Austin v. Kroger Tex. L.P.

• Decision Date: 21 March 2014
• Docket Number: No. 12–10772.,12–10772.
• Citation: 746 F.3d 191
• Parties: Randy J. AUSTIN, Plaintiff–Appellant, v. KROGER TEXAS L.P., doing business as Kroger Store # 209, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

746 F.3d 191

Randy J. AUSTIN, Plaintiff–Appellant,

v.KROGER TEXAS L.P., doing business as Kroger Store # 209, Defendant–Appellee.

No. 12–10772.

United States Court of Appeals, Fifth Circuit.

March 21, 2014.

Matthew J. Kita, Dallas, TX, for Plaintiff–Appellant.

Donna C. Peavler, Bryan Kyle Briscoe, Peavler Group, Dallas, TX, for Defendant–Appellee.

Brian A. Sheguit, Bassett Law Firm, Dallas, TX, for Amicus Curiae Mission Petroleum Carriers, Inc.

Deborah Johnson Race, Ireland, Carroll & Kelley, P.C., Tyler, TX, for Amici Curiae Brookshire Grocery Co., QuikTrip Corp., Daryl Flood, Inc.

Appeal from the United States District Court for the Northern District of Texas.

Before ELROD and HIGGINSON, Circuit Judges, and JACKSON, District Judge.^*

PER CURIAM:

The original opinion in this matter was filed on September 27, 2013. Austin v. Kroger Texas L.P., 731 F.3d 418 (5th Cir.2013). A petition for rehearing en banc is currently pending before the court. We deny the petition, withdraw our previous opinion, and substitute the following.

Randy J. Austin asserts three claims—gross negligence, ordinary negligence, and premises liability—for injuries that he sustained when he fell cleaning a spill on property owned by Kroger Texas, L.P. (“Kroger”). The district court granted summary judgment to Kroger on all claims. For the reasons that follow, we affirm the district court's judgment as to the gross negligence claim and reverse and remand as to the ordinary negligence claim. Because the premises liability claim involves arguably unsettled state law questions regarding the nature and extent of Kroger's duty to provide a safe workplace, we decline to make an Erie guess and instead certify a question to the Texas Supreme Court.

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF TEXAS, PURSUANT TO ART. 5, § 3–C OF THE TEXAS CONSTITUTION AND RULE 58 OF THE TEXAS RULES OF APPELLATE PROCEDURE TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:

I. STYLE OF THE CASE

The style of the case is Randy J. Austin, Plaintiff–Appellant, v. Kroger Texas L.P., doing business as Kroger Store # 209, Defendant–Appellee, Case No. 12-10772, in the United States Court of Appeals for the Fifth Circuit, on appeal from the judgment of the United States District Court for the Northern District of Texas, Dallas Division. Federal jurisdiction over the issues presented in the case is based on 28 U.S.C. § 1332.

II. STATEMENT OF THE CASE

Austin was a long-time Kroger employee. Beginning in 1997, Austin served in various maintenance positions. In 2008, he became a “utility clerk” or “floor clean-up person” at the Kroger store in Mesquite, Texas. His duties included sweeping, mopping, sacking groceries, consolidating carts, and cleaning the store's restrooms. On the morning of July 27, 2009, Kroger management decided to perform an annual cleaning of the store's condenser units, housed on the roof or “mezzanine level” of the building. Kroger employees, including Kroger's in-house mechanic, power-washed the condensers with water and cleaning solvent for about twenty minutes. As a result, a dirty brown liquid pooled on the mezzanine floor. Because the room that contained the condensers had no drain to divert the liquid, some of the fluid leaked into the ventilation ducts that opened into the downstairs restrooms.

That same morning, Kroger asked Austin, a night-shift employee, to report to work to cover for an absent colleague. When he arrived, a Kroger employee informed Austin about the compressor cleaning and asked him to be prepared to clean up “whatever mess” it made.

Austin inspected the restrooms in accordance with his normal routine. At about 9:45 in the morning, he discovered a small puddle of brown, oily liquid in the women's restroom. Kroger's Safety Handbook provided that store management should “make certain that the Spill Magic Spill Response Stations [were] adequately supplied at all times” and available in numerous places throughout the store. Spill Magic allows an employee to clean a liquid spill with a broom and dustpan, and—according to Kroger's Safety Handbook—reduces the likelihood of a slip-and-fall by 25 percent. Because there was no Spill Magic on premises that day, Austin cleaned the spill with a dry mop instead. When Austin moved on to the men's restroom, he saw that the same substance covered about 80 percent of the floor. Austin placed “Wet Floor” signs inside and outside of the room, and proceeded to mop the spill for about thirty to thirty-five minutes. Austin took “baby steps” in and out of the restroom to change out the mop head numerous times, and successfully removed about thirty to forty percent of the liquid.

