Does a Texas Employer’s Duty To Maintain a Safe Workplace Extend to Employees Who Are Fully Aware of a Premises Defect? Fifth Circuit Asks Texas Supreme Court To Decide

Following a workplace incident in which a janitor hired to clean up a spill fell and sustained injuries, the worker brought suit against his employer in tort.  Unlike most states, Texas employers can opt out of the state’s workers’ compensation program, which the employer in this case had done.  Texas law, however, makes certain defenses such as contributory negligence and assumption of risk unavailable to these non-subscribing employers when sued by their employees for injuries or death.

The Fifth Circuit affirmed the district court’s dismissal of the worker’s gross negligence claim but decided to certify a key question to the Texas Supreme Court: “can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy?  Put differently, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?”  If the duty is not eliminated, then the employee’s subjective awareness of the hazard goes only to comparative negligence or assumption of the risk, which would not be available to the employer because of its status as a non-subscriber to the Texas workers’ compensation program.