The Court of Appeals reviews the granting of a motion for summary judgment de novo , applying the same standard of review as the district court. See Storebrand Ins. The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant's case. Once the movant shows that no genuine issue of material fact exists, the burden shifts to the nonmovant to set forth specific facts to establish a genuine issue of material fact, without merely resting on allegations and denials. See Id. at 2552-53.
Factual controversies are to be resolved in favor of the non-moving party.
The district court did not err in holding that Martinez failed to raise a material issue of physical injury and thus could not recover for physical injury under the Jones Act. Martinez first argues that the district court erred in concluding that she did not state a claim for physical injury. She declares that her counsel's statement during her deposition that she was not making any kind of physical injury claims referred only to physical injury resulting from physical contact. Furthermore, she maintains that her affidavit provided sufficient evidence to defeat Bally's Motion for Summary Judgment. Bally's responds that by announcing that she was not making any claims of physical injury, Martinez indeed waived all claims of physical injury.