IN THE SUPREME COURT OF MISSISSIPPI CAUSE NO CA FOREST COUNTY GENERAL HOSPITAL

Transcription

1 IN THE SUPREME COURT OF MISSISSIPPI JAMIE L. KIRKLEY VERSUS FOREST COUNTY GENERAL HOSPITAL APPELLANT CAUSE NO CA APPELLEES ON APPEAL FROM THE CIRCUIT COURT OF FORREST COUNTY, MISSISSIPPI CIVIL ACTION NO.CI BRIEF OF APPELLEES ORAL ARGUMENT NOT REQUESTED JAMES K. DUKES STATE BAR N O W R. CHRISTOPHER WOOD, ESQ. DUKES, DUKES & WOOD STATE BAR NO.- DUKES, DUKES & WOOD POST OFFICE BOX 2055 HATTIESBURG, MS ( ); FAX: (601)

2 IN THE SUPREME COURT OF MISSISSIPPI JAMIE L. KIRKLEY VERSUS FOREST COUNTY GENERAL HOSPITAL APPELLANT CAUSE NO CA APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court andlor the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Honorable Robert B. Helfrich, Circuit Judge, 12" Judicial District 2. Honorable James K. Dukes, Attorney for Forrest General Hospital 3. Honorable R. Christopher Wood, Attorney for Forrest General Hospital 4. Honorable David Sullivan, Attorney for Plaintiff 5. Honorable Kyle Robertson, Attorney for Plaintiff 6. Ms. Jamie L. Kirkley, Plaintiff 7. Mr. William C. Oliver, President of Forrest General Hospital This lop day of January, R~spectfully submitted, A JAMES K. DUKES, STATE BAR NO. m R. CHRISTOPHER WOOD, ESQ., STATE BAR NO. DUKES, DUKES & WOOD POST OFFICE BOX 2055 HATTIESBURG, MS ( ); FAX: (601)

3 TABLE OF CONTENTS.. Table of Authorities... i.1~ Statement of the Issues... 1 Statement of the CaseIStatement of Facts... 2 Summary of the Argument... 7 Argument... 9 Conclusion Certificate of Service... 16

4 TABLE OF AUTHORITIES CASES: Alexander v. Conveyors &Dumpers. Znc F.2d (5th (3.1984) Bell v. Parker. 563 So.2d 594 (Miss.1990)... 9 Brown v. Williams. 504 So.2d (Miss.1987)... 9 Bryan v. Holzer. 589 So.2d 648 (Miss.1991)... 9 Bryant v. Nealey. 599 F.Supp. 248, 250 (N.D.Miss.1984) City of Jackson v. Internal Engine Parts Group. Inc. 903 S0.2d 60, *63 (Miss.,2005)... 9 City of Jackron v. Perry, 764 So.2d 373, 376 (Miss.2000)... 9 Cotton v. McConnell. 435 So.2d 683, 685 (Miss.1983)... 9 Elias v. New Laurel Radio Station, 245 Miss. 170, 146 So.2d 558 (1952)... 7, 10 Herod v. Grant. 262 So.2d 781 (Miss. 1972) Huffman v. Walker Jones Equipment Co., Znc. 658 So.2d 871 (1995). * (Mk.1995) Jackson Ready-Mix Concrete v. Sexton 235 So.2d 267. *271 (Miss.1970) Jones v. Millsaps. 71 Miss So L.R.A Kelley v. Sportsmen's Speedway. Znc Miss So.2d 785 (1955) Langford v. Mercurio. 254 Miss So.2d (1966) Rich v. Swalm. 161 Miss So. 325 (1931) Sample v. Haga 824 So.2d 627. *63074 (Miss.App..2001) Shurley v. Hoskins. 271 So.2d 439, 443 (Miss.1973) Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 133, 875 P.2d 621 (1994) Tricon Metal v. Topp. 516 So.2d 236, 238 (Miss.1987)... 9

5 TABLE OF AUTHORITIES. cont 'd. Wilbourn v. Hardin 234 So.2d 606, "61 1 (Miss. 1970) Wright v. Caffey. 239 Miss So.2d 841 (1960) Yarbrough v. Camphor 645 So.2d 867. *869 (Mk.1994)... 9 SECONDARY SOURCES: 57 Am.Jur.2d Negligence (1989) C.J.S., Landlord and Tenant Prosser, Torts s 67 at (3d ed. 1964) Prosser, Law of Torts section 55 (2d ed. 1941) Restatement (Second) of Torts sec. 342 (1965)... 13

6 STATEMENT OF THE ISSUES Issue 1: Whether the application of the assumption of risk doctrine by the trial court was appropriate and in conformity with the laws of the State of Mississippi. Issue 2: Were the actions of Forrest General Hospital negligent?

