Of all U.S. states, Texas is unique in that it allows employers not to participate in the state workers' compensation program. However, opting out of workers' comp opens those non-subscribers up to direct lawsuits from their injured workers. Naturally, companies that find themselves involved in such a lawsuit will make use of any available defenses. One such defense is open and obvious hazard, but what is that?

Answer: The open and obvious hazard defense argues that a potential source of injury should have been so clear to a reasonable person that the employer had no duty to warn employees about the danger.

In this article we'll look at this non-subscriber defense in more detail, discuss how effective it is, and talk about how a work injury attorney might refute it.

What Does Open and Obvious Hazard Defense Argue?

The main gist of the open and obvious hazard defense is that an employer had no duty, or legal obligation, to warn their employee about whatever hurt them on the job. The employer basically claims that the hazard was so obvious that the worker should have realized the danger and taken precautions on their own. The defense relies on the reasonable person standard, which in a nutshell says that a person of average intelligence, in the same situation as the employee, should and would have acted in a way that prevented harm.

Example: One day Tom is working at Xmart when a customer knocks over a product, breaking it and leaving a wet spot on the floor. Tom's manager instructs Tom to clean up the spill, so Tom goes and grabs his mop and bucket. While he's cleaning the spill, Tom slips on the wet spot, falls, hits his head against the floor, and suffers a brain injury.

Xmart doesn't participate in the workers' compensation system, so in order to recover his losses, Tom must sue Xmart. At trial, Xmart argues that that it was obvious to Tom that there was a dangerous condition because a manager at Xmart instructed Tom to clean up the spill.

The legal basis for Xmart's argument in the example is the open and obvious hazard defense.

Where Does the Open and Obvious Hazard Defense Come from?

Like many legal strategies, open and obvious hazard was created by the courts and evolved over many rulings over the years. This means that if you search the various codes of Texas law, you won't find the defense. It was created by judges, to address issues that arose in interpreting the laws passed by the legislature.

Here are some of the key cases whose decisions serve as precedent for the defense:

Sears, Roebuck Co. v. Robinson (May 4, 1955)

This is the first work injury case in Texas where courts had to wrestle with the open and obvious hazard defense in their decision. The gist of the case is that a warehouse employee for Sears was stacking oil cans one day, went home, and came back the next day to find that oil had leaked out of a can onto a concrete floor. Later during the shift, the employee slipped on the oil and injured his back.

At the time Sears did not participate in the workers' compensation system, so the injured worker sued Sears and won in court. Sears appealed that verdict on the grounds that the trial court had misapplied the law.

Before we go further, let's take a step back and address a bigger issue in non-subscriber work injury law. As a stick to get companies to join the workers' compensation system, Texas legislators banned two common defenses that employers relied in on these cases, assumption of risk and contributory negligence. The first defense was just a fancy way of saying "you signed up for a dangerous job, kid, it's not our fault you were hurt." The second more or less argues that the employee carelessly hurt themselves. Since Sears couldn't make either of those arguments, the trial court allowed the case to go ahead.

Sears essentially said "Not so fast: We're not arguing either forbidden defense. We're saying that this hazard was so clear, we didn't owe the employee a duty to warn him about it in the first place." In essence, Sears' attorneys were trying to smuggle a concept from premises liability law into non-subscriber law by arguing they didn't owe the employee a duty, and therefore he had no grounds to sue. It was up to the Texas Supreme Court to settle the dispute.

The court ultimately held that you can't apply premises liability law to work injury cases and that employers had a duty to provide workers with a safe work environment. In short, they rejected the open and obvious hazard defense.

Kroger Co. v. Elwood (May 12, 2006)

Over the next 50 years and many appellate cases, Texas courts here and there defined more clearly an employer's duty to provide a safe work environment. In Elwood, the Texas Supreme Court further clarified that duty and established a narrow interpretation of the open and obvious hazard defense.

The basics of the lawsuit are as follows: A Kroger employee was loading groceries into a customer's car when his hand was injured by a closing car door. The employee sued Kroger, alleging that he wasn't properly trained to load groceries into vehicles and that the incline of the property made it more dangerous to do so. The worker won at trial but the case was appealed, eventually ending up before the Texas Supreme Court.

The court sided with Kroger, reasoning that when a task was so simple as to require no special training or equipment to be done safely, employers couldn't be held liable when an employee injured themselves doing the task. From that decision, limited permission for the open and obvious hazard defense in work injury lawsuits came into being.

Austin v. Kroger Texas, L.P. (June 12, 2015)

This case involved an employee at a Kroger who was the store's go-to "clean-up guy" for spills. One day an oily substance leaked and covered the floor of both the men's and women's bathrooms. The "clean-up guy" was called in, but he slipped and injured himself while trying to clean the oily spill. He sued Kroger for the injuries he sustained.

The case worked its way through the courts until it arrived at the Texas Supreme Court. In its decision, the court amended the open and obvious hazard defense to include the following: People trained in and tasked with cleaning up dangerous conditions on a property are excluded from being able to sue when they are injured in the process of said cleaning.

How Does the Open and Obvious Hazard Defense Affect My Case?

As you can probably gather from the cases mentioned above, the open and obvious hazard defense is only valid in very specific circumstances—but if those circumstances are met, it still has the power to prevent an injured worker from winning their case.

Since the Texas Legislature stripped employers of most of their defenses in non-subscriber work injury cases, the open and obvious hazard defense is one of the few valid arguments available to them. It's little surprise then that defense attorneys for companies will try to stretch the open and obvious hazard defense as far as they can, as it's one of a limited number of available tools in their toolbox. The success of the tactic depends on the facts of a particular case and the injured workers' attorneys preparation and experience handling the defense.

Grossman Law Helps Injured Workers

The open and obvious hazard defense is just one of many landmines that can damage an injured worker's lawsuit against their employer. Luckily, over the past three decades our attorneys have helped countless injured Texans with their non-subscriber work injury and wrongful death cases. That experience means that we generally have a good idea how an employer's attorney will argue their case, and what will be needed to overcome them.

If you were injured on the job in Texas and you want to put that experience to work on your case, call us any time, day or night, for a free consultation.