ROSEMARY LEDET, Judge.
This is a tort suit arising out of the plaintiffs fall from a swivel chair at the defendants' casino. From a judgment granting the defendants' motion for summary judgment and dismissing the suit, the plaintiff appeals. For the reasons that follow, we affirm.
On February 4, 2010, the plaintiff, Barry Smith, was a patron at Harrah's casino on Poydras Street in New Orleans. While he was attempting to sit down on a swivel chair in front of a slot machine, Mr. Smith fell. When he fell, his leg became trapped between the swivel chair and the slot machine, causing injury to his leg.
The Casino answered the petition and generally denied the allegations in it. After engaging in discovery, the Casino filed a motion for summary judgment. The Casino did not produce any affidavits or depositions in support of its motion; rather, it produced Mr. Smith's answer to the Casino's discovery interrogatory which stated:
The Casino contended that Mr. Smith's answer to the interrogatory was an admission that, contrary to the allegations of his petition, there was nothing "defective and/or dangerous" about the swivel chair. Rather, the chair simply swiveled when he attempted to sit in it. According to the Casino, the interrogatory and answer established that Mr. Smith will be unable to meet his burden at trial to prove either the dangerousness or the defectiveness of the swivel chair.
In opposing the Casino's motion, Mr. Smith submitted only his own affidavit in which he attested to the following:
Following a hearing, the trial court granted the Casino's motion for summary judgment. Although the trial court did not give written reasons for judgment, it gave the following oral reasons for its ruling:
This appeal followed.
It is well settled that appellate courts review a summary judgment de novo and that appellate courts do so applying the same standards that govern a trial court's determination of whether summary judgment is appropriate. Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 883; Duncan v. U.S.A.A. Ins. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 546-47. The summary judgment procedure is designed to avoid a full-scale trial when there is no genuine issue of material fact. Duncan, 06-363 at p. 3, 950 So.2d at 546-47. The summary judgment procedure is favored in Louisiana; is designed to secure the just, speedy, and inexpensive determination of every case; and is required to be construed to accomplish these goals. King v. Parish Nat'l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (citing La. C.C.P. art. 966(A)(2)).
In determining whether summary judgment is appropriate the two issues a court must resolve are (i) whether there is any genuine issue of material fact, and (ii) whether the mover is entitled to judgment as a matter of law. Warren v. Kenny, 10-1580, pp. 5-6 (La.App. 4 Cir.4/27/11), 64 So.3d 841, 845-46 (citing Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066, p. 5 (La.7/6/04), 880 So.2d 1, 5). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B)(2).
La. C.C.P. art. 966(C)(2).
A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A "material" fact is "one that would matter on the trial on the merits." Smith, supra. The determination of whether a fact is material thus turns on the applicable substantive law or theory of recovery. Id.; Thomas v. North 40 Land Dev., Inc., 04-0610, p. 22 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174.
Mr. Smith's claims against the Casino are based on three theories: (i) negligence, under La. C.C. art. 2315; (ii) strict liability, under La. C.C. art. 2317.1; and (iii) the Casino status as a merchant, under La. R.S. 9:2800.6.
Contrary to Mr. Smith's suggestion, "[a]n issue of negligence or fault can be decided on a motion for summary judgment, provided that the evidence leaves no relevant, genuine issue of fact, and reasonable minds must inevitably conclude that the mover is entitled to judgment based on the facts before the court." Blacklege v. Font, 06-1092 (La.App. 1 Cir. 3/23/07), 960 So.2d 99; see also Labit v. Palms Casino & Truck Stop, Inc., 11-1552 (La.App. 4 Cir. 5/9/12), 91 So.3d 540 (affirming grant of summary judgment in a negligence case).
In his petition, Mr. Smith alleged that the basis of the Casino's liability stemmed from the swivel chair being "defective and/or dangerous." To refute the allegation in the petition that the swivel chair was "dangerous and/or defective" and to establish the lack of any evidence demonstrating that the swivel chair posed an unreasonably dangerous risk of harm or was defective, the Casino produced Mr. Smith's answer to its discovery interrogatory, quoted earlier in this opinion. In so doing, the Casino met its burden of establishing the absence of evidentiary support for an essential element of Mr. Smith's
In opposing the summary judgment and attempting to meet its burden of proof as an opponent of a properly supported motion for summary judgment, Mr. Smith offered only his own affidavit. In his affidavit, he stated that the cause of his fall was perhaps a defect in the chair or perhaps that the chair was different than the other chairs in the casino in design or function. As the Casino points out, Mr. Smith's affidavit arguably was inconsistent with his answer to the Casino's discovery interrogatory. In his answer to interrogatory, Mr. Smith referred to the other chairs in the casino as being fixed; however, in his affidavit he referred to the other chairs in the casino as not "swivel[ing] in the same manner, as the chair that caused his injury." See Ernest v. Dillard Dep't Stores, Inc., 97-2052 (La.App. 4 Cir. 12/17/97), 703 So.2d 1380, 1381-82 (noting inconsistency between allegations of petition and deposition testimony and reversing trial court's denial of summary judgment).
