IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10772

RANDY J. AUSTIN,

Plaintiff–Appellant,

v.

KROGER TEXAS L.P., doing business as Kroger Store #209,

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.*

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 

* Chief Judge of the Middle District of Louisiana, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

March 21, 2014

Lyle W. Cayce

Clerk

 

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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 

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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 

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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 nonsubscriber 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 also Tex. 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 

1 Specifically, the district court concluded that, “[g]iven that Austin was aware of the 

risk that he faced when mopping the spill, and in fact acted to inform others that the men’s 

bathroom was wet,” “no reasonable jury could infer that” Kroger owed Austin a duty. 

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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 

2 To recover for gross negligence in Texas, a plaintiff must satisfy the elements of an 

ordinary negligence or premises liability claim and demonstrate clear and convincing 

evidence of “an act or omission involving subjective awareness of an extreme degree of risk, 

indicating conscious indifference to the rights, safety, or welfare of others.” State v. Shumake, 

199 S.W.3d 279, 286 (Tex. 2006) (citations omitted). Extreme risk is “is not a remote 

possibility of injury or even a high probability of minor harm, but rather the likelihood of 

serious injury to the plaintiff.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). 

The district court rejected Austin’s gross negligence claim because, based on the evidence 

Austin proffered, “no reasonable juror could conclude that Kroger was consciously indifferent 

to the safety of its employees, or that he faced an extreme risk in performing a job he had 

done safely for years.” Considering the high evidentiary standard that applies to gross 

negligence claims, the district court did not err in dismissing Austin’s gross negligence claim.

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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, 2008 WL 2309295, at *2 (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 standalone 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 

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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 the law, to do so.” Id. 

The starting point for our analysis is the Texas Workers’ Compensation 

Act (the “TWCA”), which effects the scope of both Austin’s claims and Kroger’s 

defenses.

The 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-thejob. . . . 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). 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 (2006); see HCBeck, Ltd. v. Rice, 284 

S.W.3d 349, 358 (Tex. 2009) (discussing the balance achieved by the Texas 

workers’ compensation system). 

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). The 

TWCA vests employees of non-subscribing employers with the right to sue 

their employers for work-related injuries or death. Id.; see Tex. Labor Code 

§ 406.033(a). In such an action, the TWCA deprives a non-subscribing 

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employer of the right to raise certain defenses, including contributory 

negligence, assumption of the risk, and the fellow-servant rule. Tex. Labor 

Code § 406.033(a)(1)–(3); see also Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex. 

2000) (“[A] non-subscribing employer is not entitled to a jury question on its 

employee’s alleged comparative responsibility.”). The Texas workers’ 

compensation program therefore 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.” 

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 nonsubscribing 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. An employee 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. 

C.

With this framework in mind, we recognize that the first step in 

evaluating Austin’s premises liability claim is determining the nature and 

scope of Kroger’s duty. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 

2008) (“Like any other negligence action, a defendant in a premises case is 

liable only to the extent it owes the plaintiff a legal duty.”). Whether a duty 

exists “is a question of law for the court and turns ‘on a legal analysis balancing 

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a number of factors, including the risk, foreseeability, and likelihood of injury, 

and the consequences of placing the burden on the defendant.’” Del Lago 

Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) (quoting Moritz, 257 

S.W.3d at 218). 

In premises liability cases, “the scope of the duty turns on the plaintiff’s 

status.” Del Lago, 307 S.W.3d at 765. An employee is essentially the invitee

of her employer. Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex. 1963); 

Allen v. Connolly, 158 S.W.3d 61, 65 (Tex. App.—Houston [14th Dist.] 2005, no 

pet.). The Texas Supreme Court has emphasized that an employer’s duty to 

his employees, although distinct, may be identical “in all material respects” to 

a landowner’s duty “to use reasonable care to make his premises reasonably 

safe for the use of his invitees.” Sears, Roebuck & Co. v. Robinson, 280 S.W.2d

238, 240 (Tex. 1955).3 

In the employment context, the Texas Supreme Court has repeatedly 

held that an employer owes a continuous, non-delegable duty to provide its 

employees with a safe workplace. See, e.g., Kroger Co. v. Elwood, 197 S.W.3d 

793, 794 (Tex. 2006); Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). The 

3 Although the “two fields of law (landowners-invitee and master-servant) are entirely 

separate,” Sears, Roebuck, 280 S.W.2d at 240, Texas courts generally apply premises-liability 

principles in suits by injured employees. See, e.g., Leal v. McDonald’s Corp., No. 03-05-00500-

CV, 2009 WL 2410853, *4 (Tex. App.—Austin Aug. 5, 2009, no pet.) (unpublished but 

persuasive) (“Employers owe their employees the same duty of care that premises owners 

owe invitees.” (citing Allen v. Connolly, 158 S.W.3d 61, 65–66 (Tex. App.—Houston [14th 

Dist.] 2005, no pet.))); Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 644 (Tex. 

