Employer Defenses in Texas Non-Subscriber Cases: Routine Job Defense:

Texas law gives employers the option of whether or not they wish to participate in the Worker's Compensation System. Employers who opt into the system, subscribers, provide work injury insurance for their employers in exchange for immunity from negligence lawsuits. Those who choose not to participate in the system are referred to as non-subscribers. They provide no work injury insurance to their employees and employees injured due to employer negligence are forced to seek compensation for work injuries through a lawsuit.

In addition to facing potential lawsuits, in an effort to get non-subscribers to sign up for workers' comp, the Texas Legislature greatly reduced the number of defenses available to non-subscribers when they are sued. The most significant defense, which was scrapped, was Contributory Negligence. This defense allowed employers to argue that some portion of the accident was due to an employee's own negligence. By getting rid of that defense the Texas Legislature essentially made non-subscriber work injury cases an all or nothing affair. If the employer's negligence accounts for even 1% of an accident, then the employer is on the hook for 100% of the damages in a non-subscriber work accident.

This should not give the impression that employers are defenseless in a non-subscriber case. It just means that the defenses they have available to them attempt to totally disprove an element of the injured worker's case. One such defense is the Routine Job Defense. This defense attempts to deflect negligence arguments by suggesting that what an employer asked an employee to do was such a mundane and run-of-the mill task that the employer could not possibly foresee an injury occurring.

In this article, Dallas-based work injury attorney Michael Grossman will discuss the use and abuse of the Routine Job Defense in Texas non-subscriber cases.

Questions answered on this page:

• How does the Routine Job Defense work?
• When can an employer use the Routine Job defense?
• How can a lawyer help me in a work injury case if my employer claims my injury was caused by routine job duties?

Overview of Non-Subscriber Employer Defenses

Some of the common defenses that allow employers to defend themselves in work injury cases under Texas law include:

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

What is the Routine Job Defense and Where Does it Fit in a Texas Work Injury Case?

In the Routine Job Defense an employer basically argues, "Sure I asked my employee to do the task, which resulted in their injured, but their is absolutely no way that we could have foreseen that the action could have resulted in an injury and furthermore, the task was so innocuous that their was nothing we could have done to prevent it."

The Routine Job Defense has its origins in a Texas Supreme Court decision in Great Atlantic Pacific Tea Co. v. Evans (1943). In that case, Royce Evans was a stock clerk in an A&P grocery store who suffered a hernia while moving 100 lb. bags of potatoes from the front of the store to the stock room. Evans alleged that A&P was negligent for not providing him with assistance or the use of a dolly to move the potatoes.

After winning at trial, Mr. Evans' verdict was eventually overturned by the Texas Supreme Court on the grounds that Mr. Evans' had lifted potato sacks for months with no ill-effects. The court held that the activity was so routine and endemic to his job that their was no way that A&P could have foreseen the injury.

When analyzing the decision and trying to understand the Routine Job Defense it is important to remember the four elements that an injured worker must prove in a Texas work injury lawsuit. They are:

• The employer owed the employee a duty.
• The employer failed to fulfill that duty, or breached the duty owed to the employee.
• The failure to perform a duty was what caused the accident.
• As a result of the accident, the employee suffered damages.

Just reading through those criteria it would seem that Mr. Evan's case and most routine job injuries meet those criteria. That is because the third criteria, known as causation has several sub-elements, which are not typically listed. One of those elements is that an injury had to be foreseeable by the employer. The court ruled in A&P v. Evans that because Mr. Evans had moved potatoes so many times before, A&P could not foresee that an injury would result from his moving potato sacks by himself.

Foreseeability is a crucial element to ensuring that civil lawsuits are fair to defendants. After all, it would hardly be fair to defendants to hold them accountable for events they could not have possibly anticipated. Seen in this light, the Routine Job Defense is just a less exciting, less Hollywood version of the Act of God Defense, which also attacks foreseeability, only in the event of larger natural phenomena like tornadoes, earthquakes, or hurricanes.

