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Elements of a Texas Non-Subscriber Work Injury Case

In this article, Texas work injury attorney Michael Grossman will explain what the elements of a Texas non-subscriber case are and how an attorney proves these elements in court.


Questions answered on this page:

  • What are the elements of a Texas non-subscriber case?
  • How do non-subscriber cases differ from ordinary negligence cases?

What exactly are “case elements?”

In practically any legal case, some law or legal standard is violated, and the person or entity who is harmed by the violation can pursue a legal remedy against the wrongdoer who violated the law. To Illustrate this, consider the Texas criminal law which defines theft (paraphrased):

A person commits an offense if he unlawfully appropriates property with intent to permanently deprive the owner of property.

This law does three important things. First, it tells would-be bad guys what they cannot do. Second, later sections of the law (not shown) describe the punishment for breaking the law. Third, and most important for the purpose of this article, the law illustrates what must be proven in court to hold someone accountable for committing this offense. These “ingredients” of a theft case are its “case elements.” From the statute, we can infer what the case elements are that must be proven for the case against the thief to be successful.

If the prosecutor can show that the accused is a person, then he has proven the “A person commits” element of the case. If the prosecutor can show that the accused took property that wasn’t theirs, that would meet the “unlawfully appropriates” case element. If the prosecutor can show that the criminal was attempting to sell the stolen loot to a pawn shop or on Craigslist, that would meet the element of “intent to permanently deprive.” As such, the prosecutor has proved the elements of the legal case, and he will have won.

But, if the accused can show evidence that he was simply borrowing the misappropriated item and the jury believes this evidence is valid, then the prosecutor will lose his case. Why? Because you cannot win any legal case unless you prove every element of the case. Proving some of the elements is not good enough.

The same holds true for civil cases. When a worker is injured on the job and their employer is a non-susbcriber to Texas workers’ compensation coverage, said worker can sue their employer. But to win, they must prove all of the elements of a Texas non-subscriber case.

What are the elements of a Texas non-subscriber case?

In order to successfully pursue a Texas non-subscriber work injury case, there are certain elements that an injured workers’ legal team must prove. For those unclear about what elements are, it’s easiest to think of them as dance steps. Each individual step combines to form a dance. Different steps result in different dances, just like each legal case has certain parts, that must be proven in order for the case the be valid. The steps, or elements that make up a Texas non-subscriber work injury case are as follows:

  • Duty

    The first element of a non-subscriber work case is to prove that an employer owed the employee a duty. Duties are legally recognized obligations that people assume based upon specific situations and roles they assume within those situations. For example, if a worker suffered an eye injury because his co-worker took the last pair of safety goggles, the worker would have no case against his co-worker, because the co-worker has no duty to provide safety equipment. The case would be against the employer who certainly has a duty to provide proper safety equipment. Texas law imposes on employers a duty to provide “ordinary care.” Basically, an employer has to be reasonably prudent in their conduct towards their employees. Some common duties that employers in Texas owe to their employees include:

    • Provide Reasonably Safe Workplace
    • Adequately Train Employees
    • Adequately Supervise Employees
    • Hire and retain employers in a reasonably prudent manner. (For instance, don’t hire a driver with a history of DUIs)
  • Breach

    Once it has been established that the employer owed a duty to the employee, the next step in any case is proving that the employer did not fulfill that duty. Looking back at our hypothetical eye protection accident from before, the plaintiff’s would have to show that their were not enough safety glasses for all of the employees in the shop. If the employer can show that their were in fact enough glasses, but the employee chose not to look around for another pair of glasses before beginning work, then the employer would likely not be in breech of their duty.

  • Causation

    This element requires the plaintiff to show that the injuries that they are seeking damages for were actually the result of the failed duty. The legal term for this is the proximate causes. Proximate causes are identified by a test that reads as follows, “But for X the accident would not have occurred.” Whatever, fills in ‘X’ is the proximate cause. For instance, if our hypothetical worker who was not provided with safety glasses suffered a severe eye injury, then the injury would most likely not have occurred if glasses had been provided. However, if the employee accidentally shot himself in the leg with a nail gun, then it would be highly unlikely that such an injury was caused by a lack of safety glasses. In such an instance, the case would likely fall apart because of an inability to show causation.

  • Damages

    Contrary to one of the many legal myths perpetuated in popular culture, people don’t just get money because something bad happened to them. They have to suffer some sort of quantifiable damages. For instance, if our hypothetical employee without safety goggles has a piece of debris shoot towards his face and he suffers a minor cut that doesn’t require stitches just below the eye, he did suffer damages, but not enough to justify a lawsuit. Essentially, the worker would be out the cost of a band-aid and few days of relatively minor discomfort. However, if the same debris were to penetrate the eye and render the worker blind in that eye, then he would incur significant medical expenses, loss of earning capacity, and impairment. Of course, suffering all of this isn’t enough, the damages have to be proved in court, which means getting medical bills admitted as evidence, as well as hiring an expert economist to prove the loss of earning capacity.

