Published on:

Austin v. Kroger Texas – Work Injury With Uninsured Employer

The state of Georgia requires companies with more than three workers to carry workers’ compensation coverage.
spill.jpg
Most states have similar requirements, though they do vary.

In Georgia, when a company fails to obtain workers’ compensation coverage, injured employees are in real need of legal representation. While most workers hurt on the job are barred from filing a lawsuit against their employer per exclusive remedy provisions of workers’ compensation law, companies that don’t have this type of insurance aren’t shielded in the same way. That means workers can pursue litigation. However, unlike in a workers’ compensation case, they will have to prove the company was negligent and caused their injury. That means there is a higher proof burden.

The good news for these workers is that, while this type of action is tougher to win, it does tend to garner higher amounts of compensation.

An experienced Atlanta work injury attorney should be able to tell you what type of action is worth pursuing in your case.

In a recent action before the Texas Supreme Court, a worker sued his employer after he was hurt on the job. The defendant company in Austin v. Kroger Texas did not carry workers’ compensation coverage.

According to court records, worker slipped and fell while mopping the floor in the restroom of the store. He had been assigned to clean the floor after a supervisor notified him an oil-based liquid had leaked through a ventilation duct after the store’s condenser units had been power-washed. The spills were in both the men’s and women’s restrooms.

The store’s safety handbook recommends workers use a product called “Spill Magic,” that is an absorbent, powder-based product, along with a broom and dustpan. It reduces the risk of a fall by 25 percent.

However, these systems weren’t available on this particular day, so the worker tried to clean the liquid with a mop. He did so without issue in the women’s restroom and then moved to the men’s restroom.

The liquid covered about 80 percent of the floor in that space. Worker, recognizing the potential hazard, put up “Wet Floor” signs to alert patrons and said he took small steps as he moved throughout the space.

After cleaning about a third of the mess, he slipped and fell. As a result, he broke his leg and dislocated his hip. He ended up spending nine months in a hospital, undergoing six surgeries and now, his one leg is permanently two inches shorter than the other.

The employer had opted not to subscribe to the state’s workers’ compensation system, thus leaving the company vulnerable to an employee lawsuit. But the worker still had to prove negligence.

He alleged the company was negligent in failing to provide him with the right tools needed to do his job (i.e., the “Spill Magic”). He also alleged premises liability for failure to maintain a safe working environment.

The case was moved to federal court, which granted the employer summary judgment on all claims. An appeals court affirmed mostly, but reversed with regard to “necessary instrumentalities” claim (i.e., did the company provide the proper tools necessary to complete the job?). Appellate justices ruled district court failed to consider whether that claim alone was sufficient to support a stand-alone claim for negligence.

In ordinary premises liability claims, companies can rely on an injured party’s knowledge of the dangerous condition as evidence of comparative fault. But it wasn’t clear whether an employer who opts out of the state workers’ comp system (as they are allowed to do in Texas) is bared from asserting employee’s own negligence or assumption of risk.

Ultimately, the Texas Supreme Court ruled an employer generally doesn’t have a duty to warn or protect workers against unreasonably dangerous conditions when that danger is obvious or known to the worker. Further, the state’s worker’s compensation waiver of non-subscribing defenses doesn’t eliminate the worker’s burden of proof to show the duty of care element in a premises liability claim.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.

Additional Resources:
Austin v. Kroger Texas, June 12, 2015, Texas Supreme Court

More Blog Entries:
Gill v. Brescome Barton, Inc. – Work-Related Knee Injuries, June 15, 2015, Georgia Work Injury Attorney Blog