The
the risk in all premises-liability cases, same facts that tended to prove assumption of
regardless of whether that fact was relevant to the risk or contributory negligence may now
the existence of a duty or to defenses like be used to diminish a plaintiff's recovery by
assumption of the risk and contributory demonstrating that the plaintiff bore some
negligence. See id. ; see also Parker, 565 portion of the responsibility for his own
S.W.2d at 517. When the Court abrogated the injuries, or even to preclude the plaintiff from
no-duty rule, it ensured that the burden of recovering at all by demonstrating that the
proving these affirmative defenses remained plaintiff bore more than 50% of the
on defendants, but it did not relieve plaintiffs responsibility for his own injuries. See Tex.
of the burden to prove the existence of a duty Civ. Prac. & Rem. Code §§ 33.001, .003. In
as an element of the plaintiff's claim. See other words, although these are no longer
Moritz, 257 S.W.3d at 216 ; Dixon, 682 affirmative defenses that act as an absolute
S.W.2d at 533 ; Parker, 565 S.W.2d at 516– bar to recovery, they remain defensive issues
17. As the Court has twice clarified: on which defendants, not plaintiffs, bear the
burden of proof.
The rule [in Parker ] that the
plaintiff does not have the b. Robinson
burden to obtain findings that
disprove his own fault does not, Even before the Court abolished the no-duty
however, mean that a plaintiff is rule in Parker, the Court rejected it in
excused from proving the nonsubscriber employment cases in
defendant had a duty and Robinson, 280 S.W.2d at 239–40. But
breached it. A plaintiff does not Robinson 's rejection of the no-duty rule did
have the burden to prove and more than Parker 's because the TWCA
obtain findings that he lacked prohibits nonsubscribing employers from
knowledge and appreciation of relying on defenses like assumption of the
a danger; he must, however, risk, contributory negligence, or
prove the defendant had a duty proportionate responsibility. Tex. Lab. Code §
and breached it. 406.033(a). Thus, while the abolition of the
no-duty rule in other tort actions meant only
Moritz, 257 S.W.3d at 216 (quoting Dixon, that the burden of proving these defensive
682 S.W.2d at 533–34 ). Whether “a duty issues shifted back to defendants, the
exists is a question of law for the court,” and if abolition of the no-duty rule in
no duty exists, “a jury cannot impose a duty nonsubscribing-employer cases meant that,
anyway on the theory that Parker abolished once the plaintiff proved a duty, the
all no-duty defenses.” Id. at 217.15 defendant could not rely on the plaintiff's
awareness of the danger at all. See Robinson,
Although the common law affirmative 280 S.W.2d at 239–40.
defenses of assumption of the risk16 and
contributory negligence no longer Just as Parker 's abolition of the no-duty rule
should not impact typical premises-liability
[465 S.W.3d 210] cases where the landowner's only duty is to
warn of concealed dangers, Robinson 's
exist under Texas law, the underlying abolition of the no-duty rule should not
concepts remain relevant under Texas's impact typical nonsubscribing-employer
proportionate-responsibility statute. See Del cases where the employer owes no duty to
-12-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
warn or train employees with respect to made the floor slippery. Id. at 239–40. In the
dangers that are commonly known or already sixty years since Robinson, however, this
appreciated by the employee. See Escoto, 288 Court has never held that an employer has a
S.W.3d at 413 ; Goss, 262 S.W.3d at 794– 95 ; duty to warn employees of open and obvious
Skiles, 221 S.W.3d at 568 ; Elwood, 197 dangers or relied on Robinson for that
S.W.3d at 794–95. Instead, the Court's proposition.18 Instead, the Court has
abolition of the no-duty rule should play a repeatedly held that an employer does not
role only when an exception to the general have a duty to warn employees of dangers
rule applies—that is, when the that are open and obvious or already known
nonsubscribing employer owes a duty despite to the employee.19 To resolve this apparent
the obviousness or employee's appreciation of conflict, we expressly reaffirm the Court's
a danger because, despite the awareness of more recent
the danger, it is necessary that the employee
use the dangerous premises and the employer [465 S.W.3d 212]
should anticipate that the employee is unable
to take measures to avoid the risk. In such holdings, and we overrule Robinson to the
cases, the employer cannot rely on the fact extent it conflicts with those holdings and
that the risk was obvious and known to the with our recognition of the criminal-activity
employee to argue that the employee bears and necessary-use exceptions in this case.
