and the next case is jennifer sutton versus royal caribbean cruises it please the court good morning my name is paul iemma i'm here on behalf of the opponent jennifer sutton your honour's we're here on the district courts granted most for summary judgment i won't get into two minutes much of the background  as you know the district court granted royal caribbean's motion on two separate grounds number one that caribbean lack notice of the dangerous condition and number two that irrespective of notice that the plaintiff was not entitled to locator important note that either one of these two errors provides an independent grounds for reversing the summary judgment and remanding for the proceedings on the lack of notice issue the primary defect is that the district court focused solely and exclusively on the lack of any prior similar incidents involving the dangerous condition and so that really wasn't an issue below  frankly the plaintiffs never took the position that there were any prior similar incidents or was a little more than that wasn't there the district court also said that the expert the plaintiff's expert is merely speculating that the maintenance and the inspection was not enough and also the district court focused on the fact that the record reflects that royal caribbean employees inspected clean and maintain the machining right are i don't recall seeing anything in the district court summary judgment order referring to the plaintiff's expert mr lyle at all the focus was the sum total of its analysis is about a paragraph on page four pages four and five of docket entry forty seven is the district court's order and it just say it's that the plaintiff has not come forward with any evidence that falling lighting or equipment whether oil royal caribbean makes the argument in its brief that dr lyle is speculating about the maintenance and inspection and whether or not it was enough to detect a problem with this machine and they also say in their brief that it's clear from this record that royal caribbean inspector cleaned and maintain the machine in this case is just like the seven circuits decision and monthly only versus home of cruise lines were your honor of reading from their brief or from the district court order in their brief this is from their brief yes that was certainly their position is that they inspected the machine however as we explained in our brief as dr as mr lyle put forth in his affidavit the quote unquote inspection and maintenance amounted to blowing off these mirrors in the lights with compressed air in fact they said to the corporate representative miss amanda camp a documentary thirty five dash two and she said you know they clean all the dust off they look at the machine and that's it they don't touch it where's the evidence of constructive notice all you have is dr lyles expert expert opinion right is there anything other than that the main it well dr yes dr lyles opinion coupled with ms campos testimony and the maintenance records which confirm exactly what maintenance that they claim to have performed was was grossly inaccurate in add up what did you want them to do i'm not i'm not certain like what did they have notice of that they should do so mr lyle states in half it is af that the standard of care would have called for quote examining all connections securing equipment especially all moving parts and integrity of the screws or bolts and all eyes when he read the user manual i mean it page twenty one it says once it's installed don't touch basically we disagree with that your honor mr lyle's report actually says that with respect to installing the mirror it shouldn't require any additional sort of adjustments to the mirror however there's a statement in there that says for maintenance instructions contact your martin representative martin would be the manufacturer did you call someone from martin who said they should we instructed them they should always check the screws we did not honor however we would submit that that's not what's required mr lyle gave testimony which was an rebutted in the record royal caribbean never introduced any sort of expert or latest money for that matter with respect to the adequacy of their inch of their maintenance a western of what would have put them on notice back to judge wilson's question i'm still not sure so the fact is that the martin m x ten is a is a heavy machine that's rotating over the heads of club goers in the labyrinth night club it is involved machines fifty pounds correct and so what would have given them notice to and inspect a small part of the machine the fact that this machine is constantly moving and pursuant to again the industry standards which are cited in mr lyle's report when you have that sort of equipment there's an expectation that it's going to it's a constantly directly to the qualifications of mr lyle mr lyle served as the technical director on norwegian cruise lines and not the defendant in this case but a different cruise line doing exactly this type of work in supervising the lighting and sound equipment he's got extensive experience with all sorts of stage publication productions rather he is an assistant professor at florida state university so if there ever an expert on this sort of never determined except still back to the question i'm still not following what put them on the notice is that when you have a machine of this sort that's in constant motion above the heads of people it presents a danger that because of the fact of the way that it operates it's going to slowly the screw the screws and bolts that hold the mirror and other pieces of the machine in place are going to become loose and at the very least require some sort of inspection i  mean they admit that they have to that they dusted it they cleaned it they clearly went up and took a look at it and kept it clean for he that he said what he said is that the boat is more likely than not became loose slowly over time rather than through a sudden break or failure and that sounds like pure speculation to me that i would disagree on him because he's basing this on again his twenty  experience of assembling more than three hundred productions across the country working for cruise lines doing this sort of work and so he again we're at the summary judgment stage here all inferences and we don't have to make any inference actually we don't lie and i would say that it's not speculation it's an expert opinion that has been that he's reached by reviewing the materials in the case again even reviewed the meringue well and that's a great point your honor because the reason he was unable to review the equipment is because royal caribbean destroyed it or discarded it if you look at miss campos deposition we cited in our brief she said that  she was asked what happened to it she says well i don't know i when i asked it was discarded we don't know what happened to it so for all caribbean to now stand up he hasn't it's a bad day well we don't get into that you absence of bad evidence about faith right correct correct and that's not what we're