     Case: 12-10772         Document: 00513173339          Page: 1    Date Filed: 08/28/2015




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

                                                                                        FILED
                                         No. 12-10772                             August 28, 2015
                                                                                      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
                                 USDC No. 3:11-cv-1169


Before ELROD and HIGGINSON, Circuit Judges, and JACKSON, District
Judge.*
PER CURIAM:**
           Plaintiff-Appellant Randy Austin appealed the district court’s grant of
summary judgment in favor of Defendant-Appellee Kroger Texas L.P. We
certified a question of state law to the Supreme Court of Texas. Austin v.
Kroger Texas L.P., 746 F.3d 191 (5th Cir. 2014). The Supreme Court of Texas
answered our question in a thorough opinion. Austin v. Kroger Texas L.P., No.



       *   Chief Judge of the Middle District of Louisiana, sitting by designation.
       ∗*
         Pursuant to Fifth Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth
Cir. R. 47.5.4.
     Case: 12-10772      Document: 00513173339        Page: 2     Date Filed: 08/28/2015



                                     No. 12-10772
14-0216, 2015 WL 3641066 (Tex. June 12, 2015). Under Texas law, “an
employer’s premises-liability duty to its employee includes only the duty to
protect or warn the employee against concealed hazards of which the employer
is aware, or reasonably should have been aware, but the employee is not.” Id.
at *3. Because there is no contention that Austin was unaware of the hazards
of the spill leading to his fall and injury, and because he cannot claim the
benefit of either of the two narrow exceptions provided for by Texas law, the
district court correctly granted summary judgment on this claim.
      The Supreme Court of Texas further clarified that Austin’s necessary
instrumentalities claim is independent of his premises-liability claim and that
Kroger owed him “duties in addition to its premises-liability duty and its duty
not to engage in negligent activities, including the duty to provide Austin with
necessary instrumentalities.” Id. at *15. The district court did not consider
whether Austin could pursue a claim based on Kroger’s alleged failure to
provide a necessary instrumentality of his employment.
      Accordingly, we AFFIRM the district court’s grant of summary judgment
on Austin’s premises-defect claim. We REMAND to the district court so that it
may consider Austin’s claim of ordinary negligence in the first instance. 1




      1 We have already affirmed the district court’s grant of summary judgment to Kroger
on Austin’s gross negligence claim, and the Texas Supreme Court’s decision does not disturb
that holding. See Austin, 746 F.3d at 196 & n.2.
                                            2