some portion of the responsibility for his own
injuries, because the TWCA waives those c. The TWCA
defenses. Compare Del Lago, 307 S.W.3d at
As discussed above, the TWCA prohibits
772–73 ; Parker, 565 S.W.2d at 520, with
nonsubscribing employers from raising the
Tex. Lab. Code § 406.033(a) ; Keng, 23
defenses of contributory negligence and
S.W.3d at 352.
assumption of the risk, which are now
[465 S.W.3d 211] subsumed under the proportionate-
responsibility statute. Tex. Lab. Code §
In rejecting the no-duty rule for 406.033(a)(1), (2) ; Keng, 23 S.W.3d at 349–
nonsubscribing-employer cases, the Robinson 52. Although an employee's awareness of an
Court at least arguably rejected the principle unreasonable risk may be relevant to such
that an employer does not have a duty to defenses, the Court's general rule that we
warn employees of open and obvious hazards. confirm today may permit an employer to
280 S.W.2d at 239–40. The Court observed avoid liability despite the TWCA's waiver of
that in the landowner-invitee field of law, those defenses. It does so, however, not by
“[t]he rule is well settled that the owner of undermining the Legislature's prerogative to
premises is not required to keep them safe for determine when defenses may or may not
invitees in so far as open, obvious and known apply, but by fulfilling this Court's role to
defects or conditions are concerned,” but determine when a party owes a legal duty to
declined to apply that concept to suits begin with. See Moritz, 257 S.W.3d at 217
between an employer and employee. Id. at (“Whether ... a duty exists is a question of law
240. The Court then rejected the employer's for the court; it is not for the jury to decide
argument in that case that it had no duty to under comparative negligence or anything
protect the employee from or warn him of a else.”).
large pool of oil on the floor, even though the
record established that the spill was open and Moreover, the general rule does not render
obvious, that the employee had seen and the statutory waiver ineffective for at least
failed to report the spill to anyone else, and two reasons. First, landowners may assert an
that the employee recognized that the oil invitee's negligence based on conduct other
-13-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
than the invitee's awareness of the risk, and includes the burden to prove that a defendant
the TWCA's waiver prohibits a had a duty to the plaintiff, which is the issue
nonsubscribing employer from relying on any that our general rule and exceptions address.
such conduct to do so. See Keng, 23 S.W.3d at
351–52. Second, in cases in which the B. No new exception
criminal-activity or necessary-use exceptions
apply, and thus the employer has a duty to the Having clarified the general rule that an
employee despite the employee's awareness of employer or landowner owes no duty to
the risk, the TWCA will prevent the employer protect or warn an employee or invitee
from relying on the employee's awareness of against unreasonably dangerous premises
the risk as a defense to the employee's claims. conditions that are open and obvious or
In Parker and Del Lago, the defendants were otherwise known to the employee or invitee,
not the plaintiffs' employers, and thus they and the criminal-activity and necessary-use
were able to rely on the plaintiffs' exceptions that preserve that duty under
appreciation of the dangers to argue that the limited circumstances, we now address
plaintiff bore some portion of the Austin's argument that we should recognize a
responsibility for his or her injuries. Parker, new exception in this case. Specifically,
565 S.W.2d at 520–21 ; Del Lago, 307 S.W.3d Austin asserts that we should recognize a
at 773–74. But if the defendant in a case that distinct duty in cases where an employee is
meets the criminal-activity or necessary-use injured while performing a task that the
exception is the plaintiff's nonsubscribing employer specifically assigned to the
employer,20 the TWCA would prohibit that employee. We decline to do so.
defense. See Keng, 23 S.W.3d at 351–52.
