Evelyn Jackson v. Mississippi County Hospital System

Cite as 2024 Ark. App. 321
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-23-146

Opinion Delivered May 15, 2024
EVELYN JACKSON
APPELLANT APPEAL FROM THE MISSISSIPPI
COUNTY CIRCUIT COURT,
CHICKASAWBA DISTRICT
V.
[NO. 47BCV-19-221]

MISSISSIPPI COUNTY HOSPITAL HONORABLE TONYA M.
SYSTEM D/B/A GREAT RIVER ALEXANDER, JUDGE
MEDICAL CENTER, AND
MAGMUTUAL INSURANCE
COMPANY REVERSED AND REMANDED
APPELLEES

WENDY SCHOLTENS WOOD, Judge

Evelyn Jackson appeals the Mississippi County Circuit Court’s order granting

summary judgment to Mississippi County Hospital System d/b/a Great River Medical

Center (the Hospital) and dismissing her complaint for negligence. We reverse and remand

because the circuit court erred in granting summary judgment.

On September 26, 2016, while at the Hospital for a medical procedure, Jackson was

injured when she slipped and fell in some water as she exited the elevator. She sued the

Hospital for negligence, alleging that it failed to properly inspect its premises; properly

maintain its premises in a safe condition; make its premises safe for patrons; and warn its

patrons of dangerous conditions on the premises.
The Hospital moved for summary judgment, contending that it did not breach any

duty of care to Jackson. Specifically, the Hospital stated that Jackson fell on a wet floor when

she exited the elevator and that a “wet floor sign was up” when she fell. The Hospital attached

a “Confidential Report of Event/Occurrence to Hospital Attorney,” signed and dated by its

employee Joyce Pharo immediately after Jackson’s fall, and three documents detailing

Jackson’s attendance and treatment at the Hospital’s emergency room on the day of and the

day after her fall. The Hospital argued that Jackson failed to present any proof of how long

the water had been on the floor or that the water’s presence was the result of its negligence.

The Hospital also claimed that the wet floor was “open and obvious” and marked by a wet-

floor sign when Jackson fell.

Jackson responded, arguing that the Hospital’s motion was not supported by

documents allowed by Rule 56 of the Arkansas Rules of Civil Procedure because none of the

four exhibits attached to the Hospital’s motion were under oath, and all constituted hearsay.

She asked the court to strike the four exhibits. She also attached her own deposition to her

response, in which she testified that she had slipped in a “big puddle of water” that

“drenched” her “from head to toe.” She said she was not looking in the direction of the

puddle when she fell and did not see it until afterward. She said that several Hospital

employees attempted to help her up, and one told her that they had asked the “maintenance

guy” several times to get the water off the floor. She admitted, however, that she did not

know who the employees were and had no contact information for them. When asked if she

knew how the water had gotten on the floor, she said that the “building leaks.” She knew

2
this because someone told her and because she had seen “plastic and stuff in the top of the

ceiling, where it was leaking” with buckets on the floor when she had been in the building

before. She said it was not raining on the day that she fell. She also said she did not see any

warning signs near the puddle. When asked if she would disagree with hospital records

stating that there was a sign by the puddle, she testified, “I did not see it and it didn’t – it

wasn’t there.” She argued that her unrefuted testimony that she slipped in a large puddle of

water when she exited the elevator and that she did not see any warning signs creates a

question of fact, and she asked the court to deny the Hospital’s motion.

The Hospital filed a reply to Jackson’s response. First, the Hospital claimed that the

four exhibits Jackson asked the court to strike were records of regularly conducted business

activity and statements of medical diagnosis or treatment and therefore excluded from the

hearsay rule.1 The Hospital attached the affidavit of Ashley Herrington, the risk manager for

the Hospital, in which Herrington stated that exhibit A, Pharo’s report of the incident, was

a report of an event prepared on the day of the fall and that it was the regular practice of the

Hospital to complete these reports when injuries occur at the Hospital. She also stated that

the other three exhibits—Jackson’s medical records—were kept in the course of a regularly

conducted business activity and were made for the purpose of medical diagnosis or

treatment.

