In a case out of Ector County, the Eastland Court of Appeals has found that the employee of a non-subscriber who was injured on the job presented at least some evidence that his employer breached its legal duty to provide him with safety equipment necessary to perform his job safely.
Flores v. Oil-Tech Construction LLC (No. 11-20-00208-CV) arose from a knee injury sustained by Flores, an employee of Oil-Tech, when he stepped off the back of a flatbed pickup after loading tools. Flores gave a deposition in which he claimed that he asked two co-employees to add a step near the cab or bed of the pickup to assist in climbing in and out of the bed and that other pickups he had driven on the job had such steps. Flores sued Oil-Tech asserting claims for negligence, negligence per se, and gross negligence. Oil-Tech filed traditional and no-evidence motions for summary judgment asserting that it owed Flores no legal duty upon which his claims could be based. The trial court granted summary judgment in favor of Oil-Tech.
The court of appeals affirmed the trial court’s summary judgment order on several grounds. First, it held that Oil-Tech had no duty to warn Flores of an open and obvious condition of which he was aware (the open bed of the pickup). Flores had loaded and unloaded tools from pickups as a regular part of his job for several years. Second, the court found that the “necessary use” exception did not apply because Oil-Tech had no duty to warn of an open and obvious condition and Flores could have avoided the risk by using a ladder he had on hand. Third, Oil-Tech had no duty to train Flores with regard to a danger commonly known to everyone, i.e. that one might fall stepping of the back of a pickup truck.
So far so good for Oil-Tech. But then the court got to Flores’s necessary instrumentality claim, under which the employer has a duty to provide its employees with equipment necessary to perform the job safely. The court parsed SCOTX’s discussion of this duty in Austin v. Kroger Tex., L.P., 465 S.Wl3d (Tex. 2015), a case certified to the Court from the 5th Circuit, and the subsequent 5th Circuit opinion in Austin v. Kroger Tex., L.P., 864 F.3d 326 (5th Cir. 2017) (per curiam), which held that “nonsubscribing employers owe their employees a duty to provide necessary instrumentalities to safely perform their customary work.” In order to make this determination, the court must examine the following factors: “(1) whether the employee had ever requested the instrumentality in question; (2) whether the employee had complained that the task he was performing was unsafe; (3) whether the employee had safely performed the task in the past without injury; (4) whether there was evidence that the instrumentality ‘was commonly used in, or had been established by industry standards or customs as a safety measure for’ his job; (5) whether ‘a reasonably prudent employer would have provided such instrumentality’; and (6) whether there was medical evidence that the instrumentality would have prevented the employee’s injury” (quoting Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 438 (Tex.App.—Amarillo 1996, writ denied)).
Flores testified that he asked for a step to be added to the truck and that other Oil-Tech pickups had steps. At the same time, Flores had gotten on and off the flatbeds before without incident and no evidence showed that he reported the truck as “unsafe.” Additionally, there was no evidence of an industry standard regarding steps on flatbed pickups. Still, Flores presented enough evidence “to raise a fact question as to whether a step was necessary for the safe performance of Flores’s customary duties.” The trial court thus erred in granting summary judgment on this claim.
Regarding Flores’s negligence per se and gross negligence claims, the court affirmed the trial court. Flores cited several OSHA standards to support his negligence per se claim, despite the fact that Texas courts have regularly held that OSHA regulations do not expand common law duties, nor can they “serve as the basis for negligence per se when the regulation does not provide ‘a specific standard of conduct different from the common-law standard of ordinary care’” (citations omitted). As to the gross negligence claim, Flores showed neither that his employer’s conduct, when viewed objectively, involved an extreme degree of risk, or the employer’s conscious indifference to the rights, safety, or welfare of others. Quoting U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 141 (Tex. 2012) (a case in which TCJL filed an amicus brief), “[A] party cannot be liable for gross negligence when it actually and subjectively believes that circumstances pose no risk to the injured party, even if they are wrong.”
This relatively straightforward case nevertheless raised several duty issues in nonsubscriber premises cases. The opinion is a good source of the relevant authority in this area, particularly with regard to the necessary instrumentality claim.
