Southerland v. Kroger Co.

OPINION

MIRABAL, Justice.

This is an appeal from a summary judgment granted in favor of The Kroger Company and its employee, John Casto, in a personal injury action brought by William B. Southerland II, a former employee at Kroger. We affirm.

The summary judgment evidence showed that plaintiff worked part-time at a Kroger grocery store during high school and college, from the summer of 1991 through May 1994. He was employed part time as a checker at Kroger at least from September 1993, when junior college classes started, through May 1994, while he continued his education at North Harris County Junior College.1 On *472January 25,1994, while plaintiff was cheeking out groceries for a Kroger customer, he reached down to pick up a box of soap2 from the bottom part of the customer’s basket, and as he lifted the soap box up, he felt pain in his back. He lifted the soap box further, slid it across the scanner and let it go down the belt to the sacker.

Plaintiff sued Kroger and his immediate supervisor to collect damages for his back injury, alleging negligence and gross negligence for: (1) not providing and enforcing safety rules; (2) not properly training plaintiff; and (3) not furnishing safe instrumental-ities of work.

As a “nonsubscriber” under Texas workers’ compensation law, Kroger was responsible for work-related injuries under common-law principles of negligence. See Tex.Lab.Code Ann. § 406.033(d) (Vernon 1996)3; see also Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995). To establish negligence, evidence must be produced to establish a duty, a breach of that duty, and damages proximately caused by the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Although an employer is not an insurer of the employees’ safety at work, an employer does have a duty to use ordinary care in providing a safe work place. Werner, 909 S.W.2d at 869.

In its motion for summary judgment, Kroger asserted (1) it was not negligent because the plaintiff was performing his usual, normal everyday work when he lifted the detergent from under the basket and (2) it could not reasonably foresee that plaintiff would be mjured from lifting a box of detergent. The motion stated in part:

The undisputed summary judgment facts show that on the occasion in question, Southerland was allegedly injured performing his normal, everyday work; the act of lifting a single box of laundry detergent. This lifting of a box of detergent is work that plaintiff had performed many times before, and that thousands of other Kroger employees, like plaintiff, as well as hundreds of thousands of grocery customers perform on a daily basis.
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It is long settled in Texas that where an employee is performing the same character of work that he had always done, and that other employees in other stores were required to do, there was no negligence. Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995), citing Great Atlantic & Pacific Tea Co. v. Evans, [142 Tex. 1] 175 S.W.2d 249, 250 (Tex.1943).

In plaintiffs response to Kroger’s motion for summary judgment, plaintiff asserted (1) he was neither offered the opportunity nor allowed to attend a checker training program which included training on safe lifting procedures; (2) he was not furnished any safety rules; and (3) he was not furnished a back safety belt. The trial court granted summary judgment to defendants.

In four points of error, plaintiff asserts the trial court erred in granting summary judgment because there are genuine and material issues of fact precluding summary judgment.

*473Summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Bangert v. Baylor College of Medicine, 881 S.W.2d 564, 566 (Tex.App.—Houston [1st Dist.] 1994, writ denied). A defendant who conclusively negates one of the essential elements of the plaintiff’s cause of action is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). In reviewing the summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve all doubts in its favor. Johnson, 891 S.W.2d at 644; Bangert, 881 S.W.2d at 565-66.

Plaintiff places special emphasis on the evidence that he did not participate in a formal safety training program offered to new Kroger checkers. It is uncontested the safety training program was required for new checkers only;4 plaintiff was an experienced checker who had held the job for approximately five months prior to the injury, without incident, and who had worked at Kroger part time for two and a half years. The uncontroverted evidence shows that Kroger posted, in the places around the store where schedules are posted, “a set of safety rules and a diagram on proper lifting.”

With regard to plaintiffs claim that defendants were negligent for not providing him with a safety belt for his back, the evidence is uneontested that:

—In late 1993/early 1994, Kroger offered every employee the opportunity to purchase a back belt, at cost, through the company.
• — Plaintiff offered no evidence showing he ever requested a back belt, was rejected for one, or could not afford one. He simply did not obtain one.
—Kroger checkers have never been required to wear back belts.
—Plaintiff was a young man who played junior high and high school football just prior to coming to work at Kroger.5 He had worked as a checker for Kroger without mishap or incident for approximately five months prior to the incident on January 25,1994.

