nova review of a summary judgment in a maritime cruise line slip and fall case it's our contention that the district court erred in granting summary judgment because there is not only notice of construct not only constructive notice in this case of the danger but actual notice of the danger and in addition the the district court erred in finding that the danger was open obvious as a matter of law rather than a factual issue as most of the decisions from this court hold it to be that in terms of the actual notice we have a deck supervisor some who testified that you never leave the chair and attended in flat in that area and that if a lounge chair is set within the passenger walkway it would be an obstruction it's a reason why a person can get injured we also had this case of it and there's certain there's yes i think there may be a this beautiful fact whether it's material not as a different question but as to how the chairs were positioned at the time right there's different testimony from different people about whether they were in one position or another all of them or some of the more or the like right right your position is that they were set up in a way so as to obstruct the narrowing pathway that had to be traversed to get into the restaurant correct but that's there's  testimony as to how many of those chairs were in that way right well yes there is there's testimony but this is significant i mean the fact there's dispute is half the effort has to go in favor of the  he had to side step one of the chairs that jutted out even further at or about the time that is why phil no i know i know in any any differences in testimony obviously you get the benefit of its summary judgment but i don't have the person's names but i have the docket entry numbers and you have one witness saying that the chairs were all in a lay flat position you have another witness saying that they were all kept in an upright position you have another witness saying that most of them were down you have another witness saying that they were quote unquote out of order and another one saying they were in a line and not messed up so let's not like summary judgment to me well right now my only point is that there's a dispute a fact as to how the chairs were lined up at that point in time but i know that that to the extent that that dispute is material you get the benefit of that dispute rect and the other hand if if the plaintiff if it was open if the situation whatever was was open obvious to the plate of let's assume her husband didn't step in front of her she's she walks up by herself she sees something that's open and obvious and then she trips that's seems to me a pretty straightforward case of open and obvious and  liability it's the fact that she was walking behind her husband that seems to alter this to some degree and that's what i'm trying to get get a handle on because it doesn't maybe it isn't doesn't isn't open obvious after she's behind him i in other words a slip and fall cases are usually a lot more nuanced than people think i refer to them as the rodney dangerfield of cases but they're there are often much more complex than one might think and in this case you've got the husband who was forced by this situation emerge and in front of his wife she's following along close behind him he's everybody agrees he's a fairly large person she's also at the same time and here's another factor she's worried about the fact that there is a  little channel under the railing that's there for drainage and there are diagonal buttresses coming from the railing to the interior edge of that channel so she's worried about tripping on that as well now our theory here is not expert and the cruise line didn't even bother to retain an expert because our expert testifies that this is the the situation where the any of the chairs or in lay flat position is a danger because it does not meet the solist safety of life at sea convention requirement that there be thirty six inches for this walkway when these chairs are laid flat there's only about two thousand and twenty two inches and then you've got the other factors coming in from the side and our expert also pointed to carnivals own  guidelines would say that they expect people not to desultory be walking around looking exactly where they're walking because they're out on a exterior deck they're expected to be looking at the ocean and at other things we have a good few hours on notice at this point that there was this condition whatever existed and that the maybe it was it was whatever the situation was was open and obvious to her and then she goes behind her husband and then at that point she continues to not look further out than perhaps some other chair so if you've gotten our contention is that these chairs shouldn't be up there in the st place i mean so it's not simply a matter of the chair being there or not being there they were on notice that they provisions by having a narrow walkway and that's why i suggest some testifies we understand where if you if you believe in the constantly being vigilant about there but that's not you know that's negligence and it's not it's well essentially you're saying it's sort of a person a condition still open and obvious becomes a defense if it's one person just walking there and walking walking down and seeing a dangerous condition that's open and obvious and then the person doesn't pay attention to it it just falls drips that's a different that's not this case but under those circumstances there wouldn't be liability that well there wouldn't be liability for failure to war keep in mind that open obvious is only a defense to failure to to take sun maybe take a nap up there you have you've shortened narrow this walkway in violation of interest and that is evidence of notice as well we also have twelve prior your your argument i want to make sure i understand that given what you just said is that to the extent that miss carroll should have or did realize that a danger was open in obvious that does not go to your claim for maintaining a dangerous condition correct right which is separate in that some for example of a florida court applying admiralty law has come to that conclusion in  grubb's right