Opinion
Dec. 26, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Raphael M. Solo, Denver, for plaintiff-appellant.
Zarlengo, Mott & Zarlengo, Reed L. Winbourn, Denver, for defendant-appellee.
PIERCE, Judge.
At the close of plaintiff's case in a negligence action tried to a jury, the trial court directed a verdict for defendant. Plaintiff appeals the judgment entered on that verdict, and we affirm.
The facts are undisputed. Plaintiff entered defendant's restaurant and was seated at a table near one of the outside walls. The outside wall was glass and the 'captains' chair in which he was seated was situated two to three feet from the wall. After being seated, plaintiff decided to slide the chair back from the table toward the wall. In doing so, he tipped the chair over backward and fell through the glass, suffering lacerations. There is no allegation nor is there any proof that the chair, the carpeting upon which it rested, or the glass wall were defective in any manner. There was no testimony of any kind of improper construction or design of the premises. There was no showing of any notice of any defect, latent or patent which might have been been the proximate cause of plaintiff's injury. Plaintiff's sole contention is that the placing of the chair on a carpet two to three feet from a glass wall, in and of itself, creates a dangerous condition.
The mere existence of risk, which is present in some degree in every human activity, is not sufficient to present a prima facie case of negligence. Drake v. Lerner Shops of Colorado, Inc., 145 Colo. 1, 357 P.2d 624. The trial court properly ruled that plaintiff did not establish a prima facie case of negligence, and the directed verdict for defendant was in order. Hennesy v. Tina Marie Homes, Inc., 153 Colo. 572, 388 P.2d 758; Home Public Market v. Newrock, 111 Colo. 428, 142 P.2d 272.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.