Non-Subscribing Employer's Contributory Negligence Defence In Texas
An employee of a workers' compensation nonsubscriber must establish the employer is negligent in order to recover. See Werner v. Colwell, 909 S.W.2d 866, 868 (Tex. 1995) (citing Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 239 (1955)).
To establish negligence, evidence must be produced to establish a duty, a breach of that duty, and damages proximately caused by the breach. Werner, 909 S.W.2d at 869 (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)).
An employer has a duty to its employees to use ordinary care in providing a safe work place. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); Werner, 909 S.W.2d at 869.
The employer's nondelegable and continuous duties to its employees include: providing a safe place in which to work and to furnish reasonably safe instrumentalities, warning employees of the hazards of their employment, and supervising their activities. Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975); see also National Convenience Stores v. Matherne, 987 S.W.2d 145, 149 (Tex. App.-Houston [14th Dist.] 1999, no pet).
A nonsubscribing employer may not assert the contributory negligence, if any, of the injured employee as a defense. TEX. LAB. CODE ANN. 406.033 (Vernon 1996); the Kroger Co. v. Keng (Tex. 2000).
However, an employer is not liable if the employee's negligence was the "sole proximate cause" of the accident. Najera v. Great Atl. & Pac. Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367 (1948).
The "matter of sole proximate cause is, like other controverted fact issues, ordinarily one to be submitted to the jury." Id. at 367.