Boudreaux v. Swift Transportation Co.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 4, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_________________________ Clerk

No. 04-30467

_________________________

PURJICE BOUDREAUX,

Plaintiff - Appellant,

versus

SWIFT TRANSPORTATION COMPANY, INC.; ET AL.,

Defendants

SWIFT TRANSPORTATION COMPANY, INC.,

Defendant - Appellee.

_________________________

Appeal from the United States District Court
For the Western District of Louisiana
_________________________

Before REAVLEY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Purjice Boudreaux filed suit against Swift Transportation

Company seeking damages for injuries arising from a slip and fall

incident. Boudreaux claimed that he slipped after stepping in a

puddle of oil that had been left on a truck stop parking lot by a

Swift truck. The district court granted Swift’s motion for summary

judgment. We affirm.

I

Prior to sustaining injuries in the fall, Boudreaux was
employed by Werner Enterprises as a truck driver. During the

evening hours of February 10, 2001, Boudreaux entered a Flying J

truck stop in Waco, Texas, and parked his eighteen-wheeler beside

a tractor-trailer owned and operated by Swift. The trucks remained

parked beside each other throughout the night. The next morning,

Boudreaux exited his truck and proceeded to the restaurant located

in the truck stop to eat breakfast.

Upon leaving the restaurant, he observed the Swift truck

departing the parking area. He then walked toward his truck and

stepped in a puddle of oil located on the portion of the parking

lot where the Swift truck had been parked. Boudreaux stepped out

of the puddle of oil and wiped his shoes on the asphalt. He then

performed an inspection of his truck, and continued wiping his feet

on the asphalt and a small patch of grass in an effort to remove

the oil from his shoes. Both the asphalt and the grass were wet

due to mist that had been falling throughout the morning.

After inspecting his truck for five to seven minutes,

Boudreaux climbed into the truck’s cab, sat down on the driver’s

seat, and picked up a pack of cigarettes. As he was exiting the

cab, Boudreaux slipped on one of the truck’s steps and fell

directly to the ground, landing squarely on his backside. He

immediately felt pain in his lower back and left leg. Boudreaux

reported his injury to Werner, but mentioned neither the puddle of

oil nor the Swift truck. As a result of injuries sustained from

the fall, Boudreaux underwent back surgery in July 2001, and has

2
been unable to return to work as a truck driver for Werner.

Boudreaux filed suit against Swift and Flying J, alleging

negligence and premises liability claims. Swift filed a motion for

summary judgment which the district court denied in order to allow

Boudreaux additional time to seek evidence that the oil puddle had

been left by the Swift truck. Boudreaux requested that Swift

produce copies of records which would identify the Swift truck that

was parked at the Flying J on the morning of February 11, 2001, as

well as maintenance and repair records for that truck for the years

2000 and 2001. Swift objected to this request on grounds that it

was unduly burdensome, and refused to provide the documents.

Boudreaux did not file a motion to compel.

After the discovery deadline passed, Swift filed a motion for

reconsideration of its motion for summary judgment. The district

court granted this motion, finding that Boudreaux was not entitled

to a favorable inference on account of Swift’s failure to produce

requested documents because Boudreaux had not filed a motion to

compel. The court summed up Boudreaux’s evidence as follows:

[P]laintiff’s evidence consists solely of his own
deposition testimony that: (1) the Swift truck was parked
in the Flying J parking lot when plaintiff arrived and
was parked there for many hours prior to the alleged
accident; (2) the location of the oily substance was
directly beneath where the cab of the Swift truck had
been parked immediately prior to leaving; and (3) the oil
stood on top of the parking surface, covered an area of
6-7 inches and appeared “fresh.”

The court then concluded: “As plaintiff has offered nothing more

than his own testimony in support of only circumstantial evidence

3
that his alleged accident was caused by an oil spill for which

Swift was responsible, plaintiff has failed to show that a genuine

issue of material fact exists as to Swift’s negligence.”