1
Ark. R. Evid. 803(4), (6) (2023).

3
Second, the Hospital argued that Jackson did not have firsthand knowledge of how

the water got on the floor, a wet-floor sign was posted at the time she fell, and Jackson may

not rely on inadmissible hearsay statements from unidentified hospital employees regarding

the existence of the puddle. The Hospital argued that Jackson could not show that the

presence of the water on the floor was the result of the Hospital’s negligence, how the water

got on the floor, or how long it had been there. Finally, the Hospital argued that a landowner

does not owe a duty to a business invitee if a danger is known or obvious and that its report

of the event documented that there were towels and a wet-floor sign by the water when

Jackson fell, making the danger known or obvious.

The circuit court held a hearing on the motion on June 13, 2022, and extended the

discovery deadline ninety days. During the ninety-day extension, Jackson deposed Pharo, and

the Hospital filed a supplemental reply attaching Pharo’s deposition.

Pharo testified that she had been the staffing director for the nurses and was at the

nurses’ station near the elevator at the time of Jackson’s fall. She said someone waved her

over to Jackson after the fall. When asked what caused Jackson to fall, Pharo replied,

There was water on the floor. No—there was tile—there was a leak in the ceiling. It
had been raining. The ceiling tiles were leaking. We had towels on the floor. We also
had a wet floor sign. And that’s what I’m assuming made her fall.

Pharo did not know how long the towels had been on the floor “because it was a—it was a

steady leak from the ceiling.” When asked whether this area leaked every time it rained,

Pharo said that some areas did leak, and she was not sure if this area had leaked before. She

4
also was not sure if it had rained on the day of the fall or the day before. She said that she

contacted the risk-management department after the fall. According to Pharo,

[W]e got someone to come and make sure the towels were up and make sure the
mop—we mopped up—there was water on the floor, it was mopped up. Put a container
there to keep the water in to contain the leak.

On October 10, the circuit court held another hearing during which it denied

Jackson’s motion to strike the Hospital’s four exhibits attached to Herrington’s affidavit and

granted the Hospital’s motion for summary judgment. The court stated that Jackson failed

to establish there was a recurring leak where she fell. The court then specifically found that

the Pharo’s testimony coupled with the record Pharo submitted at the time of the incident

“established that there were towels and a warning sign in the area before Jackson fell.” The

court noted that it had “encountered such warning signs in use by other property owners.”

Finally, the court concluded that Jackson failed to present evidence demonstrating that the

Hospital breached its duty of ordinary care to her. On appeal, Jackson challenges both the

circuit court’s denial of her motion to strike the Hospital’s exhibits and its grant of the

Hospital’s motion for summary judgment.

We first address Jackson’s argument that the court erred when it failed to strike the

Hospital’s four exhibits attached to Herrington’s affidavit: a report of the event signed and

dated by Pharo immediately after Jackson’s fall and three documents detailing Jackson’s

attendance and treatment at the Hospital’s emergency room on the day of and the day after

the incident. On appeal, Jackson relies on cases holding that hearsay that is not admissible

at trial may not be considered in a summary-judgment analysis. She also argues that the

5
exhibits attached to the Hospital’s original motion for summary judgment “were not properly

supported or verified and were outside of the requirements of Rule 56.”

The Hospital argues that, although the exhibits were initially filed without an

affidavit, its reply remedied the hearsay objection, which included the sworn testimony of

Herrington, the risk manager for the Hospital, stating that Pharo’s report of the incident was

a report of an event prepared on the day of the fall and that it was the regular practice of the

Hospital to complete these reports when injuries occur at the Hospital. Herrington also

stated that the other three exhibits—Jackson’s medical records—were kept in the course of a

regularly conducted business activity and were made for the purpose of medical diagnosis or

treatment. When it submitted the reply with Herrington’s affidavit, the Hospital argued that

the documents are exceptions to hearsay under the medical-diagnosis-or-treatment and

business-records exceptions. See Ark. R. Evid. 803(4), (6). The court’s denial of Jackson’s

motion suggests it agreed.

