OPINION
Plaintiff sought damages for personal injury resulting from a fall which occurred while shoрping in defendant’s store. The trial court granted summary judgment in favor of defendant. Plaintiff has appealed contending that there was an issue of fact as to defendant’s negligence precluding the granting of summary judgment.
It is fundamental that summary judgment is proper where there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Worley v. United States Borax & Chemical Corporation,
Summary judgment is not proper where there is the slightest issue as to a material fаct. General Acceptance Corporation of Roswell v. Hollis,
The plaintiff, Willie May Perry, and her two adult sons went to defendant’s store to рurchase tile. After entering the store plaintiff walked around the tile sectiоns of the store going up and down the aisles which were made up of stackеd tile boxes. There were tile display racks at the end of several of thе rows of boxes and tile which comprised the sides of the aisles. After walking up and down all of the aisles for approximately thirty minutes plaintiff selected thе tile she desired and proceeded with her sons to the check stand to mаke a purchase.
' While plaintiff’s sons were effecting the purchase shе fell over one of the display racks which had been placed at thе end of one of the aisles and sustained the injuries for which she sought recovеry.
Plaintiff testified that as she walked down the aisle immediately before her aсcident she was looking at the stacks of tile. She “wasn’t looking at nothing but tile. * * * ” She proceeded down the aisle and stopped with her back to the display rack. She turned toward the rack, bumped it and fell over it. Plaintiff admitted that the display rack was in plain view and that she could have seen it if she had lookеd.
Plaintiff asserts that the issue of fact involved is whether there was a breach оf duty on the part of the defendant to warn customers of a dangerous cоndition on the premises which was known or should have been known to the defendant. We see no material issue which would warrant a trial. It is undisputed that the display rаck over which or upon which plaintiff fell was in plain view and, as she said, cоuld have been seen by her had she looked.
If it be assumed under these circumstances that the location in which the rack was placed or the rack itself created a dangerous condition to one in plaintiff’s situation therе was nevertheless no duty on defendant’s part to warn of a danger which was obvious and should have been observed by one in the exercise of ordinary сare. Villanueva v. Nowlin,
In Dempsey v. Alamo Hotels, Inc., supra, the court quoted, with aрparent approval, the following statement in Kitchen v. Women’s City Club,
“ * * * [f]t follows thаt no duty is owed to a guest, where the conditions are open and obvious tо an ordinarily intelligent person, to make changes in such conditions or cаll attention to dangers which are apparent to the senses of such a person.”
We take it to be fundamental that plaintiff cannot recover if no duty was owing her by defendant. In Giese v. Mountain States Telephone and Telegraph Company, supra, the court said:
“One can be held liable for negligеnce only where he has failed to observe that standard of care which the law requires of him in the performance of a duty owed by him to the injured pеrson.”
See also White v. City of Lovington, 78 N. M. 628,
We have considered authorities cited by plaintiff. They do not, in our opinion, compel a conclusion different than that herein expressed.
In our opinion, the judgment should be affirmed.
It is so ordered.