UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD R. CUMMINGS; LINDA
CUMMINGS,
Plaintiffs-Appellants,
                                                                  No. 98-1895
v.

WAL-MART STORES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Russell A. Eliason, Magistrate Judge.
(CA-97-54-2)

Argued: April 9, 1999

Decided: May 14, 1999

Before HAMILTON, MOTZ, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Nancy Pulliam Quinn, THE QUINN LAW FIRM,
Greensboro, North Carolina, for Appellants. Scott Conrad Gayle,
FISHER, GAYLE, CLINARD, CRAIG & LACKEY, P.A., High
Point, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Donald Cummings (Donald) was injured at a Wal-Mart store in
Greensboro, North Carolina, when a side-mount car battery, which he
was attempting to return, exploded while two Greensboro Wal-Mart
employees were attempting to test it. Subsequently, Donald and his
wife, Linda Cummings (Linda), filed suit in North Carolina state
court against the Greensboro Wal-Mart for damages for the injuries
Donald suffered, allegedly as a result of the negligence of the Greens-
boro Wal-Mart and its employees, and for the loss of consortium
Linda allegedly suffered derivatively. In the complaint, Donald and
Linda averred, inter alia, that two Greensboro Wal-Mart employees
negligently failed to use a proper testing procedure while testing the
side-mount battery and negligently failed to ensure Donald's safety
while testing the side-mount battery. After the case was removed to
the United States District Court for the Middle District of North Caro-
lina, see 28 U.S.C. § 1441, the district court granted summary judg-
ment for the Greensboro Wal-Mart on these two claims based upon
its conclusion that recovery was barred because Donald was contribu-
torily negligent for standing over the side-mount battery while he
knew that the Greensboro Wal-Mart employees were using an
improper testing procedure that could cause the side-mount battery to
explode. Donald and Linda appeal, and we now affirm.

I

Donald is a thirty-year career auto mechanic who bought a side-
mount battery for his car from a Wal-Mart store in Greensboro, North
Carolina, sometime in 1993. On August 31, 1995, because the side-
mount battery would not "crank," Donald attempted to return the side-
mount battery, which was still under warranty, to the Greensboro
Wal-Mart for credit against a new battery. (J.A. 63). Donald entered
the store and took the side-mount battery to the customer service

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counter and placed it on the counter to be tested. According to Don-
ald's deposition testimony, a side-mount battery is tested by first
inserting bolts into holes on the side of the battery and then affixing
battery cable clamps to the inserted bolts.

Carolyn Hummel, an employee of the Greensboro Wal-Mart,
arrived at the customer service counter with a battery testing machine.
The Greensboro Wal-Mart's battery testing machine had a main con-
trol center with a dial and two attached battery cables with clamps on
the ends. According to Donald's deposition testimony, he knew that
testing a side-mount battery by touching the battery cable clamps to
the holes on the side-mount battery without first inserting bolts could
cause a spark and result in an explosion. However, Donald stood over
the side-mount battery at the customer service counter and watched
silently as Hummel tested Donald's side-mount battery without first
inserting bolts.

After at least one unsuccessful attempt to test the side-mount bat-
tery by touching the clamps to the side holes on the side-mount bat-
tery without first inserting bolts, Hummel paged an employee from
the automotive division for assistance. Greensboro Wal-Mart
employee David Kellam arrived to assist with the testing. With Hum-
mel operating the dial on the battery testing machine, Kellam tested
the side-mount battery by, without inserting bolts, touching the
clamps to the side holes of the side-mount battery at least twice. Don-
ald remained standing at the customer service counter "right there
over [the battery]," watching silently. (J.A. 78). At this point, the side-
mount battery exploded and battery acid and fumes sprayed Donald,
causing him injury.

Donald and Linda filed suit against the Greensboro Wal-Mart in
North Carolina state court for damages for the injuries that Donald
sustained as a result of the side-mount battery explosion and the loss
of consortium that Linda suffered derivatively. Donald alleged, inter
alia, that the Greensboro Wal-Mart employees negligently failed to
use a proper battery testing procedure while testing the side-mount
battery and negligently failed to use proper care to ensure Donald's
safety while testing the side-mount battery.1 As a result of the Greens-
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1 In his complaint, Donald also alleged that Greensboro Wal-Mart
employees negligently failed to respond properly to the side-mount bat-

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boro Wal-Mart and its employees' actions, Donald alleged that he
suffered burns on his face, neck, arms, and hands; damage to his false
teeth and dental plate; and subsequent ringing in his ears. Linda
alleged the loss of the full society, companionship, consortium, and
services of Donald.

The Greensboro Wal-Mart removed the action to the United States
District Court for the Middle District of North Carolina. See 28
U.S.C. § 1441. At the close of discovery, the Greensboro Wal-Mart
moved for summary judgment, contending that Donald failed to
establish a genuine issue of material fact as to its negligence and
asserting that Donald's contributory negligence barred his claims.
Specifically, the Greensboro Wal-Mart contended that Donald was
contributorily negligent for standing over the side-mount battery,
knowing that the improper testing could cause an explosion.

The district court granted summary judgment in favor of the
Greensboro Wal-Mart on all claims. With respect to Donald's claims
that the Greensboro Wal-Mart employees negligently failed to use a
proper testing procedure while testing the side-mount battery and neg-
ligently failed to ensure Donald's safety while testing the side-mount
battery, the district court concluded that Donald's deposition testi-
mony, when viewed in the light most favorable to his wife and him,
established that the Greensboro Wal-Mart employees were negligent.
However, the district court concluded that Donald was contributorily
negligent in standing over the side-mount battery during the testing,
with knowledge (1) that the testing was improper, (2) that there was
a danger that the side-mount battery could explode, and (3) that the
testing area was not safe because of the improper testing. Accord-
ingly, because Donald's contributory negligence barred recovery on
his claims that the Greensboro Wal-Mart employees negligently failed
to use a proper testing procedure while testing the side-mount battery
and negligently failed to ensure Donald's safety while testing the
_________________________________________________________________

tery explosion and to Donald's injuries; the Greensboro Wal-Mart negli-
gently failed to properly train employees in battery testing procedures
and in the procedures for responding to emergency situations; and the
Greensboro Wal-Mart negligently failed to maintain proper emergency
equipment.

