                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2014-CT-01828-SCT

TIMOTHY VIVIANS

v.

BAPTIST HEALTHPLEX, BECKY VRIELAND
AND HELEN WILSON

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           08/20/2014
TRIAL JUDGE:                                HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS:                      HOWARD BROWN
                                            WADE G. MANOR
                                            LEAH LEFORD
COURT FROM WHICH APPEALED:                  CIRCUIT COURT OF THE FIRST JUDICIAL
                                            DISTRICT OF HINDS COUNTY
ATTORNEYS FOR APPELLANT:                    HOWARD BROWN
                                            MERRIDA COXWELL
ATTORNEYS FOR APPELLEES:                    MALLORY MILLER STREET
                                            WADE G. MANOR
                                            JAMES LEROY BANKS, IV
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
DISPOSITION:                                REVERSED AND REMANDED - 06/29/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       KITCHENS, JUSTICE, FOR THE COURT:

¶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



       1
           We refer to all defendants collectively as “Baptist.”

                                                2
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.




                                               3
                                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 a genuine issue of



                                               4
material fact with regard to the existence of a dangerous condition. The facts of those

incidents are reproduced, verbatim, below:

       •      March 9, 2008: Patron “entering the water and slipped on the steps. He
              was holding rail with both hands, but still slipped.”

       •      May 12, 2008: Patron “slipped on the stairs, but caught himself on the
              hand rail . . . .”

       •      October 27, 2008: Patron “stated that steps going into the therapy pool
              are very slick. [Patron] was holding onto rail and slipped on step and hit
              back and head.”

       •      June 19, 2009: Patron “was getting into the warm therapy pool . . . . She
              slipped and fell on the steps as she was going down the steps into the
              pool.”

       •      December 20, 2010: Patron “was coming out of the pool after 8 AM .
              . . class. She was holding onto another woman when exiting on the
              steps and slipped down on the top of the steps when she turned loose
              of woman.”

¶11.   The Court of Appeals determined that, “[a]lthough the evidence demonstrates that five

other Baptist Healthplex 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.’” Vivans, 200 So. 3d at 488. But the five

subsequent slip and fall occurrences took place on the steps leading into the Healthplex

therapy pool. Two of the incidents, more specifically, involved patrons like Vivians who,

despite holding onto the rail, still slipped. Three of the incidents resulted in minor injuries.

One patron “hit his back and head” when he slipped and fell. Another patron’s fall resulted

in a hurt ankle with “a few cuts on it.” A third patron’s fall caused “bleeding on her right

knee and left shin.”

                                               5
¶12.   We find that Vivians adduced ample evidence that his slip and fall on the Healthplex

therapy pool steps was substantially similar to the subsequent slip and fall occurrences, and

that a genuine issue of material fact exists with regard to the existence of a dangerous

condition.

¶13.   We next consider whether a genuine issue of material fact exists with regard to

whether Baptist breached its duty to Vivians to maintain its premises in a reasonably safe

condition. The Mayfield Court found that the “two duties—(1) to keep the premises

reasonably safe, and (2) to warn of hidden dangers—are separate,” that “[t]he breach of

either duty supports a claim of negligence,” and that “[e]ach must be separately analyzed.”

Mayfield, 903 So. 2d at 738.

¶14.   In its brief in the Court of Appeals, Baptist argued that:

       It is common knowledge that steps leading into a pool will be covered in water
       and will be slicker than a dry flight of steps. Such a “danger” should have been
       obvious to Vivians in the exercise of ordinary care. In the absence of any
       evidence from Vivians that the step in question was rendered unusually
       slippery due to some defect, Vivians cannot prove, as a matter of law, that the
       step presented the sort of non-obvious “danger” of which BHP had a duty to
       warn. Accordingly, the trial court properly granted summary judgment with
       respect to Vivians’s failure to warn claims against BHP, and its decision
       should be affirmed.

This argument is maintained in Baptist’s response to Vivians’s petition for writ of certiorari:

“Vivians has failed to demonstrate the presence of any non-obvious dangers on the therapy

pool steps about which [Baptist] had a duty to warn Vivians.”

¶15.   In Mayfield, Anita Mayfield, who was making a delivery to The Hairbender salon,

“tripped on pavement she described as ‘broken, unlevel pavement’ which was ‘pushed up,



                                              6
probably jutted up two inches over the bottom step.’” Mayfield, 903 So. 2d at 734. She sued,

alleging that The Hairbender had been negligent both in failing to warn her of the pavement’s

condition and in failing to repair it. Id. Summary judgment was granted to The Hairbender

because the “dangerous condition was open and obvious.” Id. at 735.

