NOT DESIGNATED FOR PUBLICATION

DENNIS R. BAGNERIS, Sr., Judge.

Jane Broussard, plaintiff in this trip and fall case, appeals a ruling of the trial court granting summary judgment in favor of defendant, Jazz Casino Company, L.L.C. For the following reasons, we hereby affirm.

Facts and Procedural History

On February 19, 2010, plaintiff Jane Broussard filed this Petition for Damages against Harrah's New Orleans Management Company alleging that on September 18, 2009, she tripped on an oversized motorized wheelchair and fell to the ground causing her to sustain personal injuries. On March 11, 2010, plaintiff filed a First Supplemental and Amended Petition for damages substituting Jazz Casino Company, L.L.C. (Jazz Casino) as defendant in place of Harrah's New Orleans Management Company. On March 30, 2010, Jazz Casino filed an Answer denying all allegations of fault or negligence in causing plaintiffs trip and fall on September 18, 2009, and denying liability for plaintiff's injuries and damages.

Following plaintiff's deposition in which she testified that she saw, and was aware of, the wheelchair before tripping over it, Jazz Casino filed a Motion for Summary Judgment seeking dismissal of plaintiff's lawsuit. Specifically, Jazz Casino argues that plaintiff's testimony showed that the wheelchair was open and obvious to all, that it did not present an unreasonable risk of harm to her, and that no duty of care was owed to her by the casino.

Plaintiff filed a Memorandum in Opposition to the Motion for Summary Judgment arguing that the patron's oversized wheelchair caused the aisle to be congested and thus, caused her to trip and fall. Plaintiff attached as an exhibit to the Opposition general information regarding the specifications of a motorized wheelchair.

On November 2, 2011, Jazz Casino filed a Reply Memorandum in Support of Defendant's Motion for Summary Judgment, objecting to the Internet wheelchair information as inadmissible hearsay, and noting that plaintiff failed to produce any competent evidence of a material factual dispute and failed to produce factual support sufficient to establish that she would be able to carry her burden of proof at trial that the wheelchair presented an unreasonable risk of harm.

Following a hearing, the trial court rendered summary judgment in favor of Jazz Casino, dismissing plaintiff's Petition with prejudice.

Discussion

The issue on appeal is whether the trial court erred in granting summary judgment in favor of Jazz Casino. Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La. 2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, 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). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. 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. Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. La. C.C.P. art. 966(C)(2) provides that where, as in the instant case, the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party's claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law.

Plaintiffs negligence claim for damages against Jazz Casino is governed by La. R.S. 9:2800.61 which provides, in part, as follows:

The Louisiana Supreme Court has held that the burden of proof rests with the plaintiff to prove each of the three elements set forth in La. R.S. 9:2800.6(B). White v. Wal-Mart Stores, Inc., 97-0393, p. 4 (La.9/9/97); 699 So.2d 1081, 1083-84. Thus, to recover against a merchant, the claimant must prove: (1) the condition which caused the injury created a foreseeable and unreasonable risk of harm; (2) the merchant had actual or constructive notice that the condition existed for a period of time prior to the accident; and (3) the merchant failed to exercise reasonable care. Id.

In plaintiff's deposition, she testified to the following: (1) on the day of the accident, she was seated a couple of slot machines over from a gentleman in a wheelchair; (2) she watched the gentleman's slot machine at his request when he left momentarily; (3) she later asked the gentleman to watch her slot machine while she left to get money or change; (4) she believes she tripped over the wheel of the wheelchair as she was leaving the slot machine; (5) she was aware of the wheelchair before tripping over it; and (5) she did not have to walk past the wheelchair to get where she wanted to go.

We have reviewed the evidence presented by plaintiff and cannot say that plaintiff met her burden of proving the wheelchair presented an unreasonable risk of harm to her. Plaintiff's deposition established that she saw, and was aware of, the wheelchair before tripping over it. Further, plaintiff has not presented any evidence that there was insufficient room to walk past the wheelchair, or the difficulty, if any, in walking in the opposite direction.

Accordingly, plaintiff has failed to produce factual support sufficient to establish that she will be able to meet her burden of proof at trial of proving negligence on the part of Jazz Casino. We therefore affirm the summary judgment rendered in favor of Jazz Casino.

AFFIRMED.