and in the dangerous condition that you're asserting is the location of the chairs on that deck it's oh it's a factor it's three things it's the narrow space between the prone lounge chairs and the braces of the railing yes on that specific area that  the quote messed up as mr carroll testified configuration of the chairs and the fact that the chair legs you know portrait out a little bit so it's even if you think if you sense that you're making it past the chairs that the legs stick out a little bit in the pictures will demonstrate that so our theory is that it's not just the fact that there are chairs up there you know it's where you put chairs up there in a fashion that where for use in the fashion that you know they're going to use and you admit that it would be a dangerous condition if they're laying flat then you are on notice and both actually and constructively that this is a dangerous condition and if it's so so dangerous that you say you're you have three different types of people through there all the time you say you've got your ducks supervisor you say you've got security you say you've got hotel stewards through there are constantly making sure they're not lying flat if you're doing know that then you shouldn't particular narrow place right no they don't but they don't have to bring over a chair incidents and they don't have to but they are tripped over ten of the twelve specifically referenced tripping over the legs of the chairs which is what occurred here now in sorrels the courts this court said it doesn't have to be identical there's some play in the joints we're talking about substantially similar incidents in order to establish a constructive notice and entire role following sorrels this court said you don't have to prove that somebody trip on that stuff you just have to prove that somebody tripped on a step in a theater in one of the cruise lines ships so here we have a situation where it's the same kind of chairs and in other situations where there's more room don't have their own expert to suggest that it wouldn't violate that so can i have it is not itself let me ask you a favorable question ok i like those why do you every once in a while you get them why do you need the allegedly substantially similar incidents if you have direct testimony from a carnival supervisor that these chip deck chairs are not supposed to be left in that position at that deck i don't i don't  we've taken you over your time ok mr perry so you can go into your rebuttal if you want to or you can save it a safe ok we'll see in a little while in maritime law and that path has to start with the established and fundamental notion that strict liability does not apply they have to prove fault and the cruise line is only liable and the event it was negligent the plaintiff bears that burden of proof of demonstrating that negligence as is the case here where the plaintiff feels summary judgment is appropriate with regard to the open an obvious condition the district court reviewed the evidence in detail and a very good question posed to counsel was what exactly is the hazard that is alleged here and i think we have to start with that analysis as indicated in the initial brief miss carroll was distracted she's distracted she testified by the beauty of the water around her on the ship she was distracted by the railing next to or she was distracted by the posts that hold up the railing or view of the path ahead of her was initially clear she perceived the road the light the lounge chairs that were ahead of her she perceived the path to some extent and then her view was obstruct as she elected to walk very closely behind her husband she's distracted and obstructed at the time of her fall then the pathway was not straight as she had apparently perceived the pathway curved there's a semicircular to her right as she approaches where she fell there's a semicircular wall there semi circular glass there's the semi circular row of lounge chairs to her left is a semi circular railing the entire this is a primitive or balcony a very small areas you can see some from the photographs in the record this area is led up to stairs so they went up the stairs from deck eleven and up from deck ten to deck eleven go on to this perimeter balcony for a kind of a side entrance to the dave restaurant so as she approaches this perimeter balcony everything and can textually is semi circular in nature yet she did not perceive the semi circular path and assumed it was straight well let's talk about factual issues st the district court said in his summary judgment order that miss carol stated that she did not walk behind her husband because the air or the area narrowed and her husband explain rather because that's just what you do but there was also evidence from ms carroll and her husband that she was in fact forced to walk behind her husband due to the layout of the lounge chairs is that not accurate that is accurate i don't think it's material there whether she was walking behind her husband because the path narrowed or because she chose to is really not the point the point  is she did voluntarily elect the distance that she would allow between her husband and herself as she walked if she wants to leave sufficient space to perceive her surroundings that was in fact her choice ok you talked about the fact that liability can't beef based on a strict liability principles and you're obviously right about that what do you do with the testimony of the carnival supervisor who explained that these chairs were not supposed to be left in that area in the way alleged by miss carol isn't that in a direct acknowledgement that by leaving them up there carnival breached a duty of care i think when you read his testimony in its entirety keeping in mind that this individual does not speak english as his st language so reading it the statements in context he explains that the chairs were understood to be used either in the upright or the lay down or the prone position and he agreed on page twenty five i agree that the lounge chairs are to be used in incline or decline and he's explaining yes they can be set like this and set like that unfortunately council didn't clarify what or sickly was going on at