Thirty days after the court entered its ruling granting

Swift’s motion for summary judgment, Boudreaux filed a notice of

appeal. The following day the court granted Flying J’s motion for

summary judgment, effectively ending the litigation.1

II

A

We review a grant of summary judgment de novo, “applying the

same standards the district court used.”2 “Summary judgment is

proper when the pleadings and evidence demonstrate that no genuine

1
Although our jurisdiction is uncontested, we are duty-bound to examine
it sua sponte. See Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 460
(5th Cir. 2004). Here, Boudreaux filed his notice of appeal one day before the
district court entered a final decision by granting Flying J’s motion for summary
judgment. This premature notice of appeal would have been sufficient to confer
jurisdiction under our circuit’s former “doctrine of cumulative finality.” See
Alcom Elec. Exch., Inc. v. Burgess, 849 F.2d 964, 966-69 (5th Cir. 1988); Alcorn
County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1166 (5th Cir. 1984);
Jetco Elec. Indus. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973)). This doctrine
has apparently been abrogated by the Supreme Court’s decision in FirsTier
Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269, 274 (1991). See
United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998) (holding that FirsTier
abrogates the rule announced in the Jetco-Alcorn-Alcom line of cases). Cases
decided after FirsTier, however, have held that a notice of appeal is proper if
taken from an order that “would have been appealable if immediately followed by
the entry of judgment pursuant to Federal Rule of Civil Procedure 54(b).”
Barrett v. Atl. Richfield Co., 95 F.3d 375, 379 (5th Cir. 1996); see also Young
v. Equifax Credit Info. Servs., Inc., 294 F.3d 631 (5th Cir. 2002). Here,
because the district court’s order granting Swift’s motion for summary judgment
“would have been appealable if the district court had certified it pursuant to
Rule 54(b), and because the district court did subsequently (and prior to oral
argument herein) dispose of all remaining parties and claims,” we have
jurisdiction over this appeal. Young, 295 F.3d at 634 n.2.
2
Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004).

4
issue of material fact exists and the movant is entitled to

judgment as a matter of law.”3 “An issue is material if its

resolution could affect the outcome of the action.”4 The party

moving for summary judgment must “‘demonstrate the absence of a

genuine issue of material fact,’ but need not negate the elements

of the nonmovant’s case.”5

Once the moving party has demonstrated the absence of a

material fact issue, the non-moving party must “go beyond the

pleadings and designate specific facts showing that there is a

genuine issue for trial.”6 This burden will not be satisfied by

“some metaphysical doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertions, or by only a scintilla

of evidence.”7 Rather, the non-moving party must “set forth

specific facts showing the existence of a ‘genuine’ issue

concerning every essential component of its case.”8 A dispute as

to a material fact is “genuine” if the evidence is such that a

3
Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004) (citing FED. R. CIV.
P. 56(c)).
4
Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th
Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
5
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
6
Id. 1075.

7
Id. (citations and internal quotation marks omitted).

8
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.
1998).

5
reasonable jury could return a verdict for the nonmoving party.9

When considering summary judgment evidence, we must view “all

facts and inferences . . . in the light most favorable to the

nonmoving party.”10 We must “not weigh the evidence or evaluate the

credibility of witnesses.”11 “We resolve factual controversies in

favor of the nonmoving party, but only where there is an actual

controversy, that is, when both parties have submitted evidence of

contradictory facts.”12 We will not assume “in the absence of any

proof . . . that the nonmoving party could or would prove the

necessary facts,” and will grant summary judgment “in any case

where critical evidence is so weak or tenuous on an essential fact

that it could not support a judgment in favor of the nonmovant.”13

B

The parties agree that Texas law applies in this diversity

case. Under Texas law, “[t]he elements of a negligence cause of

action are the existence of a legal duty, a breach of that duty,

and damages proximately caused by the breach.”14 Whether a legal

duty exists is a threshold question of law in a negligence action,

9
See Anderson, 477 U.S. at 251-52.
10
Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003).
11
Morris, 144 F.3d at 380.
12
Little, 37 F.3d at 1075 (emphasis omitted).

13
Id. (internal quotation marks and citation omitted).

14
IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d
794, 798 (Tex. 2004)).

6
and is to be determined based on the facts surrounding the

occurrence in question.15 Under Texas law, the dominant

consideration in determining whether a duty exists is

foreseeability of risk.16 To establish a breach of duty, a

plaintiff must show that a defendant either did something an

ordinarily prudent person exercising ordinary care would not have

done under the circumstances, or that the defendant failed to do

that which an ordinarily prudent person would have done in the

exercise of ordinary care.17 A defendant’s negligence will

constitute a proximate cause of a plaintiff’s injuries when such

negligence was the actual cause of the injuries, and the injuries

were a foreseeable result of the negligence.18

C

Boudreaux contends that the district court erred in finding

his summary judgment evidence insufficient to create a genuine fact

issue regarding Swift’s negligence. In addition, he argues that

15
Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999).
16
Rodriguez v. Sabatino, 120 F.3d 589, 591-92 (5th Cir. 1997). In Tex.
Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002), the Texas Supreme Court
found that
[t]he question of legal duty is a multifaceted issue requiring us to
balance a number of factors such as the risk and the foreseeability
of injury, the social utility of the actor’s conduct, the
consequences of imposing the burden on the actor, and any other
relevant competing individual and social interests implicated by the
facts of the case.