App.—Houston [1st Dist.] 2005, pet. denied) (applying standard elements of a premises 

liability claim to a non-subscriber case); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex. 

App.—Austin 1998, no pet.) (same). In the employment context, Texas courts first look to 

the employer’s duty to provide a safe workplace in assessing a plaintiff’s claim. See Del Lago, 

307 S.W.3d at 767; Barton v. Whataburger, Inc., 276 S.W.3d 456, 461 (Tex. App.—Houston 

[1st Dist.] 2008, pet. denied).

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nature and scope of this general duty is arguably unclear, however, when an 

employee is aware of the hazard or risk at issue.4

1.

For decades, Texas maintained a “no duty rule” in premises liability 

cases. See Sears, Roebuck, 280 S.W.2d at 240 (describing the “no duty rule”). 

The “no duty rule” provided that a landowner owed no duty to remedy known 

and obvious dangers on a premises. Id. Accordingly, the rule required a 

plaintiff to negate his own knowledge and appreciation of the danger as a 

prerequisite to recovery. See Halepeska v. Callihan Interests, Inc., 371 S.W.2d 

368, 378–79 (Tex. 1963), abrogated by Parker v. Highland Park, Inc., 565 

S.W.2d 512 (Tex. 1978); see also Thomas v. Internorth, Inc., 790 F.2d 1253, 

1256 (5th Cir. 1986) (explaining the Texas “no duty rule”).5 The Texas 

Supreme Court explained the “no duty” rule in Halepeska in helpful detail: 

The “no duty” doctrine is this: the occupier of land or 

premises is required to keep his land or premises in a reasonably 

safe condition for his invitees. This includes a duty of the occupier 

to inspect and to discover dangerous conditions. His duty is to

protect his invitees from dangers of which he, the occupier, knows, 

4 There is no genuine dispute that Austin was aware that the spill posed a risk. He 

set out three Wet Floor signs, took baby steps in and around the spill, and understood that 

the substance on the floor was slick and oily. Although Austin contends that this spill was 

of a different nature and volume than those he regularly cleaned, he does not argue that the 

size of the spill was unknown to him at the time of the incident. In addition, Austin does not 

contest his knowledge that Kroger encouraged its employees to use Spill Magic and that Spill 

Magic was unavailable on the day of his injury.

5 At oral argument, Kroger asserted for the first time that our decision in Internorth 

resolves this case. It does not. It arises in a different context, and—in relevant part—merely 

restates the non-controversial principle that the “abrogation of the no-duty rule does not 

relieve a plaintiff from proving that the defendant had a duty and breached it.” Internorth, 

790 F.2d at 1256; see Dixon v. Van Waters & Rogers, 682 S.W.2d 533–34 (Tex. 1984) 

(“[Parker’s] rule that the plaintiff does not have the burden to obtain findings that disprove 

his own fault does not, however, mean that a plaintiff is excused from proving the defendant 

had a duty and breached it.”).

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or (because of his duty to inspect) of which he should know in the 

exercise of ordinary care. If there are dangers which are not open 

and obvious, he is under a duty to take such precautions as a 

reasonably prudent person would take to protect his invitees 

therefrom or to warn them thereof. But if there are open and 

obvious dangers of which the invitees know, or of which they are 

charged with knowledge, then the occupier owes them ‘no duty’ to 

warn or to protect the invitees. This is so, the cases say, because 

there is “no duty” to warn a person of things he already knows, or 

of dangerous conditions or activities which are so open and obvious 

that as a matter of law he will be charged with knowledge and 

appreciation thereof. . . .

