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Vivians v. Baptist Healthplex

Supreme Court of Mississippi, En Banc

June 29, 2016

TIMOTHY VIVIANS
v.
BAPTIST HEALTHPLEX, BECKY VRIELAND AND HELEN WILSON

          DATE OF JUDGMENT: 08/20/2014.

         ON WRIT OF CERTIORARI

         CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY TRIAL JUDGE: HON. JEFF WEILL, SR.

          TRIAL COURT ATTORNEYS: HOWARD BROWN, WADE G. MANOR LEAH LEFORD.

          ATTORNEYS FOR APPELLANT: HOWARD BROWN MERRIDA COXWELL.

          ATTORNEYS FOR APPELLEES: MALLORY MILLER STREET, WADE G. MANOR, JAMES LEROY BANKS, IV.

          KITCHENS, JUSTICE:

         ¶1. A patron of the Baptist Healthplex in Clinton, Mississippi, slipped, fell, and sustained injuries when stepping into the Healthplex therapy pool. He sued, alleging, inter alia, that the Healthplex had failed to maintain its premises in a reasonably safe condition. The Circuit Court of the First Judicial District of Hinds County granted summary judgment to Baptist, [1]and the Mississippi Court of Appeals affirmed. Finding that genuine issues of material fact exist, we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Timothy Vivians, a member of the Baptist Healthplex in Clinton, Mississippi, entered the Healthplex pool area on February 12, 2008. As he stepped off the first step and onto the second step of the therapy pool, he slipped and fell backward onto the concrete stairs. Vivians was holding onto the railing and had his walking cane in hand at the time of his fall. He was transported by ambulance to the VA Medical Center in Jackson, Mississippi.

         ¶3. Vivians sued the Healthplex along with Becky Vrieland, the Healthplex's Aquatics Director; Helen Wilson, a Healthplex employee; ABC Companies; and John Does 1-10.

         ¶4. Drs. Maurice McShan and Edward Hobgood, who were among Vivians's treating physicians, were designated by Vivians as expert witnesses. Dr. McShan, an internist, was designated by Vivians to testify as an expert that Vivians was treated for shoulder pain after the accident on several occasions and that the fall was the sole proximate cause of the injuries suffered. Vivians designated Dr. Hobgood, an orthopaedic surgeon, to testify as an expert that Vivians's fall was the sole proximate cause of a surgical rotator cuff tear to his right shoulder and that the tear necessitated a rotator cuff repair.

         ¶5. Baptist moved for summary judgment, arguing that Vivians had failed to present evidence of the existence of a dangerous condition. In response, Vivans produced thirteen incident reports detailing other slip and fall occurrences in the Healthplex pool area from 2005 to 2010. The incident reports indicated that, of those thirteen occurrences, six involved the steps into the therapy pool. Vivians also produced the deposition of William D. Carpenter, then-executive director of the Healthplex, taken pursuant to Mississippi Rule of Civil Procedure 30(b)(6). Carpenter indicated in his deposition that, because of the incidents, the handrails were wrapped with a yellow abrasive wrapping containing the word "Caution" and the therapy pool and steps were replastered, but he did not know when those safety measures had been implemented.

         ¶6. The circuit court granted summary judgment in favor of Baptist, ruling that, while Vivans had offered "testimony of one prior fall at the therapy pool steps, this Court does not find that one prior fall is sufficient to establish a dangerous condition." The Court of Appeals affirmed, holding that the circumstances surrounding Vivians's fall were not substantially similar to the circumstances surrounding the slip and fall incidents prior to and subsequent to Vivians's fall. Vivians v. Baptist Healthplex, 200 So.3d 485, 488-89 (Miss. Ct. App. 2016).

         ¶7. We granted Vivians's petition for writ of certiorari to consider the existence of genuine issues of material fact regarding whether the steps into the therapy pool at the Healthplex constituted an unreasonably dangerous condition and whether Baptist was negligent for failure to maintain its premises in a reasonably safe condition.

         STANDARD OF REVIEW

         ¶8. When reviewing a trial court's grant or denial of a motion for summary judgment, this Court applies a de novo standard of review. Whitaker v. Limeco Corp., 32 So.3d 429, 433-34 (Miss. 2010).

The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.

Leslie v. City of Biloxi, 758 So.2d 430, 431-32 (Miss. 2000) (citations omitted).

         ANALYSIS

         ¶9. The parties stipulated that Vivians was an invitee. We have held that a "landowner owes an invitee the 'duty to keep the premises reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not in plain and open view.'" Mayfield v. The Hairbender, 903 So.2d 733, 737-38 (Miss. 2005) (quoting Corley v. Evans, 835 So.2d 30, 37 (Miss. 2003)).

         ¶10. "Under certain conditions, reports of . . . subsequent accidents at a certain location may be admissible into evidence." We have held that "[a]s to the admissibility of acts subsequent to the accident, discretion rests largely with the trial court in determining if the evidence offered meets the prerequisite of substantial similarity of conditions." Hartford Ins. Grp. v. Massey, 216 So.2d 415, 418 (Miss. 1968). Vivians submitted five incident reports detailing slip and fall occurrences on the Healthplex therapy pool steps. Vivians argues in his petition for writ of certioriari that the five subsequent incidents create ...


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