At page 795 no duty when invitee is aware of hazard19 citing cases
- Vanessa Jefferson v. Helen Fuller, & Assocs. Health Inc., No. 01-11-00199-CV, 2012 WL 2357431 (Tex. App.—Houston [1st Dist.] June 21, 2012).published (But an employer owes no duty to warn of hazards commonly known or already appreciated by the employee . . . .)
- Maria MacIas-garcia v. Moody Gardens, Inc., No. 01-24-00706-CV (June 2, 2026).published(no duty when invitee is aware of hazard)
- Gusman v. Kroger Texas LP, No. 3:19-cv-01763 (N.D. Tex. Aug. 2, 2021).First, in Brookshire Grocery Co. v. Goss, a grocery store employee was injured when she hit her shin on a “lowboy” cart5 after she had previously “successfully stepped over the cart[.]” 262 S.W.3d 793, 795 (Tex. 2008) (per curiam).
- Chavez Yanez v. WWGAF, Inc., No. 5:19-cv-01065 (W.D. Tex. May 18, 2020).Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008).
- Richard Culotta v. Doubletree Hotels LLC, Doubletree Mgmt. LLC, Hilton Inns LLC, Hilton Resorts Corp., Hilton Props., Ltd. & Gal-Tex Hotel Corp., No. 01-18-00267-CV, 2019 WL 2588103 (Tex. App.—Houston [1st Dist.] June 25, 2019).published(no duty when invitee is aware of hazard)
- Arthur Simpson Jr. v. Orange Cnty. Bldg. Materials, Inc., No. 09-18-00240-CV, 2019 WL 470090 (Tex. App.—Beaumont Feb. 7, 2019).publishedPhillips, 517 S.W.3d at 361 -62 (citing to Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008)). 11 Even assuming the trial court accepted the explanation given by Simpson in his affidavit 2 that he did not appreciate that one…
- Henry McCall v. Homer Hillis, 562 S.W.3d 98 (Tex. App.—San Antonio 2018).publishedSee, e.g., United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 474 (Tex. 2017) (citing Austin v. Kroger Tex., L.P., 465 S.W.3d 193 , 203–04 (Tex. 2015)); Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008).
- Wallace v. ArcelorMittal Vinton, Inc., 536 S.W.3d 19 (Tex. App.—El Paso 2016).publishedIn Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008), for instance, an employee stepped over a loading cart t.o get into a cooler' and when exiting the cooler, struck her shin on the same cart.
- Randy Austin v. Kroger Texas, L.P., 731 F.3d 418 (5th Cir. 2013).published In this case, there is no evidence that loading groceries on the sloped portion of Kroger’s parking lot is an unusually dangerous job.” (citations omitted)); Goss, 262 S.W.3d at 795 (“As in Elwood and Skiles, there was no evidence here tha…
- John Jurasin v. Dillon Resources, Inc. D/B/A Sunset Transp., Inc., No. 04-12-00202-CV (Tex. App.—San Antonio Nov. 7, 2012).publishedCo. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008) (citing Kroger Co., 197 S.W.3d at 795 ).
Show 9 more citing cases
- Joshua LeBlanc v. Mike Walker, No. 14-22-00767-CV (Tex. App.—Houston [14th Dist.] Jan. 23, 2024).publishedSee Brookshire Grocery Co. v. Ross, 262 S.W.3d 793, 795 (Tex. 2008); Phillips v. Abraham, 517 S.W.3d 355 , 360–61 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
- Sarah Garnelo v. Urban Sw. Twp. Apts. GP, LLC D/B/A Twp. Apts., No. 14-20-00796-CV (Tex. App.—Houston [14th Dist.] May 26, 2022).publishedSee Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008). 7 But our analysis does not end there.
- Union Pac. R.R. Co. v. William R. Nami, 499 S.W.3d 452 (Tex. App.—Corpus Christi 2014).publishedSee Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex.2008).