17
See Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex. App.–Dallas 2004,
pet. denied).
18
See Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex. 1996).

7
the district court improperly weighed his credibility, overlooked

Swift’s failure to present competent summary judgment evidence

showing that it was not negligent, and erroneously placed upon him

the burden of compelling discovery from Swift.

1

Boudreaux claims that his summary judgment evidence, which

consisted primarily of his own deposition testimony, raised a

genuine issue of material fact as to Swift’s negligence. Boudreaux

testified that when he parked at the Flying J at approximately 5:00

p.m. on February 10, a Swift truck was already parked in the space

beside him, that both trucks remained parked beside each other

throughout the night, and that the Swift truck left the parking lot

only moments before he stepped in the puddle of oil. He noted that

the puddle was roughly 7-8 inches in diameter, contained

approximately one gallon of oil, and looked “fresh” because it had

not yet seeped into the crevices of the asphalt. He stated that

after he stepped in the oil, he attempted to remove it from his

shoes by wiping them several times on the asphalt and the grass

over a five to seven minute period while he inspected his truck.

He then climbed into his truck, retrieved a pack of cigarettes, and

slipped while stepping down onto one of the truck’s grated aluminum

steps. Immediately after falling to the ground, Boudreaux alleged

that he passed his hand across the bottom of his boots and found

them covered with a thin layer of black oil.

Boudreaux also proffered as summary judgment evidence Swift’s

8
truck driver manual, which requires its drivers to make pre-trip

inspections of their vehicles. Boudreaux alleged that a proper

inspection conducted under daylight conditions would have revealed

the presence of oil leaking from a truck engine onto the parking

lot surface below.

We are persuaded that Boudreaux’s evidence fails to create a

genuine issue of material fact as to all elements of his negligence

claim. Initially, we note that Boudreaux presented some

circumstantial evidence indicating that the oil puddle in which he

stepped emanated from the Swift truck. Specifically, his testimony

that the Swift truck was parked beside his truck throughout the

night preceding the accident, and departed only moments before he

stepped in an oil puddle located directly below where the cab of

the Swift truck had been located, raises a reasonable inference

that the oil came from the Swift truck. As evidence that the

puddle had been present only a short time before he stepped in it,

Boudreaux testified that the oil appeared “fresh,” had not yet

seeped into the rocks on the asphalt parking lot, and felt like a

“smudge” or a “sponge.” He described fresh oil as oil that had

been present on the parking lot for less than one day.

Taken as true, this evidence creates a fact issue as to

whether the oil puddle was created by the Swift truck. However,

assuming that the oil was left by the Swift truck, Boudreaux must

still point to a duty that has been breached by Swift in order to

9
survive summary judgment.19 To this effect, Boudreaux avers that

Swift owed him “a duty not to harm him by allowing one of its

trucks to leak oil on a parking lot.”

Boudreaux’s description of Swift’s duty sweeps too broadly.

The Texas Supreme Court has found that, in a negligence action such

as the one at bar, if “reason to anticipate injury is not

established, then no duty arises to act to prevent such an

unanticipated injury.”20 Applying this principle, a Texas appellate

court found that a truck company and its driver were not liable

when a third party slipped on oil that had leaked from a company

truck onto a public road.21 The court began by noting that the case

was not “the usual ‘slip and fall’ case . . . against an owner-

occupier brought by an employee or invitee.”22 The court then

concluded:

Defendant and its truck driver were under a duty to
remove the dangerous condition only if they had reason to
anticipate an injury as a foreseeable consequence of

19
See Ford v. Cimarron Ins. Co., 230 F.3d 828, 830 (5th Cir. 2000) (“Duty
is the threshold question of any negligence case. In Texas, moreover, whether
a duty exists is a question of law for the court to decide from the facts
surrounding the occurrence in question.” (citation omitted)); Reeder v. Daniel,
61 S.W.3d 359, 364 (Tex. 2001) (“It is fundamental . . . that a legal duty must
exist before a defendant is held liable for negligence.”).
20
Houston Lighting & Power Co. v. Brooks, 336 S.W.2d 603, 606 (Tex.
1960); see also Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 590 (Tex. 1986) (“It
is a long standing principle in this state that a duty of care arises when
conditions are such that a ‘prudent person would have anticipated and guarded
against the occurrence which caused’ another’s injury.” (quoting St. Louis S.W.
Ry. Co. of Tex. v. Pope, 86 S.W. 5, 7 (Tex. 1905))).

