Texas High Court Clarifies Employers’ Duty To Warn Employees Of Open And Obvious Dangers
Last Friday, the Supreme Court of Texas clarified its premises liability doctrine in response to a certified question from the U.S. Court of Appeals for the Fifth Circuit. Subject to two narrow exceptions, the court held that employers do not have a duty to warn or protect their employees from dangerous premises conditions that are “open and obvious” or “known” to the employee.
The case arose out of an employee’s slip and fall while cleaning up a spill on his employer’s premises in the course of his employment. Because the employer had opted out of Texas’s workers’ compensation system, the employee could bring tort claims. The employee’s premises liability claim worked its way up to the Fifth Circuit, which found that the nature of an employer’s duty to provide its employees with a safe workplace was “arguably unclear” under Texas law, prompting the following certified question: “[D]oes [an] employee’s awareness of [a dangerous condition] eliminate the employer’s duty to maintain a safe workplace?”
The Supreme Court of Texas answered “no.” The court explained the general rule for premises liability as requiring employers to adhere to the duty to “exercise reasonable care to make the premises safe for invitees,” which includes employees. For concealed dangerous conditions, the court acknowledged that employers can usually satisfy their duty by repairing the condition or by warning employees, and endorsed the policy underlying that rule recognizing that an employer who controls a workplace is better positioned to “know of or discover” concealed conditions than employees. The court, however, explained that this rationale was inapplicable whenever the dangerous conditions are already known to employees. The court held, therefore, that employers do not breach their duty of care by failing to warn employees of dangerous conditions that are already “known” or “open and obvious.”
The court identified two narrow circumstances when a landowner would still have a duty to warn, even when a dangerous condition is open and obvious. First, when the condition is the criminal activity of a third party on the premises, and second, when the condition involves an invitee’s “necessary use” of the premises. Neither exception applied here. While the employee argued that following his employer’s instructions by cleaning up the spill constituted a necessary use of the premises, the court disagreed. It reasoned that so holding would create a disincentive for employers to repair dangerous conditions with the best means they have available—i.e., their employees. In Texas, then, an employee carrying out his duties at work is undertaking a “voluntary choice” outside of the “necessary use” exception (“Texas law treats [the employee’s] encounter with the spill as voluntary in nature, even though it was part of his work duties.”).
While leaving open the possibility that the employee could prevail on a separate theory that his employer failed to provide the “necessary instrumentalities” for dealing with the spill, the court’s answer to the Fifth Circuit’s question embraced the principle that an employer “is not an insurer of [an employee]’s safety.”
