Austin v. Kroger Texas L.P.
182 F. Supp. 3d 633
N.D. Tex.2016Background
- Austin, a Kroger utility clerk responsible for mopping/restroom cleanup, slipped on a large oily spill while attempting to clean the men’s restroom and suffered a broken femur and dislocated hip.
- Kroger supplied a utility cart with mop, mop bucket, dust mop, broom, safety cones and normally a product called "Spill Magic,” but Spill Magic was unavailable that day; Austin used dry mop heads instead.
- Austin sued Kroger for negligence (including theory that Kroger failed to provide a necessary instrumentality — Spill Magic). Earlier summary judgment rulings and appeals culminated in remand to this Court to consider the instrumentality theory.
- Kroger moved for summary judgment arguing (1) no duty to provide Spill Magic, (2) injury occurred during customary work so employer not liable, and (3) plaintiff lacks admissible causation evidence.
- Austin failed to timely present expert causation evidence in opposition; his only causation evidence in the response was lay testimony. He later submitted an expert report with a motion to reconsider/for leave to file a surreply, which the court declined to consider as untimely.
- Court granted Kroger summary judgment, denying Austin’s motion to reconsider the denial of leave to file a surreply; judgment rests on duty, customary-work rule, and lack of admissible causation proof.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employer owes a duty to provide a "necessary instrumentality" when hazard is open and obvious | Austin: duty exists; open/obvious hazard rule for warnings does not eliminate an employer's non-delegable duty to furnish necessary tools | Kroger: open-and-obvious hazard vitiates duty to provide instrumentalities (borrowing premises-liability rule) | Court: duty exists; open-and-obvious rule for warnings does not automatically negate an employer's duty to provide necessary instrumentalities, but plaintiff must show instrumentality was necessary |
| Whether Kroger satisfied any duty by providing one safe method (dry mop heads) so no obligation to provide Spill Magic | Austin: one-safe-way rule inapplicable; Spill Magic may have been necessary | Kroger: providing one reasonably safe method relieves obligation to furnish additional equipment | Court: no evidence that Spill Magic was necessary under factors from Texas authority; Kroger had no duty to provide an unnecessary instrumentality |
| Whether injury during performance of customary work bars liability | Austin: foreseeability is a fact question for jury; customary-work rule shouldn't dispose on summary judgment | Kroger: injury occurred performing routine, customary duties; employer not liable | Court: consistent with Texas precedent, injury while performing customary work supports summary judgment for employer; foreseeability can be resolved as a matter of law here |
| Whether Austin has admissible evidence that lack of Spill Magic proximately caused his injury | Austin: Kroger did not meet its summary judgment burden so he need not present evidence; objected to Kroger evidence as hearsay | Kroger: Austin has no admissible expert or probative evidence that Spill Magic would have prevented the fall | Held: Court sustains hearsay objections, finds Kroger sufficiently showed evidentiary insufficiency, and Austin's lay testimony is legally insufficient under Leitch; no causation proof — summary judgment warranted |
Key Cases Cited
- Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex. 2015) (Texas Supreme Court addressed premises-liability duties and left open how limits on that duty apply to instrumentality claims)
- Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) (employer has no duty to warn of hazards known or appreciated by employee; instrumentality claim failed for lack of proof that proposed tool was necessary)
- Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009) (no duty to third parties to warn employees about widely known risks; did not decide instrumentality duty to employees)
- Port Terminal R.R. Ass'n v. Ross, 289 S.W.2d 220 (Tex. 1956) (Federal Employers' Liability Act context; articulated one-safe-way concept but is FELA-based and does not directly control under Texas law)
- Great Atl. & Pac. Tea Co. v. Evans, 175 S.W.2d 249 (Tex. 1943) (articulated rule that employer generally not liable where employee was doing the usual, customary work of his position)
- Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996) (expert/probative evidence is required to connect employer's omission to injury; lay opinion insufficient for causation)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment burden-shifting: movant may show absence of evidence to support nonmovant's case)