No. 89-321 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DAWNA R. TUCKER, 

Plaintiff and Appellant, 

-vsTROTTER 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 

Filed: 

Submitted on Briefs: Aug. 31, 1989 

Decided: September 19, 1989 
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: