Randy Austin v. Kroger Texas, L.P.
2017 U.S. App. LEXIS 6479
| 5th Cir. | 2017Background
- Austin, a long-time Kroger utility clerk, slipped and fell cleaning a large oily spill in a store restroom after Kroger power-washed roof condensers; he lacked the usual powder absorbent called “Spill Magic” and was injured severely.
- Austin sued Kroger for premises liability, gross negligence, and ordinary negligence; this court previously affirmed summary judgment on other theories but remanded to consider Austin’s ordinary-negligence claim based on failure to provide a necessary instrumentality (Spill Magic).
- On remand Kroger moved for summary judgment on the necessary-instrumentality claim; Austin later sought leave to file a surreply and attached an expert causation report that had been produced to Kroger pre-motion but not filed with the court.
- The district court denied reconsideration of the surreply denial (applying Rule 59(e)) and granted summary judgment to Kroger on three independent grounds: (1) Spill Magic was not shown to be a "necessary instrumentality," (2) employer owes no duty when employee performs "customary work," and (3) lack of causation evidence.
- The Fifth Circuit reversed in part, vacated in part, and remanded: it held genuine fact issues existed as to whether Spill Magic was a necessary instrumentality and that employers owe a duty to provide necessary instrumentalities even for customary work; it also found the district court abused its discretion by applying Rule 59(e) rather than Rule 54(b) when denying reconsideration of the late-filed expert report on causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Spill Magic was a "necessary instrumentality" for safe performance | Austin: Spill Magic was customarily provided, effective for oily spills, and Kroger policy required it—so a jury could find it necessary | Kroger: Evidence (e.g., Austin cleaned a smaller spill with a dry mop) shows Spill Magic not necessary | Court: Genuine fact issue exists; summary judgment inappropriate on this ground |
| Whether employer owes duty to provide necessary instrumentalities when employee is doing "customary work" | Austin: Nonsubscribing employers still owe duty to provide necessary instrumentalities for routine job tasks; injuries from lack of equipment are foreseeable | Kroger: No duty for injuries sustained during customary work; such risks are unforeseeable as a matter of law | Court: Duty exists; foreseeability not negated by work being customary; summary judgment improper |
| Whether Austin presented admissible causation evidence to defeat Kroger’s no-evidence challenge | Austin: Offered an expert report (produced to Kroger before its motion) showing Spill Magic likely would have prevented the fall; late filing should be allowed | Kroger: No timely filed expert in the summary-judgment response; thus no evidence of causation | Court: Kroger properly shifted burden to Austin on causation, but district court abused discretion by excluding the belated expert report without applying Rule 54(b); remand to reconsider admission and prejudice |
| Procedural: Proper standard for reconsideration of interlocutory denial to file surreply | Austin: District court should have applied Rule 54(b) (flexible) to reconsider interlocutory rulings and admit the expert report | Kroger: Denial was appropriate; no new argument in reply and report was untimely filed | Court: District court erred by applying Rule 59(e) (for final judgments) instead of Rule 54(b); vacate causation-related portion and remand for reconsideration under Rule 54(b) |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (establishes movant can shift summary-judgment burden by showing absence of evidence on an essential element)
- Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) (employer must provide needed safety equipment but not unnecessary equipment)
- Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015) (Texas Supreme Court recognizing duty to furnish reasonably safe instrumentalities; discussed scope of employee’s claims)
- Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d 433 (Tex. App.—Amarillo 1996) (factors for determining whether an instrumentality is necessary)
- Great Atlantic & Pacific Tea Co. v. Evans, 175 S.W.2d 249 (Tex. 1943) (limits on employer liability for routine job tasks)