Revised May 11, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-40469
HERMAN THRELKELD and MARY THRELKELD,
Plaintiffs-Appellees,
VERSUS
TOTAL PETROLEUM, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
May 5, 2000
Before JOLLY and DeMOSS, Circuit Judges, and DOWD,* District Judge.
DeMOSS, Circuit Judge:
In this premises liability case, which was tried to a jury
verdict in favor of Plaintiffs Herman and Mary Threlkeld, Total
Petroleum, Inc. ("Total") appeals from the final judgment entered
by the district court, Magistrate Judge Wendell C. Radford,
presiding, as well as from the district court's denial of Total’s
*
District Judge of the Northern District of Ohio, sitting by
designation.
motion for judgment as a matter of law, or alternatively, for a new
trial. For the reasons which follow, we find that the district
court erred in denying Total's motion for judgment as a matter of
law; consequently, we will REVERSE the judgment entered by the
district court and REMAND this case to the district court for entry
of a judgment in favor of Total Petroleum.
I. BACKGROUND
The Threlkelds allege that on July 24, 1996, Herman Threlkeld
slipped and fell in the restroom of a convenience store owned and
operated by Total Petroleum (“Total”) because there was water on
the floor of the restroom, and that Total knew or should have known
of the presence of the water. Total seeks to have the judgment
entered against it reversed and judgment rendered in its favor on
the basis that the Threlkelds failed to present any evidence of
Total's actual or constructive knowledge of the presence of the
alleged water.
Our review of the record evidence reveals the following
pertinent facts. Approximately two years before the slip and fall
involved herein, Herman Threlkeld was injured in a bus accident
while at work. He experienced severe pain and swelling in his
right leg, and his condition continued to deteriorate, resulting in
increased pain, extreme swelling, and discoloration of his leg. He
2
was eventually diagnosed with reflex sympathetic dystrophy (RSD)1
of the right leg.
In the two years following his accident, Herman Threlkeld
experienced chronic pain in his right leg and could only ambulate
with the assistance of crutches or a wheelchair. During these two
years, he also tirelessly searched for medical treatments in an
effort to cure, but in any event to at least control the painful
symptoms of his RSD. On July 1, 1996, he traveled to Lubbock,
Texas for yet another new treatment, the implantation of a sciatic
catheter.2 The catheter proved to be quite effective, but after
returning home, Mr. Threlkeld developed a rash on his right leg
which caused him to schedule a return trip to Lubbock for
examination.
On July 24, 1996, on the return trip home from the follow-up
examination in Lubbock, the Threlkelds stopped at a Total
convenience store in Mesquite, Texas just after 11:00 a.m. Relying
on the assistance of his crutches, Mr. Threlkeld entered the store
to use the restroom. The restroom's rectangular dimensions
measured approximately 4'11" by 7'. Upon entering the restroom,
Mr. Threlkeld did not notice any water on the floor. He crossed
1
RSD is a debilitating nerve condition typically characterized
by intense pain which may also be accompanied with dramatic
swelling, redness, increased temperature, and limited mobility of
the affected limb.
2
This catheter would continuously release medication directly
to his sciatic nerve.
3
the floor of the restroom and used the urinal. As he approached
the sink to wash his hands, he claims to have noticed water on the
sink and on the floor beneath the sink. In an effort to avoid the
water, he stood ”a couple of feet back” from the sink to wash his
hands.
After he washed his hands, Mr. Threlkeld determined that he
would use the commode, and he used his crutches to make his way
over to an enclosed stall. He opened the stall door and alleges he
found that the commode had not been flushed by the previous patron
and that the toilet seat and surrounding floor were splattered with
what appeared to be urine. He changed his mind about using the
commode.
So, Mr. Threlkeld turned on his crutches to make his way out
of the restroom. As he took his last stride out of the restroom,
his left crutch slipped out from under him, and he fell into the
door. As the door opened outwards, Threlkeld ended up on the floor
across the threshold, with his torso in the hallway outside of the
restroom, and his legs remaining inside the restroom. By Mr.
Threlkeld's account, he fell at approximately 11:15 a.m.
