Copyright © 2008 Donna C. Peavler
Defenses Defenses Available to Nonsubscribers |
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The most common misconception about nonsubscription is the mistaken belief that
a nonsubscribing employer is deprived of all defenses. To the contrary, a
nonsubscriber is only prohibited from asserting three defenses that--at least in
theory--are otherwise available to defendants in personal-injury litigation.
injury that occurs during the employees' employment, and the employer cannot
injury that occurs during the employees' employment, and the employer cannot
assert certain defenses. (Employers who carry workers' compensation, on the
other hand, are immune from liability for an employee's injury except in the case of
the employee's death.) Section 406.033 of the Texas Labor Code prohibits a
nonsubscribing employer from asserting three defenses:
nonsubscribing employer from asserting three defenses:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee.
Defenses Available to the Nonsubscribing Employer.
Although it varies from case to case, there are still many defenses that are
available to a nonsubscribing employer. The two most powerful defenses are:
(1) sole proximate cause; and (2) the "routine job" defense.
1. Sole Proximate Cause. While the first prohibited defense--the employee's
contributory negligence--makes the employer responsible for the employee's
injuries even if the employer was only partially at fault, it does not mean the
employer is "strictly liable" for the injuries. To the contrary, the employee still has
to prove that the employer was negligent and that the negligence proximately
caused the injuries. Although the employer cannot argue that its liability should be
diminished by any fault of the employee, it nevertheless can defend by arguing
that the employee was solely responsible for his own injuries. This is not a
"contributory negligence" defense (i.e., an affirmative defense) but rather a simple
argument that the employer was not negligent (i.e., the employee failed to prove
the elements of her negligence cause of action). After all, if the employee was
100% responsible for her own injuries, then nobody else--including the employer--
could be responsible.
2. The "Routine Job" Defense. The routine job defense is another way of
arguing that employer was not negligent. In Great Atlantic & Pacific Tea Co. v.
Evans, 175 S.W.2d 249, the Texas Supreme Court ruled that no negligence exists
when an employee is injured performing the “usual and customary” tasks that he
and other employees with similar jobs “constantly and generally” perform. If the
employee was injured doing his usual and customary job, he will be unable to
recover damages for his injury unless he presents evidence that the task he was
performing was "unusual or poses a threat of injury." This defense is most often
applied to lifting injuries, since lifting is often an integral and daily part of many
workers' employment.
3. The "Commonly-Known Hazards" defense. In the last two years, the
Texas Supreme Court issued two landmark decisions in which it held that an
employer "owes no duty to warn of hazards that are commonly known or already
appreciated by the employee." See The Kroger Co. v. Elwood, 197 S.W.3d 793
(Tex. 2006); Jack in the Box v. Skiles, 221 S.W.2d 566 (Tex. 2007). In Elwood,
the Court held that the risk of a car door closing on an employee's hand was a
commonly known hazard about which the employer had no duty to warn the
employee. In Skiles, the Court held that the hazards associated with jumping off of
a ladder are commonly known to employees. The Court did not provide a formula
or equation for determining when a particular hazard is "commonly known." As a
result, there will no doubt be much disagreement between the plaintiff bar and the
defense bar as to which risks are "common" enough to come within the realm of
Elwood and Skiles. It would seem, however, that if the risk at issue is one most
people associate with "common sense," then for purposes of legal analysis it
should be a risk that is "commonly known." But then again, common sense has
somehow gotten lost in our justice system...
a nonsubscribing employer is deprived of all defenses. To the contrary, a
nonsubscriber is only prohibited from asserting three defenses that--at least in
theory--are otherwise available to defendants in personal-injury litigation.
injury that occurs during the employees' employment, and the employer cannot
injury that occurs during the employees' employment, and the employer cannot
assert certain defenses. (Employers who carry workers' compensation, on the
other hand, are immune from liability for an employee's injury except in the case of
the employee's death.) Section 406.033 of the Texas Labor Code prohibits a
nonsubscribing employer from asserting three defenses:
nonsubscribing employer from asserting three defenses:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee.
Defenses Available to the Nonsubscribing Employer.
Although it varies from case to case, there are still many defenses that are
available to a nonsubscribing employer. The two most powerful defenses are:
(1) sole proximate cause; and (2) the "routine job" defense.
1. Sole Proximate Cause. While the first prohibited defense--the employee's
contributory negligence--makes the employer responsible for the employee's
injuries even if the employer was only partially at fault, it does not mean the
employer is "strictly liable" for the injuries. To the contrary, the employee still has
to prove that the employer was negligent and that the negligence proximately
caused the injuries. Although the employer cannot argue that its liability should be
diminished by any fault of the employee, it nevertheless can defend by arguing
that the employee was solely responsible for his own injuries. This is not a
"contributory negligence" defense (i.e., an affirmative defense) but rather a simple
argument that the employer was not negligent (i.e., the employee failed to prove
the elements of her negligence cause of action). After all, if the employee was
100% responsible for her own injuries, then nobody else--including the employer--
could be responsible.
2. The "Routine Job" Defense. The routine job defense is another way of
arguing that employer was not negligent. In Great Atlantic & Pacific Tea Co. v.
Evans, 175 S.W.2d 249, the Texas Supreme Court ruled that no negligence exists
when an employee is injured performing the “usual and customary” tasks that he
and other employees with similar jobs “constantly and generally” perform. If the
employee was injured doing his usual and customary job, he will be unable to
recover damages for his injury unless he presents evidence that the task he was
performing was "unusual or poses a threat of injury." This defense is most often
applied to lifting injuries, since lifting is often an integral and daily part of many
workers' employment.
3. The "Commonly-Known Hazards" defense. In the last two years, the
Texas Supreme Court issued two landmark decisions in which it held that an
employer "owes no duty to warn of hazards that are commonly known or already
appreciated by the employee." See The Kroger Co. v. Elwood, 197 S.W.3d 793
(Tex. 2006); Jack in the Box v. Skiles, 221 S.W.2d 566 (Tex. 2007). In Elwood,
the Court held that the risk of a car door closing on an employee's hand was a
commonly known hazard about which the employer had no duty to warn the
employee. In Skiles, the Court held that the hazards associated with jumping off of
a ladder are commonly known to employees. The Court did not provide a formula
or equation for determining when a particular hazard is "commonly known." As a
result, there will no doubt be much disagreement between the plaintiff bar and the
defense bar as to which risks are "common" enough to come within the realm of
Elwood and Skiles. It would seem, however, that if the risk at issue is one most
people associate with "common sense," then for purposes of legal analysis it
should be a risk that is "commonly known." But then again, common sense has
somehow gotten lost in our justice system...
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Texas Nonsubscription. Answering your legal questions...