TX LEGAL EDGE

44

Employer’s Nondelegable Duty to Provide Safe Workplace

Trisha Barita February 22, 2013

After hearing the story about Carnival’s stranded cruise liner last week in the Gulf of Mexico, I thought about the many employees aboard the ship that worked probably overtime and in difficult conditions to aid in the ship’s voyage back to America. From my understanding, the employees of a cruise ship generally have the quarters that are the least luxurious. It is possible these employees worked in unsafe conditions at the expense of caring for the passengers or possibly by orders from the management on the Carnival ship. Whether the mechanical errors that occurred to cause the issues with the Carnival ship were of Carnival’s own doing or of another independent contractor who did maintenance on the ship, Carnival likely will not be able to escape the duties owed to its employees and passengers. Excluding the issues of maritime law, I thought this would be a good time for a brief discussion on Texas law on Employer’s nondelegable duty to provide a safe workplace for its employees.

A nondelegable duty is a duty imposed by law on the basis of concern for public safety. It can be imposed by common law, statute or regulation. In Leitch v. Hornsby, the Texas Supreme Court discusses that an employer is not responsible for being the insurer of an employee’s safety but at the same time, it is a nondelegable duty for them to provide a safe workplace for their employees. 935 S.W.2d 114, 118 (Tex. 1996). Hornsby had been an employee that requested safety equipment such as a lift belt while installing cable on behalf of Pro Com. Hornsby was employed by Pro Com. Leitch and Crews were corporate officers of Pro Com.

Hornsby experienced alleged back injuries from lifting a 65 pound cable reel. Hornsby sued Pro Com, Leitch and Crews for their failure to provide a safe workplace to him as an employee by not providing him a safety lift belt, safety instructions or training. (Pro Com did not have workers compensation so they were able to be sued.) The jury gave a verdict of over $500,000.00 against Pro Com, Leitch and Crews for their failure to provide a safe workplace to Hornsby. When the case reached the Texas Supreme Court, the Court found that Leitch and Crews could not be liable because the duty to provide a safe workplace was a nondelegable duty of the employer Pro Com. Leitch and Crews did not owe an individual liability as officers of the company because the duty of safety was solely the responsibility and duty of Pro Com. The Court also cites a few cases where the employer attempted to contract away this duty of safety and failed because it is a nondelegable duty in Texas.

Whether there will be any lawsuits against Carnival related to the employee conditions, it is important for employers in Texas to remember that the duty of safety of its employees is not something you can contract away or have the employee sign a disclaimer for.  If an independent contractor causes the safety issue to your employees on the Employer’s property, there could still be liability for the employee because of the nondelegable duty.  The nondelegable duty to provide a safe workplace for its employees will generally fall on the shoulders of the Employer. Although it cannot prevent all liability, having safety policies in your Employee Handbook that are consistently enforced can be important to the employer in creating a safe work place.

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