Non-Subscriber Employer Defenses: Commonly Known Hazard Defense

One of the goals of the Texas Legislature when they passed the Workers' Compensation Act was to eliminate lawsuits between employers and employees. To this end, the legislature greatly reduced the number of defenses available to employers when they are sued by an employee after a work injury if the employer does not subscribe to workers' compensation. Certain defenses such as Contributory Negligence were barred in work injury negligence lawsuits. Despite these incentives, many employers choose to remain outside of the workers' comp system. These employers are known as non-subscribers.

While prohibiting some of the "silver bullet" defenses employers had successfully used for decades to defend against negligence lawsuits brought by injured workers, the Texas Legislature did not leave employers completely defenseless against such lawsuits. While some defenses were granted in statute, and others had previously existed in the common law, the defense of Commonly Known Hazard has since been recognized in case law and permitted by the Texas Supreme Court.

The Commonly Known Hazard Defense argues that a potential source of injury was so widely known by a reasonable person that the employer had no duty to warn employees about the danger.

In this article Texas work injury attorney Michael Grossman discusses what the Commonly Known Hazard Defense is and how it is used in non-subscriber work injury cases.

To find out what benefits an employer gets for opting in to the workers' comp system, you can read about on our Texas workers' comp page and for those opting out, they're considered non-subscribers and you can read how they differ here.

Questions answered on this page:

• What injuries would be consider commonly known hazard injuries?
• When can an employer use the Commonly Known Hazard Defense?
• How can a lawyer help me in a Texas work injury case?

An Overview of Non-Subscriber Employer Defenses in Work Injury Lawsuits

Under Texas law the most common defenses that allow non-subscribing employers to defend themselves if a work injury lawsuit occurs include:

• Sole Proximate Cause
• Employee Intoxication
• Self-Inflicted Injury
• Pre-Existing Injury
• Employee Signed a Post Injury Waiver
• Not Within Course and Scope of Employment
• Routine Job
• Commonly Known Hazard

Where Does the Commonly Known Hazard Defense Come From?

Unlike defense such as the Employee Intoxication Defense or the Self-Inflicted Injury Defense, which were explicitly created by the Texas Legislature for employers to use in non-subscriber cases, the Commonly Known Hazard Defense has its origins in the common law, or case law. What makes it different from other common law defenses like the Not in the Course and Scope of Employment Defense or the Act of God Defense, is that the Commonly Known Hazard Defense has evolved and been recognized relatively recently.

As non-subscriber work injury cases took place in courtrooms, so did verdicts and appeals. With appeals, non-subscribers were able to continuously plead their defenses to new judges and juries. One defense that made it up to the Texas Supreme Court was deemed an appropriate defense that non-subscribers could use is the Commonly Known Hazard Defense. This is one of just a few important defenses deemed worthy of use, and as such, employers that are defendants today can use this Commonly Known Hazard to combat the plaintiff's claim.

In one particular case, an employee attempted to take his employer (a major grocery store) to court for his work injury. The employer was obviously a non-subscriber, therefore, not immune to lawsuits. The injury occurred when the employee was helping a customer load her purchased groceries into her car. The car was parked on an incline and the employee had one foot holding the cart from rolling down hill as well as one in the doorframe of the car, the customer slammed the car door shut because they didn't realize the employee's hand was there, causing severe injuries to the worker's hand.

• The injured worker, the employee helping the customer put groceries into her car, claimed that his employer was liable for the injuries. The grocery store in return argued that it had no duty to warn the worker of this Commonly Known Hazard. This case made it all the way up to the Texas Supreme Court. The employee argued that the workplace had a duty to warn and teach safety precautions for this type of accident. The workplace in return argued that this is just common sense.

This case took place in 2006, which gives both employees and employers an indication that non-subscriber law isn't all statute yet, but that new cases come up all the time, causing the state Supreme Court to rule on the matter.

What is the Commonly Known Hazard Defense and How Does it Work?

It is easiest to understand this defense and what it attempts to accomplish in the context of the four elements that an injured worker has to prove in a Texas non-subscriber work injury case. These elements are:

• The employer owed the employee a duty.
• The employer breached that duty (failed to perform it).
• The breach of the employers duty to the employee caused an injury.
• The injury resulted in the employee sustaining damages.

In order to successfully pursue a claim against their employer, an injured worker must prove all four of these elements. The Commonly Known Hazard Defense attempts to attack the first element of an injured worker's case. The defense goes that what caused the employee's injury was so obvious that the employer had no duty to warn the employee of the hazard it posed. This defense is built squarely on the "reasonable person" standard. Basically, a reasonable adult should know just by virtue of being a functioning adult that a particular hazard is dangerous.