that point but the point being i'm  sorry either either there's there upright or there flat correct right but the fact that they can be used both ways doesn't touch on how they're supposed to be left when they're not being used and he has this is a quote from his deposition that the lounge chairs are quote never to be left unattended and laid flat in that area and quote that's pretty direct but he also testified that when there are high wind circumstances they are instructed to lay them flat and there's no comment there about whether they're to be attended or not i know but this is summary judgment you don't get the benefit of inferences reading is testimony in its entirety he's also talking about that there is sufficient space in the path if the launchers are left up and he's never measured it if they're down but then you've got yelling of the expert testifying that these chairs when laid flat create violations of a d h standards and of industry standards and there was no contrary expert testimony why doesn't that get you to a jury on a breach a duty of care because the expert didn't prove that the industry standards he's relying on apply to this particular space this is a very there's theory is that the chair should not have been in this particular space there are stairs standards and so forth if the if the chairs had been welded in such a way that they could never be laid flat that wouldn't be a problem both the plaintiff and counsel in the briefs and just now indicated that their theory of liabilities that the chair should not have been placed on the stop they don't need that they don't need that broad theory to get to a jury they've also argued that the chairs the way they were left did not create a sufficient pathway to get to the restaurant that's been one of their theories throughout the case right correct so why don't they get to a jury on that cl and i was more like contributory negligence maybe where it would be an issue with that you know she she saw where it was and she walked closely behind her husband and she was next that perhaps negligent in her own right but the jury figures out that had she really been paying the attention should have paid she likely wouldn't a fall and maybe it's a forty percent versus sixty percent than you get to mitigate damages in that respect well i would direct the court's attention to this this court's decision and le roux vs and c l on that decision came down in august of two thousand and eighteen and the supreme court denied search for every review and that particular case there was a very or to warn theory of liability as well as the negligent design theory of liability the guest had walked out of her cabin over the door threshold to the balcony adjacent to her room  was returning back into her cabin she tripped over the threshold and in that case the court affirmed summary judgment this court affirmed summary judgment on the basis that that was an open obvious condition and this court wrote that but federal courts may not even reach the defendant's actual or constructive notice of the risk creating issue if they determine the condition was an open and obvious danger and there the court concluded plaintiffs simply failed to negotiate a known and obvious hazard so in that case the name of the case the rue l e r o u x were says and seal it was not in your brief right it was a proposition that the fact that the fit that the plaintiffs simply failed to negotiate a known and obvious hazard isn't simply a comparative negligence issue it was in fact the basis for the summary judgment which was affirmed and s review tonight what is your view with regards to the difference between a failure to warn fieri and the design of a dangerous condition theory are they one in the same in terms of what the elements are or are they different in terms of what the plaintiff does or doesn't do there are some cases that are favorable to your position and some that are not right some say is correct some say that if you have a danger that is open  obvious that eliminates liability per se and some of them say that only goes to failure to warn but not to negligent design so tell me from a general standpoint why one of those two doctrines works and the other one condition negates both theories of liability and that is where but the guests on board are obligated to exercise reasonable care for their own safety and the open and obvious  defense applies to but both theories of liability yes i don't read his testimony in the same manner i think it's also important to note that mr his supervisor the other pool and deck supervisor testified that both positions referring to the lounge chair being either right inclined or declined both positions are acceptable and victor some o t s testified that he gets his instructions from denis stravinsky and so when the soup with the higher ranking officer is indicating i tell my staff both positions are acceptable that is the ship's position and that is the training that follow with regard to the allegation that there's to address your question as far as whether there's an issue of fact as to the condition of the chairs mr carroll testified that as he was walking along the pathway with his wife behind him it was just at the moment that he started to have to move for an obstacle that was the same time that is w one to three feet behind him so it's obviously not the same chair he talked about some chairs ahead of him being in disarray that doesn't matter that's obviously not the chair that mr carroll fell on nor is the chair if he is if he's moving around a chair that's exactly where he is then that is he and he testified in his deposition that clearly that was not the chair that miss carroll stopped on so the what the condition was further down the pathway and where mr carroll was at the time she fell is irrelevant and not material the testimony is that the on the pathway that she approached and the chairs were in line and in step as far as from where she started up to where she fell what anything else is immaterial what's the record evidence to support that that any time right before she fell the chairs provided the right amount of clearance well it wasn't phrased in that term it was phrased that