So in a suit by an invitee against the occupier, the invitee 

must not only prove that he was injured as a proximate result of 

encountering a condition on the premises involving an 

unreasonable risk of harm, but he must also prove, as part of the 

plaintiff’s case, that the occupier owed him a duty to take 

reasonable precautions to warn him or protect him from such 

danger, i.e., the plaintiff must negative “no duty.” This is the ‘no 

duty’ referred to in the cases.

371 S.W.2d at 378–79 (emphasis added) (citations omitted). 

Although employees are the invitees of their employers, the Texas 

Supreme Court declined to apply the “no duty rule” in the employment context, 

as doing so would “defeat and nullify” the “obvious and clearly expressed 

intention of the Legislature” to (1) eliminate a non-subscribing employer’s 

assumption-of-the-risk defense, and (2) “make him liable where he created or 

failed to correct an unsafe condition of the premises on which his servant was 

compelled to work.” Sears, Roebuck, 280 S.W.2d at 240. 

More than twenty years after Sears, Roebuck, the Texas Supreme Court 

abolished the “no duty rule” altogether in premises liability cases. Calling the 

rule “harsh,” the Court explained that it caused unnecessary confusion and 

duplicated the voluntary-assumption-of-risk defense. Parker, 565 S.W.2d at 

518. The Court further explained that there are “many instances in which a 

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person of ordinary prudence may prudently take a risk about which he knows, 

or has been warned about, or that is open and obvious to him. [His] conduct 

under those circumstances is a matter which bears upon his own contributory 

negligence.” Id. at 520. Thus, the Court concluded that “a plaintiff’s 

knowledge, whether it is derived from a warning or from the facts, even if the 

facts display the danger openly and obviously, is a matter that bears upon his 

own negligence; it should not affect the defendant’s duty.” Id. at 521 (emphasis 

added). In other words, a “plaintiff may be contributorily negligent as a matter 

of law by reason of his conduct after he possesses knowledge of the condition.” 

Id. 

Viewed in tandem, Sears, Roebuck and Parker suggest that a nonsubscribing employer cannot escape liability as a consequence of its employee’s 

knowledge of the risk at issue. That is because the employee’s subjective 

awareness of the hazard is relevant only to comparative negligence or 

assumption-of-the-risk—affirmative defenses unavailable to non-subscribers 

under Section 406.033(a) of the Texas Labor Code. 

2.

But the analysis may not be so straightforward. Kroger argues that, 

without expressly overruling Sears, Roebuck or Parker, the Texas Supreme 

Court has recently returned to the principle that an employer owes no duty to 

warn or maintain a safe workplace in the context of an open or obvious danger. 

It cites a line of recent cases in which the Texas Supreme Court appears to 

have pulled back on the abolition of the “no duty rule” in the 

employer/employee context—Elwood, 197 S.W.3d at 795, Jack in the Box, Inc. 

v. Skiles, 221 S.W.3d 566, 569 (Tex. 2007), Brookshire Grocery Co. v. Goss, 262 

S.W.3d 793, 794 (Tex. 2008), and Nabors Drilling, U.S.A., Inc. v. Escoto, 288 

S.W.3d 401, 413 (Tex. 2009). 

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Elwood, Skiles, Goss, and Escoto emphasize that (1) an employer owes 

no duty to “warn of hazards that are commonly known or already appreciated 

by the employee” or “provide equipment or assistance that is unnecessary to 

the job’s safe performance” and (2) “when an employee’s injury results from 

performing the same character of work that employees in that position have 

always done, an employer is not liable if there is no evidence that the work is 

unusually precarious.” Elwood, 197 S.W.3d at 795; see Goss, 262 S.W.3d at 

794; Skiles, 221 S.W.3d at 569; cf. Escoto, 288 S.W.3d at 413.6

The facts of Elwood are instructive. There, a plaintiff suffered injury 

when a Kroger customer shut her vehicle door on his hand while he was loading 

her car with groceries. The employee had placed one hand in the doorjamb of 

the vehicle and one foot on the grocery cart to keep it from rolling down a slope 

in the Kroger parking lot. Elwood, 197 S.W.3d at 794. The plaintiff alleged 

that Kroger had “provided inadequate training on how to maneuver carts on a 

sloped parking lot, never advised that he should take a second clerk with him 

to the sloped portion of the lot, and provided no explanation on how to avoid 

injury when loading groceries into customers’ vehicles.” Id. The plaintiff

further alleged that Kroger should have provided carts with locking wheels or 

wheel blocks. Id. A jury found Kroger liable for the plaintiff’s injuries, but also 

concluded that the plaintiff was contributorily negligent by 40 percent. 