seeking here we're just seeking for a reversal a summary judgment on the notice issue and as my time is getting low for i'd like to proceed to the rest  again that provides an independent basis regardless of what this court finds with respect to the notice that if there been several district courts in this circuit that have held three in three published opinions that if you are entitled to recip inference then notice is irrelevant and there is no need to show notice is there a possibility that there may have been a design and the fact that was an interesting finding the district court we would submit that there is as we said in our brief no evidence of the design defect so you have to say you have to show that other causes least you have put forward some evidence that other causes could cause the circuit you have the burden right we do have the burden of showing that we are entitled to a recipe inference that's absolutely correct your honor and you know you have to come forward with some evidence that the injury would not occur in the ordinary course of things unless there was negligence cracked i'm saying that correct correct correct and what we've seen it is that number one we've met that burden through the affidavit of mr lyle which says and i think it's frankly rather self evident i don't know that you  an expert affidavit that this is the type of incident which would not occur but for the failure of regularly and properly inspect why why couldn't it occur because of a product the fact well they properly installed the mirror on this product i mean it seems perfectly reasonable to me if a part of a product not the entirety of the product a small part of the product causes the injury that could be related to a product defect two responses to that your honor number one the defendant expressly disavowed that in documentary thirty nine it's their reply in support of motions for summary judgment at page six they say plaintiff has not presented any evidence showing how the m x ten machine here was defective that's number one i'm sorry of a design defect they're the ones who or the the district judge is the one who put forth the notion that well there are other potential alternative causes one of them being a design defect the district court has to rule whether applies to that mr court looks at it and says there's no no one has ruled out these other causes in order for it to apply you have to have some evidence from which these other causes could be ruled out otherwise this doesn't get to the jury well i would take issue with it being our burden to affirmatively rule out every other conceivable cause what we have to do is be sorry i'm if you're interpret my question that way you have to put forward evidence under the doctrine from which a jury could rule out the other causes because it's your burden and it's it's there's none of that evidence in the rack or it is your honor but we cannot rule out every other conceivable cause as we've said in our reply brief there's all sorts of potential profit possibilities we have to rule out probabilities and for it to be a reasonable probability me just clear clarify do you agree with the district court statement of what the test is for a sip so that you have to rule out other equally probable alternate alternative causes i would agree with equally probable and that's where the design defect is comes in if there were design defect we would see other incidents of the m x ten machine dropping mirrors on passengers and as the district court made a very big deal out of in the notice portion of its discussion there were no such prior incidents so that badly undermines that element of the analysis see my time is up on the ability that the screws on the mirror loosened undetectably over time and there are that's again the only evidence of that we do agree and mr allows affidavit expressly states yes they did loosen over time the problem with that is the word undetectably the only evidence that we actually have in the record is from mr lyle where he says they loosened undetectably there's no expert evidence from the defense no evidence of any sort saying oh no that it was undetectable and that's why we think good morning may it please the court my name is cooper joining in and i'm here today with richard mcalpin we represent royal caribbean cruises limited and we're here today asking that this court affirmed the district court's order granting summary judgment in favor of royal caribbean what this case comes down to is plaintiff has only offered their proffered expert james lyles opinions as evidence of notice and race absolutely or in this case there is no evidence in the record regarding any acts and reports passenger comments reviews or forms maintenance logs or any other documents that would put royal caribbean on notice of the alleged risk creating condition of the mirror falling from the m x ten machine not only that royals corporate representative also a firmly testified that royal caribbean has never experienced any issues with these in mexican lighting machines or court would have been in a better position to make a more informed decision if we had the look at as part of his opinions so what we did preserve mr law actually never even looked at and also he could have looked at an exemplar and makes a machine or something like it but that's not happened in this case and also the plane it's a dumb move for any type of spoliation sanction in the lower court either the market there was a client or company like royal caribbean which is subject i would imagine to a lot of litigation of this nature would preserve the evidence so that the evidence could be inspected by the plaintiff's expert yes your honor won this case only part was preserved and that was a part that actually fell in struck her so that part was preserved but like i said mr lao did not even take the opportunity to look at that piece of evidence so what we have here is mr lyles only speculating that the screws slowly came loose and this was the cause of the injury again m did not inspect the ship he did not expect an exemplar it makes a machine he admits the race he puts forward evidence through is expert that it's more likely than not caused by the negligence of kompany and there's no evidence that anything else cost and you didn't even happen right that's correct but we did bring forth affirmative evidence that royal  caribbean employed sounding like technicians that are specialized in rigging and they do go up on the ladders they visually inspect the machines they blow out the dust royal caribbean also stated that their policy if they see something wrong right it shouldn't go to the jury because we've actually brought forth affirmative evidence saying ruling out other alternative causes so we said there could have been a manufacturing defect there could have been design defect and those are causes that they did not rule out that's not the standard that it could have been or is possible the standard is there have to be probable alternative causes that exclude negligence on the part of royal maintenance