Mr. Smith contends that his affidavit was not inconsistent with his answer to interrogatory, but rather clarified his answer by stating that the chairs which he sat in previously swiveled in a different manner, i.e., "they moved only slightly." He further contends that his affidavit created material issues of fact on two issues: (i) whether the swivel chair was dangerous — created an unreasonable risk of harm, and (ii) whether the chair was defective. He still further contends that this case is identical to Bullock v. The Rapides Foundation, 06-26 (La.App. 3 Cir. 10/11/06), 941 So.2d 170.
As to the unreasonable risk of harm, Mr. Smith's position is that the swivel chair created a dangerous situation because it was completely different in design and function then the other chairs in the casino. In support of this contention, Mr. Smith relies on the statement in his affidavit that he "had sat in other chairs in the Casino on that night without incident, and the other chairs that he had encountered that night did not swivel in the same manner as the chair that caused his injury." Mr. Smith explains that he was not expecting the chair to swivel further and faster than the other chairs and that this created a trap. Thus, he contends that the Casino had a duty to warn him of this dangerous situation.
Alternatively, Mr. Smith contends that the Casino's liability stemmed from the swivel chair being defective. According to Mr. Smith, if the Casino's position is that all its chairs were supposed to swivel in the same manner, the chair in question behaved differently and thus was defective. In support of this contention Mr. Smith relies on his statement in his affidavit that he "did not observe any other chairs in the Casino that swiveled in the same manner as the one that caused his injury."
Finally, Mr. Smith contends that this case is identical to Bullock, supra. In Bullock, supra, the plaintiff was a patient's eighty-year old mother who was accompanying the patient on a visit to the defendant's emergency room. The plaintiff was injured when the rolling physician's stool she was attempting to sit on rolled out from under her. The trial court allocated fault equally between the plaintiff and the hospital. Affirming, the appellate court cited the hospital's superior knowledge and history of prior incidents:
Bullock, 06-26 at pp. 9-10, 941 So.2d at 177. Dissenting, Judge Amy cited several factors warranting a finding of no fault on the part of the hospital.
According to Mr. Smith, this case is identical to Bullock, supra, in that, while the rolling physician's stool may not have been inherently dangerous, under the circumstances presented in the emergency room — smooth flooring and sensitive rollers on the stool — the stool rolled quickly and created a dangerous condition for an unsuspecting hospital visitor who attempted to sit on it. By analogy, Mr. Smith contends that while the swivel chair may not have been inherently dangerous, under the circumstances presented in the casino — none of the other chairs in the casino behaved in the same fashion as the chair in question — the chair swiveled quickly and created a dangerous condition for a casino patron who attempted to sit on it.
Mr. Smith's reliance on the Bullock case is misplaced, factually and legally. Legally, this court is not bound by another circuit's divided decision. Factually, as the Casino points out, there is no evidence in this case that the swivel chair rolled out from under Mr. Smith; the chair simply swiveled. Nor is there evidence of any prior incidents involving the swivel chairs at the Casino.
Mr. Smith's conclusory and speculative allegations set forth in his affidavit regarding the swivel chair are insufficient to satisfy his burden of proof under La. C.C.P. art. 966(C)(2). As the federal court aptly explained in Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994):
Id. (internal citations omitted). Stated otherwise, "[p]roof which establishes only possibility, speculation, or unsupported probability does not suffice to establish a claim." Todd v. State Through Dep't of Social Services, Office of Community Services, 96-3090, p. 16 (La.9/9/97), 699 So.2d 35, 43; Rivers v. Broussard, 06-1543, p. 5 (La.App. 3 Cir. 6/27/07), 964 So.2d 411, 414 (citing Todd, supra, in support of decision to affirm summary judgment given "the record shows there was no evidence, other than speculation, that any defect in the road existed.")
As we have noted, "[e]ven in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Haney v. Delta Petroleum Co., 01-0636, p. 5 (La.App. 4 Cir. 3/6/02), 811 So.2d 1200, 1204 (citing Carter v. BRMAP, 591 So.2d 1184 (La.App. 1st Cir.1991)). Such allegations, inferences, and speculations are not sufficient to create a genuine issue of material fact even if contained in an affidavit. Sears v. Home Depot, USA, Inc., 06-0201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228 (citing King v. Phelps Dunbar, L.L.P., 01-1735, p. 16 (La.App. 4 Cir. 4/2/03), 844 So.2d 1012, 1022); Adelmann-Chester v. Kent, 08-0770 (La.App. 4 Cir. 6/5/09), 33 So.3d 187; see also Reed v. Home Depot USA, Inc., 37,000 (La.App. 2 Cir. 4/9/03), 843 So.2d 588, 591 (noting that speculation as to the cause of an accident does not supply the factual support required to meet the plaintiff's evidentiary burden).
For the foregoing reasons, the judgment of the trial court is affirmed.
Bullock, 06-26 at p. 1, 941 So.2d at 181 (Amy, J., dissenting).