Both Parker and Del Lago indicated that
Although the TWCA's waiver of defenses is there may be circumstances in which invitees
intended to encourage employers to subscribe may reasonably be expected to choose to
to the workers' compensation system, the encounter a dangerous condition despite their
TWCA does not create an “especially punitive knowledge and appreciation of the risk. In
litigation regime for non-subscribing Parker, the Court quoted a comment from the
employers.” Tex. W. Oaks Hosp., LP v. Second Restatement stating that a landlord's
Williams, 371 S.W.3d 171, 192 (Tex.2012). duty with respect to common areas
Absent intentional misconduct, employees
still must prove all the elements of a common is not always satisfied by
law negligence claim to prevail against warning the lessee or others of
nonsubscribing employers. See Tex. Lab. the dangerous condition, and ...
Code § 406.033(d) ; Tex. W. Oaks, 371 knowledge of such persons of
S.W.3d at 187. “In other words,” as the Fifth the danger will not always
Circuit observed in this case, TWCA “section prevent their recovery. Where,
406.033(a)(1)–(3) may limit an employer's for example, the entrance to an
defenses, but it does not eliminate an apartment house is dangerously
employee's defective, and there is no other
available entrance, the third
[465 S.W.3d 213] person may be expected to use it
notwithstanding any warning,
burden to establish his common law claim.” or even his own knowledge of
746 F.3d at 198 (citing Am. Int'l Specialty the danger.
Lines Ins. Co. v. Rentech Steel, L.L.C., 620
F.3d 558, 565 (5th Cir.2010) ; Tex. W. Oaks, 565 S.W.2d at 515 (quoting Restatement
371 S.W.3d at 187 ). This burden, of course, (Second) of Torts § 360 cmt. c). This example
-14-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
encapsulated the facts of Parker, where the Austin argues that those cases are
invitee had no other means to exit the second- distinguishable because the behavior that led
story apartment except by the dangerous to the employees' injuries was risky and
staircase. See id. at 514. And in Del Lago, the unnecessary to performance of the assigned
Court stated that section 343A(1) of the task. See Goss, 262 S.W.3d at 794 (hitting
Second Restatement “bars liability when an shin on three-foot-tall cart while walking in
invitee is aware of the dangerous condition, ... warehouse); Skiles, 221 S.W.3d at 567
‘unless the possessor should anticipate the (climbing over nonfunctioning lift gate);
harm despite such knowledge or Elwood, 197 S.W.3d at 794 (putting hand in
obviousness,’ ” and “[t]hat caveat seems to car doorjamb while loading groceries). But we
capture today's narrow and fact-specific see nothing exceedingly risky about walking
holding.” Del Lago, 307 S.W.3d at 774 in the vicinity of a grocery cooler. See Goss,
(quoting Restatement (Second) of Torts § 262 S.W.3d at 794.21 And it is not clear that
343A(1) ). the employee in Skiles could have
accomplished his assigned task of unloading
Austin contends that the same reasoning the truck without climbing over the broken
should apply here, and that it would apply lift gate. 221 S.W.3d at 567. He could have
regardless of whether the Court employed an simply declined to unload the truck at that
objective or subjective standard for evaluating time, but an employee always has the option
the reasonableness of his conduct, because “it to decline to perform an assigned task and
was objectively reasonable for an employee in incur the consequences of that decision. See
his situation to attempt to perform his McKee, 271 S.W.2d at 396.
