OF JUDGMENT: 08/20/2014.
COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY TRIAL
JUDGE: HON. JEFF WEILL, SR.
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.
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, and the Mississippi Court of Appeals
affirmed. Finding that genuine issues of material fact exist,
we reverse and remand.
AND PROCEDURAL HISTORY
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.
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.
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
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.
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.
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
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).
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)).
"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 ...