7 STATEMENT OF THE CASE Jamie L. Kirkley filed her Complaint July 27, 2001 alleging that she is entitled to compensation over and above the Workers' Compensation payments paid to her as a result of an injury which she sustained while an employee of Dr. Brad Holifield on May 7,1999, at the Medical Plaza Building, a medical office building leased and managed by Forrest General Hospital. After a bench trial before thehonorablerobert Helfrich, Circuit Court Judge for Forrest County, judgment was rendered in favor of Forrest General Hospital on January 2,2007 dismissing the Complaint of Jamie L. Kirkley with prejudice. (RE 7-16) Jamie L. Kirkley's Motion for a New Trial andlor Motion to Amend Findings of Fact and Conclusions of Law and Motion to Direct the Entry of anew Judgment Pursuant to Rule 59 MRCP was overruled on April 5,2007. (RE 5) Jamie L. Kirkley thereafter appealed to the Mississippi Court of Appeals on STATEMENT OF THE FACTS Brad Holifield, D.D.S., P.A. entered into amedical Plaza Lease Agreement on the 1" day of September, 1991, for the lease of Suite 106, Medical Plaza Building. The initial term of the Lease Agreement was for a term of one (1) year. It has been stipulated by testimony that by "implied agreement" the Lease was in effect at the time of the incident complained of by Ms. Kirkley. The diagram of Suite 106 attached to the Lease Agreement (RE 17) designated an adjacent area as mechanical room. The trial testimony of Dr. Holifield (T-8, lines 17-18) was that the mechanical room was not part of Dr. Holifield's leasehold premises, but was, at best, "common area." Mr. William Oliver, President of Forrest General Hospital, testified that "we're not leasing that square footage" to Dr. Holifield. (T-226,lines7-10) [NOTE: Mr. Oliver's response was in reference to an inquiry regarding the "common area", i.e. the mechanical room.] In 1994, Dr. Holifield installed a stacked washertdryer in the mechanical room adjacent to 2

8 his leased Suite. (T -38, line 19) In 1997, Ms. Kirkley was employed by Dr. Holifield as a dental assistant. One of duties of the dental assistant was to wash and dry towels that were used in Dr. Holifield's dental practice. The washerldryer required a 220V outlet. If the washerldryer was unplugged, Ms. Kirkley would have to plug in the washerldryer into an outlet using an extension cord. In order to reach the outlet, Ms. Kirkley would have to step up on a table. Dr. Holifield testified that customarily the washerldryer was only used once a week. Dr. Holifield gave the following testimony under direct examination by Mr. Dukes: (T-44, lines 13-27) And you told me that the situation regarding the plugs and even having to get on the table and reach through, that you didn't consider it dangerous, but it was inconvenient; is that right? It was definitely inconvenient. In retrospect, it seems like it might be dangerous now. But you didn't consider it dangerous then? No, I didn't. And you knew that the employees were doing whatever they had to do to change these plugs around? Yeah. And you didn't attempt to stop that, did you? No. Despite Paragraph 7 ofthe Medical PlazaBuilding Lease Agreement requiring writtennotice by the Lessee to the Lessor of any defect in the premises, as stated below: "In the event that the demised premises or any part thereof are rendered untenable or if the Lessee is deprived of the use of the demised premises by any cause whatsoever, or if the Lessee claims there is a defect in the demised premises or any of the fixtures of any article