Where the defense gets tricky is that it is a thin line between a commonly known hazard and the Assumption of the Risk Defense. That defense argues that an employee assumed the risk for all hazards just by agreeing to take a particular job. This normally would not be an issue, except for the fact that the Texas Legislature specifically forbids non-subscribers from using Assumption of the Risk as a defense.

The tension is most clear when one considers delivery drivers. While an employer may be tempted to argue that driving is a Commonly Known Hazard should an employee be injured in an accident on the roads, it is nearly impossible to distinguish Commonly Known Hazard in those instances from Assumption of the Risk. After all, if any accident that occurs while driving is considered a commonly known hazard, how then did the driver not assume that risk just by accepting a delivery job?

How the Commonly Known Hazard Defense is Used Against Injured Workers

When you step away from the law for just a second and start to consider what is a commonly known hazard, it becomes clear that it is so vaguely defined that it could be almost anything. That is both the strength and the weakness of this defense. Since it can seemingly apply to darn near anything that causes an injury, the Commonly Known Hazard Defense is quite versatile and pops up with increasing frequency in Texas non-subscriber cases.

Of course, the versatility of the defense means that it is often easier to rebut than other defenses. For instance, let's say that a server in a restaurant trips down the stairs and suffers a severe injury. The employer is a non-subscriber and the injured worker files suit to recover compensation for damages suffered in the accident. The employer would very likely attempt to argue that stairs are a Commonly Known Hazard. However, by advancing the argument, its weaknesses appear. In many instances, a properly maintained staircase, free from debris and liquids is a commonly known hazard, however, staircases, especially in restaurants, are rarely properly maintained. On the surface what seems like a good argument falls apart, because there is very little chance that an employer could argue that a poorly maintained staircase is an obvious hazard.

What injured workers need to know about the Commonly Known Hazard Defense is that there is a high likelihood that a defense attorney will try and employ this argument on behalf of their client, but at the same time there are lot of arguments, which can destroy this defense.

Another thing that injured workers have to be aware of is that if successful, the Commonly Known Hazard Defense completely destroys an injured worker's lawsuit. When used successfully, the defense refutes that an employer owed a duty to their employee. Without that element, a non-subscriber injury case falls apart and the injured worker receives nothing. This does not mean that a worker has to be afraid of this defense, but merely aware of its potential implications.

How Do Experienced Work Injury Attorneys Fight Back Against the Commonly Known Hazard Defense?

The simplest way to combat this defense is to show that there was nothing common about the alleged commonly known hazard. To go back to our staircase, of course people know that staircases are dangerous. That is why reasonable people tend to move more slowly and cautiously on staircases. However, most people traverse staircases with the assumption that the staircase is well-maintained. In many instances this is not the case.

If we were to look at other professionals, like commercial truck drivers, the ways around the defense become even more clear. While a trucking company may be tempted to argue that driving an 18-wheeler is a commonly known hazard, that assumes that the 18-wheeler is in perfect working condition. For many 18-wheelers on the road this is not the case. A light may be out, reflective tape could be damaged, or their may be a mechanical issue with the truck. All of these would make a common hazard into an uncommon one.

In essence, the key to rebutting this defense is to re-establish the employer's duty to the employee. If the employer had no duty to warn of a Commonly Known Hazard, they certainly had a duty to maintain that hazard in as safe a condition as possible. In essence, the argument shifts from a failure to warn, to a failure to maintain a safe work environment. Since most accidents are caused by a failure on the employer's part to maintain a safe work environment, in most instances an experienced work injury attorney will have little difficulty refuting the Commonly Known Hazard Defense.

Why an Experienced Work Injury Attorney Matters

The biggest danger from the Commonly Known Hazard Defense comes from when an injured worker is either not represented or has inexperienced legal representation. The defense is something that can easily catch inexperienced attorneys off guard, despite its increasingly common usage by defense attorneys. Given that the cost of being unprepared can mean losing an injured worker's case, there is no excuse for a worker's lawyer not to expect this defense and have a rebuttal ready to go. It also shows the importance of having an experienced work injury attorney on your side.

The work injury attorneys at Grossman Law Offices, based in Dallas, TX, have over twenty-five years of experience and have successfully pursued compensation in hundreds of non-subscriber lawsuits. Call (855) 326-0000 for a free consultation. We answer the phone anytime, day or night.

Related Articles for Further Reading:

• Overview of Texas Law for Non-Subscribing Employers
• How Expert Witnesses Play A Major Role In Work Injury Lawsuits
• How Much Are My Injuries Worth In a Texas Non-Subscriber Case