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Texas worker for Kroger can pursue liability suit for work-related injury

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An employee of The Kroger Co. in Texas should be allowed to proceed with a liability lawsuit against the company for a work-related injury, even though he was aware that a spilled substance at work could cause him to fall, an appeals court has ruled.

Texas allows employers to opt out of the state's workers compensation system, and Cincinnati-based Kroger is a “nonsubscriber” in that state, according to court records.

Randy Austin worked as a “floor clean-up person” at Kroger in Mesquite, Texas, records show. He slipped and fell while cleaning a brown, oily liquid that had leaked out of the store's ventilation system onto most of the floor of the men's restroom.

Mr. Austin broke his left femur and severely dislocated his hip, records show. He spent nine months in the hospital and underwent six surgeries, and his left leg is now two inches shorter than his right.

Because Kroger did not have workers comp coverage, Mr. Austin filed a liability and negligence lawsuit against the grocer. He claimed in court filings that Kroger failed to provide safe premises for him to work in, such as by neglecting to restock a “Spill Magic” product that the store routinely used to safely clean spills.

Kroger contended that that Mr. Austin had a “subjective awareness” that he faced a risk by cleaning the spill, and that it had “no duty” to warn him of the potential dangers, court records show. The U.S. District Court in Dallas ruled in Kroger's favor, and Mr. Austin appealed the case to the 5th U.S. Circuit Court of Appeals in New Orleans.

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In a unanimous ruling Friday, the appellate court reversed the District Court's ruling regarding Mr. Austin's “premises liability” claim. In its opinion, the court found that “a nonsubscribing employer cannot escape liability in Texas based solely on its employee's knowledge of the risk at issue.”

The court also ruled that Mr. Austin's job required him to clean up the bathroom floor, and that he did not have an option to “refuse to accept the risk by either not coming onto the premises or by leaving.”

Mr. Austin's “injury arises out of an unusually large, particularly slick spill that he had no choice but to confront,” the ruling reads.

The appellate court upheld the lower court's dismissal of Mr. Austin's gross negligence claim against Kroger, but the case was remanded to District Court to determine if Mr. Austin's “ordinary negligence” claim should stand.