our next case is carol i hope i pronounced that one correctly two verses and i see cruz's case number sixteen dash one five four nine one and i know that that's not a binding presidential decision but it involves largely the same set of facts and at some point i'd like you to address why you think that case was wrongly decided i don't the defendant's duty here and there all appear in the deposition of the defendants corporate representative ryan elaine ok and mr alain is a remarkable guy he's a cruise line employee he had twenty four years and the coast guard as a ship safety inspector so what he knows and says about ships and safety and hazards should be given good cr here so i submit that if he believes that certain evidence is relevant to notice a risk of tripping hazard then that's sufficient to create a genuine issue of material fact for the jury the first the first source of the genuine issue of fact is that ten other similar fall down accidents on the very same stairway during the three year period before  a believe there are similar and as falls on the stairway or do you define it in a different way i'm a define it the way that mr elaine c chooses to define it because he was asked purdah he was he was given a notice of the deposition as the corporate president and he was told what subject he was going to be speaking on under thirty b six and given a list of documents and counsel at his deposition on page twenty one said provision one of my notice i asked for any and all issues regarding similar accidents in the subject theater for three years prior to the present time of people falling down and getting injured on the plane of steps so the question was asked in the context that mr lay must have understood of similar tell me about similar that's the category in the rule thirty six no it is correct yes so to the extent that he was put up as the representative on that on that category and he was testimony could be well i'm the only person who is about that and i don't know of any other tripping incidents but i am the proper person to be designated on s get there who you know he asked for for first clarification other of the question on that particular step and the question was clarified in the theatre of the vessel all right and then question yes in the theatre in german people tripping and falling on the steps he says in general the theatre yes we made an attempt and he says the question there appears twenty two how many accident reports were there at least answer i think there were less than ten and of that specific step i think there was only one and then down on the bottom asked will between five and ten and he says somewhere in that range now he is th the witness who has been designated by the defendant to decide what is and what is not a similar accident or incident within the definition within the meaning of the thirty six notice and but on page twenty two deposition he is and specifically wasn't in a similar manner that my client fell where she tripped after her foot got stuck on that nose of the stairs and he says no i do not believe that that goes to the third eye goes mr elaine testifies that the prior accident on this exact step was a tripping accident not a slipping accident defendant  brief is all saying well that prior accident that must have been the one from the from the terry old case however you say it which was a slipping not a tripping i don't know if the record reveals whether the one prior action on that exact step in was that kerio or however you say it case or if it was a different one but it doesn't matter because w district court's opinion in the terrio case and this court picked it up in its opinion talks about slipping being a slipping thing the slipping neither of those opinions can establish that the prior accident that we're talking about in our case was a slipping accident and the only testimony about what that prayer accident was was that it was a tripping just like our case and that's down that begins you know after after the part about but but mr lawson i think what we're all trying to figure out is how similar and people can let's assume that that as you saying that they are both tripping incidents or accidents people can trip for a variety of reasons for example the carpeting on the very top landing can be loose or the metal strip here can be problematic as you've alleged or the slope can be in correct on the stairs themselves there there are various reasons why people might be able to trip in a theater like this one and we're trying to figure out if you can help us do that how similar was this one other tripping incident or if there were more we'd like to know that two i think it was the only the only one on the exact same step but here's  here's how it happened or why did that person trip well here's another person here's why we have to find that at least there's an issue of fact for the jury that it was that similar because when mr alain is asked to explain why he thinks it is a different type that it's not a similar matter he said question was it in a similar manner that my client fell when she tripped after her foot got stuck on that nose of this of the step answer no i do not believe so question do you know how it happened and then his explanation as to the difference is i believe they were proceeding out of the theater question you mean going up the steps answer yes and so his his distinguishing of the two mechanisms of the fall was not the slope it was not the carpet was loose it was not anything it was it was the sheet one was going up and one was going down the