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In Texas, an employer has a duty “to use ordinary care in providing a safe workplace.”
This duty is based on general negligence principles. While what is and is not included
in providing a safe workplace is often decided on a case-by-case basis, Texas courts
have held that, at a minimum, an employer’s duty to provide a safe workplace for its
employees includes:

On the other hand, Texas courts have held that an employer’s duty to provide a safe
workplace does NOT include the following:

Unsafe Workplace Claims versus Premises Liability Claims

One question that remains unresolved in Texas nonsubscriber litigation is what happens
when a nonsubscriber’s employee is injured by a defect on the employer’s property.
When a non-employee plaintiff is injured by a condition of the premises, that plaintiff is
limited to only a premises-liability claim and cannot assert a general negligence claim.
This is significant because premises liability is significantly more difficult to prove than
ordinary negligence (also referred to as “negligent activity”), because unless the
property owner had actual knowledge of a hazard, a premises-liability plaintiff is
required to offer evidence of how long the hazard existed prior to the injury. Since
most plaintiffs see the hazard for the first time during or immediately after their fall, it is
often difficult—if not impossible—to establish how long the hazard had been there.
Despite this difficulty (and in some cases impossibility), failure to produce this
“temporal” evidence is fatal to the plaintiff’s claim. In the Texas Supreme Court’s
words, “[t]he harsh reality is that if the plaintiff cannot prove facts to support her cause
of action, there is simply no recovery.” Perhaps up to 80 or 90 percent of all premises-
liability plaintiffs’ losses are caused by the plaintiffs’ failure to produce temporal
evidence.

While the Texas Supreme Court has very clearly explained that a premises-liability
plaintiff cannot assert a general negligence claim, it has not yet addressed whether the
same holds true for an employee suing a nonsubscribing employer. Currently this issue
is before the Texas Supreme Court in Brookshire Grocery Company v. Goss.

The Peavler Group, who represents numerous nonsubscribers, has filed an “amicus”
(friend of the court) brief in the Goss matter in an effort to persuade the Court to grant
review of the case. For links to the Goss case, see below.