9 of equipment therein or in the building containing the demised premises, whether caused by the Lessor or otherwise, the Lessee shall give prompt written notice to the Lessor, [emphasis added] and a reasonable opportunity shall be given to the Lessor to remedy the conditions set forth in said notice. Failure to give such notice shall be construed as a waiver of such condition or defect, and any and all claims that devisee has been evicted wholly, partly, or constructively from the demised premises." [emphasis added] Dr. Holifield testified as follows: (T-41 line 29,42 lines 1-2) Q: Did you ever give any written notice pursuant to that provision? A: No. Jamie Kirkley's testimony is that she fell and injured herself on Friday, May 7, 1999 while unplugging the washeddryer and plugging in the hot water heater,. On cross examination by Mr. Dukes, Ms. Kirkley testified as follows: (T-162, lines 20-29) Q: And how many times prior to May 7, 1999, would you say that you plugged and unplugged the washerldryer, hot water heater, etc? A: At least once a week, sometimes twice a week for two years. Q: Okay. Well, if there are 52 weeks in a year and you're talking about a year and nine months, you're talking about roughly at least 80 times, or maybe if you had to do it twice. A: I said I had to do it twice because I had to climb up there to unplug the hot water heater to plug the washerldryer in, and then I had to climb back up there on the same day to unplug the washing machine and dryer and replug in the hot water heater. Ms. Kirkley further testified (T-164, line 29) Q: And based upon what you testified earlier, it was open and obvious, that it was not

10 a convenient way to do what you had to do; is that correct? A: That is correct. Subsequent to Ms. Kirkley's injury she was seen by several physicians and health care providers.' Repeated references were made by Ms. Kirkley's physicians regarding her lack of diligence in pursuing her recovery. Dr. Felix Savoie performed an arthroscopic repair of capsule on Ms. Kirkley at River Oaks Hospital on August 19,1999. On September 22,2000, Dr. Savoie noted in his office notes (Bates 32) that "She's actually doing alot better. Ln his November 28,2000 office notes (Bates 35), Dr. Savoie noted the following: "Objectively, we couldn't ask her to do any better. Subjectively she hurts every day. I think that she can be released at maximum medical improvement with no permanent restrictions or limitations with a 10% impairment of the shoulder based on AMA Guide to Permanent Impairment... I think if she ever could get her exercise going, she'd do better." On December 11,2001, in an office note (Bates 41), Dr. Savoie wrote the following: "I think if she would every put true effort out into exercising, she would get better. She is not interested in doing that, just mostly interested in complaining about it, so there is not much we can do to help with this... She doesn't want to do her exercises, and I don't think she's ever going to get better until she does...." In her trial testimony Ms. Kirkley admitted that she was instructed to continue exercising. (T-135, lines 20-29; 142, lines 21-23; 145 lines 13-19; 180 lines 3-6; 183, lines 2-6) Ms. Kirkley testified at trial that except for her claim of $4, in medical expenses and Dr. Douglas Rouse, Southern Bone; Dr. John McGraw, South Central Regional Medical Center; Dr. Turnbull, Laurel Bone and Joint Clinic; Dr. Felix Savoie, Mississippi Sports Medicine; Dr. Lance Line, Southern Bone and Joint Specialties, P.A.; Joey Cooley, Physical Therapist, Laurel Physical Therapy; Dr. Thomas Sturdivant, Hattiesburg Clinic

11 $3,040. in lost wages, Workmen's Compensation has paid sixty-two (62) weeks of temporary total disability employment benefits (T-152, lines 4-29) and approximately $45, in medical expenses. (T-155, lines 19-29)

