In Jack In The Box, Inc. v. Skiles, — S.W.3d –, 2007 WL 431045, 50 Tex. S.Ct. J. 414 (February 9, 2007), the Texas Supreme Court has built on its holding from Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006), and again held that a nonsubscribing employer has no duty to warn an employee of a danger which is commonly known and obvious or of which the employee has actual awareness. While the facts of Skiles and Elwood limit the scope upon which nonsubscribers can advance a claim of “no duty,” these cases clearly recognize a threshold “duty defense” for nonsubscribers which is not foreclosed by the waiver of defenses established by Texas Labor Code 406.033(a)(1) and (2) (providing that nonsubscribing employers do not have the defenses of contributory negligence or assumed risk).
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