Odom v. Kroger Tex., L.P.
| Decision Date | 14 February 2014 |
| Docket Number | Civil Action No. 3:13-CV-0579-D |
| Parties | SCOTT ODOM, Plaintiff, v. KROGER TEXAS, L.P., Defendant. |
| Court | U.S. District Court — Northern District of Texas |
The instant motion for summary judgment presents questions concerning the availability of an ordinary negligence claim to an employee injured on the premises of his employer—a "non-subscribing employer" under the Texas Workers' Compensation Act ("TWCA")—when he slipped in an icy parking lot while performing a task at the direction of his employer. Among the questions presented is whether the employee is limited, as the defendant-employer maintains, to a premises liability claim or can pursue a negligence claim of the type available against a non-subscribing employer. Concluding that the employee can pursue a negligence claim and that there are genuine issues of material fact that preclude summary judgment, the court denies summary judgment as to that claim. Concluding that the employee has failed to raise a genuine fact issue as to his gross negligence claim, the court grants summary judgment dismissing that claim.
This is an action by plaintiff Scott Odom ("Odom") against his employer, defendant Kroger Texas, L.P. ("Kroger"), for negligence and gross negligence. Odom alleges that he slipped in an icy parking lot while performing tasks for Kroger.1 On the night prior to the incident, an ice storm came through the area causing an accumulation of ice on the ground. Odom lived about one block away from the store, and on the day of the incident, he walked to work. That afternoon, the store's co-manager, Michael Yates ("Yates"), who was aware that the ice posed an unsafe condition, ordered Odom to retrieve shopping carts from the parking lot. Kroger did not provide Odom special training or safety equipment for retrieving shopping carts under these conditions. While walking toward the first cart, Odom slipped on the ice, fell, and sustained injuries.
Odom brings claims for negligence and gross negligence against Kroger based on four theories: (1) Kroger hired careless or incompetent employees who ordered Odom to retrieve the shopping carts in the face of an unnecessary risk; (2) Kroger failed to remove the ice from its parking lot; (3) Kroger failed to implement policies and procedures regarding workplace safety; and (4) Kroger failed to provide proper work equipment to be used in icy conditions. Kroger moves for summary judgment, contending that Odom cannot recover under any ofthese theories. Odom opposes the motion.
Because Odom will bear the burden of proof at trial on his claims of negligence and gross negligence, Kroger can meet its summary judgment obligation by pointing the court to the absence of admissible evidence to support the claim in question. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once Kroger does so, Odom must go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial. Id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict in Odom's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Odom's failure to produce proof as to any essential element of a claim renders all other facts immaterial. TruGreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment is mandatory if Odom fails to meet this burden. Little, 37 F.3d at 1076.
Although the parties do not disagree about the governing law, the court will discuss it nonetheless because it affects the court's reasoning. Texas has created a workers' compensation program under the TWCA.
[The TWCA] 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 . . . . Inexchange 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.
Austin v. Kroger Tex. L.P., 731 F.3d 418, 423 (5th Cir. 2013) (quoting Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 142 (Tex. 2003)). Employers, however, may opt-out of the workers' compensation program. See Tex. Lab. Code Ann. § 406.002 (West 2006). When they opt-out, they are considered a "non-subscribing employer," and they forgo certain benefits provided by the TWCA. In particular, the TWCA vests employees of non-subscribing employers with the right to sue their employers for work-related injuries, and the TWCA deprives the non-subscribing employer of the traditional common law defenses of contributory negligence, assumption of risk, and the fellow-servant rule. See Tex. Lab. Code Ann. § 406.033(a) (West 2006); Hook v. Morrison Milling Co., 38 F.3d 776, 778 (5th Cir. 1994). "[T]he Texas workers' compensation construct contemplates two systems, one in which covered employees may recover relatively quickly and without litigation from 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." Austin, 731 F.3d at 423-24 (quoting Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 187 (Tex. 2012)) (internal quotation marks omitted).
Although Texas law creates an incentive for employers to obtain workers' compensation insurance coverage by eliminating certain defenses, a non-subscribing employer is not automatically obligated to compensate an injured employee. See id. at 424;Tex. W. Oaks, 371 S.W.3d at 192. "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. (citation omitted); see also Am. Int'l Specialty Lines Ins. Co. v. Rentech Steel L.L.C., 620 F.3d 558, 565 (5th Cir. 2010). Section 406.033(d) provides that in an action against a non-subscribing employer, "the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment." Tex. Lab. Code Ann. § 406.033(d) (West 2006). Subsections 406.033(a) and (d) therefore work together to create a system in which the employee of a non-subscribing employer must prove the negligence of the employer, but the employer cannot rely on the defense of contributory negligence, assumption of risk, or the fellow-servant rule. See Austin, 731 F.3d at 424; Rentech Steel, 620 F.3d at 565; Tex. W. Oaks, 371 S.W.3d at 187.
Kroger is a non-subscribing employer. It is undisputed that Odom was injured during the course and scope of his employment. Therefore, Texas common law governs this action, subject to the parameters of §§ 406.033(a)(1)-(2) and (d). Odom must prove the negligence of Kroger, but Kroger cannot rely on the defense of contributory negligence, assumption of risk, or the fellow-servant rule.
Kroger moves for summary judgment on Odom's negligence claim, contending that Odom is limited to a premises liability claim and that Kroger had no duty to warn Odom of the hazards posed by the ice in the parking lot. Odom responds that he is not limited to apremises liability claim and that Kroger cannot assert that it had no duty to Odom with respect to the ice when Kroger ordered him to confront the danger. The court first considers Kroger's contention that Odom is limited to a premises liability claim.
"Under Texas law, negligence consists of four essential elements: (1) a legal duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) an actual injury to the plaintiff; and (4) a showing that the breach was the proximate cause of the injury." Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 314 (5th Cir. 2002) (citation and internal quotation marks omitted). Under the general umbrella of negligence, there are distinct species of claims, three of which are at issue here. The first type is a premises liability claim, also known as a "premises defect" claim. The elements of this claim depend on the plaintiff's status with respect to the defendant—i.e., whether the plaintiff is an invitee, licensee, or trespasser. Under premises liability principles, "employee" is not its own status; rather, Texas courts generally classify employees injured within the course of their employment as invitees. See, e.g., Austin, 731 F.3d at 424 & n.3.
When the injured party is an invitee . . . [the plaintiff] can recover under the premises liability theory by establishing that (1) the defendant had actual or constructive knowledge of a condition on its premises, (2) the condition posed an unreasonable risk of harm, (3) the defendant did not exercise reasonable care to reduce or eliminate the risk, and (4) the defendant's failure to use such care proximately caused her injuries.
Rivers v. Kroger Tex. L.P., 2009 WL 2596601, at *2 (N.D. Tex. Aug. 21, 2009) (Fitzwater,C.J.) (citations omitted).
The second type of claim is a negligent activity claim. "Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity." Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). In other words, "negligent 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 Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010) (footnotes omitted). Although Texas courts consistently...
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