In Texas, non-subscriber employers generally cannot argue that an employee assumed the risk of injury or death as a valid defense in a workplace injury or wrongful death lawsuit. This limitation is due to the Texas Workers’ Compensation Act and specific legal principles applied in non-subscriber cases. Here’s why non-subscriber employers are typically unable to use the assumption of risk defense:
1. No Workers’ Compensation Immunity:
Unlike employers who participate in the state’s workers’ compensation system, non-subscriber employers do not enjoy the same level of immunity from personal injury lawsuits brought by their employees. Instead, they are subject to liability for workplace injuries under general negligence principles.
2. Texas Workers’ Compensation Act:
The Texas Workers’ Compensation Act provides the legal framework for workers’ compensation in the state. Under this act, employers who subscribe to workers’ compensation insurance generally receive immunity from most personal injury claims brought by their employees. However, non-subscriber employers have opted out of this system, which means they are subject to regular tort liability rules.
3. Comparative Negligence Standard:
Texas follows a modified comparative negligence standard with a 51% bar rule in personal injury cases, including non-subscriber workplace injury cases. This means that an injured employee’s contributory negligence may affect the amount of damages they can recover, but it does not absolve the employer of liability altogether. The employer’s negligence is also considered in determining liability and damages.
4. Assumption of Risk Limited:
While assumption of risk can be a valid defense in some contexts, such as certain recreational activities or sports, Texas law generally restricts its applicability in employment settings. Texas courts have held that assumption of risk as a defense is not appropriate when the injury or death is caused by the employer’s negligence, as employers have a duty to provide a safe workplace.
5. Non-Subscriber Liability:
Non-subscriber employers are held to a duty of ordinary care to provide a safe workplace for their employees. If they fail to meet this duty and an employee is injured or killed due to the employer’s negligence, the assumption of risk defense is unlikely to shield the employer from liability.
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It’s important to note that legal outcomes can vary based on the specific circumstances of each case, and exceptions may exist. If you are involved in a Texas non-subscriber workplace injury or wrongful death case, it’s advisable to consult with an attorney who specializes in such cases. They can provide guidance tailored to your specific situation and help you understand your rights and options under Texas law.
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