                    4
side-mount battery, the district court dismissed the claims. The dis-
trict court implicitly denied Linda's loss of consortium claim.2 Donald
and Linda appeal.

On appeal, Donald claims that the district court erred in granting
summary judgment for the Greensboro Wal-Mart on his claims that
the Greensboro Wal-Mart employees negligently used an improper
testing procedure while testing Donald's side-mount battery and neg-
ligently failed to ensure Donald's safety while testing the side-mount
battery because it did not warn him of the hidden danger associated
with testing a battery in such a manner in the customer service area.3
Essentially, Donald avers that these two claims should not have been
dismissed because he was not contributorily negligent. Linda avers
that she established loss of consortium and her derivative claim
should not have been dismissed.

II

We review a district court's grant of summary judgment de novo,
construing the facts in the light most favorable to the nonmoving
party and drawing all justifiable inferences in its favor. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment
is appropriate when there is no genuine issue as to any material fact,
such that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c).

Under North Carolina law, contributory negligence is generally
defined as "`the breach of the duty of the plaintiff to exercise due care
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2 The district court dismissed the remaining negligence claims because
it determined that Donald did not establish a genuine issue of material
fact that the Greensboro Wal-Mart or its employees were negligent on
the remaining claims. Because Donald is not appealing the denial of
these claims, it is not necessary for us to address these claims in the opin-
ion.
3 The Greensboro Wal-Mart does not cross-appeal the district court's
decision that the Greensboro Wal-Mart employees negligently failed to
use a proper testing procedure while testing the side-mount battery and
negligently failed to ensure Donald's safety while testing the side-mount
battery, and, therefore, it is not necessary for us to address this issue.

                    5
for his own safety in respect of the occurrence about which he com-
plains, and if his failure to exercise due care for his own safety is one
of the proximate contributing causes of his injury, it will bar recov-
ery.'" Jones v. Owens-Corning Fiberglass Corp. & Amchem Prod-
ucts, Inc., 69 F.3d 712, 720 n.9 (4th Cir. 1995) (quoting Champs
Conv. Stores v. United Chemical Co., 406 S.E.2d 856, 861 (N.C.
1991)). "Ordinary care is such care as an ordinarily prudent person
would exercise under the same or similar circumstances to avoid
injury." Bosley v. Alexander, 442 S.E.2d 82, 84 (N.C. App. 1994). In
other words, if a plaintiff "`ignores unreasonable risks or dangers
which would have been apparent to a prudent person exercising ordi-
nary care for his own safety,'" the plaintiff may be held to be contri-
butorily negligent. Cobo v. Raba, 495 S.E.2d 362, 365 (N.C. 1998)
(quoting Smith v. Fiber Controls Corp., 268 S.E.2d 504, 507 (N.C.
1980)).

Additionally, when the plaintiff is an invitee, one who enters the
premises in response to "`the express or implied invitation of the
owner or the person in control,'" Vera v. Five Crow Promotions, Inc.,
503 S.E.2d 692, 695-96 (N.C. App. 1998) (quoting Jones v. Southern
Ry. Co., 153 S.E. 637, 638 (N.C. 1930)), a premises owner does not
have to warn him "of apparent hazards or circumstances of which the
invitee has equal or superior knowledge." Jenkins v. Lake Montana
Club, Inc., 479 S.E.2d 259, 262 (N.C. App. 1997). "An invitee is still
required to exercise ordinary care for his own safety," and if the plain-
tiff is actually aware of, or should be aware of a danger, "which is not
hidden or concealed, [but] proceeds with full knowledge and aware-
ness of the dangers posed thereby," the plaintiff is contributorily neg-
ligent, and there can be no recovery. Crane v. Caldwell, 438 S.E.2d
449, 452 (N.C. App. 1994).

We conclude that as a matter of law Donald was contributorily
negligent. No one disputes that Donald, who entered the Greensboro
Wal-Mart to return the side-mount battery, was an invitee. Donald, an
invitee, was required to exercise ordinary care for his own safety.
Thus, the question becomes whether Donald breached his duty to
exercise ordinary care for his own safety during the side-mount bat-
tery testing. Donald's deposition testimony establishes that he was
aware that the technique used by the Greensboro Wal-Mart employ-
ees for testing the side-mount battery, touching battery cable clamps

                     6
to the holes on the side-mount battery without first inserting bolts,
could cause the side-mount battery to explode. However, despite his
actual awareness of this danger, Donald stood over the side-mount
battery while two employees repeatedly tested the side-mount battery
using a procedure that Donald knew could cause the side-mount bat-
tery to explode. Because Donald was aware of the unreasonable dan-
ger of injury to which his standing over the side-mount battery while
the Greensboro Wal-Mart employees tested the side-mount battery
using an improper technique exposed him, but ignored the danger, we
conclude that Donald breached his duty to exercise due care for his
own safety during the side-mount battery testing, and his failure to
exercise due care for his own safety proximately contributed to his
injuries. Accordingly, Donald, being contributorily negligent, may not
recover on his negligence claims pressed in this appeal. Because
Linda's claim is derivative of Donald's, she too may not recover.

III

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

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