The Routine Job Defense and Foreseeability: Analysis

Michael GrossmanAugust 09, 2016 7 minutes

Worker's Compensation is, on the surface, a helpful institution. It's guaranteed recompense if you're hurt in the line of duty, from dish washing to long-haul trucking. And why not? It's not unreasonable to think that an employer should try to keep employees from getting injured on the job. They are, in fact, obligated by law to provide a safe environment.

So when things go wrong on the job site--a broken bone, a fall, a bear-mauling--employers in 98% of these United States provide guaranteed compensation to the injured employee in exchange for immunity from lawsuits.

While the system appears to balance the needs of injured workers with protections for employers from large lawsuit awards, employers have a lot of different ways to weasel out of their obligation to employees who get hurt on the job. We're not a Worker's Comp firm, though. That's a different branch of the law.

We handle personal injury claims. Texas is the only state in the Union where employers can drop out of the program, and these non-subscribers, as they're known, have the same common law rights to bring claims against employers as anyone else who doesn't cash their paychecks.

Texas Just HAD to Be Different.

Texas has the unique distinction of being the only one of these United States which allows employers to opt out of the Worker's Comp system.

To be clear, the program is still available. Employers, which the Workers' Comp system calls "subscribers," can still enroll, paying into the program which then provides injury insurance to their employees. Unlike everywhere else, though, they can back out of Worker's Comp as "non-subscribers" and let the chips fall where they may if/when employees get hurt.

Spoilers: the chips fall on lawsuits. They're pretty much the only recourse for injured employees in non-subscribing workplaces.

Texan legislators would prefer that non-subscribers get with the Workers' Compensation program. To encourage their enrollment, the Worker's Compensation Act (WCA) was created to limit their options in the event that employees have to sue them. The WCA stripped several of the defenses that employers had commonly used, which had stacked the deck unfairly in their favor.

Most notably, Texas opt-out employers are not permitted to argue Contributory Negligence, a defense in which an employer's financial obligations are lessened if they can prove partial negligence (determined as a percentage of overall negligence) on the part of the injured employee.

The theory would run along the lines of the employee acting outside of acceptable procedure to accomplish a task, like lifting with his back instead of his knees, or acting reckless around potential hazards. Because the employee at that point was negligent with respect to his own safety, the company could theoretically argue that some "percentage" of their liability actually falls on him. This defense is not accepted in either Workers' Compensation or non-subscriber claims, though you can bet employers wish it was.

Don't get me wrong, though--Texas non-subscribers aren't powerless just because they lost some of their big guns. There's still several defenses they can apply when they're sued for damages. If they can prove these defenses apply to the case, they can mitigate or even fully negate the claim.

Grossman Law has conveniently outlined these Texas Non-Subscriber Defenses on another page, so please read that if you could use a helpful reference.

I specifically want to talk about the Routine Job Defense, and the argument of foreseeability.

Another Way Carbs Can Ruin Your Life

While this is covered elsewhere on the site, I think it's important to just very quickly touch on the four elements that must be proved in a successful Texas work injury claim:

  1. The employer owed the employee a duty to provide a safe workplace.
  2. In failing to keep the work environment safe, the employer breached that duty to the employee.
  3. The employer's failure to perform its duty caused the employee's injury.
  4. As a result of the accident, the employee suffered demonstrable damages.

Let's apply those to the historical roots of the Routine Job Defense:

In 1939, A&P grocery employee Royce Evans was tasked with moving 100-pound sacks of potatoes from the sidewalk in front of the store to the rear stock room--about 70 to 80 feet per trip. He did so for months without benefit of a hand-truck or other lifting equipment, like a grocery-store Sisyphus (Groceryphus? nevermind), and one day he suffered a debilitating hernia from his exertions.

Evans took A&P to court, alleging the grocery chain was responsible for his damages because they didn't provide him the appropriate gear to make potato-schlepping a simple, pain-free task. He further alleged when deposed that the store manager had refused to allow him to borrow a hand-truck from a nearby grocery, citing company policy not to use equipment from competitors.

Evans won the initial trial in Dallas District Court during Great Atlantic Pacific Tea Co. (A&P's full trade name) v. Evans. A&P appealed the decision to the Texas Supreme Court, however, where in 1943 the district court's initial judgment was overturned.


Looking at the four main elements we mentioned, this looks like it should have won. A&P breached its duty to Evans to keep him safe(1,2) by failing to provide safety equipment(3), and he was injured(4); that covers all four base elements. Right?

Sort of. Those elements aren't as clear-cut as they seem. A&P alleged that element number 3, causation, in which the employer's negligence is seen to be responsible for the employee's injury, was not proven in this matter. This is where foreseeability comes into the equation: A&P was successfully argued that Evans' injury couldn't have been predicted, as moving potato sacks had been a regular part of his work for months and hadn't hurt him until then. It was also established that the required duty was a standard part of work for similarly-employed people at other grocery stores.