- Aubrey Kilchrist v. SIKA Corp., 555 F. App'x 350 (5th Cir. 2014).unpublished See Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex.2008) (per curiam) (citation omitted).
- Maria Lopez v. Regent Care Ctr. & Regent Care Ctr. of Laredo, Ltd. P'ship D/B/A Regent Care Ctr. Laredo, No. 04-09-00529-CV (Tex. App.—San Antonio Sept. 22, 2010).publishedSee Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008) (per curiam) (holding an employer owes no duty to warn of hazards commonly known or already appreciated by the employee); Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2…
- Mingo, No. 4:24-cv-04589 (S.D. Tex. Mar. 23, 2026).(an employer was not liable for failing to warn employees of the risks of stepping over a loaded lowboy cart, which—even assuming that doing so was dangerous— was “a danger apparent to anyone)
- Sauls v. 24 Hour Fitness, No. 22-10182 (5th Cir. July 7, 2023).unpublished(holding that there is no duty to warn of hazards already appreciated where plaintiff had previously encountered the hazard and was able to safely navigate around it)
- Staci Denny v. George Reinemund D/B/A George Reinemund Real Est., & Klaus P.Hartmann , & Cynthia Hartman, & Jackie Love, No. 07-21-00098-CV (Tex. App.—Amarillo July 19, 2022).publishedSee also Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 795 (Tex. 2008) (per curiam) (holding that because lowboy cart in cooler was “easily visible” to grocery store employee, employer owed no duty to warn of hazards commonly known or al…
- Jose Corona, as Pers. Rep. of the Est. of Olivia Corona v. Andy's Car Wash, Inc., No. 04-21-00324-CV (Tex. App.—San Antonio June 22, 2022).publishedCo., No. 05-17-00869-CV, 2018 WL 3629106 , at *3 (Tex. App.—Dallas July 31, 2018, pet. denied) (mem. op.) (skylights described as “the equivalent of a piece of Saran Wrap stretched over an open hole” through which person fell while working…
At page 794 holding that because danger at issue was commonly known, employer had no duty to warn employees of risk or provide specialized training to avoid it12 citing cases
- Garry L. Rollins & Carla D. Rollins v. Texas Coll. & MPF Investments, LLC D/B/A \A-1 Rent All\"", No. 12-15-00121-CV (Tex. App.—Tyler Oct. 15, 2015).published (The threshold question here is one of duty, as we have held that an employer ‘owes no duty to warn of hazards that are commonly known or already appreciated by the employee.’)
- Samuel Adams Flores v. Oil-Tech Constr., LLC, No. 11-20-00208-CV (Tex. App.—Eastland Aug. 31, 2022).publishedBrookshire Grocery Co. v. Goss involved a grocery store employee injured while attempting to maneuver around a loaded “lowboy” loading cart. 262 S.W.3d 793, 794 (Tex. 2008).
- Starks v. Marcano, No. 4:20-cv-03642 (S.D. Tex. July 7, 2021).(the hazard presented by “lowboy” cart is open and obvious because a reasonable person should know the risk of tripping)
- John Barfield & Tana Barfield, Wife, Individually, & John Barfield & Tana Barfield as Next Friends of C. B. & K. B., Minor Child. v. SandRidge Energy, Inc. & Jose Pepe Saenz, No. 08-17-00059-CV (Tex. App.—El Paso Mar. 27, 2020).publishedId.; see, e.g., Nabors Drilling U.S.A, Inc. v. Escoto, 288 S.W.3d 401, 412 (Tex. 2009); Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008); Gen.
- John Barfield & Tana Barfield, Wife, Individually, & John Barfield & Tana Barfield as Next Friends of C. B. & K. B., Minor Child. v. SandRidge Energy, Inc. & Jose Pepe Saenz, No. 08-17-00059-CV (Tex. App.—El Paso Dec. 6, 2019).publishedId.; see, e.g., Nabors Drilling U.S.A, Inc. v. Escoto, 288 S.W.3d 401, 412 (Tex. 2009); Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008); Gen.
