dissenting.
The trial court properly withheld plaintiffs requested instruction on “diverted attention for two reasons”: (1) the requested instruction was not a proper statement of the law, and (2) the requested instruction was not supported by the evidence. The trial court also properly admitted into evidence medical records under the North Carolina Rules of Evidence, Rule 803(6) (2001). The trial court did not err. I respectfully dissent.
I. Erroneous Statement of the Law
The trial court may exercise its discretion and refuse to give requested instructions based on erroneous statements of the law. Haymore v. Thew Shovel Co., 116 N.C. App. 40, 49, 446 S.E.2d 865, 871 (1994) (citing State v. Agnew, 294 N.C. 382, 385, 241 S.E.2d 684, 692, cert. denied, 439 U.S. 830, 58 L. Ed. 2d 124 (1978)).
The majority’s opinion adopts plaintiff’s argument that “the ‘doctrine of diverted attention’ has been used to mitigate the ‘harshness’ of contributory negligence.” Neither plaintiff nor the majority’s opinion cite any case or any other authority for the proposition that a “doctrine” of diverted attention exists. I fail to find that any such “doctrine” exists. The cases cited by the plaintiff and the majority’s *561opinion discuss “forgetfulness and inattentiveness” in the context of what constitutes negligence in general. The claimed “doctrine” is nothing more than a detailed explanation of the duty of ordinary care in varying circumstances and situations.
With respect to “inattentiveness” and “forgetfulness,” our Supreme Court stated that the issue is “if, under the same or similar circumstances, an ordinarily prudent person would not have forgotten or have been inattentive to the danger, such conduct constitutes negligence.” Dennis v. Albermarle, 242 N.C. 263, 268, 87 S.E.2d 561, 566 (1955) (quotation omitted).
Plaintiff requested the following instruction:
A plaintiff may be contributorilly [sic] negligent if he fails to discover and avoid a defect that is visible and obvious. However, this rule is not applicable where there is some fact, condition or circumstance which might divert the attention of an ordinary prudent person from discovering or seeing an existing dangerous condition. (Emphasis supplied)
The requested instruction is not an accurate statement of the law. Plaintiffs assertion is that the rule of negligence does not apply when a party’s attention is diverted. The question of whether a party acted as “an ordinary prudent person” always applies when determining whether a person was negligent. Plaintiffs notion that that rule of an ordinary prudent person “is not applicable” misstates and is not a “fair statement of the law” as the majority holds. The jury must consider all the facts and circumstances in order to determine whether a party’s actions fell below those of an ordinary prudent person. The jury may not ignore, or fail to apply, the rule of contributory negligence as requested by plaintiff.
At bar, the trial court did not peremptorily grant summary judgment to defendant holding as a matter of law that plaintiff was con-tributorily negligent. Plaintiff freely argued, but failed to convince the jury, that plaintiff was not negligent due to being distracted by the buffet table’s attractive qualities. The trial court properly instructed the jury on negligence and contributory negligence and submitted those issues to the jury. The jury found plaintiff was contributorily negligent given all the facts, circumstances, and arguments surrounding the attractiveness of the buffet table and its ability to distract or divert plaintiff’s attention.
*562IT. Instruction Not, Supported Bv Evidence
Even if one presumes that plaintiffs requested instruction was a correct statement of the law, from the facts presented, no circumstances existed nor can any inference be drawn that transforms plaintiff’s forgetfulness or inattentiveness to anything other than negligence. Considering the evidence in the light most favorable to plaintiff, and affording him the benefit of every reasonable inference, plaintiff presented no circumstances or facts that (1) required plaintiffs undivided attention to other matters, (2) produced hurry or confusion to divert plaintiffs attention, (3) required plaintiff to react to conditions that arose suddenly which were calculated to divert plaintiffs attention momentarily from the danger, or (4) transformed plaintiffs actions from anything other then negligence. Dennis, 242 N.C. at 268, 87 S.E.2d at 565-66 (citation omitted). The evidence wholly fails to show or raise an inference that plaintiff was distracted by the buffet when he tripped over a plugged-in cord for three reasons.
