Kirkley v. FORREST COUNTY GENERAL HOSP.

991 So. 2d 652, 2008 WL 4307984
CourtCourt of Appeals of Mississippi
DecidedSeptember 23, 2008
Docket2007-CA-00746-COA
StatusPublished
Cited by5 cases

This text of 991 So. 2d 652 (Kirkley v. FORREST COUNTY GENERAL HOSP.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirkley v. FORREST COUNTY GENERAL HOSP., 991 So. 2d 652, 2008 WL 4307984 (Mich. Ct. App. 2008).

Opinion

991 So.2d 652 (2008)

Jamie L. KIRKLEY, Appellant
v.
FORREST COUNTY GENERAL HOSPITAL, a Political Subdivision of the State of Mississippi, Appellee.

No. 2007-CA-00746-COA.

Court of Appeals of Mississippi.

September 23, 2008.

*654 David L. Sullivan, Gulfport, Daniel Kyle Robertson, attorneys for appellant.

R. Christopher Wood, James K. Dukes, Hattiesburg, attorneys for appellee.

Before MYERS, P.J., IRVING and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. Jamie L. Kirkley filed suit in the Circuit Court of Forrest County against her employer's landlord, Forrest County General Hospital (Forrest General), seeking damages for personal injuries that she sustained at her place of employment when she fell from a table while attempting to unplug a hot water heater from an electrical outlet situated approximately six feet from the floor. Kirkley alleged that Forrest General was negligent in its maintenance and repair of the room in which she was injured.

¶ 2. After a bench trial on the matter, the trial court entered a judgment in favor of Forrest General. Kirkley's post-trial motions were denied. Aggrieved, Kirkley appeals and raises the following issues:

I. Whether the trial court's findings of fact are against the overwhelming weight of the evidence.
II. Whether the trial court erred when it applied the assumption of risk doctrine.
III. Whether the trial court erred in failing to apply Mississippi's landlord/tenant law.
IV. Whether the trial court erred in applying principles of premises liability.

For the reasons explained below, we find no error and affirm.

FACTS

¶ 3. In August or September 1997, Kirkley began working as a dental assistant for Dr. Brad Holifield, D.D.S., in Hattiesburg, *655 Mississippi. In 1991, prior to Kirkley's employment with Dr. Holifield, Dr. Holifield leased suite 106 in a medical plaza from Forrest General for use in his dental practice. Under the terms of the lease agreement, Forrest General agreed to provide services and utilities including "hot and cold running water, electricity, sewerage, heat and air conditioning...." The lease agreement also contained a provision regarding maintenance and repair that provided in part:

Lessor shall, at its sole risk, cost and expense, make such repairs and perform such maintenance to the demised premises, and to the building as a whole, as may be necessary during the term of this lease agreement; provided, however, this contemplates repairs arising only from the ordinary and reasonable use of the demised premises....
[I]f the Lessee claims there is a defect in the demised premises or in any of the fixtures or any article of equipment therein or in the building containing the demised premises, whether caused by the Lessor or otherwise, then the Lessee shall give prompt written notice to the Lessor, and a reasonable opportunity shall be given to the Lessor to remedy the condition set forth in said notice. Failure to give such notice shall be construed as a waiver of such condition or defect and of any and all claims that the Lessee has been evicted wholly, partly or constructively from the demised premises; provided, however, the provisions contained in this paragraph are not to be construed as an increase of the Lessor's duties and obligations hereunder.

¶ 4. Adjacent to suite 106 was a "mechanical room," which was not a part of Dr. Holifield's leasehold premises. The mechanical room, which housed a hot water heater, was used by Forrest General's maintenance staff as a storage room. For several years prior to the incident at issue, Dr. Holifield and his employees used the mechanical room to house a dental vacuum pump (or a "suction unit"); this use was made with the knowledge of and without objection from Forrest General. The mechanical room had only two electrical outlets. One outlet was used to service the hot water heater; this outlet was situated approximately one foot above the hot water heater—approximately six feet above the floor. The other outlet was used to service Dr. Holifield's suction unit; this outlet was situated approximately one foot above the floor.

¶ 5. In 1994 or 1995, Dr. Holifield decided that he needed a stacked washer/dryer to wash and dry towels that were used during surgery. Accordingly, he purchased a stacked washer/dryer unit, which was installed in the mechanical room.[1] Thus, there were two outlets available in the mechanical room to service three appliances: a hot water heater, a suction unit, and a stacked washer/dryer unit. This arrangement was problematic because only two of the three appliances could operate simultaneously.

¶ 6. At first, Dr. Holifield and his assistants plugged the washer/dryer unit into the outlet used to service the suction unit when the suction unit was not in use. However, sometime later, Dr. Holifield's practice expanded, and another dentist, Dr. John Robinson, joined the practice. According to Dr. Holifield, it then became necessary for the suction unit to be in operation "at all times." Consequently, the outlet used to service the hot water heater became the preferred source of electricity to operate the washer/dryer unit. The hot water heater was located *656 approximately ten feet from the washer/dryer unit. As a result of this arrangement, an extension cord was needed to plug the washer/dryer unit into the outlet used to service the hot water heater. Forrest General employees supplied an extension cord to Dr. Holifield. Because this outlet was located approximately six feet above the ground, Dr. Holifield's dental assistants developed a routine practice of standing on a three-foot-tall work table in order to reach the outlet to unplug the hot water heater and plug in the washer/dryer unit.

¶ 7. In August or September 1997, Kirkley began working as a dental assistant for Dr. Holifield. As a dental assistant, her duties included, among other things, washing and drying the patient towels in the stacked washer/dryer unit; she performed this task once or twice a week.

¶ 8. Sometime in 1998, Dr. Holifield contacted Forrest General, explained the situation, and requested that an additional outlet be installed in the mechanical room as a more convenient means of plugging in the washer/dryer unit. The installation of an additional outlet required the installation of an additional breaker panel. Forrest General's maintenance staff began installing the additional breaker panel; however, the project was not completed.[2] Therefore, Kirkley and Dr. Holifield's other assistants continued to climb onto the work table in order to unplug the hot water heater and plug in the washer/dryer unit.

¶ 9. On May 7, 1999, Kirkley climbed onto the work table to unplug the hot water heater and plug in the washer/dryer unit. According to Kirkley, the table was cluttered with "stuff," and she only had enough room to put one foot on the table. As Kirkley stood on the table and reached behind the hot water heater, she felt "a little shock," lost her balance, fell from the table, and landed on her shoulder. She suffered a posterior labral tear in her shoulder that required surgery. As to the "little shock," Kirkley testified that "[i]t wasn't an electrocution or anything like that. It was just like a hard static shock." She further described the shock as follows: "It's almost like if you were getting out of your car and touched your car and it shocked and you kind of jerk."

¶ 10.

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Cite This Page — Counsel Stack

Bluebook (online)
991 So. 2d 652, 2008 WL 4307984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkley-v-forrest-county-general-hosp-missctapp-2008.