Randy Austin v. Kroger Texas, L.P.
746 F.3d 191
5th Cir.2014Background
- Austin, a long-time Kroger employee and floor-cleanup worker, was asked to clean a brown, oily liquid that leaked into store restrooms after roof condenser cleaning; Spill Magic (recommended cleaning material) was unavailable.
- While mopping the men’s restroom for ~30–35 minutes and posting "Wet Floor" signs, Austin fell and suffered severe injuries (left femur fracture, dislocated hip, prolonged hospitalization and surgeries).
- Austin sued Kroger (a non-subscriber to Texas workers’ compensation) in state court asserting ordinary negligence, gross negligence, and premises liability; Kroger removed to federal court on diversity grounds.
- The district court granted summary judgment for Kroger, largely reasoning Austin was subjectively aware of the hazard; Austin appealed.
- The Fifth Circuit affirmed dismissal of the gross-negligence claim, reversed and remanded the ordinary-negligence claim insofar as it pleaded failure to supply a necessary instrumentality (Spill Magic), and certified a controlling Texas-law question on premises liability duty to the Texas Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Gross negligence — did Kroger act with conscious indifference? | Kroger’s failure to provide Spill Magic and allow cleanup created extreme risk and conscious indifference. | Evidence did not show Kroger had subjective awareness of extreme risk; Austin knew the hazard. | Affirmed for Kroger — gross negligence requires clear-and-convincing proof and was not met. |
| Characterization — negligent activity vs premises defect (does Austin plead both?) | Austin framed claims as negligent activity and premises defect. | Kroger contended injury flowed from a premises condition, not an ongoing activity. | Court: injury is from a premises condition; cannot pursue negligent-activity and premises-defect theories for the same injury. |
| Ordinary negligence — necessary-instrumentality theory (Spill Magic) | Failure to supply Spill Magic is an independent negligence theory supporting ordinary negligence. | District court didn’t address this theory; Kroger argued plaintiff’s knowledge negates duty. | Reversed and remanded for the district court to consider whether the necessary-instrumentality theory can support ordinary negligence. |
| Premises liability duty — does employee knowledge of a known/obvious defect defeat employer duty? | Austin: under Parker/Del Lago, employee knowledge goes to comparative fault, not duty; non-subscriber cannot assert assumption-of-risk defenses. | Kroger: recent Texas cases (Elwood, Skiles, Goss, Escoto) indicate no duty to warn of hazards commonly known/appreciated by employee; duty may be negated where hazard is open and obvious. | The Fifth Circuit found Texas law ambiguous on this issue and certified the question to the Texas Supreme Court: whether an employee who is fully aware of a premises defect that his job requires him to remedy can recover against a non-subscribing employer. |
Key Cases Cited
- Wingfoot Enters. v. Alvarado, 111 S.W.3d 134 (Tex. 2003) (explaining TWCA purpose and workers’ compensation tradeoffs)
- State v. Shumake, 199 S.W.3d 279 (Tex. 2006) (gross negligence standard: subjective awareness of extreme risk)
- Mobil Oil Corp. v. Ellender, 968 S.W.2d 917 (Tex. 1998) (extreme risk definition for gross negligence)
- Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978) (abolished the “no-duty” rule; plaintiff’s knowledge bears on negligence, not duty)
- Sears, Roebuck & Co. v. Robinson, 280 S.W.2d 238 (Tex. 1955) (historical no-duty rule and exception in employer/employee context)
- Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) (distinguishing negligent activity from premises defect)
- Gen. Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008) (landowner need not warn independent contractor’s employees of obvious hazards)
- Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) (employee’s knowledge of a danger can negate employer duty where danger is commonly known)
- Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566 (Tex. 2007) (no duty to warn of common, obvious hazards in employment context)
- Brookshire Grocery Co. v. Goss, 262 S.W.3d 793 (Tex. 2008) (duty analysis may consider hazards commonly known/appreciated by employees)
- Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009) (declined to impose duty to train regarding commonly known dangers; recognized public-policy considerations)