¶16.   This Court agreed that the dangerous condition was open and obvious and held that

summary judgment was proper as to Mayfield on her failure to warn claim because “evidence

established not only that the hazard was open and obvious, but also that Mayfield actually

knew of the danger.” Id. at 736. As to the claim for failure to maintain the premises claim,

this Court reversed and remanded the grant of summary judgment. Id.

¶17.   We noted first that this Court had “abolished the open and obvious theory as an

absolute defense in premises liability cases.” Id. at 737 (citing Tharp v. Bunge Corp., 641

So. 2d 20, 25 (Miss. 1994)). In Tharp, this Court had reasoned that:

       This Court should discourage unreasonably dangerous conditions rather than
       fostering them in their obvious forms. It is anomalous to find that a defendant
       has a duty to provide reasonably safe premises and at the same time deny a
       plaintiff recovery from a breach of that same duty. The party in the best
       position to eliminate a dangerous condition should be burdened with that
       responsibility. If a dangerous condition is obvious to the plaintiff, then surely
       it is obvious to the defendant as well. The defendant, accordingly, should
       alleviate the danger.

Tharp, 641 So. 2d at 25. In Mayfield, this Court applied Tharp: “Tharp’s authority extends

to cases (including the case before us today) in which a plaintiff alleges the defendant was

negligent in creating or failing to repair a dangerous condition, and the defendant alleges the

dangerous condition was open and obvious.” Mayfield, 903 So. 2d at 737.




                                              7
¶18.   The Mayfield Court held that, while no hidden dangers existed and The Hairbender

had no duty to warn, “[t]o the extent Mayfield’s case is based upon an allegation that The

Hairbender failed to maintain its premises in a reasonably safe condition by its negligent

failure to repair the raised asphalt, the fact that the hazard was ‘open and obvious’ does not

serve as a complete bar to recovery.” Id. at 739. The Court continued that landowners cannot

avoid liability for failure to repair a dangerous condition merely by pointing out that the

dangerous condition was open and obvious: “Following this logic, brown motor oil spilled

on a store’s white floor would be an open and obvious danger. Therefore, the store could

have no liability for failing to clean up the motor oil since its presence on the white floor

would be ‘open and obvious.’” Id. at 738.

¶19.   The Court found that, because the question of whether a landowner was negligent for

failure to correct an allegedly dangerous condition is one for the jury to decide, a genuine

issue of material fact existed “as to whether The Hairbender negligently failed to maintain

its premises in a reasonably safe condition.” Id. at 739. “In the event Mayfield convinces the

jury that the raised asphalt constituted a dangerous condition which The Hairbender failed

to repair, the jury may find The Hairbender liable.” Id. The Court observed, however, that

the jury should, as in any case of comparative negligence, compare The Hairbender’s

negligence to any negligence attributable to Mayfield and reduce her award accordingly. Id.

¶20.   Here, Vivians alleged in his complaint that “[t]he Defendants were negligent, and/or

failed to exercise reasonable care in maintaining its premises in a safe manner.” Baptist

answered: “The Plaintiffs’ damages and/or injuries, if any exist, are the proximate result of



                                              8
the negligence of the Plaintiff and not a result of any acts or omissions of the Defendant.”

Baptist is correct that common knowledge dictates that submerged pool steps are more

slippery than dry steps and that caution is warranted on the part of patrons. But Baptist owed

Vivians “[t]he duty to maintain its premises in a reasonably safe condition.” Mayfield, 903

So. 2d at 739. And, as noted above, the slip and fall at issue in this case was one of many

similar slip and fall occurrences on the steps of the Healthplex therapy pool. As in Mayfield,

not only does a genuine issue of material fact exist with regard to whether the steps leading

into the therapy pool constituted an unreasonably dangerous condition, but a genuine issue

of material fact also exists with regard to whether Baptist negligently failed to repair the steps

leading into the therapy pool. See id.

                                         CONCLUSION

¶21.   Viewing the facts in the light most favorable to Vivians, we find that genuine issues

of material fact exist with regard to whether the therapy pool steps at the Healthplex

constituted an unreasonably dangerous condition and Baptist was negligent in failing to

maintain its premises in a reasonably safe condition. Accordingly, we reverse the judgment

of the Mississippi Court of Appeals and the judgment of the Circuit Court of the First

Judicial District of Hinds County. We remand this case to the Circuit Court of the First




                                                9
Judicial District of Hinds County for further proceedings consistent with this decision.

¶22.   REVERSED AND REMANDED.

       WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KING, BEAM AND
CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY KING AND BEAM, JJ. COLEMAN,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MAXWELL,
J. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
COLEMAN, J.