As Threlkeld lay on the floor, he contends that he first
noticed that the restroom floor, from the sink all the way to the
door sill, which area he crossed on his way in, was covered in
water. Mrs. Threlkeld, who was in the women's restroom at the time
of the fall, heard the commotion and came to her husband's aid.
The two Total employees on duty at the time, Chasity Arnold and
4
Patricia Shaver, also came to Mr. Threlkeld's aid.
The employees paged Mike Matthews, Total's district
supervisor, and Wyvonne Goodwin, Total's regional safety
coordinator. Ms. Goodwin was, by coincidence, in the area that
morning conducting safety inspections of Total's local stores. Mr.
Threlkeld was transported by ambulance to a local hospital, and was
accompanied by Mrs. Threlkeld and Ms. Goodwin. Mr. Threlkeld was
treated and released from the hospital, and he and his wife
returned to their home that afternoon.
Total’s employees testified that the restroom had been both
cleaned and inspected in the hours before Mr. Threlkeld's fall.
Ms. Goodwin testified that she thoroughly cleaned the restroom the
previous night, that she returned the following morning, and that
between the hours of 8:00 a.m. and 10:00 a.m., she conducted a
safety committee inspection of the entire store, including the
restroom. The two employees in the store that morning also
testified that they had inspected the restroom once every hour
throughout the morning, and had in fact cleaned the restroom
between the hours of 9:00 a.m. and 10:00 a.m. They stated that the
last inspection of the restroom before Mr. Threlkeld's 11:15 a.m.
fall occurred between 10:30 a.m. and 11:00 a.m.
Ms. Goodwin and Ms. Arnold, who were present with Mr.
Threlkeld as he lay on the floor, denied that the restroom floor
was in the condition described by Mr. Threlkeld; that is, “covered
with water from door to sink.” Ms. Goodwin and Ms. Arnold both
5
stated that Total's policy was to inspect the restroom every half
hour. Total’s employees testified that safety issues were
reportedly of heightened importance to the store manager of the
particular Total store in question as she was the former head of
Total's district safety committee, and her store was in close
proximity to the regional office, resulting in the occasional
surprise visit from regional managers. According to Total, prior
to Threlkeld's fall, there had not been one reported slip and fall
at that Total store in the entire eight-year period it was owned by
Total.
Within several days of the fall, Mr. Threlkeld's RSD symptoms
returned in his right leg. Doctors testified that the fall may
have exacerbated the RSD in his leg for as many as six months, and
that he now had RSD in his left wrist. After that six month
period, and despite continued treatment and therapy, the RSD
symptoms in Mr. Threlkeld's leg have remained essentially unchanged
from their level of intensity before the fall.
The Threlkelds filed suit against Total in the federal
district court for the Eastern District of Texas on February 7,
1997. Jurisdiction was proper in the district court under 28
U.S.C. § 1332, based upon the complete diversity of citizenship
between the parties.3 The Threlkelds alleged that Total
3
When the complaint was filed, the Threlkelds were residents
of the State of Texas and Total Petroleum was a Michigan
corporation with its principal place of business located in Denver,
Colorado. Additionally the amount in controversy exceeded the
6
negligently failed to maintain the restroom floor in a reasonably
safe condition, failed to remove the water, and failed to warn Mr.
Threlkeld of the water. Total denied that it had actual or
constructive knowledge of the alleged water and that the damages,
if any, were proximately caused by Mr. Threlkeld's own negligence.
The parties consented to conduct all proceedings before a
magistrate judge, and the case was thereafter assigned to the
docket of Judge Wendell C. Radford. The case was tried to a jury,
and at the close of the Threlkelds' case, Total moved for judgment
as a matter of law. Judge Radford denied Total's motion. The jury
found Total to be 52% negligent and Mr. Threlkeld to be 48%
negligent. The jury then awarded Mr. Threlkeld a total of $616,000
for his injuries, lost earning capacity, and pain and suffering,
and it awarded Mrs. Threlkeld a total of $100,000 for loss of
consortium, loss of household services, and nursing care.
