IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41233

Summary Calendar

SERGIO CARLOS SERRANO-CORDERO; CONSUELO MORA-GARCIA, as 

next friend of S. C. M., J. C. M., and C. C. M., minors; ALEX IVAN 

CORDERO MORA, 

 Plaintiffs - Appellants

v.

KROGER TEXAS, L.P., doing business as and also known as Kroger 

Company Southwest Division and Kroger, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:10-CV-483

Before REAVLEY, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:*

While at work, Appellant Sergio Carlos Serrano-Cordero slipped, fell, 

and injured himself while cleaning a floor at the behest of his employer, Kroger 

Texas, L.P. (“Kroger”). Serrano-Cordero and members of his family 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 4, 2015

Lyle W. Cayce

Clerk

 Case: 12-41233 Document: 00513181787 Page: 1 Date Filed: 09/04/2015
No. 12-41233

2

(collectively, “Appellants”) brought various claims against Kroger, a 

nonsubscriber to workers’ compensation insurance. The district court granted 

summary judgment with respect to all claims sounding in negligence. See 

Serrano-Cordero v. Kroger Texas L.P., No. 4:10-CV-00483, 2012 WL 3930629, 

at *4 (E.D. Tex. Aug. 15, 2012) report and recommendation adopted, 2012 WL 

3930056 (Sept. 10, 2012). After a trial, the jury returned a verdict in favor of 

the defense on Appellants’ sole remaining claim, premises liability. Appellants 

seek to revive their negligence-based claims with this challenge to the grant of 

summary judgment.

Summary judgment as to Appellants’ negligence-based claims was 

granted in favor of Kroger based on two conclusions of law:

The difficulty with Plaintiff’s negligence theory is twofold. First, 

he fails to present any authority to the Court that suggests it 

should construe Defendant’s actions—be they failure to train, 

monitor, supervise, hire competent employees, etc.—as ongoing or 

contemporaneous . . . . Plaintiff directs the Court to consider 

deposition testimony as proof that contemporaneous activity 

caused his injuries, citing Defendant’s alleged failure to provide 

adequate rules for safety, alleged failure to properly train Plaintiff 

on his duties, and alleged failure to educate on and enforce its 

policies and procedures. But even when viewed in a light favorable 

to Plaintiff, the acts of training, hiring, supervising, or setting and 

enforcing policy simply have no “contemporary” or “ongoing” 

context akin to that found in Keetch [v. Kroger Co., 845 S.W.2d 262 

(Tex. 1992),] and progeny when considering Plaintiff’s incident.

Second, a slippery floor—a condition caused by the combination of 

grease and cleaning chemicals—injured Plaintiff. Texas courts 

have applied premises liability law to employee slip and fall 

actions alleging injuries caused by unsafe working conditions. 

[Citation.] Plaintiff himself acknowledges that he slipped on a 

floor slickened with grease already present in the cooler that mixed 

in with the cleaning solution he sprayed on the floor. But in his 

attempt to reach beyond the immediate cause of his injury, 

Plaintiff never loses focus on his actual injuring source—a slip and 

fall on a grease-and-chemical slickened floor. And because this is 

 Case: 12-41233 Document: 00513181787 Page: 2 Date Filed: 09/04/2015
No. 12-41233

3

the focal point of his allegations, his claim properly fits under 

premises law as conceived in Texas.

Serrano-Cordero, 2012 WL 3930629, at *4.

The legal analysis underpinning the grant of summary judgment has 

since proven incorrect. It is true, generally, that “when a claim does not result 

from contemporaneous activity, the invitee has no negligent-activity claim, and 

his claim sounds exclusively in premises-liability.” Austin v. Kroger Texas, 

L.P., No. 14-0216, 2015 WL 3641066, at *15 (Tex. June 12, 2015). When, 

however, “the landowner is also an employer and the invitee is also its 

employee, this additional relationship may give rise to additional duties, such 

as a duty to provide necessary equipment, training, or supervision.” Id.; see 

also Kroger Co. v. Milanes, No. 14-13-00873-CV, 2015 WL 4594098, at *9 (Tex. 

App. July 30, 2015) (applying Austin, and observing that ”continuous, nondelegable duties” of an employer include “the duties to (1) furnish a reasonably 

safe place to work, (2) warn employees of hazards of their employment that are 

not commonly known or already appreciated, (3) supervise employees’ 

activities, (4) hire competent co-employees, (5) furnish reasonably safe 

instrumentalities with which to work, and (6) provide safety regulations”).

“Because contemporaneous negligent activity is not necessary to an 

instrumentalities claim, the absence of contemporaneous activity does not 

necessarily bar an instrumentalities claim.” Austin, 2015 WL 3641066, at *15. 

The same is true for claims premised on failure to train or supervise. Both 

claims are backward-looking by their very nature. Moreover, the duty not to 

injure through “contemporaneous negligent activity” is a duty owed by a 

landowner to an invitee, and is conceptually distinct from the separate duties 

owed by employers to properly train and supervise employees. See id.

Here, Appellants’ negligence theories include failure to train, failure to 

supervise, and failure to provide necessary equipment. These theories of 

 Case: 12-41233 Document: 00513181787 Page: 3 Date Filed: 09/04/2015
No. 12-41233

4

negligence arise out of the employer–employee relationship between Kroger 

and Serrano-Cordero. Contrary to the conclusions of the lower court, the 

presence of a premises liability claim is no bar. See id. (“When an injury arises 

from a premises condition, it is often the case that any resulting claim sounds 

exclusively in premises liability, but that is not necessarily the case. An injury 

can have more than one proximate cause.”). Contrary to the conclusions of the 

lower court, a plaintiff asserting such claims need not show contemporaneous 

negligent activity. See id.

We reverse and remand to permit the district court, in the first instance, 

to consider whether, in light of Austin and Milanes, evidence proffered by 

Appellants is sufficient to create a fact issue precluding summary judgment.

See generally Luke v. CPlace Forest Park SNF, L.L.C., 608 F.App’x 246 (5th 

Cir. 2015). Therefore, the district court’s judgment is VACATED and the case 

is REMANDED for further proceedings consistent with this opinion. On 

remand, the district court should decide whether, and to what extent, 

additional discovery is appropriate.

 Case: 12-41233 Document: 00513181787 Page: 4 Date Filed: 09/04/2015