       DICKINSON, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶23.   I join Justice Kitchens’s well-reasoned majority, and I write separately only to amplify

a point of particular concern to me. The existence of a jury question in this case derives from

the frequency of the falls on the therapy pool steps. Negligence is “[t]he failure to exercise

the standard of care that a reasonably prudent person would have exercised in a similar

situation.”2 The duty to maintain a premises in a reasonably safe condition rests on what a

reasonably prudent property owner would do.3 Were there thousands of similar incidents on

the steps, it would be obvious that a reasonably prudent property owner would take corrective

action. Were there none, no reasonable jury could conclude the steps were unreasonably

dangerous. In my view, the number of prior incidents in this case falls squarely within the

zone that must be left to a jury.

       KING AND BEAM, JJ., JOIN THIS OPINION.



       2
           Negligence, Black’s Law Dictionary (abr. 9th ed. 2010).
       3
           See, e.g., Moore v. Winn-Dixie Stores, Inc., 252 Miss. 693, 173 So. 2d 603, 704–5
(1965).

                                              10
       COLEMAN, JUSTICE, DISSENTING:

¶24.   Unlike the majority opinion above, I am unable to locate a genuine issue of material

fact that warrants our reversal of summary judgment granted in favor of Baptist. The only

evidence Vivians offers in support of his negligence claim are the prior and subsequent

accident reports involving slip-and-fall incidents on the therapy pool steps, but, even taking

the evidence in a light most favorable to Vivians, he has proven the existence of nothing

more than steps and a pool. Accordingly and with respect, I would affirm.

¶25.   Due to Vivians’s status as an invitee, Baptist owed him a duty to keep its premises

reasonably safe, and when not reasonably safe, a duty to warn only where there is hidden

danger that is not in plain view. Mayfield v. The Hairbender, 903 So. 2d 733, 737-38 (¶ 20)

(Miss. 2005). Recovery for a slip and fall under premises liability requires more than proof

of falling. Sears, Roebuck & Co. v. Tisdale, 185 So. 2d 916, 917 (Miss. 1966). In Munford,

Inc. v. Fleming, 597 So. 2d 1282, 1284 (Miss. 1992), the Court explained:

       [F]or a plaintiff to recover in a slip-and-fall case, he must show the proprietor
       had actual knowledge of a dangerous condition, or the dangerous condition
       existed for a sufficient amount of time to establish constructive knowledge, in
       that the proprietor should have known of the condition, or the dangerous
       condition was created through a negligent act of a store’s proprietor or his
       employees.

Thus, in order to recover, Vivians must show that a dangerous condition existed and then,

that Baptist had actual or constructive knowledge of the dangerous condition or that Baptist,

through its employees, created the dangerous condition. I submit that Vivians, even with the

accident reports, has failed to show that a dangerous condition existed at all because I am

unwilling to find that pool steps are inherently a dangerous condition.


                                              11
¶26.   In Tate v. Southern Jitney Jungle Co., 650 So. 2d 1347, 1351 (Miss. 1995), the Court

reversed a trial court’s judgment granting a directed verdict in favor of Jitney Jungle. Tate

injured her knee on a piece of metal on the deli counter, and the trial court granted a directed

verdict in Jitney Jungle’s favor because the deli counter was open and obvious.4 The Court

explained that its decision to reverse was because the deli counter’s defect was not a

“danger[] which [is] usual and which customers normally expect to encounter on business

premises, such as thresholds, curbs, and steps.” Id. (emphasis added). Again, in Fulton v.

Robinson Industries, 664 So. 2d 170, 174-5 (Miss. 1995) (citing Tate, 650 So. 2d at 1351),

the Court stated: “This Court has recently reamplified this line of thinking by acknowledging

that there is a difference between dangers which are “usual and which customers normally

expect to encounter on the business premises [and] claimed physical defect[s] on the

defendant’s premises . . . which may be found to be unusual and unreasonably dangerous.”

The Fifth Circuit applied Tate in its 2009 opinion Wood v. RIH Acquisitions MS II, LLC,

556 F. 3d, 274, 282 (5th Cir. 2009), in which it held that “the Tate concept of usual and

normally expected hazards has for over a decade been applied on summary judgments in

federal courts when considering Mississippi premises liability[;] we do not suggest a change

to that practice. At least those hazards that are similar to undamaged thresholds, curbs, and

steps, which are common architectural features for buildings and parking lots . . . .” As

discussed above, all Vivians has done is prove that there are steps leading into Baptist’s



       4
       The opinion noted the change in our jurisprudence of “open and obvious” not being
an absolutely defense to liability based on Tharpe v. Bunge Corp., 641 So. 2d 20 (Miss.
1994). Tate, 650 So. 2d at 1351.

