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Kroger Co. v. Keng5/11/2000
On Petition for Review from the Court of Appeals for the Twelfth District of Texas
Argued January 12, 2000
The issue presented is whether a nonsubscriber to workers' compensation insurance is entitled to a jury question regarding its employee's alleged comparative responsibility for his or her injuries. Sonja Keng sued Kroger Company, a workers' compensation nonsubscriber, for work-related injuries. The trial court rendered judgment on the jury's verdict for Keng, and Kroger appealed. Kroger complained that the trial court erred in refusing to submit a comparative-responsibility question to the jury. The court of appeals affirmed, holding that the comparative-responsibility statute does not apply to Keng's claim, and that Kroger, as a nonsubscriber, is prohibited from using its employee's alleged negligence as a defense. 976 S.W.2d 882. Because Texas Labor Code § 406.033 precludes a finding of contributory negligence, which is a prerequisite to determining the parties' comparative responsibility, we hold that a nonsubscribing employer is not entitled to a jury question on its employee's alleged comparative responsibility. We therefore affirm the court of appeals' judgment.
Keng, a Kroger employee, suffered injuries while removing pie boxes from the shelves of a deli freezer at a Kroger store in Houston. As she started down the ladder she was using to remove the boxes from the freezer's top shelf, three boxes fell and hit her back, knocking her off the ladder and causing her to hit her chest on the cart below. Keng sued Kroger, a workers' compensation nonsubscriber, alleging that the store's negligence proximately caused her injuries. Kroger denied the allegations and responded that Keng's conduct either caused or contributed to the incident, entitling Kroger to protection under the comparative-responsibility statute. See Act of June 2, 1987, 70th Leg., 1st C.S., ch. 2, § 2.04, 1987 Tex. Gen. Laws 40 ("In an action to recover damages for negligence . . . a claimant may recover damages only if his percentage of responsibility is less than or equal to 50 percent") (amended 1995) (current version at Tex. Civ. Prac. & Rem. Code § 33.001).
The parties tried the case to a jury. Kroger's proposed charge requested two jury questions: (1) whether the negligence, if any, of Keng, Kroger, or both proximately caused the occurrence; and (2) if the jury found that more than one party's negligence caused the occurrence, the percentage of negligence to attribute to each party. The trial court refused to submit Kroger's proposed charge, choosing instead to submit questions concerning only Kroger's alleged negligence. The jury found Kroger negligent and awarded Keng $30,000 in damages. The trial court rendered judgment on the verdict.
Kroger appealed, complaining that factually insufficient evidence supported the verdict and that the trial court erred in refusing to submit a comparative-responsibility question to the jury. The court of appeals affirmed. 976 S.W.2d 882. After holding that the verdict was not against the great weight and preponderance of the evidence, the court rejected Kroger's challenge to the trial court's charge. Id. at 893. The court reasoned that an employee's personal-injury action against a nonsubscribing employer is an "action to collect workers' compensation benefits," which is exempted from the statutory comparative-responsibility scheme. Id. at 891 (citing Tex. Civ. Prac. & Rem Code § 33.002(c)(1) ("This chapter does not apply to: (1) an action to collect workers' compensation benefits under the workers' compensation laws of this state.")). Additionally, the court determined that for the comparative-responsibility statute to apply, an e
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