assigned task, notwithstanding the obvious
dangers posed by th[e] condition” of the floor. Second, Austin's proposed exception is not
Essentially, Austin argues that it was compatible with our precedent that “when an
reasonable for him to undertake the risk of employee's injury results from performing the
slipping in the oily liquid because, although same character of work that employees in that
he was aware of the risk, he undertook it at position have always done, an employer is not
the instruction of his employer rather than by liable if there is no evidence that the work is
purely voluntary choice. While this argument unusually precarious.” Elwood, 197 S.W.3d at
has some appeal, we are not persuaded for 795 (citing Werner v. Colwell, 909 S.W.2d
several reasons. 866, 869 (Tex.1995), which cites Great Atl. &
Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d
First, Texas law treats Austin's encounter 249, 251 (1943) ). It is undisputed that
with the spill as voluntary in nature, even mopping up spills is the same character of
though it was part of his work duties. See work that Austin—as the store's self-described
McKee, 271 S.W.2d at 396 (exploring “floor clean-up person”—and other employees
historical underpinning of this rule). If we in his position have always done.
created an exception to the general rule that
employers owe no premises-liability duty with Third, the most efficient way for employers
respect to open and obvious conditions unless like Kroger to eliminate a dangerous
the employee encountered the condition as condition like the spill in this case is to have a
part of his work duties, the exception would trained employee clean it, and it is the public
swallow the rule. Moreover, the employees in policy in Texas to encourage them to do so.
Goss,Skiles, and Elwood were engaged in See, e.g., Tex. Trunk Ry. Co. v. Ayres, 83 Tex.
their work duties at the time of their injuries. 268, 18 S.W. 684, 685–86 (1892). For
example, because public policy encourages
[465 S.W.3d 214] landowners to remedy potentially dangerous
conditions on their property, we have
-15-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
prohibited plaintiffs from relying on evidence activity and a premises defect theory of
that a defendant made repairs or otherwise recovery based on the same injury.” 746 F.3d
remediated a dangerous condition on its at 197. The Fifth Circuit remanded Austin's
property after the plaintiff's injury as proof of necessary-instrumentalities claim, however,
the defendant's negligence, observing that a because the district court had “failed to
defendant would be discouraged from making consider whether ... [that theory] is sufficient
repairs “if it must do so at its peril.” Id. at 686 to support a stand-alone ordinary negligence
(discussing predecessor to Tex. R. Evid. claim.” Id.
407(a) ). Imposing liability on employers for
injuries to employees caused by open and The Fifth Circuit's certified question only
obvious dangers knowingly encountered by addresses Austin's premises-liability claim,
the employee in the ordinary course of and for that reason some Justices would not
employment would discourage employers reach Austin's necessary-instrumentalities
from retaining employees to perform the claim. But Kroger asks us to reach the
kinds of repair and janitorial work necessary instrumentalities claim, asserting that the
to maintain their premises in a reasonably claim fails as a matter of law for several
safe condition. Because landowners generally reasons. We decline to decide the merits of
are not liable to non-employees for open and Austin's instrumentalities claim, but in the
obvious premises conditions, see Moritz, 257 interest of judicial efficiency we will address
S.W.3d at 215, making landowners liable to one of Kroger's arguments, which touches on
employees for such conditions directly the relationship between the
disincentivizes employers from hiring instrumentalities claim and the premises-
employees to remedy such conditions. We liability claim. Specifically, Kroger argues that
thus decline to recognize the new exception the instrumentalities claim must fail for the
that Austin proposes. same reason the negligent-activities claim
must fail: because a condition of the
IV. premises, rather than any of Kroger's
contemporaneous activities, caused Austin's
Austin's Necessary–Instrumentalities fall, his claim sounds exclusively in premises
Claim liability, and he can only recover on that claim
or not at all. We do not agree.
