Lofton v. Brookshire Bros Inc ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30184
Summary Calendar
CARL P. LOFTON,
Plaintiff-Appellant,
versus
BROOKSHIRE BROTHERS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Lousiana
(94 CV 517)
( October 2, 1995 )
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Carl Lofton brought this negligence action against Brookshire
Brothers, Inc. seeking damages for his slip and fall accident at a
store owned by Brookshire. The jury, finding no unreasonable risk
of harm, rendered a verdict for Brookshire. The district court
entered judgment accordingly, and Lofton appeals. We affirm.
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Lofton, a weights and measurements inspector for the state of
Louisiana, sustained his injuries after slipping and falling while
inspecting weights at the meat department of a grocery store owned
by Brookshire. As his accident was attributed to a piece of meat
fat found on the sole of his shoe, Lofton sued under Louisiana law,
see La. Rev. Stat. Ann. § 9:2800.6, claiming that the meat fat's
presence on the floor constituted an unreasonable risk of harm
created by Brookshire, and that Brookshire had failed to exercise
reasonable care in keeping the grocery store premises free from
such a hazardous condition.
In arguing on appeal that the jury verdict was "contrary to
the law and evidence," Lofton raises what amounts to a sufficiency
of the evidence challenge. But because Lofton did not move for
judgment as a matter of law in the district court, "the sufficiency
of the evidence supporting the jury's verdict is not reviewable on
appeal." Roberts v. Wal-Mart Stores, Inc., 7 F.3d 1256, 1259 (5th
Cir. 1993). We must affirm unless "there is an absolute absence of
evidence to support the jury's verdict." Id.We are unable to say that there was no evidence to support the
jury's verdict. Trial testimony indicated that Lofton's accident
occurred behind a counter in an employees-only area after he had
walked into a meat-cutting area to speak to a store employee who
was trimming brisket. Because the evidence was inconclusive as to
where Lofton first stepped on the meat fat, the jury could have
determined that Lofton stepped on the fat while in the meat-cutting
area, then slipped and fell after tracking the fat to the area
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behind the counter. Since the jury heard testimony that the meat-
cutting area was a restricted area, that Lofton did not have to go
there to fulfill his job duties, and that Lofton was familiar with
the layout of the meat department at that grocery store, there was
evidence supporting a jury conclusion that Lofton did not carry his
burden of proving that the fat had been situated in such a manner
as to have constituted an unreasonable risk of harm to him.
AFFIRMED.
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