Opinion
Maynes & Anesi, Frank J. Anesi, Durango, for plaintiff-appellant.
White & Caton, Fred E. White, Farmington, N.M., Gordon E. Bugg, Durango, for defendant-appellee.
PIERCE, Judge.
Plaintiff filed a complaint alleging that defendant was guilty of negligence proximately causing injuries to plaintiff. Defendant filed a general denial. Thereafter, defendant filed a motion for summary judgment, supported by an affidavit from an eyewitness, plaintiff's deposition, and several photographs of the scene of the accident. Plaintiff filed no counter-affidavits, depositions, or exhibits to refute defendant's motion. From the record as it then existed, the court determined that there were no disputed facts and that the facts before it would be insufficient to establish negligence on the part of the defendant. As a result, judgment was entered for defendant. Plaintiff appeals. We affirm.
The documents submitted by defendant, as viewed in the light most favorable to plaintiff, set forth the following undisputed facts. Plaintiff was familiar with defendant's store and had been a customer there prior to the date of his injury. On that date, he had entered the store to purchase some clothing. As he was walking down an aisle he noticed a clothes basket standing to one side of the aisle three or four feet in front of him. The aisle was adequately lighted and there was ample room in the aisle for him to walk between the basket and the shelves on the opposite side of the aisle. He walked past one side of the basket which was approximately four feet wide, four feet long and three feet high. Before he reached the far end of the basket, he turned back toward the center of the aisle and caught his toe on some portion of the basket and fell, sustaining injury.
Plaintiff maintains that these facts would be sufficient to cause reasonable men to differ in their conclusions as to whether defendant was negligent. We do not agree. We rule, as a matter of law, under all the circumstances presented in this case, that a reasonably prudent person could not foresee that harm would come to plaintiff. See McMillan v. Hammond, 158 Colo. 40, 404 P.2d 549. There was no appreciable risk of harm shown from the parking of the cart in this manner. Were we to hold the defendant responsible for actionable negligence in this instance, we would be making defendant an insurer of plaintiff's safety. Such action would be improper. Hennesy v. Tina Marie Homes, Inc., 153 Colo. 572, 388 P.2d 758.
Where, as here, the affidavits, depositions and exhibits submitted to the trial court show no material issue of fact requiring a trial, it was proper for the court to render its summary judgment favoring defendant. Fort Collins Motor Homes, Inc. v. Fort Collins, 30 Colo.App. 445, 496 P.2d 1074; Durnford v. Thornton, 29 Colo.App. 349, 483 P.2d 977.
Judgment affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.