Reported / Citable
Background
Stephen Skowron worked as a night manager at a Tom Thumb store owned and operated by Randalls Food & Drugs, LP, a nonsubscriber under the Texas Workers’ Compensation Act. His regular duties included organizing merchandise and moving products toward the front of shelves. Randalls provided step stools, and Skowron testified that he ordinarily used one when working on upper shelves.
On the date of the incident, Skowron could not locate a stool, despite earlier complaints about stools being unavailable. He continued working because he had to finish his duties and no other worker was assigned to help him. While reaching toward an upper shelf, his leg “snapped,” and he blacked out. Randalls moved for summary judgment on his negligence claim.
The Court’s Holding
The court denied Randalls’ motion. Although an employer is not an insurer of employee safety and need not provide unnecessary equipment or assistance, Texas law requires an employer to use ordinary care to provide a safe workplace and needed safety equipment. Skowron’s testimony that he usually used a stool for upper shelves, together with evidence that Randalls supplied stools, created a genuine factual dispute over whether a stool was necessary for the safe performance of his work.
The court rejected Randalls’ argument that Skowron’s supporting affidavit was a sham, finding that it further explained rather than contradicted his deposition testimony. The evidence also created a factual dispute over whether pressure to finish the work without assistance contributed to the injury. Finally, a declaration from Skowron’s treating physician raised a causation dispute, and the physician, as a nonretained expert, was not required to provide a written expert report. The court therefore declined to strike the declaration.
Key Takeaways
- An employer’s argument that routine work was not unusually precarious did not eliminate the separate question whether safety equipment was necessary to perform that work safely.
- An affidavit that elaborates on deposition testimony without contradicting it is not necessarily a sham affidavit.
- A treating physician’s declaration created a genuine dispute over medical causation, and no written report was required from the physician as a nonretained expert.
Why It Matters
The decision shows that a Texas nonsubscriber employer may face a triable factual dispute when evidence indicates that employer-provided safety equipment was necessary but unavailable when an employee was injured. Evidence concerning workload, staffing, and prior complaints may also bear on whether the employer exercised ordinary care.
The ruling permits Skowron’s negligence claim to continue beyond summary judgment, without determining ultimate liability or requiring that the case proceed to trial.