In delivering the verdict of the court, Texas Justice Richard Critz stated the justices' agreement with A&P's defense:

"The standard to test the question of negligence is the common experience of mankind, and implies generally the want of that care and diligence which ordinarily prudent men would use to prevent injury under the circumstances of the particular case."

This serves as an accurate summary of the reasonable person standard used when determining negligence: did the plaintiff do all the things he should have done to preserve his own safety? Did he act prudently based on what a so-called "normal" person would have done?

"The question of the existence of negligence and its degree generally depend upon the facts of each case; and if it consists of an omission to perform a duty devolved upon the person charged with negligence, it must be considered with reference to the character of the business in which the person is engaged."

This statement dealt with A&P's duty to protect Evans. If negligence was accused, it was important to determine how A&P had or hadn't acted that could be considered different than their normal standard of care, and whether the resultant damages could have been predicted. Critz posited that A&P had only been operating exactly as they had been all along, with no deviation in policy. Evans, a man who had by then lifted a ridiculous number of potatoes without incident, could not reasonably have been expected to suffer damage from the typical execution of his duties. In Critz's own words:

"Evans was a strong, robust young man...He was doing the same character of work that other employees in other grocery stores constantly and generally did...Certainly Evans cannot complain if A&P merely required him to do the usual and customary work required of persons in his line of employment, or, stated in another way, required by the character of the business in which he was employed."

A&P was found not to be negligent and the case was thrown out.

Circling all the way back to where we outlined the elements of a negligence case, the outcome of Great Atlantic Pacific Tea Co. v Evans suggested that A&P could not have foreseen the possibility of Royce Evans' injury, and therefore couldn't have made adequate preparations against it. Because they couldn't have known it was coming, they weren't negligent in failing to prevent it.

This decision formed the backbone of the Routine Job Defense. "You do it all the time, so we couldn't have foreseen that doing it this particular time was going to drop you."

Bears and Potatoes Aside, Why This Matters Today

The Texas Supreme Court decision in Evans set a precedent that can be (and is) applied to this day. That's what common law is; judges make decisions that are used as reference points for future cases with similar circumstances. That's one of the fundaments of the American legal system.

Justice has to be as fair as it can be or it simply isn't justice. Defendants, including employers, must be afforded the right to defend themselves, and foreseeability is one of the ways they can do that.

With that said, foreseeability seems kind of questionable. Where do we draw the line? A job can vary from day to day. A pimply 98-pound fry cook can carry a 30-pound sack of trash to the dumpster every day, but what about when the freezer malfunctions and the beef goes bad? What if he hurts his back carrying that 90-pound bag of lukewarm burger patties?

Spinal Fractures
Who's too good for the fryolator now, Billy? X-rays of back fractures.

Routine Job could still be posited. Most employers only include vague outlines related to specific employees' duties, and are careful to add "responsibilities beyond those listed" to the hiring paperwork newbies have to sign.

Routine Job is a low-risk, high-reward defense. If it's proved, it can effectively torpedo an injury case.

It's a tornado-less version of the Act of God defense--"Nobody could have seen this coming!" I beg to differ.

Luckily, foreseeability can be argued on both sides. A skilled attorney can argue that an employer should have evaluated potential risks and prepared for them. Deposed employers have admitted over and over that that routine activities assigned to their employees can prove injurious, but nothing was done to lessen those hazards because it would have been cost-prohibitive.

If the plaintiff's attorney can argue that the employer did not exercise the standard of care it should have to safeguard an employee, it can go a long way toward demonstrating the employer's negligence.

One last point regarding Evans and the Routine Job Defense is that it changes over time. In 1943, jobs that required people to lift heavy products were commonplace. At the same time, knowledge of chronic injuries that accrue from lifting heavy weights over long periods of time was not as fleshed out as it is today. Therefore, if a case with a similar fact pattern as the one in Evans came before the court today, it wouldn't be hard to argue that their is nothing routine about lifting 100 lb. sacks of potatoes unaided. In this way Evans is an example of a case where a rule, the Routine Job Defense, survives to this day, but likely would not have played out the same way in a modern court setting.

Why Great Atlantic Pacific Tea Co. v. Evans Still Matters

I'm not sure I can tie a neat little bow around this. Proving responsibility for sustained damages is one of the key elements of a workplace injury claim. Demonstrable negligence on the part of an employer is certainly not a foreign concept, but there are times when they're just plain right--an employee really should have been more careful given a job's inherent risks.

That's why an adversarial system exists--both sides are allowed an opportunity to prove their points and contest the other's. It's important to have a good lawyer for this, because employers will try to harpoon personal injury claims. They'll put up at least some fight if there's a chance they can win.

Nothing personal. It's just business.