E-Filed Document Jul 18 2017 16:12:13 2014-CT-01828-SCT Pages: 7 IN THE SUPREME COURT OF MISSISSIPPI CASE NO. 2014-CA-01828-COA APPELLANT VS. CASE NO. 2014-CA-01828-COA BAPTIST HEALTH PLEX, BECKY VRIELAND AND HELEN WILSON APPELLEES ON APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY MISSISSIPPI RESPONSE TO MOTION FOR REHEARING Respectfully submitted, BY: BROWN LITIGATION GROUP BY:/s/ Howard R. Brown (MSB# 10631) Of Counsel BROWN LITIGATION GROUP Attorneys and Counselors at Law 125 South Congress Street Capitol Towers Bldg. Post Office Box 158 Jackson, MS 39205 Telephone (601) 360-2000 hbrown@legal-counselors.net Attorneys for Appellant
IN THE SUPREME COURT OF MISSISSIPPI CASE NO. 2014-CA-01828-COA APPELLANT VS. CASE NO. 2014-CA-01828-COA BAPTIST HEALTH PLEX, BECKY VRIELAND AND HELEN WILSON APPELLEES TABLE OF CONTENTS TABLE OF CONTENTS... ii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE...1 ARGUMENT...3 A. The Appellees have merely repeated arguments already made and considered by the Court and the Motion for Rehearing should be denied. CONCLUSION...4 CERTIFICATE OF SERVICE...5 ii
IN THE SUPREME COURT OF MISSISSIPPI APPELLANT VS. CASE NO. 2014-CA-01828-COA BAPTIST HEALTH PLEX, BECKY VRIELAND AND HELEN WILSON APPELLEES RESPONSE TO MOTION FOR REHEARING COMES NOW, the Appellant, by and through the undersigned counsel of record, and files this his Response to Motion for Rehearing and in support thereof would state and show the following: I. STATEMENT OF THE ISSUES A. The Court of Appeals erred when it did not consider the fact that the Appellee Baptist Health Plex had actual knowledge of a danger to its invitees to include the Appellant who used its therapy pool. The Court s decision stands in conflict with published Supreme Court Decisions and should be reviewed and reversed. B. The evidence of subsequent slips and falls on the therapy pool steps should have been admitted because they tend to establish that the steps posed a dangerous condition. Most, if not all of them, were substantially similar enough to Vivians fall to pass evidentiary scrutiny. C. Discussions by Baptist employees concerning Resurfacing the Therapy Pool should be admissible. II. STATEMENT OF THE CASE The underlying lawsuit arose when the Appellant, Timothy Vivians (hereinafter Appellant or Vivians ) slipped and fell on the therapy pool steps in the Baptist Healthplex 1
(hereinafter Baptist ) on February 12, 2008. On February 16, 2010, he filed his Complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi seeking damages as a result of the injuries he sustained on the premises. The parties have stipulated that the Appellant is an invitee for purposes of this case. During discovery, one of Baptist s 30b6 designees testified that Baptist knew and was aware of a risk to its invitees who used the therapy pool. He further testified that he and other members of Baptist s staff discussed actions to take to address incidents of people slipping and falling in the lap pool area and therapy pool area. R. at 155. He testified that the timing of this discussion occurred in 2005. R at 159; approximately three years before Vivians slipped and fell on the therapy pool steps. On June 6, 2014, Baptist moved for summary judgment. On June 13, 2014, the Appellant responded to the Motion. On August 21, 2014, the trial court granted the Motion for Summary Judgment. On September 1, 2014, Vivians filed a Motion to Reconsider and explicitly raised as a basis for the Motion that Baptist had actual knowledge of a dangerous condition which caused the Appellant s injury; reasoning that if Baptist employees discussed resurfacing the therapy pool in 2005 to reduce the risk to our members, then Baptist was aware of a dangerous condition in 2005 and accordingly there was a genuine issue of fact that should preclude summary judgment. R at 200. On December 3, 2014, the Motion to Reconsider was denied. On June 7, 2016, the Mississippi Court of Appeals affirmed the grant of summary judgment and ruled that there were no non-obvious dangers of which Baptist failed to warn. 2
III. ARGUMENT A. The Appellees have merely repeated arguments already made and considered by the Court. The Motion for Rehearing should be denied. The Mississippi Rules of Appellant Procedure provide as follows: The motion shall state with particularity the points of law or fact which in the opinion of the movant the court has overlooked or misapprenhended and shall contain such argument in support of the motion as movant desires to present. The motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court. The Appellees state two reasons in support of their Motion for Rehearing. First, they state that the Court erred in finding the steps unreasonably dangerous. Second, they state that the Court erred in finding Baptist breached its duties to Vivians. See Motion for Rehearing p. 1. A cursory review of the record in this matter shows that the Appellees have already made these arguments. Baptist argued in its supplemental brief that the Court properly affirmed the trial court s grant of summary judgment given that Vivians has failed to identify the specific condition that caused his fall, much less offer any evidence that such unknown condition was reasonably dangerous. Appellee s Supplemental Brief at p. 4. The Appellees went on to argue that the Court correctly upheld summary judgment in favor of BHP as Vivians failed to come forward with sufficient evidence from which a reasonable juror could conclude that BHP breached any duty of care owed to Vivians. Id. The Appellees again argue that the multiple slips and facts discussed in the Court s opinion are not substantially similar enough to the Appellant s fall to be relevant in this case. 3
The Court s discussion on this point was very specific at it clearly shows why the multitude of slips and falls were substantially similar to pass evidentiary muster. IV. CONCLUSION The Appellees have not pointed to any specific errors of law or fact contained in this Court s opinion in a form other than arguments already previously made. They have simply repeated their arguments. The Motion for Rehearing should be denied. th RESPECTFULLY SUBMITTED, this the 18 day of July 2017. BY: BROWN LITIGATION GROUP BY:/s/ Howard R. Brown (MSB# 10631) Of Counsel BROWN LITIGATION GROUP Attorneys and Counselors at Law 125 South Congress Street Capitol Towers Bldg. Post Office Box 158 Jackson, MS 39205 Telephone (601) 360-2000 hbrown@legal-counselors.net Attorneys for Appellant 4
CERTIFICATE OF SERVICE I, Howard R. Brown, attorney for the Appellant, do hereby certify that I have this day served a true and correct copy of the above and foregoing instrument to the following: Wade G. Manor, Esq. SCOTT SULLIVAN STREETMAN FOX Post Office Box 13847 Jackson, Mississippi 39236-3847 Honorable Jeff Weill, Sr. HINDS COUNTY CIRCUIT COURT JUDGE Post Office Box 22711 Jackson, Mississippi 39225 This the 18th day of July 2017. Howard Brown Howard Brown 5