12 SUMMARY OF THE ARGUMENT Assumption of Risk by Jamie L. Kirkley Plaintiff, by her own testimony, satisfied each of the elements of assumption of risk enumerated in Huffman v. Walker Jones Equipment Co., Inc. 658 So.2d 871 (1995), * (Miss.,1995): (1) knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition... Appellant takes the position in quoting Elias v. New Laurel Radio Station, 245 Miss. 170, 146 So.2d 558 (1952) "that the assumption of risk doctrine... has no application where a continued exposure to risk is due to... or is the result of influence, circumstances, or surroundings which are a real inducement to continue." Appellant argues that Ms. Kirkley's continued employment with Dr. Holifield constituted the type of relationship between Ms. Kirkley and her employer that would negate the "assumption ofrisk" defense put forth by Forrest General Hospital based upon the citation from Elias. It is pure assumption on the part of Appellant to take the position that Ms. Kirkley would have been terminated by Dr. Holifield for refusing to put herself in danger. At no time was it represented by either Jamie Kirkley or Dr. Holifield that Ms. Kirkley's employment would be terminated if she rehsed to plug and unplug the washerld~yer. Forrest General Hospital would agree that Ms. Kirkley's injuries, if any, were related to her employment with Dr. Holifield. The Workmen's Compensation Act affords the exclusive remedy as between employers and employees. Plaintiff received compensation from the Workmen's Compensation Commission for her injuries, which included medical payments as well as disability employment benefits. Forrest General Hospital had no influence or control over Plaintiffs actions and/or inactions with regard to her 7

13 employment and the use of the electrical outlet in the mechanical room. Was Forrest General Hospital Negligent? The pivotal issue determined by the Circuit Court is the issue of whether Forrest General Hospital's actions were negligent, and the duty owed by Forrest General Hospital, as Lessor, to Plaintiff as an employee of a Lessee. Jamie Kirkley is to be considered a licensee of Forrest General Hospital as no benefit was derived by Forrest General Hospital by Ms. Kirkley's employment by Dr. Holifield. A Licensee is one who enters upon the property of another for his own convenience, pleasure or benefit. As Lessor, Forrest General Hospital's duty to any licensee was to keep its premises in a reasonably safe condition, which it did. The electrical outlet was not defective. The electrical extension cord was not defective. The table on which Ms. Kirkley stood was not defective. There was no failure to repair. There were no hidden dangers in this case. Forrest General Hospital had no duty to warn of open and obvious dangers, if any; however there were none. Forrest General Hospital did not breach any duty owed to Ms. Kirkley. None of the actions of Forrest General Hospital would constitute negligence with regard to Plaintiff. Despite the Appellant's argument that the condition of the electrical plug was a "dangerous condition," this was refuted by Dr. Holifield's testimony. (T-44, lines 13-27)

14 ARGUMENT Standard of Review The standard of review for a judgment following a bench trial is as follows: "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence." City of Jackson v. Perry, 764 So.2d 373,376 (Miss.2000), as cited in City of Jackron v. Internal Engine Parts Group, Inc. 903 So.2d 60, *63 (Miss.,2005), and as cited in Yarbrough v. Camphor 645 So.2d 867, *869 (Miss.,1994): "Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based upon substantial evidence, the court must be manifestly wrong." Tricon Metal v. Topp, 5 16 So.2d 236,238 (Miss.1987); Brown v. Williams, 504 So.2d 1188,1192 (Miss.1987). This Court must examine the entire record and accept: that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact, must be accepted. Cotton v. McConnell, 435 So.2d 683,685 (Miss.1983). Finally, when the trial judge sits as the finder of fact, he has the sole authority for determining the credibility ofwitnesses. Bryan v. Holzer, 589 So.2d 648 (Miss.1991); Bell v. Parker, 563 So.2d 594 (Miss.1990) To avoid apoint-by-point rebuttal ofappellant's enumeration of errors by the Circuit Court, Appellee will begin by excluding from the discussion Ms. Kirkley's medical history, which only becomes relevant if the case is remanded, and Appellee will not address the intricacies of plugging and unplugging various equipment located in the mechanical room. Assumotion of Risk "It has been well established in this State that shouldering the burden of assumption of the risk doctrine requires a showing of the following elements:

