Randy Austin v. Kroger Texas, L.P., 465 S.W.3d 193

Austin, a Kroger employee in Mesquite, was injured while mopping a restroom floor after a spill from condenser maintenance; Spill Magic system unavailable, so he used a mop.
Austin warned with wet-floor signs and proceeded cautiously, but slipped in remaining liquid and sustained serious injuries.
Kroger, a nonsubscribing employer under the Texas Workers’ Compensation Act (TWCA), faced claims for negligence, gross negligence, and premises liability.
Fifth Circuit certified a question asking whether, under Texas law, an employee can recover against a nonsubscribing employer for an injury caused by a premises defect the employee knew about but was required to remedy as part of his duties.
The district court granted summary judgment on negligent-activity and premises-defect theories; the Fifth Circuit remanded the necessary-instrumentalities claim and certified questions about the duty owed by nonsubscribing employers.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether employee awareness eliminates the employer’s duty to maintain a safe workplace	Austin: awareness does not eliminate duty; employer must still act	Kroger: open/obvious risks negate duty to warn or protect	No; duty exists with exceptions; awareness does not blanketly remove duty.
Whether two statutory/extraordinary exceptions apply to the open-and-obvious rule	Austin: criminal-activity and necessary-use exceptions may apply	Kroger: generally no duty for open/obvious risks; exceptions limited	Two exceptions exist (criminal-activity and necessary-use) that preserve duty under limited circumstances.
Whether TWCA’s defense-waiver affects the duty analysis	Nonsubscriber defenses may be waived but duty remains	Waiver should bar reliance on employee awareness as a defense	TWCA waivers do not eliminate the duty; they affect defenses when exceptions apply.
Whether an instrumentalities claim can breach a distinct duty apart from premises liability	Injury may arise from failure to provide safe instrumentalities	Instrumentalities claim overlaps with premises-liability theory	An instrumentalities claim can co-exist with premises-liability claim; nonfeasance can support a duty.

Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998) (duty to protect invitees from third-party criminal acts when risk is unreasonable and foreseeable)
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) (exception for third-party criminal conduct when harm was foreseeable; warns and duties interplay with adequacy of warning)
Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978) (necessary-use exception; duty when invitee must use dangerous premises and cannot avoid risk despite awareness)
Robinson (Sears, Roebuck & Co. v. Robinson), 280 S.W.2d 238 (Tex. 1955) (abolition of no-duty rule in employment context; premises-liability duties clarified)
Keng v. Texas Eastern Transmission Corp., 23 S.W.3d 347 (Tex. 2000) (TWCA defense waivers context; limits on reliance on employee awareness)