In an affidavit, a court may consider hearsay evidence that may be subject to a hearsay

exception. Holt Bonding Co. v. First Fed. Bank of Ark., 82 Ark. App. 8, 13, 110 S.W.3d 298,

302 (2003). Jackson does not respond to the argument that the affidavit established a

foundation for excepting the documents from hearsay. She simply argues that the Hospital

should not have been able to submit an affidavit authenticating the documents and excepting

them from hearsay. She cites no authority for this argument, and the law is otherwise.

Arkansas Rule of Civil Procedure 56 allows the moving party to serve “a reply and supporting

materials” within fourteen days after the response. Ark. R. Civ. P. 56(c)(1). Here, the Hospital

6
filed its reply two days after Jackson filed the response. Therefore, we reject Jackson’s

argument regarding the court’s denial of her motion to strike the exhibits.

For her second point on appeal, Jackson challenges the circuit court’s entry of

summary judgment. Summary judgment is to be granted by a circuit court only when it is

clear that there are no genuine issues of material fact to be litigated, and the party is entitled

to judgment as a matter of law. Tillman v. Raytheon Co., 2013 Ark. 474, at 6, 430 S.W.3d

698, 703. The moving party always bears the burden of sustaining a motion for summary

judgment. Sherrill v. Rika Props., LLC, 2020 Ark. App. 420, at 4–5. All proof must be viewed

in the light most favorable to the resisting party, and any doubts must be resolved against

the moving party. Id. On appellate review, we determine if summary judgment was

appropriate on the basis of whether the evidentiary items presented by the moving party in

support of the motion leave a material question of fact unanswered. Id. Summary judgment

is not proper when the evidence reveals aspects from which inconsistent hypotheses might

reasonably be drawn and reasonable minds might differ. Shook v. Love’s Travel Stops & Country

Stores, Inc., 2017 Ark. App. 666, at 3, 536 S.W.3d 635, 637. We have further stated that

summary judgment should not be granted when reasonable minds could differ as to the

conclusions that can be drawn from the facts presented. Sherill, 2020 Ark. App. 420, at 4.

The standard is whether the evidence is sufficient to raise a factual issue, not whether the

evidence is sufficient to compel a conclusion. Id. at 5.

In order to prevail on a claim of negligence, the plaintiff must prove that the

defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the

7
breach was the proximate cause of the plaintiff’s injuries. Yanmar Co., Ltd. v. Slater, 2012

Ark. 36, at 16, 386 S.W.3d 439, 449. Because the question of what duty is owed is one of

law, we review it de novo. Lloyd v. Pier W. Prop. Owners Ass’n, 2015 Ark. App. 487, at 4, 470

S.W.3d 293, 297.

The parties do not dispute that Jackson was an invitee. A property owner owes a duty

to an invitee to use ordinary care to maintain the premises in a reasonably safe condition.

Van DeVeer v. RTJ, Inc., 81 Ark. App. 379, 385, 101 S.W.3d 881, 884 (2003). To prevail in

a slip-and-fall case, one must show either (1) that the presence of a foreign substance on the

premises was the result of the owner’s negligence or (2) that the foreign substance had been

on the premises for such a length of time that the owner knew or reasonably should have

known of its presence and failed to use ordinary care to remove it. Cowan v. Ellison Enters.,

Inc., 93 Ark. App. 135, 143, 217 S.W.3d 175, 180 (2005). If the slippery condition is not

the result of an isolated incident but instead, a recurring one, the question is simply whether

the business owner used ordinary care to keep his premises free from dangerous conditions

likely to cause injury to invitees. Id. at 144, 217 S.W.3d at 180. The duty to warn an invitee

of a dangerous condition applies only to defects or conditions that are in the nature of

hidden dangers, traps, snares, pitfalls and the like, in that they are known to the invitor but

not known to the invitee and would not be observed by the latter in the exercise of ordinary

care. Shook, 2017 Ark. App. 666, at 3–4, 536 S.W.3d at 637–38.

However, a property owner generally owes no duty to a business invitee if the

condition of the premises that creates the danger was known by or obvious to the invitee.