- Martin Rodriguez v. Cemex, Inc., 579 S.W.3d 152 (Tex. App.—El Paso 2019).publishedFurther, although courts often refer to a premises owner’s general duty to exercise reasonable care to make the premises safe for invitees, this duty has been defined more specifically as the duty “to make safe or warn against any conceale…
- Magdalena Garcia & Gonzalo Avelar A/K/A Gonsalo Avelar A/K/A Gustavo Avelar v. Daniel MacIas Nunez, No. 05-17-00631-CV, 2018 WL 6065254 (Tex. App.—Dallas Nov. 20, 2018).publishedBrookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008) (per curiam).
- Randy Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015).published (holding employer owed no duty to employee injured while stepping over cart in store’s cooler)
- Randy Austin v. Kroger Texas, L.P., 746 F.3d 191 (5th Cir. 2014).published It cites a line of recent cases in which the Texas Supreme Court appears to have pulled back on the abolition of the “no duty rule” in the employer/employee context — Elwood, 197 S.W.3d at 795 , Jack in the Box, Inc. v. Skiles, 221 S.W.3d…
- Floyd Smith v. Shofner Auto Repair, Inc., No. 02-08-00285-CV, 2009 Tex. App. LEXIS 2658 (Tex. App.—Fort Worth Apr. 9, 2009).published(holding that because danger at issue was commonly known, employer had no duty to warn employees of risk or provide specialized training to avoid it)
Show 2 more citing cases
- Paula Chavez, Daniel Fagan, & April Chavez, Individually & as Next Friend of D. C., a Minor, M. G., a Minor, & S. C., a Minor & Tommy Chavez v. Silverleaf Resorts, LLC, Formerly Silverleaf Resorts, Inc & Holiday Inn Club Vacation Inc., Formerly Orange Lake Country Club, Inc., No. 03-22-00498-CV (Tex. App.—Austin Apr. 3, 2024).publishedSee Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008).
- Homer Hillis v. Henry McCall, 602 S.W.3d 436 (Tex. 2020).publishedSee Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008).
At page 796 cited at this page1 citing case
- Phillips v. Abraham, 517 S.W.3d 355 (Tex. App. 2017).publishedSee Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 796 (Tex. 2008).
v.
Barbara GOSS, Respondent
A grocery store employee was injured when she attempted to maneuver around a loaded cart. A jury found that her employer’s negligence proximately caused the incident, and the court of appeals affirmed the trial court’s judgment. Because we conclude that any danger of stepping around such carts is commonly known, we hold that the employer had no duty to warn employees of the risk or provide specialized training to avoid that hazard. We reverse and render judgment that the employee take nothing.
In November 2002, Barbara Goss was working in the deli department of a Brook-shire Grocery store, where she had been employed since 1999. She went to retrieve items from a deli cooler that had been packed with various carts stocked with food for the upcoming Thanksgiving holiday. To get what she needed, she had to maneuver around a “lowboy” loading cart stocked two to three feet high with frozen turkey and ham dinners. [1] She successfully stepped over the cart and entered the cooler. After she retrieved what she needed, she turned around to leave the cooler and hit her shin on the lowboy, causing her to reach out for a shelf to prevent herself from falling. In doing so, she injured her back. She was immediately taken to the hospital and has since been under medical care.