First, plaintiff had availed himself of the buffet the day before and multiple times on the day that he tripped. Any attractive powers emanating from the buffet had ended long before plaintiffs multiple trips to the buffet on two consecutive days.
Second, after being told not to go behind the buffet, plaintiff squeezed between the rear wall and the buffet table. In order to walk between the table and the wall, plaintiff safely stepped over the same cord he later tripped over as he was leaving the area between the wall and the buffet table. Plaintiff successfully negotiated his entry step over the cord to get behind the table while claiming that “his attention was diverted” by the buffet table. Plaintiff cannot now claim his attention was diverted when, after serving his plate and leaving the table, he unsuccessfully attempted to return from whence he had successfully traveled on a prior occasion.
Third, plaintiff testified that after he finished filling his plate for a second time that day from the buffet, he “[l]ooked up, decided where my party was, where I needed to be. I turned, headed out the buffet bar.” Even again presuming that the attractiveness of the buffet table was a diversion, there necessarily became a point in time when the buffet’s all consuming attractiveness ended. Plaintiff fell when his attention was focused on returning to his seat, after his fascination with the buffet table had ended. The trial court did not err instructing the jury.
*563III. Rule of Evidence 803(c)
Plaintiff also claims error to the admission at trial of testimony concerning his medical records. Any language from our Court in State v. Hoyle, 49 N.C. App. 98, 270 S.E.2d 582 (1980), disc. rev. denied, 301 N.C. 724, 274 S.E.2d 233 (1981) concerning “records of a regularly conducted activity” has been superceded. Hoyle was decided prior to the adoption of the North Carolina Rules of Evidence in 1983. Rule 803(6) now controls the admission of records of a regularly conducted activity at trial, not Hoyle. Under Rule 803(6), medical records may be admissible when there is an affidavit from a custodian of the records which shows that the record was made at or near the time of the evaluation, that the record was created by a person with knowledge, and the record was kept in the ordinary course of business. Chamberlain v. Thames, 131 N.C. App. 705, 716-17, 509 S.E.2d 443, 449-50 (1998) (“This affidavit satisfied the requirements of Rule 803(6).”)
Here, the record shows that defendant fully complied with all of the requirements of North Carolina Rule of Evidence 803(6), Records of Regularly Conducted Activity. Plaintiff was afforded the opportunity to depose the author of the report and subpoena her to appear at trial. Plaintiff declined all of the above. Medical records are not “cross-examined,” people are. There is no evidence in the record that plaintiff was unfairly surprised by the information elicited by defendant from plaintiffs witness on cross-examination. I would overrule this assignment of error.
IV. Other Assignments of Error
The majority’s opinion does not reach plaintiff’s remaining assignments of error. I have thoroughly reviewed plaintiff’s remaining assignments of error, and find them without merit. The trial court correctly refused to allow cross-examination about defendant’s insurance coverage. Plaintiff also failed to show that the trial court abused its discretion in awarding expert witness fees. I would overrule plaintiff’s remaining assignments of error.
IV. Summary
The facts here do not approach with any similarity those facts in prior cases where “undivided attention to other matters” or “hurry or confusion” or “conditions arising suddenly” were present. On several occasions, plaintiff had traveled to the buffet, was warned not to go behind the table, and had safely traversed the same cord that he later *564tripped over. Plaintiff had fair and full opportunity to depose or call the author of the medical report as a witness at trial. Any reliance on Hoyle is misplaced due to the adoption of the North Carolina Rules of Evidence in 1983. From the evidence presented, after diligent argument from counsel and proper instructions, the jury unanimously found plaintiff to be contributorily negligent. I would affirm the decision of the trial court. I respectfully dissent.