A more relevant example to workers today would be if an employee was asked by their boss to empty the office wastebasket. Since wastebaskets are typically not very large and generally filled with rather light trash, there is little reason to believe that an adult could be injured by emptying one. Should the employee tasked with emptying the trash hurt their back or suffer a hernia from the task, it is very likely that the employer would argue the Routine Job defense.

How the Routine Job Defense Can Be Abused

The problem most injured workers face when their employers use the Routine Job Defense is that it can seemingly apply to darn near any aspect of a job, whether it was actually routine or not. Additionally, the standard set in Great Atlantic Pacific Tea Co v. Evans seems hopelessly antiquated. Lifting 100 lbs. without assistance would not be considered routine in any job setting today, however, if a grocery store clerk is injured in 2016, from lifting large bags of potatoes, there is precedent for ruling against them.

Heck, if we tweek the earlier example of an employee injured emptying a wastebasket, the problems of the Routine Job Defense become more apparent. The kitchen wastebaskets in most restaurants are usually filled with food waste, liquids, and glass bottles, which can easily make each receptacle weight over 100 lbs. Many restaurants provide dollies to assist kitchen staff in moving these baskets around, but lifting the bags out of the receptacles in order to change them is still the responsibility of the staff. While most people would not consider that kind of heavy lifting to be routine, it is part of some kitchen staff's jobs.

Furthermore, when people hear that someone was hurt emptying a wastebasket, they are much more likely to assume that it was the 5-ish lb. office variety as opposed to 100-plus lb. restaurant variety. Defense attorneys will do their best to ensure to nurture that pre-conceived notion of how routine emptying a wastebasket is, even the context of the trash cans that are packed with exceptionally heavy waste.

If successful, the Routine Job Defense can prevent an injured worker from recovering any compensation in their Texas work injury case.

How an Experienced Texas Work Injury Attorney Can Help

Fortunately for injured workers, just because employers can argue the Routine Job Defense, doesn't mean that the defense will be successful. An experienced work injury attorney will anticipate this defense and be ready to rebut it.

If the employer is trying to stretch what a routine task is, as many will do, then an experienced attorney will be able to illustrate that their was nothing routine about the assigned task.

Foreseeability is a two-way street. The key to debunking this defense is demonstrating that the employer knew, or should have known, that the potential existed for an injury to occur from a specific task. It doesn't matter how many times an employee engaged in a task, if the employer knew that injuries were possible, but did nothing to lessen the risk. Often under deposition employers admit that it is quite reasonable that someone could be injured performing the activity the employee hurt themselves doing. It is even more convincing if such an injury had occurred at the company before. That is why an experienced work injury attorney will always conduct a thorough investigation into the company against whom the suit is brought.

In most instances, the Routine Job Defense is just an employer grasping at straws. There is really no risk to the employer attempting to see if the defense can stick, while the reward for pursuing such a defense is tremendous, since it can end a case. In cases where the injured worker has retained inexperienced counsel, the defense has an even greater chance of success.

The fact of the matter is that except in rare circumstances, the Routine Job Defense is not likely to succeed in most work injury lawsuits, so long as the plaintiff's attorney is sufficiently prepared.

Don't Let Your Employer Wrongfully Use the Part of Routine Job Defense

Just because the Routine Job Defense is not likely to succeed in a Texas work injury lawsuit is no reason to take it lightly or to take chances by hiring an inexperienced lawyer. Over the past 25 years, the attorneys of Grossman Law Offices have helped hundreds of injured Texas workers successfully pursue there work injury claims. In that time our attorneys have seen darn near everything an employer's attorney can throw at us and are prepared for almost everything.

If you have been injured an your employer does not subscribed to workers' compensation, feel free to call us with any questions you might have at (855) 326-0000 for a free consultation. We answer the phones any time, day or night.

Related Articles for Further Reading:

• What Rights Do Injured Workers Have In Non-Subscriber Cases?
• What Employer Defenses Are Not Allowed In Work Injury Lawsuits?
• A Look at When an Injured Worker Should File a Lawsuit In Texas