stairs and they both cut so we have to assume that they both cut their foot on the same loose nose or a metal strip on the edge of the stair because his only explanation for the difference is that one was going up and one was going down and then on the top of page twenty three question after he said that was one going up the steps question and they tripped answer yes let me ask you what my concern is with respect to notice i thought the claim here was that the nosing was actually loose on the step where the plaintiff trant is that exactly ok it was there any evidence that was loose on any other steps i don't recall i don't recall now in all of them look quickly if i can during the during counsel's argument but not as i and i didn't think that was the issue here and this appeal of the issue in this appeal was yes lack of notice of prior similar accidents on this town and and so there was notice of of ten more they were they were categorized as similar by mr lane and this one was the only difference was going up instead of going down i need to move quickly to my third point and that is it's not not a prior accident but there was a third thing that mr lane testified to that would put that would put someone on notice of this particular tripping hazard he was asked and this is this is where we get into the terry all terrio about the watch your stepson because in that case this court said that the sign was not evidence that the defendant knew that this step knows he was going to be dangerously slippery but in this case there is no evidence that the that the watch your step signed was notice that the nosing was going to be dangerously loose and tripping and here's why because he was mr lane was asked if you took the position that the plaintiff was negligent at page twenty eight of his deposition and he said yes and he said first he said because the condition was open and obvious and then he said quote also based on the fact that the stairs were an open and obvious condition that they were marked with a sticker that said watch your step and they were related so mr lane took the position that the watch your step sign put the plaintiff on notice that the nose real was loose and she was going to trip on it and so if it was sufficient to put her on notice of the danger under his testimony then it should be sufficient to put the cruise line on notice of it as well and so that distinguishes it from the terry all case i see i'm into my rebuttal time so unless or anything from the questions i will look at that issue of the other of my argument is that terril does not apply now he mentioned that there mr ryan indicated there were ten other incidents in the theater at no point during that deposition was mr alain ever asked factual questions about any of those ten other incidents he was prepared to testify about those other incidents but he was never asked questions about them he named he would have testified that they were not similar but they never asked him about those and also there was reference to falling on the step well brian elaine on page forty seven of his deposition transcript testified that that occurred after so yes he was asked specific questions about what were the specific facts involved in that other incident and that's what ryan was testifying to but then on page forty seven ryan made it clear that that incident happened after after the gore sikka incident now they keep going back to these when and when in comparison did he say he did testify and i do not know off the top of my head when that was but it was not on that night and it wasn't on that cruise and it wasn't it wasn't a cruise that was around the same time you know the district court here did not air it was pla with evidence and they haven't come forward evidence to establish actual or constructive knowledge m s e made a primal facia case that there were no prior similar incidents at that point the burden shifts to the plaintiff to present evidence of a prior similar incident giving notice plaintiff failed to do that you know the the district court held a hearing very lengthy hearing oral argument on all of these issues it lasted well in excess of an hour probably an hour twenty minutes an hour and a half all of these ends all of these facts all of these all of the evidence was in front of the the district court the district court decided after the hearing and told everyone i'm not going to rule today i want to thoroughly read all of the pleadings i want to i want to examine all of the evidence and i want to read all of the case citations that you that the parties cited in their pleadings and then i'll make my ruling two months later the court issued her ruling granting summary judgment all of these issues were addressed there you know in short it was their responsibility to come for showing prior similar incidents have and basically what we have here is it doe facto arguments well there's no zing on all the steps therefore you know they're similar they cited a whole lot of trips or falls rather in various parts of the ship not involving steps just basically people fell in other parts of the ship and they're saying well because these folks fell in the buffet or they fell in the restaurant or they fell by the pool you have notice that people fall in on cruise ships therefore you had constructive notice that that that ms gore soko could fall in the theater and that's basically what they're saying it's all ipso facto argument well in fairness i think look mr alain testified to were falls on the stairs in the theater he said that there had been he was aware that there had been ten people who fell in the theater some of them could have been he didn't testify whether they were on the stairs whether they were on the flat parts of the theater whether they were down by the stage because he wasn't asked those clear was a good corporate representative yes yes or he said only what was asked of him and bolland here nothing extra i don't mean that as a bad thing no he answered the question an observation asked he was never asked about the facts of any of those nor was he asked about the facts of the terril matter which he knew about we were defense counsel and that i'm infinitely for million what that case as was ryan a lay he was never asked about any of those he could have testified to them but he was not asked is is there anything in the record however many falls there were let's just say ten any other fall before this one based upon the nosing on a step no there was not there has not been there before prior to this the accident reports were reviewed and analyzed and there were no prior reported incidents involving a loose nosey and you talk to me a little bit about this issue concerning the creation of a dangerous condition the district court thought that because the ship was built and designed by a different entity that embassy had no duty to retrofit the staircase or fix it in any way but there's no citation provided for that proposition of law can you tell me where that notion comes from yes there are there are cases including out of the eleventh circuit that we've cited in our brief it's the design defect cases where if we didn't design if  took possession of the ship and this is the condition of the ship when we took possession of it and then somebody claims that that design caused them to fall in this instance the design of the if they had alleged that it was the design of the step after we become aware that maybe there is a design defect maybe we would have we would do remedial improvements on it but we can't be held responsible for for remedial measures you want us to improve things that we know are notice right and we did fix the loose nos she fell because the nosing was loose right that's because it was lucy tripped the person who was walking out of the theater later after did not complain of a loose no as if they just said they tripped didn't they didn't say that they tripped because of the nosing and they didn't say that they tripped for actually for any reason but we did ryan did give them that information that yes somebody else has tripped on that step but it wasn't there was no allegation that the nosing was loose and they didn't claim that they tripped because of the nosing itself they just said they tripped and i believe and this is my memory is that they said they didn't see the because at that particular step there's a run up there's a ramp and then the steps began so this was the first step and i've if i recall correctly she cursed them from the bottom or from the top shoot from the bottom there's a ramp from there's the stage then there's a ramp that goes up and then the stairs begin and this particular guest was walking up the ramp and said that she didn't see the step and she tripped but there's no indication to your question there is no indication  any of these reports prior to this incident that anybody reported tripping because the nosing on the step was of loose and that's what they're alleging occurred here question i asked was there is there any evidence in the record that anybody tripped blaming it on the newseum whether it was loose or whether they couldn't see it or whether it treated out a little bit is there any evidence in the record that any trip cause resulted from loose from from the news ing whether it's nose on on the nose in the only one up until prior to that was the terril matter that the eleventh circuit ruled on it and in that case it was a slip and fall in that particular instance the the claim was that on some of the no zings there is a warning sign or a warning sticker that says watch your step and ms terril claimed that when she went to walk on the nosing the heel of her shoe hit the warning sticker it was slippery and caused her to fall she didn't claim that the nosing itself and that was pointed out incidentally on the eleven circuits rolling i believe maybe the last page of the next to the last page in the court took exception and said because she was arguing that that it was notice like here that it's notice the mere fact you had those warning stickers there means you had noticed there was an issue and the courts said and even used the word common sense no common sense says that they're warning you that there is a step there well you're being warned that there is a step there i thought the argument in terry all about the sticker was what you just said not that she slipped on the sticker i don't know that's what you know that's what the eleventh circuit world she said she slipped on the sticker the sticker cause the anti slip nosing to become slippery because it was on top of the nose and so when her heel hit that sticker it slipped where can i find that is that in the in the lower court opinion that should be on the eleventh circuit ruling it terril it said she slipped on the metal strip but it doesn't say that she slipped on it because of the warning sign or that the warning sign was itself slippery it the step was brightly illuminated by a strip of lights running along it said while leaving the theater after the show terry all slipped on the metal strip as she stepped down from the step causing her to fall and