Non-Subscribers—Tort Liability for Work-Related Accidents—Failure to Provide Necessary Instrumentalities—Employee Knowledge of Risk—Advance Tire and Wheels, LLC v. Enshikar, 527 S.W.3d 476 (Tex. App.—Houston [1st Dist.] 2017)—A “nonsubscriber” employer who does not buy workers’ compensation insurance ( or has its “own injury plan”) remains liable to employees under tort law for work-related injuries for which the employer is at fault. It should be noted that some of the largest employers in Texas are nonsubscribers such as Was-Mart, Home Depot for example.
A troubling question is whether an employee’s knowledge of a risk defeats the employee’s negligence claim against the employer. The Supreme Court has indicated that a diligent employee who continues work in the face of a premises danger cannot hold the employer liable for a resulting injury. In other words if you keep working and encounter the premises defect to achieve your employers goals you can’t win against your employer. This is the “no good deed goes unpunished” rule of the Texas Supreme Court. Austin v. Kroger, Tex., L.P., 465 S.W.3d 193, 214 (Tex. 2015).
In this case, the court of appeals holds that the rule in Austin applies only in a case of premises liability. The employer’s liability here was based on its negligent failure to provide necessary instrumentalities for the employee’s work. Thus, the employee’s appreciation of the risk posed by faulty equipment supplied by the employer was no defense for the employer. The reason for the difference in this type of case (failure to provide safety equipment or proper tools to do your job) as to slip and fall cases is that your employer is only liable if they are negligent and in slip and fall cases they are not negligent if you knew of the risk of the danger to the premises and encountered it anyway. The Texas Supreme Courts opinion n Austin v. Kroger has been heavy criticized by scholars of the law and endorsed by cronies of industry, but this is simply the sate of law in Texas and will not change until industry and insurance companies no longer can influence Supreme Court races to such a huge degree.