How on-the-job negligence works in a Texas non-subscriber case:

In a Texas non-subscriber case, you are able to sue your employer for injuries sustained, but your employer is not liable by default just because you were hurt on the job. In order to win a work injury case against your employer you must show that your injuries were caused by your employer's negligence or the negligence of a co-worker.

But you may be wondering what exactly do we mean by negligence? What kinds of misconduct preformed by an employer or a co-worker constitutes negligence?

In this article Texas attorney Michael Grossman will explain how work injury negligence works.

Questions Answered on This Page:

• How do I prove my employer is responsible for my injuries?
• How does negligence factor into my work injury case?
• Can I sue my employer is their negligence contributed to my work-related injury?

Common Forms of Workplace Negligence:

Generally speaking, a negligent act is any type of act that disregards commonly understood safety guidelines, represents an error in judgement, a departure from established safety laws, and really anything that constitutes carelessness resulting in injury. In other words, negligence is fairly broadly interpreted. Consequently, anything that an employer should do to keep their workers safe, within reason, the law obligates them to do it. If they do not take all reasonable measures, and an injury occurs, then the employer can be found negligent and may be forced to pay substantial compensation to the injured worker.

Even though negligence can take a wide variety of forms, Texas courts have flatly said that certain types of perceived misconduct are not negligence. For instance, an employee of Kroger mopped a bathroom floor and then slipped and fell, injuring himself, resulting in a work injury lawsuit. This case made it all the way to the Texas Supreme Court who ruled that simply asking an employee to do something where a dangerous condition may be created is not a form of negligence. This and many other cases have ruled out certain types of conduct as being labelled negligence.

The following are examples of employer misconduct that Texas courts have recognized as being negligent conduct:

• Failing to provide proper training
• Negligent hiring
• Providing employees with faulty or dangerous equipment
• Having policies and procedures that are inadequate
• No procedures or policies to address known hazards
• Negligent supervision
• Failure to ensure employees follow OSHA guidelines

Sometimes an employer can be held liable even when they were not explicitly negligent. Since the whole idea behind a business is to make money or further some prerogative of the owners, all injures sustained by employees are done in the name of that goal. This creates a scenario where employers are held liable not only for their own specific wrongful acts, but also wrongful acts committed by those under their control. Therefore, if a worker's injuries are caused by the negligent act of a coworker, the law sees this as being no different than if the employer had hurt the worker themselves.

Some people hear this and think it sounds a little odd. Why should the company be responsible for the acts of a single employee? The real justification for this dates back thousands of years, all the way back to the Roman Empire, where servants and slaves acted on behalf of a master. It became apparent that slaves and servants lacked the resources and assets to compensate those they hurt. In addition, masters had control over their servants and could discourage negligence, if they wanted to. Since masters exercise such control, ancient law recognized that the best way to avoid accidents was to require masters, at their peril, to ensure the careful execution of their servants' duties. Finally, if the law goes the other direction and never holds masters responsible for the conduct of those they order around, this creates a system by which wealthy masters could get away with anything by forcing their servants or slaves to do their dirty work and then simply claim that they did not sanction such lawlessness. In short, holding masters accountable for the carelessness of their servants is the only feasible way forward.

In modern times, there are no longer slaves beholden to masters, but in terms of the common law, there's no difference between one's voluntary employment and servitude. Consequently, if an employee injures someone through negligence the court simply says, "Respondeat superior," which means "Let the master answer." There is a limit to this concept, however. If a coworker does something so far out of left field and the employer had no reason to ever expect that such conduct could occur, then the employer is not liable. The law does not hold employers accountable for anything and everything their employees do, just their foreseeable acts of carelessness.

How negligent does the employer have to be in order for a worker to win their case?

A lot of injured workers believe that their employer has to have had committed some kind of horrible sin for the employer to be found liable by a jury. But it's quite the opposite. Since everything an employee does is to benefit the employer, there's a high burden on the employer to provide a safe work environment where the worker may do the employer's bidding, and everything that can feasibly be done to create a safe work environment is expected to be done. This even applies to a scenario where the injured worker was also negligent in their conduct. Under Texas law, if the non-subscriber employer is negligent even in the slightest, then the worker has a right to sue them. Let's discuss some examples.

• Example One

  Imagine that a painter falls off a balcony and suffers a serious injury. If the facts of the case show the employer never provided the painter with a safety harness, then the employer is negligent for failing to provide proper safety equipment. That's obvious. But consider a slightly modified scenario: imagine that the employer issued a safety harness on the painter's first day of work, many months ago. On the day of the accident, however, the employee simply chose not to wear it for whatever reason. Is the employer still negligent? The short answer is that this is a fact question that will have to be answered by a jury. This scenario has no clear cut "yes or no" answer. But, it seems very likely that the employer might be found negligent if they knew that the employee never wore the harness yet the company never bothered to enforce their own policies. In the company requires painters to wear safety harnesses, on paper, but doesn't actually enforce these rules, then that is a type of negligence called Negligent Supervision. However, if the employer did everything they could to make the painter wear the harness, and he deceptively removed it, when no one was looking, a jury could find that the employee was the sole proximate cause of the injury, and rule in favor of the employer.

• Example Two

  A worker at a retail store is severely beaten by a coworker. If the employer had no indication that Bob was going to beat up Victor, then there's nothing that the store could have done to prevent it. Therefore, they weren't negligent. But if Bob went around telling everyone that he was going to beat up Victor, and the store's management knew about it and took no proactive steps to prevent it, then that would constitute negligent supervision. In another instance, if Bob had several arrests for assault and battery and the company never bothered to conduct a background check when hiring him, that would be negligent hiring, or if Bob had assaulted another employee in the past yet the store continued to employ him, it would be considered Negligent Supervision.

• Example Three

  Steve is working in a warehouse and gets run over by a coworker who is driving a forklift. Surveillance video from the warehouse shows the coworker was driving recklessly and therefore he is found to be negligent. Assuming the company itself did nothing to contribute to the accident, then the company itself was not negligent, but the company would still be liable because they assume legal responsibility for the negligence of their employees, according to Texas law.

• Example Four

  A delivery driver is proceeding down the road and his truck is struck by another motorist who ran a red light. Even though the delivery driver was on the clock and furthering his employer's business interests, the employer had no hand in causing the accident. Barring some abnormal circumstance, the delivery company cannot be found negligent.

Speak with an experienced Texas non-subscriber work injury attorney about your case, today.

Don't see circumstances similar to your own experience described above? Don't worry. In the 25 plus years we've been practicing law, we've seen almost every type of non-subscriber work injury case. We've most likely dealt with a case like yours before. To discuss the particulars of your case with a seasoned Texas non-subscriber lawyer, call (855) 326-0000, toll free. You can reach us any time of day, any day of the week.

Other articles about non-subscriber work injuries that may be helpful:

• What Does the Course and Scope of Employment Mean?
• History of Non-Subscriber Laws and Court Decisions
• The Routine Job Defense Explained