6 See also Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 412–13 (Tex. 2009)

(holding that a Texas employer owed no duty to protect third parties by training its 

employees, especially inexperienced employees, regarding the dangers of fatigue, as that 

danger was well known); Moritz, 257 S.W.3d at 216 (holding that a landowner need not warn 

an independent contractor’s employees of known, obvious hazards); Aleman v. Ben E. Keith 

Co., 227 S.W.3d 304, 311 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Jurasin v. Dillon 

Res., Inc., No. 04-12-00202-CV, 2012 WL 5416212, at *1 (Tex. App.—San Antonio Nov. 7, 

2012, no pet.) (unpublished but persuasive); SSHG, LLC v. Lewis, No. 10-07-00064-CV, 2008 

WL 4172667, at *3 (Tex. App.—Waco Sept. 10, 2008, pet. denied) (unpublished but 

persuasive).

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Because Kroger, a non-subscribing employer, could not assert contributory 

negligence by virtue of 406.033(a)(1)–(3) of the Texas Labor Code, the trial 

court reformed the judgment to award the plaintiff 100 percent of the total 

damages. 

The Texas Supreme Court reversed, emphasizing the plaintiff’s trial 

testimony that, “prior to working at Kroger, he knew it was dangerous to place 

his hand in a vehicle’s doorjamb.” Id. at 795.7 The Court also explained that 

there was no evidence that safe grocery-loading required carts with wheel locks 

or additional personnel. Id. Thus, the Court concluded that the plaintiff could 

not recover because “Kroger had no duty to warn Elwood of a danger known to 

all and no obligation to provide training or equipment to dissuade an employee 

from using a vehicle doorjamb for leverage.” Id. at 795. 

Since Elwood, the Texas Supreme Court has taken the same approach 

in other employer/employee cases. In Skiles, the Texas Supreme Court 

rendered a take-nothing judgment against an employee who suffered injury 

when he used a ladder to climb over a non-functioning lift gate to obtain 

supplies for his employer. 221 S.W.3d at 568. The Court emphasized that “the 

dangers associated with the use of a ladder to climb over a lift gate are common 

and obvious to anyone” and, therefore, “Jack in the Box owed no duty to warn 

Skiles of the danger posed by his intended use of the ladder.” Id. at 569. Then, 

7 Austin argues that Elwood and its progeny focus on whether a particular hazard was 

known to all, not known to the individual plaintiff at issue. Elwood, 197 S.W.3d at 794. See 

also Goss, 262 S.W.3d at 795 (“To the extent that stepping over a [cart] is dangerous, it is a 

danger apparent to anyone.”); Skiles, 221 S.W.3d at 569 (“The dangers associated with the 

use of a ladder to climb over a lift gate are common and obvious to anyone . . . .”). This 

argument is difficult to square with Elwood’s emphasis that the plaintiff himself “knew it 

was dangerous to place his hand in a vehicle’s doorjamb,” Elwood, 197 S.W.3d at 795, and 

Goss’s statement “an employer owes no duty to warn of hazards commonly known or already 

appreciated by the employee,” 262 S.W.3d at 794 (emphasis added).

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in Goss, the Texas Supreme Court rejected a plaintiff’s claim that his employer 

failed to adequately warn him about the risks of maneuvering around lowboy 

carts. 262 S.W.3d at 794–95. The Court analyzed the plaintiff’s knowledge in 

the context of duty, not comparative responsibility or assumption-of-the-risk:

[L]ike avoiding sticking one’s hand in a door, stepping over a cart 

is a risk commonly known to anyone.” The court of appeals 

couched Brookshire’s argument as an “assumption of the risk” 

defense no longer available in Texas. But duty is not an 

affirmative defense. Rather, it “depends on a legal analysis 

balancing a number of factors, including the risk, foreseeability, 

and likelihood of injury, and the consequences of placing the 

burden on the defendant,” and is an essential element to liability.

Id. at 795 (internal citations omitted). Finally, in Escoto, the Texas Supreme 

Court declined to impose a “duty to train employees regarding the commonlyknown dangers of driving while fatigued.” Escoto, 288 S.W.3d at 413.

3.

