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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                                                                      FILED
                                        No. 12-10772                             March 21, 2014
                                                                                 Lyle W. Cayce
RANDY J. AUSTIN,                                                                      Clerk


                                                    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.
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                                    No. 12-10772
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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                                 No. 12-10772
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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                                        No. 12-10772
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 non-
subscriber 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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                                        No. 12-10772
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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                                  No. 12-10772
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 stand-
alone 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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                                 No. 12-10772
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-the-
      job. . . . 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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                                  No. 12-10772
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 non-
subscribing 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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                                       No. 12-10772
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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                                       No. 12-10772
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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                                 No. 12-10772
      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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                                 No. 12-10772
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 non-
subscribing 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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                                      No. 12-10772
       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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                                       No. 12-10772
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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                                       No. 12-10772
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 commonly-
known 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 794 9; 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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                                      No. 12-10772
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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                                       No. 12-10772
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 premises-
liability 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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                                        No. 12-10772
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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                                  No. 12-10772
                       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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