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Houston Court addresses Non-Subscribers’ Duty to Provide Necessary Instrumentalities
Author: Katherine Killingsworth
On April 14, 2017, the Fifth Circuit Court of Appeals in Austin v. Kroger, following direction from the related Texas Supreme Court’s 2015 opinion in Austin v. Kroger, Texas, LP, 465 S.W.3d 193 (Tex.2015), examined the duty that an employer owes its employees to provide equipment and other instrumentalities that are “necessary” for the employee to safely perform his or her job duties. Just two months later, the Houston First Court of Appeals issued the most recent opinion in this developing area, in Advance Tires v. Enshikar, No. 01-1600020-CV, (Tex. App.-Houston [Fifth Dist.], 2017).
Abrhim Enshikar was an employee of Advance Tire, a nonsubscriber to the Texas Workers Compensation Act. Enshikar was a tire repairman, and on the day of the incident he was holding onto a tire while he inflated it. The tire exploded and injured Enshikar’s hand. Advance Tire’s typical safety protocol required employees who were inflating tires to lock them into place in a tire inflator, and keep their distance. However, the tire that exploded was too large to fit into Advance Tire’s inflator, and had to be inflated in a freestanding position on the floor while Enshikar held onto it. Enshikar alleged that Advance Tire was negligent in requiring him to service a tire that could not be safely inflated due to the absence of appropriate equipment. After considering the evidence at a bench trial, the trial court judge ruled that this alleged failure to provide necessary equipment was a breach of Advance Care’s duty to provide Enshikar with a safe workplace, which proximately caused Enshikar’s injuries. On June 13, 2017, the Houston First District Court of Appealsupheld the judgment.
The Non-Subscriber Section at SettlePou is led by shareholders Kent Williamson, Mark Craig, and Katherine Killingsworth. Each member of the section is familiar with the intricacies of Non-Subscriber law and stays on top of developing areas, such as the extent of the duty to provide necessary instrumentalities. The section has extensive experience representing Texas employers in both on-the-job injury claims and claims for benefits under the Federal ERISA Statute. Additionally, the attorneys understand employment issues and Occupational Safety and Health Administration issues.
Should you have any questions about this recent opinion or non-subscriber issues in general, do not hesitate to contact Kent, Mark, or Katherine.