As noted above, in addition to his premises-
liability claim, Austin alleged In a typical premises-liability case, the
landowner owes the invitee two duties: a duty
[465 S.W.3d 215] to keep the premises reasonably safe and a
duty not to injure the invitee through
that Kroger negligently caused his fall by contemporaneous negligent activity. See, e.g.,
engaging in negligent activities and by State v. Shumake, 199 S.W.3d 279, 284
negligently failing to provide a “necessary (Tex.2006) (distinguishing a negligent-
instrumentality,” namely, the Spill Magic activity claim, which “result[s] from a
system that Kroger's employee handbook contemporaneous activity,” from a premises-
required be available at the store. The Fifth defect claim, which “is based on the property
Circuit affirmed the district court's summary itself being unsafe”); Keetch v. Kroger Co.,
judgment for Kroger on Austin's negligent- 845 S.W.2d 262, 265 (Tex.1992) (holding that
activities claim, agreeing with the district trial court did not err in submitting only
court's holding that Austin's injury arose from premises-liability claim when injury arose
a premises condition rather than any from pool of water that employee had created
contemporaneous activity by Kroger, and that at least thirty minutes before accident). Thus,
Austin “cannot pursue both a negligent when a claim does not result from
-16-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
contemporaneous activity, the invitee has no landowner–invitee, the alleged facts could
negligent-activity claim, and his claim sounds only give rise to a premises-liability claim.
exclusively in premises-liability. See Because the failure to provide the Spill Magic
Shumake, 199 S.W.3d at 284 ; Keetch, 845 system is nonfeasance, and not
S.W.2d at 265. contemporaneous negligent activity, it could
not give rise to a negligent-activity claim.22
But when the landowner is also an employer See Del Lago, 307 S.W.3d at 776
and the invitee is also its employee, this (distinguishing between allegations of
additional relationship may give rise to “nonfeasance,” or the failure to act, and
additional duties, such as a duty to provide allegations of misfeasance, or improper
necessary equipment, training, or actions).
supervision. See Moritz, 257 S.W.3d at 215 &
n. 15 ; Islas, 228 S.W.3d at 651–52 & n. 10 ; As Austin's employer, Kroger owed Austin
Farley, 529 S.W.2d at 754. Austin's duties in addition to its premises-liability
instrumentalities claim invokes one of these duty and its duty not to engage in negligent
additional duties: the duty to furnish activities, including the duty to provide
reasonably safe equipment necessary for Austin with necessary instrumentalities. See
performance of the job. See In re Macy's Tex., Moritz, 257 S.W.3d at 215 & n. 15 ; Islas, 228
Inc., 291 S.W.3d 418, 420 (Tex.2009) ; S.W.3d at 651–52 & n. 10 ; Farley, 529
Escoto, 288 S.W.3d at 412 ; Moritz, 257 S.W.2d at 754. Contemporaneous negligent
S.W.3d at 215 ; Farley, 529 S.W.2d at 754. We activity is not an element of an
have addressed the interaction between instrumentalities claim. See Farley, 529
premises-liability claims and negligent- S.W.2d at 756–57. To the contrary, an
activity claims on several occasions. See, e.g., instrumentalities claim may be founded on
Del Lago, 307 S.W.3d at 776 ; Shumake, 199 nonfeasance or misfeasance, neither of which
S.W.3d at 284 ; Keetch, 845 S.W.2d at 264. is particularly likely to occur
But we have never addressed the interaction contemporaneously with a resulting injury to
between premises-liability claims and an the employee. Compare Martinez, 515 S.W.2d
employer's at 265 (failure to provide adequate
equipment), with Farley, 529 S.W.2d at 757
[465 S.W.3d 216] (provision of unsuitable horse); cf. Del Lago,
307 S.W.3d at 776 (discussing misfeasance
other general negligence duties. We do so and nonfeasance). Because contemporaneous
now. negligent activity is not necessary to an
instrumentalities claim, the absence of
When an injury arises from a premises contemporaneous activity does not
condition, it is often the case that any necessarily bar an instrumentalities claim. 23
resulting claim sounds exclusively in premises
liability, but that is not necessarily the case. To hold otherwise would create disparate
An injury can have more than one proximate treatment of employees' instrumentalities
cause. Del Lago, 307 S.W.3d at 774 ; Lee claims depending on whether the employer
Lewis Constr., Inc. v. Harrison, 70 S.W.3d owned or operated the premises where the