21
Robertson Tank Lines, Inc. v. Radley, 507 S.W.2d 274, 275 (Tex. Civ.
App.–Beaumont 1974, no writ).
22
Id.

10
 their failure to remove the dangerous condition [oil that
had leaked onto the road]. Without actual or
constructive knowledge of the dangerous condition by
defendant or its truck driver, the law of this state does
not impose a duty to correct the dangerous condition.23

We find evidence of actual or constructive knowledge by Swift

of the offending oil puddle lacking in this case. In his

deposition testimony, Boudreaux stated that he did not know whether

the driver of the Swift truck conducted a pre-trip inspection prior

to departing the Flying J parking lot on the morning of the

accident.24 Furthermore, Boudreaux alleged in his deposition that

Swift was at fault because its driver failed to conduct a pre-trip

inspection. In short, Boudreaux presented no evidence that the

driver of the Swift truck had actual knowledge of the oil puddle.

Finding no evidence of actual knowledge, we must ascertain

whether Boudreaux proffered evidence raising a material fact issue

as to whether the driver of the Swift truck had constructive

knowledge of the oil puddle. A party will be deemed to have

constructive knowledge of a fact if the party would have known the

fact through the exercise of reasonable care.25 As evidence of a

23
Id.
24
In response to a question asking if he knew whether the driver of the
Swift truck conducted a pre-trip inspection on the morning of the accident,
Boudreaux responded, “I never seen the guy.”

25
Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 927-28 (Tex.
App.–Fort Worth 1994, writ denied); cf. Corbin v. Safeway Stores, Inc., 648
S.W.2d 292, 295 (Tex. 1983) (in premises liability context, owner or occupier of
premises is deemed to have constructive knowledge of premises defect or dangerous
condition when a reasonably careful inspection would have revealed it).

11
duty to inspect for oil leaks, Boudreaux points to the Swift truck

driver manual, which requires Swift drivers to conduct pre-trip

inspections after being off-duty for eight or more consecutive

hours.26 As part of the inspection, Swift drivers are directed to

conduct a “vehicle overview” which includes checking for “leaks.”

We decline to impute constructive knowledge of the oil puddle

to Swift based solely upon its own internal operating procedure

requiring pre-trip inspections. Under Texas law, a company’s self-

imposed policy with regard to inspection, taken alone, does not

establish the standard of care that a reasonably prudent operator

would follow.27 In addition, Boudreaux presented no evidence of the

actual procedure followed by Swift drivers when conducting pre-trip

inspections, much less whether the procedure is designed to detect

relatively small “puddles” of seven to eight inches in diameter.28

In short, we can find no basis in Boudreaux’s evidence for

concluding that the driver of the Swift truck would have located

26
The evidence here indicates that the Swift driver was off-duty from at
least 5:00 p.m. on February 10 until the morning of February 11.
27
See Fenley v. Hospice in the Pines, 4 S.W.3d 476, 481 (Tex.
App.–Beaumont 1999, pet. denied) (cited for this proposition in FFE Transp.
Servs., Inc. v. Fulgham, 48 Tex. Sup. Ct. J. 267, 2004 WL 3019223, at *8 (Tex.
Dec. 31, 2004)).
28
Boudreaux testified at his deposition that, when conducting inspections
of his own truck he could see if oil were leaking from his engine. In addition,
he testified that when inspecting his tires, he could see the surface below the
engine adequately to check for potential oil puddles. This evidence does not
directly speak to the manner in which Swift drivers conduct pre-trip inspections
of their vehicles.