The law is clear that in cases like this, when it is uncontroverted that the lifting involved is not unusual and does not pose an increased threat of injury,6 there is no negligence as a matter of law. Werner, 909 5.W.2d at 869.

The facts of this ease are similar in many respects to the facts of the Evans case. There, the plaintiff alleged the grocery store was negligent for requiring him to carry 100-pound sacks of potatoes without someone to assist him, or without furnishing him mechanical means on which to haul the potatoes. The supreme court held the grocery store was not negligent as a matter of law, stating:

Evans was a strong, robust young man. He was merely required to perform work that he had been doing for this same employer for several months before this occasion. He was doing the same character of work that other employees in other grocery stores constantly and generally did ... Evans cannot complain if A & P merely required him to do the usual and customary work required of persons in his line of employment, or, stated in another way, required by the character of the business in which he was employed. Finally, we think that the facts of this record fail, as a matter of law, to show that A & P ought to have foreseen that Evans would *474be injured by doing the character of work required of him in this instance.

Evans, 175 S.W.2d at 251 (cited with approval in Werner, 909 S.W.2d at 869.).

Plaintiff relies on J. Weingarten, Inc. v. Moore, 441 S.W.2d 223 (Tex.Civ.App.—Houston [1st Dist.] 1969), affd in part and rev’d in part on other grounds, 449 S.W.2d 452 (Tex.1970), which also involved a checker who was injured on the job. However, Weingarten is distinguishable in that the evidence there showed the design of the involved check-out counter was defective, and there was no indication that grocery checkers generally were required to work under the conditions required of plaintiff. Id. at 224, 226.

Following supreme court precedent in Evans and Werner,7 we overrule plaintiff’s points of error.

We affirm the judgment.

O’CONNOR, J., dissenting.

. Plaintiff may have worked as a checker throughout high school too, but the record is not clear. The record shows that plaintiff worked as a checker as he continued his education. He started junior college in the fall of 1993. His injury occurred approximately five months later, *472in January 1994. Plaintiff states in his pleadings:

"Plaintiff, William B. Southerland, II, is a twenty-one year old former part-time employee of Defendant, The Kroger Company. Mr. Southerland was employed as a part-time checker while he continued his education.”

. The object was an orange box brand of detergent, like “Tide.” It was "one of the ones that are, like, 12 to 15 pounds, somewhere in there.”

. Section 406.033 of the Texas Labor Code (Vernon 1996), entitled "Common-Law Defenses; Burden of Proof,” provides as follows:

(a) In an action against an employer who does not have workers' compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee.
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(d) In an action described by Subsection (a) against an employer who does not have workers' compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant's employment.

. Defendant Casto testified he believed it was a reasonable and prudent thing for Kroger to ensure that all employees went to safety training before they were given uniforms to act as checkers because “it wouldn’t make sense to put someone on the front lines if they didn’t know what they were doing.”

. According to plaintiff’s deposition testimony, he was an offensive tackle on his high school football team. In the record, he is described as a "big boy.”

. We take judicial notice that grocery store checkers, including Kroger checkers, perform the act of picking up a box of laundry detergent on a regular basis. See Eagle Trucking Co. v. Texas Bitulithic Co., 612 S.W.2d 503, 506 (Tex.1981) (well known and easily ascertainable facts may be judicially noticed).

. See also the following cases that concluded the employer was not negligent as a matter of law: J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941, 946 (Tex.Civ.App.—Beaumont 1973, writ ref’d n.r.e.) (store clerk injured while putting two glasses under counter); Fields v. Burlison Packing, 405 S.W.2d 105, 111 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n.r.e.) (employee injured while lifting tub of hamburger meat); Great Atlantic & Pacific Tea Co. v. Lang, 291 S.W.2d 366, 368 (Tex.Civ.App.—Eastland 1956, writ ref'd n.r.e.) (grocery store employee injured while lifting carton of toilet tissue).