           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-01828-COA

TIMOTHY VIVIANS                                                            APPELLANT

v.

BAPTIST HEALTHPLEX, BECKY VRIELAND                                         APPELLEES
AND HELEN WILSON

DATE OF JUDGMENT:                         08/20/2014
TRIAL JUDGE:                              HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT, FIRST
                                          JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                  HOWARD BROWN
                                          MERRIDA COXWELL
ATTORNEYS FOR APPELLEES:                  WADE G. MANOR
                                          JAMES LEROY BANKS IV
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                  SUMMARY JUDGMENT GRANTED IN
                                          FAVOR OF APPELLEES
DISPOSITION:                              AFFIRMED - 06/07/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       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



       1
        Originally, Vivians’s wife was also a plaintiff, but an unopposed order to dismiss
her claims was entered by the trial court on January 10, 2013.
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



       2
        There is no evidence to suggest Vivians was receiving any formal or scheduled
physical therapy at the time of the incident, although he states that he consulted with
Vrieland regarding some strengthening exercises for his back immediately prior to his fall.

                                               2
¶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



                                              3
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,

                                               4
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



                                              5
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



       3
       Only two of the five accidents required any medical attention. One member suffered
some minor swelling and cuts to her ankle; another suffered minor cuts to her knee and shin.
       4
         Vivians also included accident reports involving other pool areas at Baptist (i.e., lap
pool, etc.). Those are not relevant to our discussion of whether the steps of the therapy pool
constituted a dangerous condition, as it has not been shown they were substantially similar
in place or condition.

                                               6
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, after an injury or harm allegedly caused by an event, measures are taken
       which, if taken previously, would have made the injury or harm less likely to
       occur, evidence of the subsequent measures is not admissible to prove
       negligence, culpable conduct, a defect in a product, a defect in a product’s
       design, or a need for a warning or instruction.

Therefore, evidence of any subsequent remedial measures taken by Baptist would not be

admissible to imply any negligence. See Wactor v. John H. Moon & Sons Inc., 516 So. 2d

1364, 1366-67 (Miss. 1987) (noting Mississippi’s well-established law that “it is improper

to introduce evidence of subsequent remedial repairs to establish negligence”).

¶12.   Furthermore, Baptist said that it had signs posted around the pool area prior to

Vivians’s incident, warning that the pool surfaces are “slippery when wet.” “[An] invitee is

required to use that degree of care and prudence that a person of normal intelligence would



       5
         During Carpenter’s testimony, Vivians cited an email sent to members regarding
repairs to the pool deck in 2010. Carpenter, however, stated that the replastering “did not
have any impact on what we did to the pool deck because it’s – it’s a separate area.”
Carpenter claimed that he was not sure if “the replastering of the pool had been completed”
by 2008.

                                               7
exercise under the same or similar circumstances.” Tate v. S. Jitney Jungle Co., 650 So. 2d

1347, 1350 (Miss. 1995) (citing General Tire & Rubber Co. v. Darnell, 221 So. 2d 104, 107

(Miss. 1969)). Carpenter testified that the therapy pool has handrails and that, prior to 2008,

Baptist had added abrasive, yellow “Caution” wrapping on those handrails “to try to bring

more attention to that area, encouraging members to enter and exit not only the therapy

pool[,] but the lap pool[,] with extreme caution.”6

¶13.   In Elgandy v. Boyd Mississippi Inc., 909 So. 2d 1202, 1206 (¶18) (Miss. Ct. App.

2005), we upheld the circuit court’s grant of a motion for a directed verdict, as the plaintiff,

who had slipped getting in a jacuzzi, “produced no evidence, other than her own highly

speculative testimony, that there was in fact any slippery substance (other than water) in and

around the jacuzzi.” As Vivians failed to produce sufficient evidence that a genuine issue

of material fact exists as to whether the therapy-pool steps constituted a dangerous condition,

or that Baptist had any knowledge of any dangerous condition, we find no merit to this claim.

