Austin v. Kroger Tex. L.P.

• Decision Date: 27 September 2013
• Docket Number: No. 12–10772.,12–10772.
• 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

731 F.3d 418

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.

Sept. 27, 2013.

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

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

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

Before ELROD and HIGGINSON, Circuit Judges, and JACKSON, District Judge.¹

JENNIFER WALKER ELROD, Circuit Judge:

This case arises out of injuries that Plaintiff–Appellant Randy Austin sustained while performing his duties as an employee for Defendant–Appellee Kroger Texas, L.P. (“Kroger”). For the reasons stated below, we AFFIRM the district court's judgment with respect to Austin's gross negligence claim and REVERSE and REMAND with respect to his premises liability and ordinary negligence claims.

I.

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 a Mesquite, Texas, Kroger store. His duties included sweeping, mopping, sacking groceries, consolidating carts, and cleaning the store's restrooms. When cleaning spills, Austin typically used a chemical absorbing powder called “Spill Magic,” which Kroger's Safety Handbook notes “absorbs many times its own volume in liquid, water, oil, ... etc.” 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.

Kroger management decided to perform an annual cleaning of the store's condenser units, housed on the “mezzanine level” of the building, on the morning of July 27, 2009. 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 condenser 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. Although 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, none was available that day. Accordingly, Austin cleaned the spill with a dry mop and bucket. When Austin moved on to the men's restroom, he saw that the same substance covered about 80 percent of the floor. He placed “Wet Floor” signs inside and outside of the room, and proceeded to mop the spill for about thirty to thirty-five minutes. He took “baby steps” in and out of the restroom to change out the mop head numerous times, and successfully removed about 30–40 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 negligence, premises liability, and gross negligence 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—based in part on Austin's subjective awareness of the risk the spill presented—and dismissed Austin's claims with prejudice. ² Austin timely appealed.

II.

We review de novo a district court's grant of summary judgment, applying the same standard as the district court. Ford Motor Co. v. Tex. Dep't of Transp., 264 F.3d 493, 498 (5th Cir.2001) (citation omitted). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “On cross-motions for summary judgment, we review each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.” Ford, 264 F.3d at 498 (citing Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir.1994)).

III.

Texas law governs in this diversity suit. To determine Texas law, we look first to the final decisions of the Texas Supreme Court, beginning with the most recent. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.2007); Ford Motor Co. v. Dall. Power & Light Co., 499 F.2d 400, 410 n. 17 (5th Cir.1974)(“This discussion by the [Texas] Supreme Court ... is the highest and most recent authority available and we are Erie-bound by it.”). In the absence of a final decision by the Texas Supreme Court on an issue, we must make an “ Erie guess” and determine how that court would resolve the issue if presented with the same case. Am. Int'l Specialty Lines Ins. Co. v. Rentech Steel, L.L.C., 620 F.3d 558, 564 (5th Cir.2010). In making an Erie guess, we rely on the following:

(1) decisions of the Texas Supreme Court in analogous cases, (2) the rationales and analyses underlying Texas Supreme Court decisions on related issues, (3) dicta by the Texas Supreme Court, (4) lower state court decisions, (5) the general rule on the question, (6) the rulings of courts of other states to which Texas courts look when formulating substantive law and (7) other available sources, such as treatises and legal commentaries.

Id. (alterations omitted) (quoting Hodges v. Mack Trucks, Inc., 474 F.3d 188, 199 (5th Cir.2006)).

IV.

The starting point for our analysis in this case is the Texas Workers' Compensation Act (the “TWCA”), which effects the scope of both Austin's claims and Kroger's defenses. In Texas,

[t]he workers' compensation act was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment.... The act relieves employees of the burden of proving their employer's negligence, and instead provides timely compensation for injuries sustained on-the-job.... In exchange for this prompt recovery, the act prohibits an employee from seeking common-law remedies from his employer, as well as his employer's agents, servants, and employees, for personal injuries sustained in the course and scope of his employment.

Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 142 (Tex.2003) (quoting Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 206–07 (Tex.2000)). Thus, by participating in a workers' compensation scheme, “employers gain immunity from tort actions that might yield damages many times higher than awards payable under workers' compensation schedules.” Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651, 655, 126 S.Ct. 2105, 165 L.Ed.2d 110 (2006); see HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 358 (Tex.2009) (discussing the balance achieved by the Texas workers' compensation system); Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 521 (Tex.1995) (same); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex.1985) (same).

Texas allows employers to opt-out of its workers' compensation program. Tex. Lab.Code § 406.002(a). “But the state makes that choice an unattractive one.” Hook v. Morrison Milling Co., 38 F.3d 776, 778 (5th Cir.1994). Specifically, the TWCA vests employees of non-subscribing employers with the right to sue their employers for work-related injuries or death. Id.; seeTex. Lab.Code § 406.033(a). In such an action, the TWCA deprives a non-subscribing employer of the right to raise certain defenses, including contributory negligence, assumption of the risk, and the fellow-servant rule. Tex. Lab.Code § 406.033(a)(1)-(3); see also Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex.2000) (holding “that a non-subscribing employer is not entitled to a jury question on its employee's alleged comparative responsibility”). Thus, the Texas “workers' compensation construct contemplates two systems, one in which covered employees may recover relatively quickly and without litigationfrom subscribing employers and the other in which non subscribing employers ... are subject to suit by injured employees to recover for their on-the-job injuries.” Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 187 (Tex.2012).

While there is a bias in favor of workers' compensation coverage, the TWCA does not create an “especially punitive litigation regime for non subscribing employers.” Id. at 192. As this court recognized in Rentech Steel, a non-subscribing employer has no automatic obligation to compensate its injured employee. 620 F.3d at 565. Rather, an employee-plaintiff must prove the elements of his negligence or other claim just as any other litigant, subject to the parameters of section 406.033(d) of the Texas Labor Code. Id. In other words, section 406.033(a)(1)-(3) may limit an employer's defenses, but it does not eliminate an employee's burden to establish his common law claim. See Rentech Steel, 620 F.3d at 565;see also Tex. W. Oaks, 371 S.W.3d at 187;Simon v. Johns Cmty. Hosp., No. 03–07–00057–CV, 2008 WL 2309295, at *2–3 (Tex.App.–Austin June 4, 2008, no pet.) ...