778, 784 (Tex.2001). The fact that Austin employee worked. Only an employer that has
alleged that a condition of the premises control over the premises where the employee
proximately caused his injury does not is injured has a premises-liability duty to the
preclude his allegation that Kroger's negligent employee, but the duty to provide necessary
failure to provide the Spill Magic system also and safe instrumentalities applies to
caused his injury. If the only relationship employers generally. See Moritz, 257 S.W.3d
between Austin and Kroger were that of at 215 ; Islas, 228 S.W.3d at 651–52 & n. 10 ;
-17-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
Farley, 529 S.W.2d at 754. If we were to injury caused by a premises defect of which
adopt the rule Kroger advocates, employees he was fully aware but that his job duties
injured on their employers' premises by the required him to remedy.” As is the case with
employer's failure to provide necessary and landowners and invitees generally, employers
safe equipment would have to try their claims have a duty to maintain their premises in a
under a premises-liability theory of recovery, reasonably safe condition for their employees,
while employees injured on premises not but they will ordinarily satisfy their duty as a
owned by their employers would have to matter of law by providing an adequate
prosecute the same breach of duty under a warning of concealed dangers of which they
general negligence theory of recovery—two are or should be aware but which are not
different claims with different elements of known to the employee. “The employee's
proof. Compare Henkel v. Norman, 441 awareness of the defect” does not “eliminate
S.W.3d 249, 251–52 (Tex.2014) (“To prevail the employer's duty to maintain a safe
on a premises liability claim against a workplace,” but with respect to premises
property owner, an conditions, that duty is ordinarily satisfied by
warning the employee of concealed, unknown
[465 S.W.3d 217] dangers; the duty to maintain a reasonably
safe workplace generally does not obligate an
injured invitee must establish four elements: employer to eliminate or warn of dangerous
(1) the property owner had actual or conditions that are open and obvious or
constructive knowledge of the condition otherwise known to the employee. Exceptions
causing the injury; (2) the condition posed an to this general rule may apply in premises
unreasonable risk of harm; (3) the property liability cases involving third-party criminal
owner failed to take reasonable care to reduce activity or a necessary use of the premises. If
or eliminate the risk; and (4) the property an exception applies, the employer may owe a
owner's failure to use reasonable care to duty to protect the employee from the
reduce or eliminate the risk was the unreasonably dangerous condition despite
proximate cause of injuries to the invitee.”), the employee's awareness of the danger, and
with Elwood, 197 S.W.3d at 794 (“To the TWCA will prohibit a nonsubscribing
establish negligence, a party must establish a employer from raising defenses based on the
duty, a breach of that duty, and damages employee's awareness.
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 Notes:
reject Kroger's argument that its lack of any
1746 F.3d 191 (5th Cir.2014) (per curiam); see
negligent activity contemporaneous with
Tex. Const.Art. V, § 3–c (a) (“The supreme
Austin's fall defeats Austin's instrumentalities
court [has] jurisdiction to answer questions of
claim as a matter of law.
state law certified from a federal appellate
V. court.”); Tex. R. App. P.58 (certified
questions of law).
Answer 2See Tex. Lab. Code§ 406.002 (providing that
For the reasons we have explained, we “an employer may elect to obtain workers'
provide the following answer to the Fifth compensation insurance coverage” and thus
Circuit's certified question: Under Texas law, be “subject to” the Texas Workers'
an employee generally cannot “recover Compensation Act).
against a nonsubscribing employer for an
-18-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
3 See, e.g., State v. Shumake, 199 S.W.3d 279, 9 E.g., Del Lago Partners, Inc. v. Smith, 307
284 (Tex.2006) ( “A negligent activity claim S.W.3d 762, 771 (Tex.2010) ; TXI Operations,
requires that the claimant's injury result from L.P. v. Perry, 278 S.W.3d 763, 764
a contemporaneous activity itself rather than (Tex.2009) ; Werner v. Colwell, 909 S.W.2d
from a condition created on the premises by 866, 869 (Tex.1995).
the activity.”).
