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To prove that your non-subscribing employer was negligent, you must present a “theory of liability.”

Under Texas law, work injury cases asserted against employers who have opted out of Texas’ workers’ compensation program (those employers are often referred to as “non-subscribers”) are predicated upon claims that the employer caused their employee’s injuries through an act of negligence.

However, unlike injury cases caused by employers who have elected to participate in Texas’ workers’ compensation program (where there is an assumption that an employer must pay for an employee’s injuries regardless of fault), workers injured by a non-subscribing employer will need to prove, in a lawsuit, that the employer is liable for their injuries to receive any compensation.

For an injured worker to prove that they are owed money, they must prove what is known as a “theory of liability.” Most simply, the theory of liability is a legal term, which simply states that someone is owed money because someone else failed to perform a duty that was owed to the injured person. An injured worker’s attorney is saying that someone owes their client money. The obvious question to ask is “Why does an employer owe an injured worker money?” A “theory of liability” is a legally recognized argument that attempts to answer why money is owed.

Dallas-based work injury attorney Michael Grossman explains that although there are several different theories of liability that can be asserted against a negligent employer, if your attorney can prove that they are even marginally liable for your injuries, you will likely be able to hold them liable for the full extent of your injuries.


Questions answered on this page:

  • What is a “theory of liability?”
  • Why is a “theory of liability” necessary in a Texas non-subscriber case?
  • How can an experienced work injury attorney help prove a “theory of liability” to help you recover compensation?

What Is a “Theory of Liability?”

While most people assume that when you go to court, one side presents its evidence, whatever that is, while another side presents its evidence, whatever that may be, this view is not entirely correct. Their are several pieces to any work accident injury case. First, there are certain legally recognized duties that employers owe to employees. When an employer fails in one of these duties and an injury to a worker results, that is the basis for a non-subscriber lawsuit.

On its most basic level, a theory of liability is the opposite of a defense. Regardless of the defense, its purpose is to say that “the defendant is not responsible for some harm or crime because of X.” On the other hand, a theory of liability says that “a defendant is responsible for some harm because of Y.”

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This begs the question, where do we get X and where do we get Y? There are two sources, the common law and statutes passed by the legislature. It would be absolutely chaotic if people got to fill in X and Y with whatever they chose. It would also greatly slow our court system, because many common defenses and theories of liability have already been litigated, that is to say that courts have over the years ruled and legislatures have legislated whether or not they are valid.

What you end up with is theories of liable, or arguments for what duty an employer owed, but failed to perform, which are recognized by Texas courts. To make it a little more clear, if evidence serves as the parts of an engine that will drive your case, a theory of liability is the blueprint for how to assemble those parts into an engine.

For instance, most people (and the law) agrees that employers have a duty to provide safety equipment to employees in dangerous occupations. In a case where a failure to provide proper safety equipment results in an accident, the theory of liability would be that the employer is responsible for an accident because they failed in their duty to provide proper safety equipment. In such a case, the injured worker’s attorneys would present evidence in an attempt to show that the employer failed in this duty. It could be pictures of useless, damaged safety equipment, testimony from co-workers and managers that states that safety equipment wasn’t a big priority, or whatever supports the theory of liability.

By contrast, suppose a worker is injured because their co-worker didn’t eat for a couple of days and in their famished state caused an accident. A lawyer can’t just say that the employer had a duty to feed the famished co-worker. While it might be an altruistic thing to do, there is nothing in the law that requires employers to feed employees. Quite simply, there is no duty on the employer’s part. If there is no duty, there cannot be a theory of liability. A lawyer cannot make up the “failure to provide cheese sandwich theory of liability. (Technically, they could make this up, but it has most likely been litigated at some point in the past and is not a legally valid argument)”

Common Theories of Liability Against Non-subscribing Employers

Although a non-subscribing employer can be liable for injuries (the opposite of the no-fault scenarios of subscribers), a claim must be brought by the employee against the employer with a theory of liability presented as the reason for the injuries. Based on what we’ve seen in the work injury cases we’ve handled, we’ve identified the following as some of the more common ones that employees suffer.

  • Failure to Provide a Reasonably Safe Workplace
    A central pillar of Texas employment law mandates all employers, regardless of industry, to provide their employees a “reasonably safe” working environment. However, defining what is “reasonably safe” may be a difficult endeavor, and many of the other theories discussed below are somewhat derivative of this simple duty.

    A key component of providing a safe workplace may include providing employees adequately safe “personal protective equipment” (sometimes referred to as “PPE”). For example, a mechanic’s repair shop is probably required to provide all employees at risk of suffering eye injuries protective eye wear.

  • Failure to Adequately Train Employees
    Similar to the duty to provide a safe workplace, Texas law requires employers to train employees so that they fulfill their job duties in such a manner that they don’t injure themselves and are prevented from injuring coworkers. For example, companies involved in industries where lifting heavy objects is required, must train their employees to lift heavy objects with appropriate technique and support.

  • Failure to Adequately Supervise Employees
    The final common theory of liability we’ll discuss in this article is an employer’s duty to adequately supervise their employees. Within this requirement is the mandate to enforce safety policies appropriately. Thus, if you were injured as a result of your employer’s failure to adequately supervise one of your coworkers, you may be able to assert a workplace injury lawsuit against your employer for the compensation you need to recover from the injuries they negligently caused.

It is by employing one or more of these theories of liability that a lawyer attempts to win an injured worker’s case.

Our Experienced Workplace Accident Attorneys Can Help Apply These Theories of Liability (and more) to Your Case

As you can guess, work injury lawsuits where even the most common theories of liability are presented require a competent, dedicated, and successful lawyer. Our team at Grossman Law Offices has won hundreds of work injury cases over the last 25 years , and we’ve developed a winning skill set as a result.

This skill set includes hiring the best, industry specific third-party investigators to gather evidence, employing industry specific experts to makes sense of the evidence that has been gathered, and finally strengthening the overall narrative of an injury case with skilled litigators who know Texas labor law.

If you would like information regarding how our firm may be able to help you recover the compensation for your injuries in a workplace injury case we invite you to give us a call any time, day or night, at (855) 326-0000.


The following related are articles may be of interest to you if you, or a loved one, has been injured in a Texas work accident:

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