Austin distinguishes Elwood, Skiles, and Goss by noting that they arose 

in the context of negligent activity, not premises defect, claims.8 See Elwood, 

197 S.W.3d at 794; Skiles, 221 S.W.3d at 567; Goss, 262 S.W.3d at 7949; Cf. 

8 Although negligent activity and premises defect are branches of the same tree, they 

are conceptually distinct claims: “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, 307 S.W.3d at 776.

9 At oral argument, Kroger argued that Goss is, in fact, a premises-defect case. But 

as the Texarkana Court of Appeals explained: “Goss elected to submit only the general 

negligence form of the cause of action and urged that the premises liability form of negligence 

should not be submitted to the jury.” Brookshire Grocery Co. v. Goss, 208 S.W.3d 706, 718 

(Tex. App.—Texarkana 2006), rev’d on other grounds, 262 S.W.3d 793 (Tex. 2008). Thus, 

“Goss abandoned pursuit of any action that she might have based on premises liability and 

placed her entire theory of recovery on the form of negligence involving a breach of a duty 

that an employer owes to an employee.” Id. 

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Keetch, 845 S.W.2d at 264 (articulating the distinction between negligent 

activity and premises defect claims).10 This distinction has some persuasive 

force, especially in light of the Texas Supreme Court’s recent decision in Del 

Lago, a premises-defect case decided after Elwood and its progeny. There, a 

third-party patron plaintiff filed suit after he suffered injury in a bar fight. 307 

S.W.3d at 764–65. Characterizing the plaintiff’s claim as one for premises 

defect (based on insufficient security at the property), the Court concluded that 

there was legally sufficient evidence to support the jury’s allocation of fifty-one

percent negligence to the premises owner and forty-nine percent to the 

plaintiff. Id. at 767. Justice Willett, writing for the majority, emphasized the 

abolition of the no-duty rule in premises liability cases:

A plaintiff’s appreciation of and voluntary exposure to a dangerous 

on-premises risk is something the jury can weigh when 

apportioning responsibility, as was done in this case. 

Further, we have expressly abolished a “no-duty” doctrine 

previously applicable to open and obvious dangers known to the 

invitee. Instead, a plaintiff’s knowledge of a dangerous condition is 

relevant to determining his comparative negligence but does not 

operate as a complete bar to recovery as a matter of law by 

relieving the defendant of its duty to reduce or eliminate the 

unreasonable risk of harm. A plaintiff’s knowledge, whether it is 

derived from a warning or from the facts, even if the facts display 

the danger openly and obviously, is a matter that bears upon his 

own negligence; it should not affect the defendant’s duty. While 

presented in terms of a no-negligence or no-causation analysis, 

Justice Johnson’s view would in effect revive the no-duty rule 

rejected by statute and caselaw, and hold as a matter of law that 

an invitee’s decision not to remove himself from a known and 

dangerous premises condition bars any recovery against the 

landowner.

10 Escoto involved an injury that occurred not on the employer’s premises, but rather 

with the employer’s vehicle. Thus, it does not squarely align with Elwood, Skiles, and Goss

in this respect. See Escoto, 288 S.W.3d at 403–04.

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Id. at 772–73 (emphasis added) (citations and internal quotation marks 

omitted).11 Thus, Del Lago takes a different approach than Elwood and its 

progeny. At least in the context of third-party premises-defect claims, Del Lago

affirms that Parker—along with its abolition of the “no-duty rule”—remains 

good law. But because Del Lago does not arise in the employer/employee 

context, its application to Austin’s claims is arguably unsettled.12

We thus perceive some tension here.13 Like the plaintiff in Elwood, 

Austin suffered an injury while performing the job he was assigned to do, with 

11 In dissent, Justice Johnson, joined by Justice Hecht, emphasized that “[t]he purpose 

of requiring premises occupiers to warn invitees of unreasonably dangerous conditions” is to 

provide the invitee with sufficient information to decide “(1) whether to come onto or remain 

on the premises, accept the risk of harm posed by the condition, and take action to avoid or 

protect himself from the risk or (2) refuse to accept the risk by either not coming onto the 

premises or by leaving.” Id. at 783 (Johnson, J., dissenting) (citation omitted). Because the 

plaintiff in Del Lago was aware of the dangers at issue, Justice Johnson would have held that 

the premises owner did not breach its duty as a matter of law. Id. at 784. (“It is contrary to 

both common sense and logic to impose liability on Del Lago because its employees did not 

warn Smith during the evening that ‘members of Sigma Chi and a wedding party are 

drinking, acting belligerently toward and threatening each other,’ or take similar action 

when, according to Smith’s own testimony, he knew as much as the warning would have 

conveyed.”). He reasoned that “[p]arties should be held liable in tort because they did or 

failed to do something substantive that caused injury to another, not because they performed 

or failed to perform meaningless acts.” Id.