12
the oil puddle in the exercise of reasonable care.29

Even assuming that the driver of the Swift truck had a duty to

conduct a pre-trip inspection, the record contains no evidence as

to precisely when such an inspection must occur. Given that

Boudreaux testified that the oil puddle appeared “fresh” and was

only seven to eight inches in diameter, it is plausible that the

oil was dropped after an inspection should have taken place. Thus,

it is unclear whether the puddle existed at the time such an

inspection would have occurred.30

Because Boudreaux failed to present more than a scintilla of

evidence showing that the driver of the Swift truck had actual or

constructive knowledge of the oil puddle, a reasonable jury could

not find in his favor. Therefore, the district court’s grant of

summary judgment in favor of Swift was proper.

2

29
The Swift manual indicates that a pre-trip inspection is a “D.O.T.
requirement.” Our review of the relevant regulations, however, indicates that
inspecting for oil leaks and puddles is not part of the inspection procedure
required by the Department of Transportation. See 49 C.F.R. § 392.7 (2003)
(providing that no commercial vehicle may be driven unless the driver is
satisfied that the following parts are in good working order: service brakes and
trailer brake connections; hand brake; steering mechanism; lighting devices and
reflectors; tires; horn; windshield wipers; rear-vision mirrors; and coupling
devices).
30
In his deposition testimony, Boudreaux indicated that there was no way
of knowing exactly how old the oil puddle was when he stepped in it:

Q. [Mr. Remondet] Can you tell me if [the Swift truck] dropped oil
on the asphalt ten minutes before you walked on it?

A. [Mr. Boudreaux] That I don’t know.

Q. Twenty minutes?

A. I don’t know.

13
 In addition to challenging the district court’s finding that

his evidence was insufficient to survive summary judgment,

Boudreaux contends that the court improperly weighed his

credibility as a witness instead of accepting his deposition

testimony as true for purposes of summary judgment. While the

district court did make reference to the fact that Boudreaux’s case

was supported by nothing more than “his own testimony” in its

memorandum order granting Swift’s motion for summary judgment, the

court rested its decision on the weakness of that testimony as

evidence, and not the credibility of Boudreaux. Furthermore, even

if the district court improperly discounted Boudreaux’s testimony

based on credibility concerns, we find that Boudreaux’s testimony,

when taken as true, provides insufficient evidence to raise a

genuine fact issue on his negligence claim.31

3

Boudreaux also contends that the district court erred in

granting Swift’s motion for summary judgment because Swift, as the

moving party, failed to present evidence affirmatively disproving

his contention that it was negligent. This argument misapprehends

the moving party’s burden on summary judgment. On summary

judgment, the moving party is not required to present evidence

proving the absence of a material fact issue; rather, the moving

party may meet its burden by simply “pointing to an absence of

31
See Breaux v. Dilsaver, 254 F.3d 533, 538 (5th Cir. 2001) (“[T]his court
may decide a case on any ground that was presented to the trial court . . . .”).

14
evidence to support the nonmoving party’s case.”32 Swift met this

burden by asserting in its motion for summary judgment that

Boudreaux could not prove that Swift had breached a duty that it

owed to him, and claiming that there “is an absence of evidence to

support the claims that Plaintiff is asserting against Swift.”

4

Finally, Boudreaux contends that the trial court erroneously

placed upon him the burden of filing a motion to compel discovery

from Swift, noting that the district court could have acted sua

sponte to require Swift to produce documents pertaining to the

presence of Swift trucks at the Flying J on the morning of February

11, 2001. We have held that a “district court has broad discretion

in all discovery matters, and such discretion will not be disturbed

ordinarily unless there are unusual circumstances showing a clear

abuse.”33 Boudreaux has pointed to no “unusual circumstances”

showing that the district court abused its discretion in refusing

to order discovery sua sponte. Therefore, we decline his

invitation to disturb the district court’s discretion in this

matter.

32
Armstrong, 333 F.3d at 568; see also Celotex, 477 U.S. at 323 (finding
“no express or implied requirement in Rule 56 that the moving party support its
motion with affidavits or other similar materials negating the opponent’s
claim”); Morris, 144 F.3d at 380 (“If . . . the nonmoving party bears the burden
of proof at trial, the moving party may demonstrate that it is entitled to
summary judgment by . . . pointing out to the district court the absence of
evidence necessary to support the nonmoving party’s case.”).

33
Beattie v. Madison County Sch. Dist., 254 F.3d 595, 606 (5th Cir. 2001)
(internal quotation marks and citation omitted).

15
 IV

We find that Boudreaux failed to present evidence sufficient

to raise a genuine issue of material fact with respect to his

negligence claim against Swift. Boudreaux’s remaining arguments

are without merit.

AFFIRMED.

16