In Kroger Company v. Milanes, an employer that didn’t subscribe to workers’ compensation appealed from a final judgment in favor of its employee. The employee suffered serious injuries while cutting meat. On appeal, the employer raised multiple arguments, including the argument that the trial court had erred in submitting the plaintiff’s claim to the jury on a theory of general negligence rather than premises liability.
The plaintiff went through a one-day orientation before starting work in 2007. It didn’t include safety training, focusing instead on joining the union. He started out as a clerk in the meat department and was then promoted to apprentice meat cutter. As an apprentice, journeymen—more experienced meat cutters—trained him on how to use the meat cutters, including a bone-in band saw.
The plaintiff was trained a great deal by one particular journeyman, who he thought did a good job training him, but he never taught him to use a band saw blade guard as required by OSHA. He didn’t even know that the bone-in band saw had a blade guard for safety and was never given the operation manuals or warning labels. He thought it was used to line up the meat. The plaintiff eventually became a journeyman himself.
The plaintiff and other meat cutters experienced problems with the bone-in saw before the plaintiff was hurt. Signs of problems that the plaintiff reported included blades dulling too quickly, meat being sucked into the blade, squealing sounds, shaking and wobbling blades, and a lip on the saw table that caught the meat. The plaintiff had seen another journeyman meat cutter work with the saw to try to fix the problem. Later, other employees testified at trial, confirming the problems noticed by the plaintiff.
The plaintiff was close to the end of his eight-hour shift when he was injured. He had set the meat properly on the table and saw that the blade seemed dull, but he didn’t change it. He noticed problems, but he’d reported them before and the problems weren’t addressed. He was cutting meat into steaks, and his hand was inches from the blade when it amputated parts of three of his fingers. Later he testified that it happened so quickly he didn’t see what happened, but he believed the dull blade made the meat flip, pulling his fingers into the blade.
He underwent surgery, which was unsuccessful. Later, he had surgeries to cover the exposed bones and went through physical therapy. He continued to feel pain, including phantom pain that the fingers were still there, in the amputation areas. He was affected in many of his physical hobbies, as well as his ability to drive his car. He also suffered psychological problems related to the accident.
He returned to work after the accident and was placed on light duty, but he had no particular tasks for a while, until the employer required him to cut meat again, even though his doctors had ordered him not to cut meat at that time. He was supposed to return to full duty with no restrictions, but the day before, he was ordered to clean the cooler. He noticed problems with the equipment and notified the manager. He asked the manager to send someone to change the hoses and was told to do it himself. He didn’t think this was within his duties, and he was still in pain, so he told his boss he wasn’t going to do it without explaining he physically couldn’t complete the task. He was terminated for insubordination.
He was unemployed at the time of the trial because he could no longer do jobs requiring manual dexterity. At trial, multiple experts and coworkers testified on his behalf. When all the evidence was presented, the trial court proposed it would submit the case on an ordinary negligence theory.
The employer objected, claiming it should be submitted as a premises liability case. The trial court overruled the objection. The jury found for the plaintiff. The employer appealed, arguing that in order to state negligence against a landowner, there had to be affirmative conduct by the owner at the time of the accident that led to the plaintiff’s injury. It argued its only duty towards its employee was as a premises owner.
The appellate court disagreed. Under the Texas Workers’ Compensation Act, a private employer can choose whether to subscribe to workers’ compensation insurance. When an employer chooses to subscribe, its employees are prohibited from suing for their injuries and must choose administrative remedies, proving only they were hurt in the course and scope of employment. If, as in this case, an employer is a non-subscriber, it can be sued at common law for damages, and its defenses are limited.
Generally, an employee hurt on the job must only prove the elements of a common-law negligence claim: (1) duty, (2) breach of duty, (3) causation, and (4) damages. Employers in Texas owe certain non-delegable duties to their employees. These duties include furnishing a reasonably safe workplace, warning employees of hazards, and providing reasonably safe instruments.
In this case, the employee had presented evidence that these duties were breached. Accordingly, the court overruled the employer’s two issues on appeal that a premises liability case should have been presented. The trial court’s judgment was affirmed.
Work injuries can have devastating consequences. If you’ve been hurt at work, the experienced San Antonio personal injury attorneys at Carabin & Shaw may be able to help you. Call our office for more information at 1-800-862-1260.