Goss sued Brookshire, alleging that it failed to adequately warn employees of the risks of maneuvering around lowboy carts. [2] The jury found Brookshire negligent and awarded Goss damages for physical pain and mental anguish, loss of earning capacity, physical impairment, and medical expenses. Brookshire appealed. [3] The court of appeals affirmed the judgment, concluding that Brookshire owed Goss a duty to warn of the safe handling of lowboys and that its failure to warn of the attendant risks caused Goss’s injury. 208 S.W.3d 706, 716-17. The court overruled Brookshire’s other points of error, see id. at 717-23, and Brookshire petitioned this Court for review. The threshold question here is one of duty, as we have held that an employer “owes no duty to warn of hazards that are commonly known or already appreciated by the employee.” See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006); see also Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 568 (Tex.2007). In Elwood, Billy Elwood jammed his hand in a customer’s car door while preventing a grocery cart from rolling on a sloped hill. 197 S.W.3d at 794. Elwood argued that “Kroger provided inadequate training on[*795] how to maneuver carts on a sloped parking lot, never advised that he should take a second clerk with him to the sloped portion of the lot, and provided no explanation on how to avoid injury when loading groceries into customers’ vehicles.” Id. We held that “Kroger had no duty to warn Elwood of a danger known to all.” Id. at 795. We noted that loading groceries was a task performed regularly and that there was no evidence that loading groceries was an unusually dangerous job, no evidence that other clerks sustained similar injuries, and some evidence that Elwood knew putting his hand into a door jamb was dangerous. Id.
In Jack in the Box v. Skiles, we held that even when a dangerous condition is not part of an employee’s regular duties, there is no duty owed if the employee already knows about the danger. 221 S.W.3d at 568-69. In Skiles, a lift gate on a delivery truck broke, and company policy required delivery persons to suspend deliveries until the lift gate could be fixed. Id. at 567. Nevertheless, Skiles called a maintenance supervisor and alleged that he obtained approval to use a ladder to climb over the lift gate to get boxes of frozen hamburgers. Id. Concluding that “any dangers associated with using a ladder to jump over a lift gate were obvious to Skiles,” we relied on our decision in Elwood and held that Jack in the Box owed no duty to Skiles. Id. at 568.
As in Elwood and Skiles, there was no evidence here that keeping a loaded lowboy in a cooler was unusually dangerous. A stationary, loaded lowboy is easily visible, and Goss saw it upon entering the cooler. To the extent that stepping over a lowboy is dangerous, it is a danger apparent to anyone, including Goss. Goss asserts that she should have been warned that “entering a confined space such as the cooler with a lowboy cart there is dangerous, because you may get into a situation where you will injure yourself.” But an employer owes no duty to warn of hazards commonly known or already appreciated by the employee, Kroger, 197 S.W.3d at 794, and Goss had both previously encountered lowboys in the course of her work and was able to safely navigate around this lowboy when she entered the cooler. Moreover, the fact that the cart was in a confined space does not change the nature of the risk; in Elwood, the employee similarly argued that a grocery cart on a downhill slope made the risk of jamming one’s hand in a door more likely. Elwood, 197 S.W.3d at 794. But like avoiding sticking one’s hand in a door, stepping over a cart is a risk commonly known to anyone. See id. at 794. The court of appeals couched Brookshire’s argument as an “assumption of the risk” defense no longer available in Texas. 208 S.W.3d at 715. But duty is not an affirmative defense. Rather, it “depends on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant,” Gen. Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008), and is an essential element to liability. See id.; Skiles, 221 S.W.3d at 568-69; Elwood, 197 S.W.3d at 795.
Because we conclude that Brookshire owed no duty to warn Goss of a risk commonly known and appreciated, we grant the petition for review and, without hearing argument, we reverse the court of appeals’ judgment and render judgment for Brookshire. Tex.R.App. P. 59.1, 60.2(c).
. A lowboy cart measures roughly two-and-a-half feet by five feet and its bed sits about ten inches off the ground. It has four wheels and a handle on one end and measures about forty-two inches from the ground up.
. Brookshire is a nonsubscriber under the Texas Worker’s Compensation Act; an employee suing Brookshire for personal injuries must prove that Brookshire’s negligence proximately caused those injuries. See Tex. Labor Code § 406.033; Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006).
.We previously denied Brookshire’s post-trial petition for writ of mandamus. See In re Brookshire Grocery Co., 250 S.W.3d 66, 73 (Tex.2008). In that proceeding, we held that the trial court lacked jurisdiction to grant a second motion for new trial, filed on February 1, 2005, because its plenary power expired on January 10, thirty days after the court overruled Brookshire’s first motion for new trial. Id. at 72.