No. 89-321
IN THE SUPREME COURT OF THE STATE OF MONTANA
DAWNA R. TUCKER,
Plaintiff and Appellant,
-vs-
TROTTER TREADMILLS, INC.,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Morgan Modine, Missoula, Montana
For Respondent:
Worden, Thane & Haines; Stacey Weldele-Wade, Missoula,
Montana
Submitted on Briefs: Aug. 31, 1989
Decided: September 19, 1989
Filed:
Justice John Conway Harrison delivered the Opinion of the
Court.
Dawna R. Tucker (Tucker) filed a negligence action
against Trotter Treadmill, Inc. (Trotter) because of an
accident she had on an allegedly defective exercise treadmill
manufactured by Trotter. The District Court of the Fourth
Judicial District, Missoula County, granted summary judgment
in favor of Trotter finding that Tucker presented
insufficient evidence upon which to sustain her negligence
action. Tucker appeals. We affirm.
Appellant presents one issue on appeal:
Did the District Court err in granting summary judgment
in respondent's favor when the record raises genuine issues
of material fact?
On April 9, 1984, at about 7:00 a.m., Tucker went to
The Courthouse, a health club in Missoula, Montana, to
exercise. At some point in her workout, she decided to use
one of the motorized exercise treadmills. She stepped onto
the treadmill belt and turned the machine on. The moving
belt immediately caused her to fall injuring her shoulder.
The record, which consists of the pleadings,
interrogatories and Tucker's deposition, discloses the
following undisputed facts. Tucker joined The Courthouse in
1978 and belonged to The Courthouse for approximately one to
one and one-half years. She rejoined in December of 1983 or
January 1984 and worked-out several times a week.
When Tucker first joined The Courthouse she received
instruction on how to use the facility's equipment. When she
rejoined The Courthouse she neither received nor asked for
any reinstruction on the equipment. Tucker had used a manual
treadmill prior to her accident, but she had never before
used a motorized treadmill. Even though she had not been
instructed on how to use the motorized treadmill, she thought
she could operate one because she had seen others using them.
No warnings or instructions were displayed on the
treadmill itself. However, three posted instructions and
warnings were displayed on the wall directly behind the
motorized treadmill. These instructions and warnings would
have been clearly visible to anyone approaching the
treadmill. But, Tucker did not notice the posted
instructions and warnings and therefore did not read them.
Although Tucker claims the treadmill belt started at a
high speed, she does not know at what specific speed the
treadmill was set when she started it. She assumed it was
set on high because she fell.
In her complaint against Trotter, Tucker alleged that
Trotter failed to properly instruct users of the treadmill.
Further, she alleged that the treadmill was defective because
it was not equipped with a safety device which would prevent
the treadmill from starting at a high rate of speed.
After reviewing the record, the District Court found
that appellant had not presented sufficient evidence to raise
a genuine issue of material fact as to whether Trotter had
breached its duty to warn and instruct treadmill users.
Further, according to the District Court, appellant's
evidence did not indicate either directly or circumstantially
that the treadmill was in a defective condition, unreasonably
dangerous. We agree.
Summary judgment is proper only if no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law. Cereck v. Albertson's Inc.
(1981), 195 Mont. 409, 637 P.2d 509. Once the moving party
had met its burden, the burden shifts to the opposing party
to present material and substantial evidence that raises a
genuine issue of material fact. Conclusory or speculative
statements are insufficient to raise a genuine issue of fact.
B.M. By Berger v. State (1985), 215 Mont. 175, 179, 698 P.2d
399, 401. Parties cannot rely merely on allegations
contained in their pleadings. Further, the trial judge is
not required to anticipate possible proof at trial when
ruling on a summary judgment motion. Larry C. Iverson, Inc.
v. Bouma (1981), 195 Mont. 351, 374, 639 P.2d 47, 59.
Appellant's evidence consists essentially of her
deposition testimony. As the District Court correctly
surmised, appellant's testimony is conclusory and speculative
in nature. No statements of fact appear in her testimony
upon which to base an inference that Trotter was negligent in
posting instructions and warnings on the wall behind the
treadmill. No facts were presented to support an inference
that the machine started on high speed. As well, appellant
presented no other evidence to solidify or flesh out her own
speculations regarding either the propriety of Trotter's
warnings and instruction or the actual speed of the
treadmill.
Appellant's briefs abound with promises of proof at
trial. However, appellant's burden of proof required her to
establish that the record before the District Court raised
genuine issues of fact. The District Court correctly
concluded that appellant failed to present evidence to
support an action under a negligence theory.
We affirm the District Court.
We concur: