which is a necessary fact that needs to be proven in most of the cases that this court sees most of the tort cases they you see are rising against the cruise lines because they arise out of a dangerous condition if you could you address for me i think the the issue i have concern concerns about is the waiver issue because i've found your alan's brief to be persuasive but then i looked at what he said at the district court and you didn't really say much at all at the district the defendant has notice of his own actions it could have certainly could have been better stated and should have had some authority side of your argument is there i would indeed indicate that the motion was not arguments on different topics and which they have not new before the district court there or maybe even i'm not aware of it well i'm so in this case they they moved for summary judgment saying that like in most premises liability cruise line cases there was no evidence of notice and the response was we don't need to show notice that's not an element of our playing because our claim does not involve a dangerous condition motion was simply not well taken from the get was led try and decided on appeal under the standard premises liability construct given the facts that appear that appear that they could identify this city person who had  presented in fact and in positano when the plaintiff aren't you that well and sorrels you know you use this standard in the court and you know point out that's because the defendant didn't argue anything different so it's always important to know what arguments are raised in a sentences with zero case law that would and what the place of sat is not what we're hearing now that we don't have to provide notice what the point of below said is that in these kinds of that's why the argument has to wait because it was different below that it's presumed now the argument is there noticed or not require the cases where i left vicarious liability well here's one line that i may not you know i  think mr parrish is right for can see that this wasn't presented as fulsomely as it should have been but they did say this this is a quote quote the no notice defense does not apply when a defendant takes a direct action that injures plaintiff quote i just think the argument presented now that there is there should be an exception for vicarious liability you can contact is is something which is being brought to the court's attention for the st time and the judge moore really didn't have a chance to to argue to i should say that that waiver if they had raised it in a way that we all agreed but for it at the district court then at that point do you think that they win here and we rever you to address a case that i am having difficulty with the arsonist celebrity cruises case there we said that keith and everett were quote physical condition cases and then we kind distinguish those cases from other cases of our crew members for passengers what do you say about that short of course dope though is a sexual assault getting screwed gets passenger and the standard of care is much to stand a pair strict liability when you have a five building where the guest was injured during a game and the claim was that the crew member was negligent and therefore the cruise line was at fault legally liable because the crew member negligently conducted the game i knowledge creates the groom to be the notice is what creates a duty so you never get to the duty part if you don't satisfy the precondition i mean the knowledge the knowledge part and judge grant articulated that very well in that story ok because what we're seeing is these attacks over the years on the notice requirement and in that the story ok's i caught the class in charge chair case we saw an attempt to use the your how this work out work in practice i mean let's say then in you know in this case it was sort of the crew member spawn the plaintiff around until she fell down i mean to say that the crew member had just like pushed her off the deck and so just perfect but in order to get rid if we get rid of the notice or care arment would impose a liability on the ship owner as you can sure and that's the whole basis for chief in here american beginnings that is a reasonable care standard not a strict liability standard not an insurer type standard so that's the reason for the notice requirement if it's just a one time act i suppose in a certain circumstances one could construct an argument that oh well you have requirement again the courts have dealt with that and said you know that's a that's i guess there's some kind of possibility so is it fair to say that your argument and correct me if i'm wrong so i mean it is unfair to say that your argument is that there might be vicarious liability for intentional torts of crew members but no vicarious liability for negligent towards a primroses that kind of what you're saying well i would go so far stayed at that or a ship owner would be and would be liable for intentional tort i guess it would depend on the training would depend on the that's i just i'm really just having a hard time understanding this because it seems so i understood vicarious liability his base sickly you're not liable for your own negligence you're liable for something that someone else has done  it doesn't matter whether you did something wrong it seems like grasping a notice requirement on that would make a direct liability you're not liable for what someone else did you're liable for what you did you had notice of this defective condition or this problem and you didn't solve it how  notice so clearly weren't raciness that was what gratian appeal was there and the number of drinks them served in should should the bartender have noticed that person had been was out of control essentially so we're not trying to not do any disservice to heath at all because it this case as the court noted indo and circled back to the judge pressures question oh oh drew the distinction between premises liability cases and direct reversing this decision by judge moore would not in any way have fact that case law let me ask you let me ask you that just i think you know i think you're probably right about that but you're a repeat player here and so let's go back to the spill coffee case so it just strikes me that whenever there's premises liability on a cruise ship because it's not you know undeveloped land or something it's a ship that someone built and someone maintains there's always going to be some crew member that you could point to and say you're the one who spilled the coffee you're the one who didn't fix the border you're the one who you know and they legitimately you know whatever with the carpet right i guess what is the law and it was inspected that day he was like yours he was actively now that i think in a case like that where it's something that it is you are a permanent condition a condition that occurs over time or if it's a foreign substance but nobody really knows how it got there determined that over the course of several months for whatever reason or years that the screw itself was coming undone injury aside not that that's more crimes liability i read that there will be like in most cases judgement stage if there is no proof of it or there could be cases that gets sent to a jury and on two different theories depending upon the facts are to happily in this instance is clearly a case of like you're a slave