Judge Radford entered a judgment in accordance with the jury's
verdict on October 20, 1998, awarding Mr. Threlkeld an adjusted
$374,725 and Mrs. Threlkeld an adjusted $60,828.80. Total again
moved for judgment as a matter of law, or alternatively for a new
trial, arguing that the Threlkelds failed to establish that Total
had actual or constructive knowledge of the water, that there was
no competent evidence of Mr. Threlkeld's loss of earning capacity,
and that Mrs. Threlkeld was not entitled to recover the value of
$75,000 jurisdictional threshold exclusive of interest and costs.
7
her nursing services. The district court denied the post-trial
motion, and Total timely appeals.
II. DISCUSSION
We review the denial of a motion for judgment as a matter of
law de novo. See Voest-Alpine Trading USA Corp. v. Bank of China,
142 F.3d 887, 891 (5th Cir.), cert. denied, 119 S. Ct. 591 (1998).
In this Circuit, “[a] motion for judgment as a matter of law . . .
in an action tried by jury is a challenge to the legal sufficiency
of the evidence supporting the jury's verdict.” Harrington v.
Harris, 118 F.3d 359, 367 (5th Cir.), cert. denied, 118 S. Ct. 603
(1997). Applying the same standard as the district court would
have on initial consideration of a motion for judgment as a matter
of law, we examine the sufficiency of the evidence under the
standard of Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en
banc), overruled on other grounds by, Gautreaux v. Scurlock Marine,
Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). In Gaia
Technologies, Inc. v. Recycled Prods. Corp., 175 F.3d 365, 374 (5th
Cir. 1999), we recited the appropriate Boeing standard:
Under Boeing, we must find a conflict in
substantial evidence to create a jury question.
Substantial evidence is defined as evidence of such
quality and weight that reasonable and fair-minded
men in the exercise of impartial judgment might
reach different conclusions. Consequently, a mere
scintilla of evidence is insufficient to present a
question for the jury. Even if the evidence is
more than a scintilla, Boeing assumes that some
8
evidence may exist to support a position which is
yet so overwhelmed by contrary proof as to yield to
a [motion for judgment as a matter of law].
Id. (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th
Cir. 1996) (en banc)) (quotations and citations omitted). We
consider all of the evidence, drawing all reasonable inferences and
resolving all credibility determinations in the light most
favorable to the non-moving party. See Rhodes, 75 F.3d at 993.
And where the district court's jurisdiction was originally founded
upon diversity of citizenship between the parties, like the
district court, we apply state law to the facts as found. See
Powers v. Vista Chem. Co., 109 F.3d 1089, 1093 (5th Cir. 1997).
Under Texas premises liability law, a merchant owes its
invitees a duty to exercise reasonable care to protect them against
dangerous store conditions known or discoverable to the merchant.
See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.
1998) (citing Rosas v. Buddies Food Store, 518 S.W.2d 534, 536-37
(Tex. 1975)). And to recover damages against a store owner in a
slip-and-fall case, a plaintiff bears the burden of establishing:
(1) Actual or constructive knowledge of some condition
on the premises by the owner/operator;
(2) That the condition posed an unreasonable risk of
harm;
(3) That the owner/operator did not exercise reasonable
care to reduce or eliminate the risk; and
(4) That the owner/operator's failure to use such care
proximately caused the plaintiff's injuries.
9
Gonzalez, 968 S.W.2d at 936 (quoting Keetch v. Kroger Co., 845
S.W.2d 262, 264 (Tex. 1992)). Only the first of these four
elements, that is, Total's actual or constructive knowledge of the
presence of water, is at issue in this case.
Under Texas law, a premises owner's knowledge of a potentially
harmful condition can be established in one of the following three
ways: (1) proof that employees caused the harmful condition; (2)
proof that employees either saw or were told of the harmful
condition prior to the plaintiff's injury therefrom; or (3) proof
that the harmful condition was present for so long that it should
have been discovered in the exercise of reasonable care. See
Keetch, 845 S.W.2d at 264. The third scenario is the only one upon
which liability could be based in this case, as the record is
devoid of any evidence that Total's employees caused, observed, or
were made aware of any water on the men's restroom floor which
allegedly caused Mr. Threlkeld's slip and fall.
