Brookshire Grocery Co. v. Goss, 262 S.W.3d 793 (Tex.
, 2008)
262 S.W.3d 793 with various carts stocked with food for the
BROOKSHIRE GROCERY COMPANY, upcoming Thanksgiving holiday. To get what
Petitioner, she needed, she had to maneuver around a
v. "lowboy" loading cart stocked two to three
Barbara GOSS, Respondent. feet high with frozen turkey and ham
No. 07-0085. dinners.1 She successfully stepped over the
Supreme Court of Texas. cart and entered the cooler. After she
August 29, 2008. retrieved what she needed, she turned around
to leave the cooler and hit her shin on the
Mike A. Hatchell, Sarah B. Duncan, lowboy, causing her to reach out for a shelf to
Elissa Gail Underwood, Locke Lord Bissell & prevent herself from falling. In doing so, she
Liddell, LLP, Austin, Deborah J. Race, Ireland injured her back. She was immediately taken
Carroll & Kelley, P.C., Charles H. Clark, Clark to the hospital and has since been under
Lea Rutter & Logsdon, Charles Lewis medical care.
Ainsworth, Parker, Bunt & Ainsworth, PC,
Tyler, John W. Alexander, Alexander & Goss sued Brookshire, alleging that it
Boswell, Winnsboro, TX, for Petitioner. failed to adequately warn employees of the
risks of maneuvering around lowboy carts.2
P. Michael Jung, Strasburger & Price, The jury found Brookshire negligent and
L.L.P., Dallas, Jeffrey R. Ward, George awarded Goss damages for physical pain and
mental anguish, loss of earning capacity,
[262 S.W.3d 794] physical impairment, and medical expenses.
Brookshire appealed.3 The court of appeals
Alan Boll, Juneau, Boll, Ward & Carboy, affirmed the judgment, concluding that
P.L.L.C., Addison, TX, for Respondent. Brookshire owed Goss a duty to warn of the
safe handling of lowboys and that its failure to
Kimberly Paige Harris, Uloth & Peavler,
warn of the attendant risks caused Goss's
L.L.P., Dallas, TX, AMA for Amicus Curiae.
injury. 208 S.W.3d 706, 716-17. The court
overruled Brookshire's other points of error,
PER CURIAM.
see id. at 717-23, and Brookshire petitioned
this Court for review. The threshold question
A grocery store employee was injured
here is one of duty, as we have held that an
when she attempted to maneuver around a
employer "owes no duty to warn of hazards
loaded cart. A jury found that her employer's
that are commonly known or already
negligence proximately caused the incident,
appreciated by the employee." See Kroger Co.
and the court of appeals affirmed the trial
v. Elwood, 197 S.W.3d 793, 794 (Tex.2006);
court's judgment. Because we conclude that
see also Jack in the Box, Inc. v. Skiles, 221
any danger of stepping around such carts is
S.W.3d 566, 568 (Tex.2007). In Elwood, Billy
commonly known, we hold that the employer
Elwood jammed his hand in a customer's car
had no duty to warn employees of the risk or
door while preventing a grocery cart from
provide specialized training to avoid that
rolling on a sloped hill. 197 S.W.3d at 794.
hazard. We reverse and render judgment that
Elwood argued that "Kroger provided
the employee take nothing.
inadequate training on
In November 2002, Barbara Goss was
[262 S.W.3d 795]
working in the deli department of a
Brookshire Grocery store, where she had been
how to maneuver carts on a sloped parking
employed since 1999. She went to retrieve
lot, never advised that he should take a
items from a deli cooler that had been packed
second clerk with him to the sloped portion of
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Brookshire Grocery Co. v. Goss, 262 S.W.3d 793 (Tex., 2008)
the lot, and provided no explanation on how work and was able to safely navigate around
to avoid injury when loading groceries into this lowboy when she entered the cooler.
customers' vehicles." Id. We held that "Kroger Moreover, the fact that the cart was in a
had no duty to warn Elwood of a danger confined space does not change the nature of
known to all." Id. at 795. We noted that the risk; in Elwood, the employee similarly
loading groceries was a task performed argued that a grocery cart on a downhill slope
regularly and that there was no evidence that made the risk of jamming one's hand in a
loading groceries was an unusually dangerous door more likely. Elwood, 197 S.W.3d at 794.
job, no evidence that other clerks sustained But like avoiding sticking one's hand in a
similar injuries, and some evidence that door, stepping over a cart is a risk commonly
Elwood knew putting his hand into a door known to anyone. See id. at 794. The court of
jamb was dangerous. Id. appeals couched Brookshire's argument as an
"assumption of the risk" defense no longer
In Jack in the Box v. Skiles, we held that available in Texas. 208 S.W.3d at 715. But
even when a dangerous condition is not part duty is not an affirmative defense. Rather, it
of an employee's regular duties, there is no "depends on a legal analysis balancing a
duty owed if the employee already knows number of factors, including the risk,
about the danger. 221 S.W.3d at 568-69. In foreseeability, and likelihood of injury, and
Skiles, a lift gate on a delivery truck broke, the consequences of placing the burden on
and company policy required delivery persons the defendant," Gen. Elec. Co. v. Moritz, 257
to suspend deliveries until the lift gate could S.W.3d 211 (Tex. 2008), and is an essential
be fixed. Id. at 567. Nevertheless, Skiles called element to liability. See id.; Skiles, 221
a maintenance supervisor and alleged that he S.W.3d at 568-69; Elwood, 197 S.W.3d at 795.
obtained approval to use a ladder to climb
over the lift gate to get boxes of frozen Because we conclude that Brookshire
hamburgers. Id. Concluding that "any owed no duty to warn Goss of a risk
dangers associated with using a ladder to commonly known and appreciated, we grant
jump over a lift gate were obvious to Skiles," the petition for review and, without hearing
we relied on our decision in Elwood and held argument, we reverse the court of appeals'
that Jack in the Box owed no duty to Skiles. judgment and render judgment for
Id. at 568. Brookshire. TEX.R.APP. P. 59.1, 60.2(c).
As in Elwood and Skiles, there was no ---------------
evidence here that keeping a loaded lowboy in
a cooler was unusually dangerous. A Notes:
stationary, loaded lowboy is easily visible, and
Goss saw it upon entering the cooler. To the 1. A lowboy cart measures roughly two-and-a-
extent that stepping over a lowboy is half feet by five feet and its bed sits about ten
dangerous, it is a danger apparent to anyone, inches off the ground. It has four wheels and
including Goss. Goss asserts that she should a handle on one end and measures about
have been warned that "entering a confined forty-two inches from the ground up.
space such as the cooler with a lowboy cart
2. Brookshire is a nonsubscriber under the
there is dangerous, because you may get into
Texas Worker's Compensation Act; an
a situation where you will injure yourself."
employee suing Brookshire for personal
But an employer owes no duty to warn of
injuries must prove that Brookshire's
hazards commonly known or already
negligence proximately caused those injuries.
appreciated by the employee, Kroger, 197
See TEX. LABOR CODE § 406.033; Kroger
S.W.3d at 794, and Goss had both previously
encountered lowboys in the course of her
-2-
Brookshire Grocery Co. v. Goss, 262 S.W.3d 793 (Tex., 2008)
Co. v. Elwood, 197 S.W.3d 793, 794
(Tex.2006).
3. 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.
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