Vivians v. Baptist Healthplex

• Decision Date: 07 June 2016
• Docket Number: No. 2014–CA–01828–COA.,2014–CA–01828–COA.
• Citation: 200 So.3d 485
• Parties: Timothy VIVIANS, Appellant, v. BAPTIST HEALTHPLEX, Becky Vrieland and Helen Wilson, Appellees.
• Court: Mississippi Court of Appeals

200 So.3d 485

Timothy VIVIANS, Appellant,

v.BAPTIST HEALTHPLEX, Becky Vrieland and Helen Wilson, Appellees.

No. 2014–CA–01828–COA.

Court of Appeals of Mississippi.

June 7, 2016.

Rehearing Denied Oct. 11, 2016.

Howard Brown, Merrida Coxwell, Jackson, attorneys for appellant.

Wade G. Manor, James Leroy Banks IV, Jackson, attorneys for appellees.

Before LEE, C.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court:

¶ 1. This is a premises-liability negligence action filed on February 16, 2010, by Timothy Vivians against Baptist Healthplex (“Baptist”); Becky Vrieland, Baptist's aquatics director; and Helen Wilson, an employee of Baptist Health Systems (collectively referred to as “Defendants”).¹ On February 12, 2008, Vivians, a member of the health club, suffered a torn rotator cuff when he slipped and fell backward upon entering Baptist's therapy pool. Vrieland and Wilson were apparently in the therapy-pool area when he fell and assisted him afterwards.² In his complaint, Vivians claimed that “[t]he Defendants had a duty of reasonable care to warn [him] of the danger of hi[s] being left unattended in the therapy pool, to keep its premises in a safe condition, and to prevent the injuries suffered by [Vivians] from occurring.”

¶ 2. On June 6, 2014, after the deadline for discovery had expired, the Defendants filed a motion for summary judgment. The trial court granted the summary judgment motion and dismissed Vivians's claims with prejudice on August 21, 2014, finding that “[n]o genuine issue of material fact has been shown to establish that the Defendants were negligent in failing to maintain the therapy pool in a reasonably safe condition, and further, that there were no non-obvious dangers of which the Defendants failed to warn.” The trial court also concluded that “there is no genuine issue of material fact to establish that either [Vrieland or Wilson] was independently negligent, or that said negligence was a cause of [Vivians's] fall and injuries.”

¶ 3. Vivians filed a motion to reconsider, which was denied on December 21, 2014. He now appeals, claiming the trial court erred in granting the Defendants' motion for summary judgment. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. A trial court's decision to grant summary judgment is reviewed de novo. Bennett v. Highland Park Apartments LLC, 170 So.3d 450, 452 (¶ 4) (Miss.2015). “[S]ummary judgment is proper only where there exists no genuine issue of material fact[,] and the moving party is entitled to a judgment as a matter of law.” Id. (citing M.R.C.P. 56(c) ).

DISCUSSION

I. Whether the trial court erred in finding no genuine issue of material fact existed regarding the dangerous condition of the therapy-pool steps.

¶ 5. In its order granting summary judgment, the trial court found that Vivians “failed to present a genuine issue of material fact as to whether or not the subject steps were a dangerous condition and ... failed to present any evidence that the Defendants committed any negligence which caused his injuries.” Vivians argues that, because there were genuine issues of material fact as to whether the Defendants breached their duty of care to Vivians, the trial court erred in granting summary judgment.

¶ 6. In determining whether a property owner is liable to an injured party in a premises-liability case, Mississippi courts conduct an analysis of the three following factors: “(1) the injured party's classification as an invitee, licensee, or trespasser at the time he or she was injured; (2) the duty owed by the defendant to the injured party; and (3) whether the defendant breached that duty.” Sawvell v. Gulfside Casino Inc., 158 So.3d 363, 366 (¶ 6) (Miss.Ct.App.2015) (citations omitted). The parties have stipulated that Vivians was an invitee on Baptist's premises. Vivians's contention is that Baptist and its employees had knowledge that the therapy-pool steps constituted a dangerous condition and failed to warn its members.

¶ 7. “A business owner/operator owes to invitees 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.” Dickinson v. Vanderburg, 141 So.3d 455, 457 (¶ 7) (Miss.Ct.App.2014) (quoting Rod v. Home Depot USA Inc., 931 So.2d 692, 694 (¶ 9) (Miss.Ct.App.2006) ). However, a business owner “is not required to insure against all injuries to invitees.” Boyd v. Magic Golf Inc., 52 So.3d 455, 460 (¶ 15) (Miss.Ct.App.2011). As this Court noted in Thompson v. Chick–Fil–A Inc.,

923 So.2d 1049, 1052 (¶ 10) (Miss.Ct.App.2006) :

There is no duty to warn of a defect or danger which is as well known to the invitee as to the landowner, or of dangers that are known to the invitee, or dangers that are obvious or should be obvious to the invitee in the exercise of ordinary care. Grammar v. Dollar, 911 So.2d 619, 624 (¶ 12) (Miss.Ct.App.2005). Additionally, the owner of a business does not insure the safety of its patrons. Rather, the owner of a business owes a duty to an invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or to warn of dangerous conditions not readily apparent, which the owner or occupant knows of, or should know of, in the exercise of reasonable care. Robinson v. Ratliff, 757 So.2d 1098, 1101 (¶ 12) (Miss.Ct.App.2000).