At about 10:30 a.m., while continuing to remedy the spill, Austin fell. He sustained a left femur fracture and severely dislocated his hip. He spent nine months in the hospital and underwent six surgeries, and his left leg is now two inches shorter than his right.

Austin filed suit in Texas state court, asserting ordinary negligence, gross negligence, and premises liability claims against Kroger, a non-subscriber to the Texas workers' compensation system. Kroger removed on the basis of diversity jurisdiction, and subsequently moved for summary judgment. The district court granted Kroger's motion—largely based on Austin's subjective awareness of the risk the spill presented—and dismissed Austin's claims with prejudice.¹ Austin timely appealed.

III. LEGAL ISSUES

Texas law governs in this diversity suit. To determine Texas law, this court looks first to the final decisions of the Texas Supreme Court. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.2007). In the absence of a definite pronouncement from the Texas Supreme Court on an issue, we may certify a question to the Texas Supreme Court. Under Texas law, “[t]he Supreme Court of Texas may answer questions of law certified to it by any federal appellate court if the certifying court is presented with determinative questions of Texas law having no controlling Supreme Court precedent.” Tex.R.App. P. 58.1; see alsoTex. Const. art. V, § 3–c(a).

A.

Before reaching the question to be certified, we turn first to the two claims on which we have reached final decisions: gross negligence and ordinary negligence. As to Austin's gross negligence claim, we agree with the district court's disposition.² We therefore AFFIRM the district court's dismissal of the gross negligence claim.

Austin asserts two different theories—negligent activity and failure to provide necessary instrumentalities—in support of his ordinary negligence claim. We address negligent activity first. Although negligent activity and premises liability claims are branches of the same tree, they are conceptually distinct: “[N]egligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner's failure to take measures to make the property safe.” Del Lago, 307 S.W.3d at 776 (footnote omitted). Thus, the Texas Supreme Court has repeatedly declined to “eliminate all distinction” between these two theories. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). Distinguishing between these two causes of action can be tricky: “The lines between negligent activity and premises liability are sometimes unclear, since almost every artificial condition can be said to have been created by an activity.” Del Lago, 307 S.W.3d at 776 (internal quotation marks omitted).

Here, we agree with the district court that Austin's “injuries are properly conceived as resulting from a condition on the premises rather than an ongoing activity.” As in Keetch, Austin slipped on an oily substance on the floor; while he “may have been injured by a condition created by the [condenser unit] spraying,” the “spraying itself” was not the source of his injury. See Keetch, 845 S.W.2d at 264.Especially considering that many Texas courts have taken a similar approach, see, e.g., Simon v. Johns Community Hospital, 2008 WL 2309295, at *2 (Tex.App.–Austin.2008) (upholding dismissal of a plaintiff's ordinary negligence claim, explaining that it sounded in premises liability because the plaintiff's allegations focused on “the substance on the floor on which she allegedly slipped”); see also Reinicke v. Aeroground, Inc., 167 S.W.3d 385, 388 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (reversing a jury verdict where the plaintiff's allegations were best characterized as a premises liability claim, but the trial court submitted an ordinary negligence charge to the jury), we conclude that Austin cannot pursue both a negligent activity and a premises defect theory of recovery based on the same injury.

We now turn to Austin's second theory in support of his ordinary negligence claim. The district court failed to consider whether Austin could pursue an ordinary negligence claim based on his theory that Kroger was negligent by failing to provide him with a necessary instrumentality—i.e., Spill Magic. Thus, we REVERSE and REMAND the ordinary negligence claim in order to allow the district court to consider in the first instance whether Austin's necessary instrumentalities theory is sufficient to support a stand-alone ordinary negligence claim. Accordingly, the only question that remains is the one regarding Austin's premises liability claim.

B.

We are persuaded that certification of the premises liability claim is the best approach, as there is arguably conflicting Texas Supreme Court precedent. As a matter of discipline, we survey the Texas law in this area “both to explain our uncertainty and assure that we seek certification only when necessary.” Lucas v. United States, 807 F.2d 414, 418 (5th Cir.1986). “We do not presume to instruct in our explanation but to explain our difficulty and allow the only court empowered finally to state...