break her writing  what are you reading from the terry all eleven circuit opinion ok well i'm reading from page seven and page one so i mean i have the federal one on the federal appendix print out it could be a different pagination if you have the original of an circuit opinion but tell me what are you in section two of the opinion or section one of the appendix in one ok tell me where you ok i see what you're saying while leaving the theater after the show i see what you're referring to right so judge prior's question is where do you think we can find that she slipped on the warning sign itself as opposed to the metal strip you would have to go back and look at the pleadings of the brief in that case that went up on appeal and that's what i'm alluding to on page seven were were at the very first full paragraph you say second the watch your step sticker does not raise an issue of fact of whether the defendants had notice of the no zings slippery condition right and we understand that but there's a different argument at all on appeal was that she slipped the sticker that they conceded that the the nosing strip was anti slip but they too then argued that the sticker itself could made the nosing slippery and when she heard her shoe  didn't watch your step that it became slippery and she lost you know her slip her shoe slipped on the argument in their plating that maybe we have the briefs to look at but that paragraph doesn't explain where the sticker originates from but i understand what was the timing between the incident in this case and the timing of the incident in the case you said before in response to my question that that was not in the record right but that he didn't testify about the span in time between this corsica's accident and the other incident of tripping on the steps the second incident that your corporate representative testified about which he later clarified was after ms corsica's yeah i just said i i do not remember i do not know what date that was but i do know that it was after and that's why ryan made it clear during his deposition testimony that it was after ok we've got it that's all the thank you for your time and if you have no more questions thank you ok mr holman thank you very much watson he says that that other tripping incident was afterwards is that correct well there's evidence in the record from which the jury could find that it was before and that comes from mr lane's deposition when he was asked  he had you know gather the information on provision one i asked for any and all issues regarding similar actions in the subject theater for three years prior prior to not after but prior  and then to clarify as a people in the theater and you know the argument was made that well this was just maybe trips and for slips of all fall down anywhere around on the theater but the question was specific question getting injured on the pla steps and then he clarified it in the theater of the vessel yes in the theater of the vessel you know the substantial similarity is required under this course decision but i'm glad to see judge pryor and judge jordan on this panel because you're the ones who held in that sorell this case that there has to be some loosening loosening of the joints or something about the substantial similarity it can't just require the exact it's similarity in the prior actions but here we've got enough he says that the only difference in of this one of the somebody else this one of the particular step which there is evidence happened before was the only difference was going up the steps instead of going down so he saves going down the steps because of a loose nose rail he says different because it's going up the steps but it doesn't say because it was anything else  so that's evidence to defeat summary judgment  and that the what the warning sign and in in this court's terril decision there though the warning sign was not to not notice of the particular risk but here because mr elaine says that this warning sign should have put my client on notice of that particular defect and and she was negligent by not adhering to it well likewise it put the cruise line on notice of the same thing  terry all case and this case i don't know i i suspect when i read this that the terry all case and the one involving the trip on the same step going up the steps might be might be the same one  for one thing that the how that accident happened in the terry all case is not been established by evidence in our case and i object to the court making a factual finding that it was found in a different way because of what was said and a prior opinion in a case that my client didn't have the opportunity to examine the witnesses and so forth we can't we know you're absolutely right about that and we can't juxtapose factual findings made in a prior case to a later case that you weren't a part of my question though was about the legal reasoning in the opinion for example the part about the warning sticker and if the eleventh circuit said earlier that placing of a warning sticker isn't evidence of notice or constructive notice because all that means to tell you is hey watch out there's a step coming why isn't that russia now a playable here as to one of your arguments i assume in that case there was no testimony like there is here that that warning sticker is notice of this defect and if a plaintiff had a it here to that warning sticker she would not a phone down so if it's notice to her it's notice to the cruise line and that should be sufficient evidence to distinguish that the case right thank you very much