                                              12
therapy pool. He has not claimed that the steps were unreasonably slippery; that the steps

were cracked, crumbling, or in any state of disrepair; that the steps were improperly designed

or built; that he slipped on an unknown object; or any other reason to explain his fall. I find

persuasive the following language from a unanimous Mississippi Court of Appeals in

Huguley v. Imperial Palace of Mississippi, Inc., 930 So. 2d 1278 (Miss. Ct. App. 2006):

       Merely proving that an accident occurred on a business premise is not
       sufficient to prove liability or by itself prove that a dangerous condition existed
       at the time of the accident. There must be proof that the business was
       negligent. Here there is no proof that Imperial Palace was in any way
       negligent. The testimonies of Mr. Huguley and Mrs. Dale cannot and do not
       show what caused Mr. Huguley to fall or any negligence on the part of
       Imperial Palace in the maintenance of construction of the parking garage.

Id. at 1281 (¶ 14) (citations omitted). Simply, he slipped on what appear to be, based on the

record before us, normal pool steps, and I cannot fathom where the Court would find that

steps, by themselves, are a dangerous condition.

¶27.   Presiding Justice Dickinson, in his specially concurring opinion, offers an extreme

hypothetical, positing that if thousands of accidents happened on the same set of steps, surely

a premises owner would take corrective action. Leaving aside that, like Vivians, Presiding

Justice Dickinson offers no description of the dangerous condition that underlies his

thousands of accidents (or what his hypothetical premises-owner can do to correct it);5 in the

end his hypothetical illustrates the deleterious effect of today’s result. Absent evidence

identifying the dangerous condition at issue, how many accidents is enough? Presiding



       5
        The stage for Presiding Justice Dickinson’s hypothetical could as well be a well-lit,
wide, perfectly level hallway with no dangerous condition whatsoever as the pool involved
in the case sub judice.

                                               13
Justice Dickinson suggests thousands, but why not one hundred or, for that matter two?

Pursuant to today’s majority, one who owns a perfectly safe building may well face litigation

that goes to a jury for no better reason than two people fell in the same place within a certain

period of time – despite the complete absence of any proof of an actual dangerous condition.

The hapless premises owner would face attorneys’ fees, possible settlement or trial expenses,

and the headache of litigation, despite there being nothing wrong with the premises at all.

Today, the majority effectively changes Mississippi law such that, instead of plaintiffs being

required to provide evidence of a dangerous condition to make a prima facie case sounding

in premises liability, they need prove only (a yet-to-be determined number of) other

accidents. Such has never been Mississippi’s premises liability law, and we should refrain

from making it so today.

¶28.      Therefore, I would affirm the trial court’s grant of summary judgment in favor of

Baptist because there is no genuine issue of material fact that a dangerous condition existed

at all.

          MAXWELL, J., JOINS THIS OPINION.

          MAXWELL, JUSTICE, DISSENTING:

¶29.      I agree with the bulk of Justice Coleman’s well-stated dissent. Vivians has presented

no proof the therapy-pool steps were a dangerous condition. I write separately to voice my

grave concern that the majority’s opinion expands the scope of premises liability and imposes

an almost strict-liability standard on property owners.




                                               14
¶30.   The majority finds the potential existence of a dangerous condition enough to

establish a triable premises-liability claim—even though Vivians presented no proof Baptist

had any knowledge, actual or constructive, that the therapy-pool steps were unreasonably

dangerous and in need of repair. Until Vivians fell, there had been only one incident on the

therapy-pool steps. And that incident was three years earlier. In other words, for the three

years leading up to Vivians’s fall, there had been zero incidents on the therapy-pool steps.

And there was no reason for Baptist to suspect the steps posed an unreasonable danger—i.e.,

one beyond the unavoidable danger associated with climbing on wet pool steps. After

Vivians fell, there were other incidents. But these after-the-fact falls are not proof Baptist

should have known or did know the therapy-pool steps posed an unreasonable danger on

February 8, 2008, the day Vivians fell.

¶31.   Until today’s opinion, the mere potential presence of an unreasonably dangerous

condition was not enough to establish a premises-liability claim. The plaintiff also had to

present a theory and proof that the property owner was negligent—either because it created

the dangerous condition, or it knew or should have known about the condition and failed to

repair it or warn about it. E.g, Anderson v. B. H. Acquisition, Inc., 771 So. 2d 914, 918

(Miss. 2000) (citing Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995); Munford, Inc. v.

Fleming, 597 So. 2d 1282, 1284 (Miss. 1992)). Here, Vivians has presented no proof of

either. So the claim we are remanding back to the circuit court is more akin to a strict-

liability claim than a slip-and-fall claim as previously defined by this Court.




                                             15
¶32.   Holding property owners to this new standard where they can be potentially liable for

a slip and fall on their premises—even when there is no proof they acted

negligently—imposes an unnecessary and unfair burden on them. For this reason, I strongly

dissent. I would affirm the judgments of the trial court and Court of Appeals because

Vivians failed to present any proof Baptist committed a negligent act that led to his injuries.

       COLEMAN, J., JOINS THIS OPINION.




                                              16