It is only after these four elements have been proved that a valid injury claim exists, but it’s actually a little more complex than that. You see, the element of duty has baked-in sub-elements.

Specifically speaking, for an employer to owe a duty in the first place, the employee must show that the employer actually was their employer. Now, that may sound bit absurd, but consider that not all employers employ employee. Sometimes they employe volunteers, contract workers, what we call “borrowed servants” which are employees on loan from another company, etc. The point is that victims of non-subscriber cases must show that there existed an employer-employee relationship in order to be able to meet the element of duty.

Further, it must be shown that the employee was in the course and scope of employment at the time the injury occurred. This sub-element actually has its own sub-elements. In order to show that one was in the course and scope of employment, it must be show that they were working to advance the interests of the company by doing work that is part of the function they were hired for. So, we can infer that if someone was hired as a salesman and they were driving to Wendy’s to get a hamburger for lunch when they suffered an injury, they are not in the course and scope of employment. Even though they may be “on the clock,” they were not furthering the company’s interest, therefore they were not in the course and scope of employment, therefore the company owed them no duty to keep them free from harm, therefore they lose their case.

All that to say, even a case which appears to have straightforward elements that must be established can become rather complex in short order.

What makes the need for an experienced work accident attorney so pressing is that it is difficult enough for the plaintiff to show these elements on their own, but in a civil case, the defense is raising objections and arguments why each and every one of these elements should be viewed from their perspective. In this light, the dance metaphor becomes most apt. While the plaintiff’s attorney is attempting to execute each step (element) of the dance (the injury claim), the defense attorneys are allowed to push, distract, and do whatever they can to keep the dance from coming off, if the defense succeeds, then the injury claim falls apart.

Ultimately, each element must be proved in order for non-subscriber work injury case to be successful. Except for rare instances, the decision on whether these elements have been proved rests with a Texas jury.

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Different Between Non-Subscriber Cases and Other Injury Cases

As it pertains to elements of the case, non-subscriber work injury cases differ from other negligence cases in that their is additional element that the employer must be a non-subscriber to workers’ compensation. This is not usually a very big deal in the case, because non-subscribers are required by law to have a notice posted somewhere prominently in the workplace that they do not subscriber to worker’s compensation. In addition, experienced work accident attorneys will check with state regulators to make sure that an employer is a non-subscriber before bringing suit.

However, in the event that an employer does subscribe to workers’ compensation, they can raise that argument as a defense, and if true, it will likely result in the case’s dismissal.

Additionally, the Texas legislature built into the Texas Workers’ Compensation Act a number of negative incentives, which were designed to get employers to opt into the workers’ compensation system. The most important of these are restrictions on which defenses are available to employers. Defenses are legally permissible arguments, many containing their own elements.

If you would like more information about Defenses that non-subscriber employers are not allowed to argue, follow the link.

Employee is Killed as a Result of His Employer’s or a Co-worker’s Negligent Actions

Similar to the workplace injury scenario discussed above, deaths attributable to workplace accidents are often governed by the “ordinary care” standard. However, in these cases, different types of compensation may be available to select members of the deceased worker’s family. Specifically, children, parents, and the spouse of a wrongfully killed worker may recover compensation for their:

  • Loss of inheritance;
  • Loss of benefits; and
  • Loss of consortium and household services.

Non-subscribing employers are statutorily prohibited from shifting liability onto an deceased worker’s co-worker. This is because ultimately, even that co-worker who may or may not have contributed to the employee’s death is still under the control and direction of the employer.

The Employee is Killed Due to Gross Negligence and the Employer Subscribes to Workers’ Compensation

As discussed more fully in this article, an employer can’t avoid a lawsuit by virtue of its subscription to worker’s compensation when it has acted with gross negligence. Gross negligence is generally defined as actions or inaction that are so wrongful that they “shock the conscious.” As this is a much higher burden of proof, it’s important that you retain an attorney who has a history of successfully proving that it occurred, like our attorneys at Grossman Law Offices.

Obstacles and Options in a Workplace Injury Lawsuit Against a Non-subscribing Employer

All workplace injury victims face the same general obstacles, regardless if their employer is classified as a subscriber or non-subscriber. The main obstacle faced are the mounting financial pressures they’ll face as a result of lost wages and voluminous medical bills, as workplace injury victims in non-subscriber cases will only be compensated for their injuries once their case is settled or litigation has successfully concluded.

Injured workers whose injuries justify retaining an attorney really only have one option: to retain the most experienced, persuasive, and aggressive workplace injury attorney they can. Our attorneys at Grossman Law Offices have represented workplace injury victims for over twenty-five years, and may be able to help you obtain the compensation you deserve.

For more information and a free and confidential consultation based on the facts of your case, give one of our attorneys a call at (855) 326-0000 any time, day or night.


Related Articles for Further Reading:

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