15 (1) knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition... Herod v. Grant, 262 So.2d 781 (Miss. 1972); Elias v. New Laurel Radio Station, Inc., 245 Miss. 170, 146 So.2d 558 (1962). Huffman also cites the following in support of her contention: Shurley v. Hoskins, 271 So.2d 439, 443 (Miss.1973) (assumption of the risk involves a mental state of willingness to deliberately venture forth into a situation containing dangers which are hlly known and appreciated); Bryant v. Nealey, 599 F.Supp. 248,250 (N.D.Miss.1984) (in order to amount to assumption of the risk, the plaintiffs conduct must be venturous, as opposed to merely careless); Alexander v. Conveyors &Dumpers, Inc., 731 F.2d 1221, 1224 (5th Cir.1984) (the injured party's conduct must be judged in the light of his own knowledge rather than what he "should have known."); 57 Am.Jur.2d Negligence (1989) ("the question is not whether the plaintiff should have realized the risk, which would be the issue in determining negligent conduct, but rather whether the plaintiff in fact realized the risk. A knowledge of general danger is not sufficient to warrant an instruction on the defense of assumption of risk. One assumes the risk only ofknown specific perils. Mere knowledge of the fact that injury might result without appreciation of the risk is insufficient.")." Huffman v. Walker Jones Equipment Co., Inc. 658 So.2d 871 (1995), * (Miss.,1995) In Langford v. Mercurio, 254 Miss. 788, 802, 183 So.2d 150, 156 (1966) this Court said: In Prosser, Torts s 67 at (3d ed. 1964), it is pointed out: 'By entering freely and voluntarily into any relation or situation which presents obvious danger, the plaintiff may be taken to accept it, and to undertake to look out for himself and relieve the defendant of responsibility. * * * Furthermore, a plaintiff who has been for a substantial length of time in the immediate vicinity of a dangerous situation will be taken to have discovered and to

16 understand the normal, ordinary risks involved in that situation, such as the danger of trains in motion in a railroad yard, or of standarized obstructions near the track. Once the plaintiff fully understands the risk, the fact that he has momentarily forgotten it will not protect him. (Id. at 463.)' In Prosser, Law of Torts section 55 (2d ed. 1941), it is stated: (T)he plaintiff cannot be heard to say that he did not comprehend a risk which must have been obvious to him. * * * (W)here it is clear that any person of normal intelligence in his position must have understood the danger, the issue must be decided by the court. Jackson Ready-Mix Concrete v. Sexton 235 So.2d 267, *271 (Miss.1970) The electrical outlet, the extension cord, and the table were not defective and did not present a hazardous condition. The hazardous condition was the act of climbing on the table by Ms. Kirkley. Two offorr&t General Hospital's maintenance personnel were aware oftherequest for anew outlet, but it has not been shown that Dr. Holifield's request was urgent. In fact, the electrical extension cord had been in use prior to the employment of Ms. Kirkley. Had Dr. Holifield considered the situation dangerous, he could have pursued his request in writing to the superiors of Forrest General Hospital. Dr. Holifield at no time followed the proper procedure, i.e., written notice to the Lessor, requesting work to be performed in the maintenance room. Alternatively, Dr. Holifield could have made the additions to the electrical outlets at his own expense. (T-228) Dr. Holifield testified at trial that he did not consider the situation to be dangerous, but he considered the situation to be an inconvenience.(t-44, lines 13-27) The only maintenance personnel at Forrest General Hospital who had knowledge of the fact that Ms. Kirkley had been placing herself in a venturous situation every time she would connect or disconnect certain appliances were Oliver Pollard and Jerry West, both maintenance mechanics. (Jerry West was terminated prior to Ms. Kirkley's injury.) (T-44) Despite Appellant's allegation that "Forrest General directed Dr. Holifield and his employees to unplug the hot water heater and plug in the washerldryer," there is simply no

17 testimony that would substantiate the allegation. Ms. Kirkley climbed on and off a table once, maybe twice a week, for approximately one year and nine months. The situation in which she placed herself was, without question, an assumption of risk. In fact, Ms. Kirkley stated in her trial testimony that she perceived the need to climb on to the table to plug and unplug the appliances to be dangerous. Ms. Kirkley comprehended the risk and understood the danger of standing on a table. Certainly, Forrest General Hospital had no control over the actions of Ms. Kirkley. Were the actions of Forrest General Hospital negligent? Under the common law approach used in Mississippi, the measure of the duty owed by the land owner depends on the status of the person entering the land - whether the entrant is a "trespasser," a "licensee," or an "invitee." The status of the person entering the land determines the standard of care owed. "As to status, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage." Langjord v. Mercnrio, 254 Miss. 788, 183 So.2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So.2d 841 (1960). "A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another's premises without license, invitation or other right." Kelley v. Sportsmen's Speedway, Inc., 224 Miss. 632,80 So.2d 785 (1955). Forrest General Hospital did not invite Jamie Kirkley to the Medical Plaza for their mutual advantage. Forrest General Hospital derived no benefit from Ms. Kirkley'spresence on its premises. Therefore, Jamie Kirkley's status was as a "licensee" of Forrest General Hospital. Forrest General Hospital's duty to Ms. Kirkley is no greater than to its tenant, Dr. Holifield. The duty generally owed to a licensee is for the landowner to refrain from wilfully or