8
Van DeVeer, 81 Ark. App. at 384, 101 S.W.3d at 884. This is also sometimes referred to as

the “open-and-obvious exception” or the “obvious-danger rule.” See Duran v. Sw. Ark. Elec.

Coop. Corp., 2018 Ark. 33, at 10, 537 S.W.3d 722, 728; Robinson v. Quail Rivers Props., LLC,

2022 Ark. App. 409, at 5, 654 S.W.3d 690, 693. “Known” in this context means “not only

knowledge of the existence of the condition or activity itself, but also appreciation of the

danger it involves.” Van DeVeer, 81 Ark. App. at 386, 101 S.W.3d at 884. “Thus, the

condition or activity must not only be known to exist, but it must also be recognized that it

is dangerous, and the probability and gravity of the threatened harm must be appreciated.”

Id., 101 S.W.3d at 885. A dangerous condition is “obvious” when “both the condition and

the risk are apparent to and would be recognized by a reasonable man, in the position of the

visitor, exercising ordinary perception, intelligence, and judgment.” Id., 101 S.W.3d at 885

(quoting Restatement (Second) of Torts § 343 (1965)).

The circuit court’s order of summary judgment was based, in part, on its conclusion

that towels and a warning sign were near the puddle of water that caused Jackson to slip and

fall. To reach this conclusion, the court had to make a credibility finding as to Jackson’s

testimony that she did not see any signs near the puddle and her specific disagreement with

the incident report stating otherwise: “I did not see it and it didn’t – it wasn’t there.” No

photographs or video of the area where Jackson fell were in evidence showing whether there

were signs posted. Moreover, assuming that there were towels and a sign, Jackson testified

that she did not see them. The Hospital had a duty to warn Jackson of hidden dangers known

to it but not known to her that would not have been observed by her in the exercise of

9
ordinary care. A dangerous condition is “obvious” when “both the condition and the risk

are apparent to and would be recognized by a reasonable man, in the position of the visitor,

exercising ordinary perception, intelligence, and judgment.” Van DeVeer, 81 Ark. App. at

386, 101 S.W.3d at 885. Although the Hospital argues that any dangerous condition was

“obvious” because of the sign it had posted, whether it did is disputed on this record.

Summary judgment is not proper where it is necessary to weigh the credibility of

statements to resolve these issues. Wade v. Bartley, 2020 Ark. App. 136, at 9, 596 S.W.3d

555, 561. We must view the evidence in the light most favorable to Jackson at this stage,

resolving all doubts and inferences against the Hospital. On the record before us, fact

questions remain about whether the alleged danger was open and obvious or if the Hospital

properly warned Jackson of a condition known to it but not—in the exercise of ordinary

perception, intelligence, and judgment—known to her. Shook, 2017 Ark. App. 666, at 4, 536

S.W.3d at 638.

The circuit court also found that Jackson failed to “establish” that there was a

recurring leak where she fell. However, Jackson testified that she slipped in a “big puddle of

water” that “drenched” her “from head to toe.” The Hospital presented no evidence to

suggest what caused this puddle of water. The only theory was that it came from a leak in the

ceiling. Jackson said that “the building leaks.” She knew this because someone told her and

because she had seen “plastic and stuff in the top of the ceiling, where it was leaking” with

buckets on the floor when she had been in the building before the incident. Pharo also

testified about a leak and said there was “a steady leak from the ceiling” in the area where

10
Jackson fell. When asked whether this area leaked every time it rained, Pharo said that some

areas did leak, and she was not sure if this area was one of them.

The combined testimony of Jackson and Pharo creates a question of fact on the issue

of whether there was a recurring leak in the area where Jackson fell. Therefore, viewing this

evidence in the light most favorable to Jackson, we hold that the circuit court’s finding that

there was not a recurring leak in the ceiling in the area where Jackson fell is premature.

Accordingly, we reverse and remand.

Reversed and remanded.

ABRAMSON and GRUBER, JJ., agree.

Don R. Etherly, for appellant.

Spicer Rudstrom, PLLC, by: Cameron Watson; and Edd L. Peyton, pro hac vice, for

appellees.

11