10E.g., Escoto, 288 S.W.3d at 412 ; Goss, 262
4 See, e.g., Farley v. M M Cattle Co., 529 S.W.3d at 794 ; Cent. Ready Mix Concrete Co.
S.W.2d 751, 754 (Tex.1975) (“It is well v. Islas, 228 S.W.3d 649, 651 (Tex.2007) ;
established that an employer has certain Shell Oil Co. v. Khan, 138 S.W.3d 288, 295
nondelegable and continuous duties to his (Tex.2004).
employees,” including “the duty to furnish
reasonably safe instrumentalities with which
11E.g., Henkel v. Norman, 441 S.W.3d 249,
employees are to work.”). 252 (Tex.2014) ; TXI, 278 S.W.3d at 765 ;
State v. Williams, 940 S.W.2d 583, 584
5The district court held, and the Fifth Circuit (Tex.1996).
agreed, that Austin's injury arose from a
premises condition rather than any
12See also Wal–Mart Stores, Inc. v. Reece, 81
contemporaneous activity by Kroger, and S.W.3d 812, 814 (Tex.2002) (stating that
Austin “cannot pursue both a negligent landowner owed invitee “a duty to exercise
activity and a premises defect theory of reasonable care to protect her from
recovery based on the same injury.” 746 F.3d dangerous conditions in the store that were
at 196–97. known or reasonably discoverable, but it was
not an insurer of her safety”); Leitch v.
6 The Fifth Circuit agreed with the district Hornsby, 935 S.W.2d 114, 117 (Tex.1996)
court's holding that “no reasonable juror (“An employer is not an insurer of its
could conclude that Kroger was consciously employees' safety at work; however, an
indifferent to the safety of its employees, or employer does have a duty to use ordinary
that [Austin] faced an extreme risk in care in providing a safe work place.”).
performing a job he had done safely for
years.” Id. at 196 n. 2.
13In Urena, we recognized that the facts of
that case—tenant-on-tenant crime as opposed
7 A premises-liability duty may apply to the to crimes committed against tenants by
owner of the premises or to another party nonresidents—might require a different duty
who operates or exercises control over the analysis than that used in Timberwalk, but
premises. See, e.g., Gen. Elec. Co. v. Moritz, we did not reach that issue because, even
257 S.W.3d 211, 215 (Tex.2008). We use the assuming a duty existed, the plaintiff
term “landowner” in this opinion to refer to presented no evidence of causation. 162
all such parties. S.W.3d at 551 n. 2.
8 We use the term “generally” here to 14In Holder, we restated the duty rule from
acknowledge circumstances in which an Timberwalk : “With regard to criminal acts of
employee may not be an “invitee” on the third parties, property owners owe a duty to
employer's premises. For example, if an those who may be harmed by the criminal
employee, acting outside the scope of acts only when the risk of criminal conduct is
employment, enters the employer's premises so great that it is both unreasonable and
without the employer's knowledge and not for foreseeable.” 5 S.W.3d at 655. But we also
their mutual benefit, the employee might be a noted that, in most cases, “the foreseeability
licensee or even a trespasser. We need not analysis will be shaped by determining
decide that issue here. whether the plaintiff was an invitee, a
-19-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)
licensee, or a trespasser.” Id. We did not have Dennis, 410 S.W.2d at 187 ; Tarver, 394
to determine the plaintiff's status in that case S.W.2d at 782. On four occasions the Court
because the plaintiff “was an unforeseeable cited Robinson for merits-based holdings. See
victim regardless of her status.” Id. Lawrence, 44 S.W.3d at 549 ; Werner, 909
S.W.2d at 868 ; Leadon, 484 S.W.2d at 568–
15 In TXI, the Court did not refute this 69 ; Halepeska, 371 S.W.2d at 377. One such
construction of Parker, which is consistent case, Halepeska, was not an employer-
with the Court's explanations in Moritz and employee case, and was later abrogated by
Dixon, but instead “assume[d] that a duty to Parker . Halepeska, 371 S.W.2d at 377.