18 wantonly injuring the licensee. Id. A wilful or wanton act is one that exceeds ordinary negligence and rises to a ""conscious disregard of a known, serious danger."" Id. Sample v. Haga 824 So.2d 627, *63074 (Miss.App.,2001) Restatement (Second) of Torts sec. 342 (1965) defines a landowner's responsibility to a licensee for dangerous conditions on the land. Tincani v. ZnlandEmpireZoological Sot?, 124 Wn.2d 121,133,875 P.2d 621 (1994). The Restatement provides: A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he {or she) fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved. Appellant has taken the and endeavored to make the of Ms. Kirkley, i.e. climbing on a table to plug in an appliance, itself a defect in the mechanical area adjacent to Dr. Holifield's leased area. There was no defect in the outlet, the extension cord, or the table used by Ms. Kirkley. Appellant begins his argument with apartial citation of Wilbourn v. Hardin 234 So.2d 606, *611 (Miss. 1970) by stating "The duties and liabilities of the landlord to the employee of the tenant with respect to personal injuries ordinarily are the same as those owed by the landlord to the tenant." The preceding paragraph of that citation reads as follows: " It then cited and quoted with approval from Jones v. Millsaps, 71 Miss. 10, 14 So. 440,23 L.R.A. 155, and Rich v. Swalm, 161 Miss. 505, 137 So. 325 (1931), after which it was held: It thus appears that under our own decisions a landlord's breach of his covenant to repair generally the demised premises (as distinguished from an agreement to make

19 specific repairs) does not render him liable for damages for personal injuries to the tenant or one in privity with him, unless it appears that at the time of the demise the premises contained, to the landlord's knowledge, dangerous hidden defects unknown to or concealed fiom the tenant, which the tenant could not have discovered by a reasonable inspection." 52 C.J.S., Landlord and Tenant The electrical extension cord, the use ofwhich is alleged by Ms. Kirkley to have caused her injury, was not a "dangerous hidden defect." Both the Lessee, Dr. Holifield, and his employee, Jamie Kirkley, were aware of its existence.

20 CONCLUSION Jamie Kirkley was fairly compensated for her injuries and lost wages by the Workmen's Compensation insurance carried by her employer. While it is unfortunate that Ms. Kirkley may continue to experience medical problems, it cannot be shown that those problems were directly caused by the negligence of Forrest General Hospital. The mechanical area in which Ms. Kirkley was injured contained no defects. Forrest General Hospital did not breach any duty owed to Ms. Kirkley. None of the actions of Forrest General Hospital would constitute negligence with regard to Jamie Kirkley. Ms. Kirkley assumed the risk of actions when she repeatedly climbed upon the table to plug and unplug the washerldryer.

21 CERTIFICATE OF SERVICE I, R. Christopher Wood, do hereby certify that I have forwarded viau.s. Postal Service, the original and three (3) copies, plus a CD-ROM of the Brief of Appellee to: Betty W. Sephton Clerk ~-~ of Court - supreme Court of Mississippi P. 0. Box 249 Jackson, MS and one (1) copy of the Brief of Appellee to the following: Honorable Robert B. Helfrich Twelfth Circuit Court Judge P. 0. Box 309 Hattiesburg, MS Davis Sullivan, Esq. P. 0. Box 4413 Laurel, MS Kyle Robertson, Esq. P. 0. Box 1951 Laurel. MS on this the day of January, :s, =& Wood P. 0. Box 2055 Hattiesburg, MS (601) ; FAX ( Dukes, Dukes & Wood P. 0. BOX 2055 Hattiesburg, MS (601) ; FAX (601)