Timothy Vivians v. Baptist Health Plex, 234 So. 3d 304

Plaintiff Timothy Vivians slipped on the steps entering the therapy pool at Baptist Healthplex on Feb. 12, 2008, injuring his shoulder and later requiring treatment; he sued for premises liability.
Vivians produced multiple incident reports (2005–2010), including five post-accident reports describing other patrons slipping on the therapy-pool steps.
Baptist Healthplex moved for summary judgment; the trial court and Court of Appeals granted/affirmed summary judgment for Baptist, finding insufficient proof of a dangerous condition and lack of substantial similarity among incidents.
Vivians designated medical experts to link his injuries to the fall; Baptists produced evidence that safety measures (replastering, handrail wrapping) had been implemented at some point.
The Mississippi Supreme Court granted certiorari, applied de novo review, and found genuine issues of material fact as to (1) whether the steps were an unreasonably dangerous condition and (2) whether Baptist breached its duty to maintain/repair, reversing and remanding.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the therapy-pool steps constituted an unreasonably dangerous condition	Vivians: multiple similar slip incidents on the same steps create a genuine issue of dangerousness	Baptist: wet/shallow pool steps are obviously slippery; no evidence of an unusual defect or non-obvious danger	Court: Evidence of multiple similar incidents is sufficient to create a genuine issue of material fact about a dangerous condition; reversed and remanded
Admissibility/weight of subsequent accident reports (substantial similarity)	Vivians: five subsequent slips on same steps are substantially similar and probative	Baptist: circumstances not shown to be substantially similar; isolated falls do not prove defect	Court: Subsequent incidents on the same steps (some while holding rail, some causing injury) are substantially similar enough to create a jury question
Duty to warn vs. duty to maintain/repair (open-and-obvious issue)	Vivians: claim focuses on failure to maintain/repair, not only failure to warn; open-and-obvious does not bar maintenance claim	Baptist: hazard was open and obvious; no duty to warn or repair absent proof of unusual defect	Court: Open-and-obvious may negate a duty to warn, but does not bar a claim that defendant negligently failed to repair; jury must decide maintenance negligence

Mayfield v. The Hairbender, 903 So.2d 733 (Miss. 2005) (distinguishes duty to warn from duty to maintain and holds open-and-obvious does not bar maintenance claims)
Tharp v. Bunge Corp., 641 So.2d 20 (Miss. 1994) (rejects open-and-obvious as absolute defense; places burden to remediate obvious hazards on landowner)
Hartford Ins. Grp. v. Massey, 216 So.2d 415 (Miss. 1968) (trial court has discretion to admit evidence of subsequent acts if conditions are substantially similar)
Munford, Inc. v. Fleming, 597 So.2d 1282 (Miss. 1992) (plaintiff must show proprietor had actual or constructive knowledge of dangerous condition or created it)
Whitaker v. Limeco Corp., 32 So.3d 429 (Miss. 2010) (summary judgment review is de novo; view evidence in the light most favorable to nonmoving party)