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United States Court of Appeals
Fifth Circuit
March 4, 2005
Charles R. Fulbruge III
No. 04-30467
Plaintiff - Appellant,
Defendant - Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
Before REAVLEY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
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.
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

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

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
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).

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.

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
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)).

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
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).

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.
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

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

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
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.

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).

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.

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.
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
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.

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
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 . . . .").

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."
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
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).

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.

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