warn exist[ed]” because the defendant did Leadon did not involve an argument that the
“not attempt to argue that it owed no duty,” danger at issue was open and obvious or
and argued instead that it satisfied its duty by known to the employee; instead, the issue was
providing an adequate warning. TXI, 278 whether the employer had a duty to hire
S.W.3d at 765. someone to watch for falling limbs while the
employee performed his logging work. 484
16 The common law assumption-of-the-risk
S.W.2d at 568–69. In Werner, the Court cited
doctrine we refer to here involves implied
Robinson for the general principle that an
assumptions of risk and not express,
employee cannot recover on a negligence
contractual assumption of the risk or
claim against a nonsubscribing employer
statutory assumption-of-the-risk defenses.
without proving that the employer was
See, e.g., Tex. Civ. Prac. & Rem. Code§
negligent. Werner, 909 S.W.2d at 868
93.001.
(holding that there was no evidence of the
17 See also Dugger, 408 S.W.3d at 832 negligence alleged). And in Lawrence, which
(“Proportionate responsibility abrogated was later superseded in part by statute, see
former common law doctrines that barred a Tex. Lab. Code§ 406.033(e), we cited
plaintiff's recovery because of the plaintiff's Robinson, among numerous other cases, only
conduct—like assumption of the risk, for the proposition that the Workers'
imminent peril, and last clear chance—in Compensation Act did not bar all possible
favor of submission of a question on defenses to liability a nonsubscribing
proportionate responsibility.”); Tex. Civ. Prac. employer might have. Lawrence, 44 S.W.3d
& Rem. Code§§ 33.001 –.017 (proportionate- at 549.
responsibility statute). 19 See Escoto, 288 S.W.3d at 412–13 (“[T]he
18 This Court has cited Robinson on seven employer ‘owes no duty to warn of hazards
occasions. See Lawrence v. CDB Servs., Inc., that are commonly known or already
44 S.W.3d 544, 549 (Tex.2001) ; Werner, 909 appreciated by the employee.’ ... Likewise, we
S.W.2d at 868 ; Hernandez v. City of Fort do not impose a duty to train employees
Worth, 617 S.W.2d 923, 925 (Tex.1981) ; regarding the commonly-known dangers of
Leadon v. Kimbrough Bros. Lumber Co., 484 driving while fatigued.”); Goss, 262 S.W.3d at
S.W.2d 567, 568 (Tex.1972) ; Royal Indem. 794 (“The threshold question here is one of
Co. v. Dennis, 410 S.W.2d 185, 187 (Tex.1966) duty, as we have held that an employer ‘owes
; Tarver v. Tarver, 394 S.W.2d 780, 782 no duty to warn of hazards that are commonly
(Tex.1965) ; Halepeska v. Callihan Interests, known or already appreciated by the
Inc., 371 S.W.2d 368, 377 (Tex.1963), employee.’ ”); Skiles, 221 S.W.3d at 568
abrogated by Parker, 565 S.W.2d at 516. On (“[W]hile the duty of ordinary care generally
three of those occasions, the Court cited requires an employer to ‘warn an employee of
Robinson for an error-preservation issue the hazards of employment and provide
rather than the holding on the merits of the needed safety or equipment or assistance,’ the
case. See Hernandez, 617 S.W.2d at 925 ; employer ‘owes no duty to warn of hazards
-20-
Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex., 2015)