TEXAS NON-SUBSCRIBER LAW
Proximate Cause And Foreseeability in Texas Nonsubscriber Law
Allsups Convenience Stores v. Warren, 934 S.W.2d 433 (Tex.App-Amarillo 1996, no writ)
A store manager injured her back while unloading a truck. She had arranged to have another employee unload the truck, but that employee failed to show up for work and the manager could not find another employee to assist her in unloading the truck. The manager alleged that the nonsubscriber was negligent in failing to provide her with assistance, failing to properly train her on lifting, and failure to provide her with a back brace or belt. The Court of Appeals reversed the jury’s finding of negligence.
The Court held that the employee failed to present evidence that the employer was negligent. The Court stated that the employer had no duty to make sure that an employee appeared for work as scheduled. The Court further stated that the employee did not provide any evidence that the employer did not provide proper training. The employee’s “bald conclusions” that the employer did not properly train her in lifting heavy items did not, without more, satisfy the employee’s burden to provide factual proof of the training the employer negligently failed to provide.
The Court noted that the employee had unloaded trucks in the past, that the employee never requested a back brace or belt and never complained that the unloading of the truck on past occasions was unsafe. The Court also noted that the employee failed to show that use of a back brace was common in the industry or was industry standard or that a reasonably prudent employer would have provided a back brace. The Court concluded that because the evidence showed that unloading of the trucks could be performed in the usual and proper way in safety without a protective back brace or safety belt, there was no evidence that the employer was under a duty to provide the employee with a back brace, and the employee failed to present any medical evidence that a back brace would have prevented the employee’s injury.
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