she perceived the lounge chairs to be in line an orderly would they were curve approach but they were curved she went straight because she was distracted and obstructed and failed to perceive everything curved around her it would seem to in a way cut in favor of her not tripping because to go straight would mean you go towards the railing more the railings to her left actually is to are left left he's going straight in the chairs to the right the chairs are to the right so she but it by by going straight she's moving in a way more towards the railing than the chairs if you know towards the chair seat the railings on this side chairs are on this side they curved that way so as she goes straight she clips the edge of the chairs that are are in a semi circular fashion that i ran things on this side are easy as he as she goes straight she's going closer to the rail in the chairs because she's deviating from the circular path where there was a circle the path is moving to left and therefore to go straight she would be going more towards the railing then the chairs and the curves to the right a to yes service to the right she's going to she's coming off the angle she's cutting up she's cutting off the angle but she's she's going because the path is bearing to the right the fact that she's going street straight means that she's had more towards the left side of the path with the semi circular so it's not it's not going from this point off here it's heard even by going straight she said that the started to her right ok i think what i'm trying to describe is that it's not just a varying it's it's a semi circular fashion so by going straight she's clipping this side which is why her yes foot clipped the chair you're saying so it depends what street means if she's going straight ok you have my circle going this way right it does if she goes straight this way you're correct that she's getting closer to the chairs but if she veers straight from where the pathway and originally began right and she goes this way then she's going closer to the rail so it depends what straight means straight this  straight that way straight towards the front of the ship right and then even with regard to the notice issue i don't know that the court needs to get there because  you going to have neurons with that you can finish saw give you forty five seconds until you had for four minutes thank you just very quickly the they're the hazard alleged as you very unique to this case this perimeter balcony this particular configuration and their theory that the answer should not be on this base so this base is a critical part of the analysis as to what is considered so it's substantially similar not a single accident occurred in this particular place on this particular ship nor did it occur on any of the sister ships that have a comparable space the twelve prior incidents that were produced involved different ships different parts of the ships people by the pool people by the lounge on a sunday act completely different space there's nothing about those incidents that would indicate to carnival that they should not put lounge chairs on this particular printer balcony all right like you very much mr parrish like to address two primary issues but before i do that the little exercise of drawing exhibit why this should not be a summary judgment case but before i get to that i think something ship with any kind of curve on it we're not saying that and you have to have evidence in that kind of case to show that the ship owner was actually in the shipyard sensually that's the rogers case or this court you know directly involved in the out of smith which says but federal courts need not even reach the defendant's actual or constructive notice of a risk creating condition if they determine that condition was an open obvious danger the next sentence says the duty to warn the maritime tort context extends to only known dangers which are not apparent obvious so they're talking about this court is talking about the duty to warn their subsequently in the smith opinion it talks about the negligent maintenance theory the problem in that case was the plaintiff had no expert and the defendant did have an expert courts and i and it and it's now being taken out of context from the rw which didn't even have a negligent maintenance theory and judge walker to your point we're not suggesting that the series had to be bolted down but if you have this situation where lay flat chair is going to list then you should have only chairs that don't leave flat or shorter chairs but you can't maintain this ongoing activity which mr somebody by the way you know he  may not be his his language but leaders of the chopper there he has a legal degree in the ukraine but he makes more money on carnival being a deck supervisor he was a sophisticated person spoke directly to the fact that the standard is that yours they're supposed to be laid flat we understand they are capable of being up and down but but we know that there's a danger when they're laying flat because they can impede on the walkway basically i mean you don't get this kind of testimony most days in the record about whether this is a windy day or not it was not a windy day on a windy not not the type of windy day where they talked about when you have to have laying flat or stacked up and not put out at all the last thing i want to address if it's necessary is obvious and i would direct the court's attention to aponte where the gentleman was he was distracted because he was going to get a paper towel to dry his hands here we have distraction due to husband having to as a result of everything we're talking about here in the way this is set up having to cut in front of her the issues on to the left which are also dangerous you know she doesn't want to trip on that brace or fall into that or slide off into that channel used for drainage so it's not the fact that a an object is open the obvious either is the fact that the danger presented by it in it's set up is open and obvious that would they believe that but any event open obvious would not be a defense to failure to warn but in this case court to reverse wright thank you both very much we're in recess until tomorrow