To support their claim that Total had constructive knowledge
of the presence of the water, the Threlkelds rely exclusively upon
their own testimony that the water “looked as if it had been there
for a while,” and upon the testimony of one of Total's employees
that had the bathroom been in the condition the Threlkelds
described when she inspected it, she most certainly would have
noticed it. Total contends that Texas case law, which specifically
defines the character and quantity of evidence, i.e., the
10
“substantial evidence“ required under Boeing to defeat a motion for
judgment as a matter of law in a Texas slip-and-fall jury verdict
case, defeats the Threlkelds' claim. For the reasons discussed
below, we agree with Total.
In Wal-Mart Stores, Inc. v. Gonzalez, the Texas Supreme Court
addressed “what quantum of circumstantial evidence is legally
sufficient to support a finding that an unreasonably dangerous
condition has existed long enough to charge a proprietor with
constructive notice of the condition.” Gonzalez, 968 S.W.2d at
935. The Texas Supreme Court concluded that when a plaintiff
relies on circumstantial evidence to establish an owner's
constructive knowledge of a dangerous condition, the evidence “must
establish that it is more likely than not that the dangerous
condition existed long enough to give the proprietor a reasonable
opportunity to discover the condition.” Id. at 936.
In the Gonzalez case, Flora Gonzalez, while patronizing her
local Wal-Mart, allegedly slipped and fell in a pile of cooked
macaroni salad while walking down a busy aisle from the cafeteria
toward a store refrigerator. See id. Gonzalez was injured, sued
Wal-Mart for negligence, and ultimately received a $100,000 jury
verdict. See id. Wal-Mart argued on appeal that the evidence was
insufficient to establish that the macaroni salad had been present
on the floor long enough to charge it with constructive notice.
See id.
11
In the Gonzalez case, no witness testified that they had
either seen or been aware of the macaroni salad's presence prior to
Ms. Gonzalez's fall. See id. Gonzalez herself testified that the
macaroni salad was “fresh,” “wet,” “still humid,” and contained
dirt. See id. Her daughter testified that there were footprints
and cart tracks in the macaroni salad, and stated that it “seemed
like it had been there a while.” See id.
The Texas Supreme Court, reviewing the evidence in a light
most favorable to the verdict, concluded that Gonzalez's evidence
“can no more support the inference that [the macaroni salad]
accumulated dirt over a long period of time than it can support the
opposite inference that the macaroni had just been dropped on the
floor and was quickly contaminated by customers and carts
traversing the aisle.” Id. at 937. Evidence of the presence of
dirt in the macaroni and the subjective testimony that it just
“seemed like it had been there awhile,” according to the Court, was
“no evidence that the macaroni had been on the floor long enough to
charge Wal-Mart with constructive notice of this condition.” Id.
at 938.
The harsh reality, noted the Texas Supreme Court, is that if
a plaintiff cannot prove facts to establish that it is more likely
than not that the dangerous condition existed long enough that a
proprietor should have known of its presence, there is simply no
basis for recovery. See Gonzalez, 968 S.W.2d at 938. And, if like
12
Gonzalez's, a plaintiff's evidence establishes only the possibility
that a dangerous condition was present long enough to provide
constructive notice, such evidence is legally insufficient to
sustain a judgment based on a jury's verdict against the
proprietor.
In its motions for judgment as a matter of law, Total argued
that the Threlkelds failed to present any evidence that it was more
likely than not that the water in which Mr. Threlkeld allegedly
slipped had been present long enough that Total should have
discovered it in the exercise of reasonable care.
Our review of the record evidence in this case reveals that
Mr. Threlkeld admitted he did not know how the water came to be on
the floor or how long it had been present. He simply stated that
based upon the condition of the bathroom (i.e., the dirty commode)
he “believed” that the water must have been on the floor for “some
time.” Yet he later admitted that he had “no way of knowing” how
long the water may have been present. Mrs. Threlkeld conceded
during cross-examination that she likewise had no way of knowing
how long the water was on the floor, and that it was entirely
possible that a customer immediately preceding Mr. Threlkeld could
have caused the water on the floor. She also noted that the
women's restroom was clean and well maintained, contradicting the
implication that Total was neglectful about maintaining and
inspecting the restrooms.