and inspections of the machine and also the fact that there are no prior issues with the x the machines would lean towards an inference saying ok well more likely than not this was a design defect or a sudden break failure so on that issue it should not go to the jury and this was a bench trial so judge king was also making that determination so going back to the constructive notice issue plaintiff had an obligation to show specific facts demonstrating that there is a purported defect with the machine and also that there is sufficient time to allow royal caribbean corrected and again mr lyle's opinions there's nothing specific there's nothing tangible there it's all speculation it's all conjecture and we don't necessarily need to dig into his opinions because there's actually nothing affirmative saying what the defect was when the defect developed when it became a dangerous condition and whether well could be has sufficient time to fix that dangerous condition and as similar cases adams v carnival were a judge site said that was also a collapsing chair case and she said to be sure the record contains no evidence to show carl actually knew of a defect in the chair further assuming a defect existed there is no evidence showing that existed over a period of time to allow for corrective action and she went on to consider monte leone and she said we simply cannot conclude that carnival's failure to discover the defective condition assuming as we do that it existed prior constitute a lack of care for which it can be liable so here we are not sure what the defect is we're not sure what caused the mirror to fall mr lau's opinions don't really shed light on that it's more probably the not even though he didn't look at the machine you look at an exemplar machine he didn't go on the ship he doesn't know about the environment of the ship and furthermore going back to the race of the loquitur point about bringing forth affirmative evidence we also have the manual the royal caribbean use that said that with regards to service that there is no need for an adjustment of the mirror after installation and we also and there's also no specified frequency or comprehensiveness that we need to go by it says that it up with your service technician and as the panel pointed out and this case plane  contact any service technician or anyone from martin and that was their burden to come forward to try and help prove the notice issues of their case in the reception loquitur issues also what about their argument th e fact that it's never happened before shows it's not a product of the plaintiff's argument just the fact that's never happened before shows that it's not effect well i feel would go the other way because it has never happened before there are experts saying that this loose screw slowly loosened over time and so we cited case law saying well that doesn't meet the third element of the race absolutely detest that's not something that were nearly occurs in the absence of negligence so we cite to a few cases basically they're similar they're collapsing share cases and again they involve screws and brackets and in those cases again  which also entail some constructive notice language as well in those cases the court discusses that when looking at the race of the issue that it does not apply in these screws and bracket situations because for reasons that mechanical devices can sometimes get out of working order and become dangerous without negligence on the part of anyone at all so these are the type of incidents that would ordinarily  occur due to royal caribbean's negligence in this case and specifically and ballard that we saw in the brief they state although the devices that failed here the screws and brackets holding the hand real to the wall or to the wall itself after the pla had ripped out the handrail are by no means as complicated as an escalator they too can cease fulfilling their intended function and create a dangerous condition without someone's negligence so there's multiple cases in the brief that talk about how this type of incident is not one that occurs ordinarily in the absence of negligence and but also sam for the proposition that neither common sense nor anything compels that only poor maintenance or careless inspection is going to lead to a chair is breaking and so here their own expert is saying well it was loose and slowly over time so while they use that for the notice argument it cuts against their race absolutely or argument because of the case law stating that these are the types of incidents that race of solo career do not apply to because there's equally there's other factors and probable causes other than rule cribbins negligence so again looking at what royal caribbean brought to the table they brought the maintenance logs that don't dictate any issues they have that deposition testimony of amanda campos saying they never had issues in the  that you're honest on the notice point i keep hearing it's speculation it's speculation the mechanism for them to get rid of mr lyle's opinions or to counter it was the dahlberg motion and for them to sort of backdoor exclude mr lyle's opinion through the summary judgment order i think is just improper and getting to the merits of that mr lisle this is been his life's work this is not some  expert who has no experience in the field he's worked with these sort of machines for decades he reviewed a video of the machine in action he reviewed a lot of the materials in this case the plaintiffs deposition he had an adequate basis  that that's necessarily before the court but it's important to note that the speculation theme is not well founded as to the race issue it's very important to note the burden again is to exclude any equally probable scenarios not to go out and knock down any potential conceivable other cause and a good case to illustrate that i mean there's two we've said of the manhattan by sale case out of the second circuit in two thousand and seventeen but more persuasive is the united states versus bacon industries case from this circuit in one thousand nine hundred six and that case involved a dredge that was being dragged through tampa bay on a calm windless night the judge began taking on water and sunk without any potential without any explainable cause and so the government sought a resit application of the race up to doctrine the truck or granted it and this court affirmed and essentially in the reasonable competing inferences analysis it stated that you know there were certainly other potential causes of the dread sinking but it noted that weather was not a factor rough water was not involved there was no testimony concerning any abnormal incident which of indicated any damage from a sunken obstacle or floating debris and so the point of that of that case is essentially you only need to address any competing inferences to the extent that there's any actual evidence of them not to knock down other potential explanations of which there is no evidence so again i would just ask that the court reverse and remand with instructions that