June 12, 2015  | By McCathern Law

The Texas Supreme Court’s recent decision in Austin v. Kroger1 marks a significant change in the court’s premises-liability and non-subscriber jurisprudence. In one opinion, the Court clarified these areas of the law, created new exceptions, abrogated a previous landmark decision, and breathed life into non-subscriber theories of liability once thought dead. The impact of this case will likely be felt for decades to come.

The case involved a grocery store employee, Austin, who slipped and fell on an oily liquid he himself was mopping up. He sued his employer, Kroger (a workers’ compensation non-subscriber) under both premises-liability and negligence theories. His premises theory was that Kroger breached its duty to provide him a safe workplace, despite the fact that the spill was open and obvious, and despite his own awareness of the risk it posed. His negligence theory was that, premises liability aside, Kroger had an independent duty to provide him with Spill Magic, an absorbent substance Kroger usually had in stock for spill cleanup, but was not available on the day of Austin’s injury.

The case came to the Texas Supreme Court via a certified question from the Fifth Circuit Court of Appeals.2  This is a rare procedural device used by federal courts who face inconsistencies in the state law they have to apply. Rather than guess, federal courts will sometimes ask the state’s high court for clarity. Here, the Fifth Circuit asked the Texas Supreme Court to resolve an apparent conflict in Texas law.

The General Rule

In Austin v. Texas, the Court revived the previously abolished rule that a landowner owes no duty to warn of open and obvious dangers, or dangers the invitee knew about, on its premises.3  Now, landowners in Texas owe their invitees the “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Unpacking that mouthful, it becomes clear that in order to impose a duty on a landowner, the plaintiff must prove four factual predicates:

  1. There is an unreasonably dangerous condition on the premises
  2. The landowner knew, or should have known, about the dangerous condition
  3. The condition is concealed (i.e. not “open and obvious”)
  4. The plaintiff was not aware of the danger

Prior to Austin, plaintiffs had to prove only the first two facts.4  But the addition of facts 3 and 4 will make it more difficult for plaintiffs to prevail in premises-liability cases.

The New Exceptions

The Court also adopted two exceptions to the general duty rule—the criminal-activity exception and the necessary-use exception.

The criminal-activity exception covers cases where an invitee and premises owner are both aware of risks posed by potential criminal activity of third parties.5  In such cases, a landowner is not absolved of its duty to make the premises safe if it should have anticipated that harm would occur despite the plaintiff’s knowledge of the risk.

The necessary-use exception covers cases where a plaintiff has no other choice but to use an unsafe premises.6  In such cases, despite the plaintiff’s knowledge of the risk, a landowner is not relieved of its duty to make the premises safe if (1) it is necessary that the invitee use the dangerous premises, and (2) the landowner should have anticipated that the invitee is unable to take measures to avoid the risk.

When these exceptions apply, the invitee’s knowledge may still be relevant, but only as a defensive matter. In other words, the invitee’s knowledge may not absolve the landowner of its duty to make the premises safe, but it may be used to show that the invitee’s own negligence contributed to his injuries.

Premises Liability vs. Other Non-Subscriber Duties

The Court also discussed an additional difference between premises cases generally and premises cases in the non-subscriber context. Ordinarily, there are two types of premises cases—premises defect and dangerous activity. If an invitee is injured by some existing defect and not by some ongoing activity, then the invitee can only proceed under the defect theory, and all other negligence theories are barred.7

But in addition to its duty to provide a safe workplace (which is identical a landowner’s general duty to its invitees), a non-subscribing employer has other common law duties to its employees. Among these are the duties to provide: (1) necessary equipment and instrumentalities, (2) training, (3) assistance, (4) supervision, and (5) rules and regulations.8  Thus, the Austin Court held that an employee can assert these theories against her non-subscribing employer in addition to any premises-based claim.


Austin is sure to be a boon for landowners. In many cases, invitees will have a difficult time proving that the landowner owed them any duty at all. If the evidence conclusively establishes that the condition was “open and obvious” or that the plaintiff had knowledge of the allegedly dangerous condition, the landowner will be entitled to summary judgment on the duty element of the premises claim, unless one of the above exceptions applies.

On the non-subscriber front, there are two issues that courts will face going forward. First, courts will have to define the contours of the necessary-use exception, as it has potential to be construed too broadly. And second, courts will have to be diligent in guarding against an employee’s additional theories of liability, where these theories are already limited by well-established rules. For example, the Texas Supreme Court has repeatedly said that there is no duty to provide equipment or assistance that is unnecessary to the job’s safe performance. So even though an employee can advance a general-negligence theory alongside her premises theory, the negligence theory may still be meritless.

If you have any questions, please contact Farbod Farnia at ffarnia@mccathernlaw.com or 214-741-2662.

1     Austin v. Kroger Texas, L.P., No. 14-0216 (Tex. June 12, 2015), available at http://www.search.txcourts.gov/Case.aspx?cn=14-0216&coa=cossup.

2     Austin v. Kroger Texas L.P., 746 F.3d 191, 197 (5th Cir. 2014).

3     Over sixty years ago, the Court abolished this “no duty” rule in non-subscriber cases. See Sears, Roebuck & Co. v. Robinson, 280 S.W.2d 238 (Tex. 1955). It abolished the rule in all premises cases about forty years ago. See Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). Now that the Court has revived the rule, Robinson is no longer good law. Parker, on the other hand, was not nixed completely, but rather retained as an exception. See below.

4     Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).

5     This exception comes from cases like Del Lago, where the Court previously established that a duty might exist in these narrow circumstances. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010)

6     This exception comes from Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). In Parker, the Court abolished the general “no duty” rule described above (i.e. the rule that a landowner owes no duty to warn about open and obvious dangers). In Austin v. Kroger, the Court revived that “no duty” rule, but retained Parker as one example of the necessary-use exception.

7     Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992).

8     Kroger Co. v. Elwood, 197 S.W.3d 793, 795 (Tex. 2006).