Finney v. Rose's Stores, Inc.

ARNOLD, Chief Judge. Plaintiffs presented evidence that Rose’s was aware that the treadmill was plugged in and that the signs indicating such had been removed from the treadmill. Further, plaintiffs presented evidence that Rose’s employees had witnessed other individuals falling off of the treadmill. However, a large number of these were children who would intentionally increase the treadmill speed to see if they could remain standing on the treadmill. Also, anytime that a Rose’s employee was aware that someone was testing the treadmill, the employee would warn the individual to be careful. Plaintiff, Shirley Finney’s deposition also reveals several key factors: (1) she had no personal experience with the use of treadmills; (2) she knew that treadmills worked by having a moving belt on which individuals stand and are thereby able to walk in place; (3) she made no attempt to locate, or to ask a salesperson for assistance before stepping onto the treadmill and manipulating its control panel; (4) she says that at the moment that she touched the treadmill’s control panel she was just not thinking; (5) she says she was just fiddling with the treadmill’s controls for no apparent reason; (6) she did not try to determine what the consequences of her touching the controls might be; (7) she did not hold on to the treadmill’s handrails while standing on the treadmill; (8) she explains her behavior of touching the control panel buttons by saying that in general she just liked to touch things. Defendant, as owner of the premises, owed to plaintiffs as invitees the duty to exercise ordinary care to keep the property in a reasonably safe condition, and to warn them of hidden or concealed dangers, express or implied. Newsom v. Byrnes, 114 N.C. App. 787, 788, 443 S.E.2d 365, 367 (1994). But business proprietors are not insurers of an invitee’s safety. Wren v. Convalescent Home, 270 N.C. 447, 448, 154 S.E.2d 483, 484 (1967). Plaintiff may not recover if she knew of the unsafe condition, or if it should have been obvious to any ordinary [845] person under the circumstances existing at the time she was injured. Pulley v. Rex Hosp., 326 N.C. 701, 705, 392 S.E.2d 380, 383 (1990). Plaintiff is required by law to exercise ordinary care for her own safety. Every person having the capacity to exercise ordinary care for his own safety against injury is required by law to do so, and if he fails to exercise such care, and such failure, concurring and cooperating with the actionable negligence of defendant contributes to the injury complained of, he is guilty of contributory negligence. Ordinary care is such care as an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury. Plaintiff may be contributorily negligent if his conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety. Smith v. Fiber Controls Corp., 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980) (quoting Clark v. Roberts, 263 N.C. 336, 139 S.E.2d 593 (1965)). Plaintiff took no precautions in examining the treadmill. She readily admits that she was not thinking and was therefore not exercising ordinary care to protect herself from injury. In light of plaintiff’s forecast of evidence the trial court correctly granted summary judgment on the issue of plaintiffs contributory negligence. Plaintiff next argues that the trial court erred in granting summary judgment for defendant Diversified Products Corporation on the issues of contributory negligence and defendant’s negligent design. We disagree. N.C. Gen. Stat. § 99B-4(3) (1994) supports the trial court’s entry of summary judgment because plaintiff was con-tributorily negligent when she manipulated the controls of the treadmill. G.S. § 99B-4(3) provides: No manufacturer or seller shall be held liable in any product liability action if: (3) The claimant failed to exercise reasonable care under the circumstances in his use of the product, and such failure was a proximate cause of the occurrence that caused the injury or damage to the claimant. G.S. § 99B-4(3) codifies the common law doctrine of contributory negligence. Where a complete defense, such as contributory negligence exists as to a plaintiffs negligence claim, summary judgment is properly entered for the defendant. Bonestell v. North Topsail Shores [846] Condominiums, Inc., 103 N.C. App. 219, 222, 405 S.E.2d 222, 224 (1991). Plaintiffs forecast of evidence shows that she did not exercise ordinary care in order to protect herself from injury when using defendant Diversified Products treadmill on display in defendant Rose’s store. Thus, she is contributorily negligent and barred from asserting any claim against defendant Diversified Products. The trial court correctly found no genuine issue as to any material fact and correctly granted summary judgment in favor of defendant Diversified Products. Affirmed. Judge SMITH concurs. Judge GREENE dissents in part and concurs in part with a separate opinion.