Mussle v. Academy Sports & Outdoors

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 19, 2008
No. 08-30016 Charles R. Fulbruge III
Summary Calendar Clerk
DIANE MUSSLE
Plaintiff-Appellant
v.
ACADEMY SPORTS & OUTDOORS; ZURICH INSURANCE COMPANY
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-430
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
In this negligence action, Diane Mussle alleged she was injured by a shelf
while shopping at Academy Sports & Outdoors (Academy). She contests the
summary judgment awarded Academy and its insurer, Zurich Insurance
Company. Primarily at issue is whether Mussle showed a genuine issue of
material fact regarding the existence of a hazardous condition, creating an
unreasonable risk of harm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-30016
Mussle maintains she was injured while shopping at Academy’s Slidell,
Louisiana, store when her foot or ankle came in contact with something
underneath a shelf. She speculates a metal bracket caused the injury, but no
evidence was presented supporting this theory.
The district court awarded summary judgment to Academy, holding
Mussle presented “no objective evidence establishing that a metal bracket, or
brace, or any other ‘sharp’ object, was . . . under the relevant shelving and
positioned so as to injure her ankle”. (Emphasis in original.) Accordingly, the
court ruled Mussle failed to show a triable issue.
A summary judgment is reviewed de novo, applying the same standards
as the district court. E.g. Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d
255, 260 (5th Cir. 2007). Such judgment is proper if there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(c).
Essentially for the reasons stated by the district court, summary judgment
was proper. Mussle produced no evidence establishing the shelf posed an
unreasonably dangerous risk of harm. See LA. REV. STAT. ANN. § 9:2800.6;
Ernest v. Dillard Dep’t Stores, Inc., 703 So. 2d 1380, 1381-82 (La. Ct. App. 1997).
Instead, she asserted only that the shelf should have had a “kick plate” covering
the space between the bottom shelf and floor. Additionally, Mussle was unable
to determine what caused her injury. Speculation as to the cause of an accident
does not supply the factual support required to meet the plaintiff’s evidentiary
burden. See Reed v. Home Depot USA, Inc., 843 So. 2d 588, 591 (La. Ct. App.
2003).
AFFIRMED.
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