¶ 8. To support his claim, Vivians submitted several incident reports from June 24, 2005, to December 20, 2010, involving the various pool areas at Baptist. Yet, as Vivians acknowledges, there was only a single instance of a fall on the therapy-pool steps prior to his 2008 incident. On June 24, 2005, another health club member, Sue Dockery, “slipped on the black tile” while walking down the therapy-pool steps. As this Court has stated, “[m]ere proof ‘of the occurrence of a fall on a floor within the business premises is insufficient to show negligence on the part of the proprietor.’ ” Bonner v. Imperial Palace of Miss. LLC, 117 So.3d 678, 682 (¶ 11) (Miss.Ct.App.2013) (quoting Stanley v. Boyd Tunica Inc., 29 So.3d 95, 97 (¶ 8) (Miss.Ct.App.2010) ). Rather, “[e]vidence of prior accidents ... is admissible only upon a showing of substantial similarity of conditions.” Yoste v. Wal–Mart Stores Inc., 822 So.2d 935, 936 (¶ 8) (Miss.2002). Except for the fact that it happened around the therapy pool, it is unclear whether the circumstances surrounding Dockery's fall were substantially similar to those surrounding Vivians's fall. There is no evidence that Dockery slipped on the same step as Vivians. Furthermore, Dockery's fall happened three years prior, and there is no evidence that the steps were in the same condition at the time of Vivians's incident. See Bonner, 117 So.3d at 688 (¶ 33) (stating that “the other accidents may not be too remote in time from the accident at issue” and noting the Mississippi Supreme Court had found a one-year limitation “reasonable” (citing Irby v. Travis, 935 So.2d 884, 895 (¶ 24) (Miss.2006) )).

¶ 9. Although not directly addressed by our courts, other jurisdictions have found that this “substantial similarity of conditions” requirement also applies to evidence of subsequent accidents. The United States Court of Appeals for the Fifth Circuit has held that in order to admit evidence of a subsequent fall by a different business patron in the same area where the incident occurred, “the party offering same bears the burden of demonstrating that ‘the accidents involved substantially similar circumstances.’ ” Reddin v. Robinson Prop. Grp. Ltd. P'ship, 239 F.3d 756, 760 (5th Cir.2001) (quoting Rodriguez v. Crown Equip. Corp., 923 F.2d 416, 418 (5th Cir.1991) ). Although the evidence demonstrates that five other Baptist members slipped on the therapy pool's steps subsequent to Vivians's accident, there is insufficient evidence that the accidents occurred under or were caused by “substantially similar circumstances.” The incident reports merely state that those members slipped on the steps while entering or exiting the therapy pool.³

¶ 10. The Louisiana Court of Appeal has held that while “evidence of prior accidents is admissible to show that a defendant had knowledge of a particular condition[,] subsequent accidents ... are not relevant for this purpose.” Jones v. Par. of Jefferson, 665 So.2d 570, 572 (La.Ct.App.1995) (citing Lee v. K–Mart Corp., 483 So.2d 609, 613 (La.Ct.App.1985) ). In this instance, we cannot perceive how the evidence of five subsequent incidents involving the therapy pool's steps between March 9, 2008, and December 20, 2010, supports Vivians's claim that Baptist had notice of a dangerous condition at the time of his fall.⁴

¶ 11. Evidence of subsequent accidents is, however, “relevant to establish that a thing is defective, provided that the accidents occurred at substantially the same place and under substantially the same conditions and are caused by the same or a similar defect as the accident sued upon.” Id. As we have already discussed, Vivians has failed to show the other incidents occurred under substantially similar circumstances. Furthermore, Vivians has not provided any evidence that would create a question of fact as to whether there was any defect with the pool steps or the design of the steps. As noted by the Defendants, “there is no sworn testimony from Vivians, or any other witness, concerning the specific condition of the therapy-pool steps on the date of the accident in question, much less that the steps were worn or otherwise in a state of disrepair.” The only evidence he presents to this effect is testimony by Baptist's executive director, David Carpenter, that the surface of the therapy pool had been replastered. Vivians claims this repair was made after his fall and creates “a genuine issue of material fact as to whether the steps posed a dangerous condition prior to [his] fall.” However, there is no evidence of when this repair was completed.⁵ Notwithstanding, Mississippi Rule of Evidence 407 provides:

When,

...