12 Although master-servant law is a distinct body of precedent, Kroger does not 

articulate a cogent reason that Del Lago would not apply to employee-invitees. As Kroger 

itself asserts, “Texas state courts routinely analyze employee slips and falls under premisesliability law.”

13 Moritz, 257 S.W.3d at 216–18, adds an additional layer of complexity. There, the 

Court held that a landowner has no duty to warn the employees of an independent contractor 

about open or obvious hazards. The Court noted that, in this context, “[a]n independent 

contractor owes its own employees a non-delegable duty to provide them a safe place to work, 

safe equipment to work with, and warn them of potential hazards; it also controls the details 

and methods of its own work, including the labor and equipment employed.” 257 S.W.3d at 

215. The Court further noted that “one who hires an independent contractor generally 

expects the contractor to take into account any open and obvious premises defects in deciding 

how the work should be done, what equipment to use in doing it, and whether its workers 

need any warnings.” Id. at 215–16. Thus, [p]lacing the duty on an independent contractor 

to warn its own employees or make safe open and obvious defects ensures that the party with 

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at least some knowledge of the risks involved. But like the plaintiff in Del 

Lago, Austin’s injuries arose from a defect on the premises, not an activity. 

Given the arguable conflict in Texas law between the Sears, Roebuck, 

Parker, and Del Lago line of cases and the Elwood, Skiles, Goss, and Escoto

line of cases, we conclude that certification is appropriate in this factual 

context. As the Texas Supreme Court suggested in Escoto, the nature and 

scope of an employer’s duty “involves complex considerations of public policy 

including ‘social, economic, and political questions and their application to the 

facts at hand.’” 288 S.W.3d at 410 (quoting Humble Sand & Gravel, Inc. v. 

Gomez, 146 S.W.3d 170, 182 (Tex. 2004). It is best to leave the resolution of 

these matters to the good judgment of the highest state court. See Ewing 

Const. Co., Inc. v. Amerisure Ins. Co., 690 F.3d 628, 632–33 (5th Cir. 2012) 

(certified question accepted Aug. 24, 2012) (“Where state law governs an issue, 

such policy factors are better gauged by the state high court than by a federal 

court on an Erie guess.”). We therefore request that the Texas Supreme Court 

address and answer the question that we certify below.

the duty is the one with the ability to carry it out.” Id. at 216. This implies that an employer, 

unlike a landowner who hires an independent contractor, owes its employees a duty to warn 

of even obvious premises defects. Id. 

In dissent, Justice Green criticized the Moritz Court for breathing life into the “no 

duty” rule by “simply changing the question.” Id. at 222 (Green, J., dissenting). “That is, 

when the answer to ‘Was the defect concealed?’ is ‘No,’ the answer to ‘Did the plaintiff 

know/Should the plaintiff have known of the defect?’ will always be ‘Yes.’” Id. According to 

Justice Green, “[t]he Court’s reasoning essentially overrules Parker by reducing its holding 

to a requirement that, in determining duty, courts ask the former question instead of the 

latter. But this cannot be because Parker removed both of those questions from duty 

analysis.” Id. The Moritz majority rejected this proposition, emphasizing that the 

independent contractor, not the landowner, owed the duty to warn. Id. at 216–17. It 

explained: “It is true that when a hazard is obvious, the plaintiff will usually know about it. 

But that does not mean the plaintiff is negligent, as some . . . must encounter a hazard 

because they have no other choice.” Id. at 218. 

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IV. QUESTION CERTIFIED

For the reasons explained above, we certify the following questions to the 

Texas Supreme Court: 

Pursuant to Texas law, including § 406.033(a)(1)–(3) of the Texas 

Labor Code, 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? 

We disclaim any intention or desire that the Supreme Court of Texas confine 

its reply to the precise form or scope of the questions certified.

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