Mr. Threlkeld's evidence that the commode needed attention is
13
no evidence regarding Total's constructive knowledge of the
presence of water on the floor of the restroom. And, like the
plaintiff's testimony in Gonzalez, his subjective belief that the
dangerous condition may have been there for awhile is no more
indicative that the water had been on the floor for a long enough
period of time so as to give Total constructive knowledge of it,
than it is of the opposite proposition, that the water appeared on
the floor as a result of a previous patron's use within seconds or
minutes of Mr. Threlkeld's arrival in the restroom.
While the Texas Supreme Court has explicitly held that
testimony regarding cart marks and footprints in spilled material
is not sufficient to establish that a spill existed for so long a
period of time as to impart construct knowledge to the proprietor,
Mr. Threlkeld's testimony serves to bolster the opposite
proposition, i.e., that the water on the floor may have been
present for only a short while. He stated that the water on the
floor was located where restroom patrons would necessarily have had
to trod in order to enter the restroom, and he conceded that the
water was neither discolored nor contained any footprints or track
marks. Thus, Mr. Threlkeld's own testimony equally supports the
opposing inference that the water appeared only a short time before
he arrived in the men's restroom.
The Threlkelds rely alternatively on a statement made by Ms.
Arnold that if the restroom had been in the condition Mr. Threlkeld
14
described when she last inspected it, she most certainly would have
noticed it. This statement indicates nothing more than, that at
the time Ms. Arnold inspected the men's restroom, it was not in the
condition Mr. Threlkeld alleges. There is ample evidence in the
record that very shortly before Mr. Threlkeld's fall, the restroom
had been the subject of a safety committee inspection by the
regional safety director between 8:00 a.m. and 10:00 a.m., that the
two employees on duty that morning had cleaned the restroom between
9:00 a.m. and 10:00 a.m., and that the employees inspected the
restroom and found no dangerous condition between 10:30 a.m. and
11:00 a.m. At worst, the evidence reveals that the restroom went
unobserved by Total employees for, at the most, forty-five
minutes.4
Construing all of the evidence in a light most favorable to
the Threlkelds, we fail to see how a reasonable juror could
conclude that it was more likely than not that the alleged water on
the bathroom floor was present for so long a time as to give Total
actual or constructive knowledge of its presence under Texas law.
The Threlkelds' testimony that it “looked like the water had been
present for awhile,” and the other evidence upon which they rely,
suffers from the same defects noted by the Texas Supreme Court in
Gonzalez. It is entirely subjective and it no more supports an
4
Assuming the last inspection was at 10:30 a.m., forty-five
minutes elapsed before Mr. Threlkeld fell at 11:15 a.m.
15
inference that the dangerous condition existed for so long a time
as to charge Total with constructive knowledge than it supports the
opposite inference that the dangerous condition appeared only
moments before the accident. And as the Texas Supreme Court noted
in Gonzalez, such “meager evidence, from which equally plausible
but opposite inferences may be drawn” is no evidence that Total had
constructive knowledge of the dangerous condition, and thus, is
legally insufficient to support such a finding. See Gonzalez, 968
S.W.2d at 936.
We conclude, therefore, that sitting in diversity, and bound
to apply Texas state law regarding premises liability, the district
court was not at liberty to bypass or ignore the strictures of the
rule announced by the Texas Supreme Court in Gonzalez. As the
Threlkeld's presented no competent evidence from which a finding of
constructive knowledge of the presence of water could be drawn,
Total was entitled to judgment as a matter of law, and the district
court erred in denying Total's motion therefor.
Accordingly, the judgment entered by the district court will
be reversed and this matter will be remanded for entry of judgment
in favor of Total Petroleum. As a result of our decision in this
regard, Total's remaining issues, that is, whether there was
competent evidence of Mr. Threlkeld's lost earning capacity, and
whether Mrs. Threlkeld was entitled to recover the value of her
nursing services, are rendered moot.
16
III. CONCLUSION
For all of the foregoing reasons, we REVERSE the judgment
entered by the district court in favor of the Threlkelds and REMAND
this case for entry of a judgment in favor of Total Petroleum.
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