       II.    Whether expert testimony was required to prove a dangerous
              condition existed.

¶14.   The circuit court noted in its order that Vivians did not present expert testimony to

support his claim that the steps constituted a dangerous condition. Vivians argues that “the

presence and absence of []expert testimony is not always determinative to the issue of

summary judgment.” We agree. “In order to survive summary judgment in a premises-

liability case, a plaintiff must show that the defendant created an unreasonably dangerous

       6
        Carpenter did acknowledge that he was not certain of the date when the additional
wrapping was added, but he testified that “after Dockery’s incident report, which was June
of 2005, [Baptist] took steps to put some additional wrapping on the handrails.”

                                               8
condition or that the defendant had actual or constructive knowledge of a dangerous

condition.” Chandler v. Mary Mahoney’s Inc., 126 So. 3d 972, 976-77 (¶16) (Miss. Ct. App.

2013). In Chandler, we concluded that the determination of whether landscape lighting,

which caused the plaintiff’s injury, constituted a dangerous condition did not require expert

testimony. Id. at 975-76 (¶¶12-16). Baptist does not challenge Vivians’s argument that

expert testimony is not required, but asserts that it was necessary in the present case “to

explain why the level of traction on the step fell below industry standards[.]”

¶15.   Notwithstanding these arguments, it is apparent from the record that the trial court did

not grant summary judgment based on Vivians’s failure to provide expert testimony that the

stairs constituted a dangerous condition. Rather, the court merely concluded: “There has

been no evidence presented to this [c]ourt, through expert testimony or otherwise, of the

existence of any other duties in that regard, and therefore, no genuine issue of material fact

exists.” (Emphasis added). Thus, while we agree that failure to provide expert testimony is

not necessarily determinative of summary judgment, we find it a moot argument in this

instance, as the trial court did not grant summary judgment to Baptist solely based on the lack

of expert testimony by Vivians.

       III.   Whether the Baptist employees, Vrieland and Wilson, had a duty
              to take notice of Vivians’s physical condition and advise him of the
              availability of the handicap pool chair and how to operate it.

¶16.   The circuit court found there was no genuine issue of material fact as to whether

Vrieland or Wilson were independently negligent or that their negligence caused Vivians’s

injuries. Vivians asserts that both Vrieland and Wilson “were in the pool area of Baptist



                                              9
when [he] fell,” and they owed him a legal duty “to use reasonable care and to warn [him]

of any dangerous conditions.” He acknowledges, however, that it is unclear “to what extent

[Wilson] witnessed the incident.” With respect to Vrieland, Vivians notes that he spoke to

her prior to the fall, and contends that she knew he used a walking cane and was “in a

vulnerable position,” but failed to offer him any assistance in accessing the therapy pool. He

claims that the failure to assist him was a violation of a duty of care. Baptist counters that

its employees owed no legal duty to Vivians; they were not his medical providers or physical

therapists. It notes that the record “is devoid of a written contract under which Vrieland or

Wilson was required to assist Vivians . . . with the performance of exercises in the therapy

pool.”

¶17.     In Ghaemmahami v. Wal-Mart Stores Inc., 442 F. Supp. 2d 354, 356 (S.D. Miss.

2006), the district court held that, under Mississippi law, a store did not have a duty to help

a customer load a riding lawn mower he had just purchased, and thus the store was not liable

for injuries the customer sustained while loading the mower onto his truck, even if the store

knew or should have known that loading the mower into the truck was hazardous. See also

Riddle v. Lowe’s Home Ctrs. Inc., 802 F. Supp. 2d 900, 905 (M.D. Tenn. 2011) (dismissing

negligence claim, as employee did not have duty to assist customer in loading the plywood

he had purchased).

¶18.     We agree with the trial court that Vivians failed to provide a legal basis for his claim

that Vrieland and Wilson had a duty to assist him in entering the therapy pool. They were

not attending to Vivians as his therapists. Furthermore, Vivians did not ask for any



                                               10
assistance in entering the pool. There is also no evidence presented that Vrieland or Wilson

was aware any dangerous condition existed related to the therapy-pool steps. This issue is

without merit.

¶19.   As Vivians failed to present any evidence that Baptist and its employees breached any

duty owed to him as an invitee, we affirm the trial court’s order granting summary judgment.

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS
IN PART WITHOUT SEPARATE WRITTEN OPINION.




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