the principal issue of the granting of the summary judgment and if time permitting or if the courts interested in discuss the discovery issues they're after so we're here on to novo review of a motion of a summary judgment opposite specifically with respect to a crucial issue in the case a crucial issue in every maritime personal injury premises liability if you will case which occurs on the these cruise ships which is the issue of notice just prior to leave you are on the and all you you know so it's even more important as the district court noted post pacino and as you know came out about a week before our oral argument on the summary judgment motion in this case that we must establish notice now this court in decisions has held that when a cruise line such as in c l sets out a warning sign or a warning cone of some sort that is evidence of constructive notice if you put out a cone because it's been raining it surrounds and fresca in particular so rails was putting out rain cones there's testament if you put out a warning for one thing and the accident results from a combination of things well so then that's it i think that goes again to the jury the action hears is put into into motion by this unexpected single level step that occurs yes well the reason i'm asking the question it seems pretty obvious that this was a function of it being dark the light being out and it being wet where is the sign is about the step well that's that's what i'm wondering i know stan questioned but the the single factor that  began this process and began the problem which resulted in the injury is the missing of the step now the missing of the step is whether it was unexpected once he misses the step then he can't there was also some witness there which may have resulted him being unable to gain his balance but if he sees the step then he doesn't lose his balance in the first place so the issue that we're focusing on is the notice signed which by the way in c l own corporate representative therefore in c l itself recognized and used as a defense that we did in fact warn you of this danger of the unexpected change in elevation that that was their testimony that they're relying on that sign and then their expert relies on that sign and then the district court weighs the evidence and says well i don't believe that sign goes to the change that single step change in elevation here i believe it only applies to these three steps coming up to the post that's the district court weighing evidence in a fashion that the district court is not entitled to do particularly when we have a concession from in c l itself and from n c l is liability expert that this sign was in fact our  sign warned because they don't there's no evidence that they put the sign up well well so the signs been on their vessels the entire time they've had the bessel so that's another area where the district court i think weighed the evidence  against the nonmoving in favor of the movement that and that issue didn't even a rise until their reply when they filed their reply to their motion for summary judgment they said wait a minute you didn't prove that we put the sign there well how why would we need to prove that you put the sign that you've had the vessel for over ten years it's been a dry dock twice it's a permanent sign you obviously have accepted this sign and it's there and you can read so therefore you know that the size if the sign doesn't need to be there take it down but but that's on the vessel and they didn't raise the issue of whether we had proven that they put it on and told their reply so again that the district court in all of these instances was looking  open in obvious to a reasonably alert person if the light had been working for mark boal had not been working right well not necessarily the sign might not be sufficient i mean we so is the s sufficient because the district court keeping in mind that said well i don't think that sign applies to the step down maybe the sign should have said watch your step there's an additional step beyond these three steps maybe there should have been some lighting on the on the step or is it a piece of evidence that explains why it wasn't open and obvious to mr proviron it cuts both ways in this case it's certainly it's right above where that sign is it's the bolt on that post where the sign is so it helps to explain perhaps why their defense within the in the district court didn't get to that because she held that there was no notice to n c l if we got to that defense it wouldn't be something that they could prevail on because the light bulbs out and that doesn't require them to have any norwegian had actual or constructive notice of the fact that the light bulb was out no there isn't and our position is there's really no evidence that they didn't either that so here's what the district court relied upon upon they had their corporate representative testify i spoke to some on the ship they told me that what they do is they have a crew of engineers that goes by twice a day or twice an evening to check throughout the ship and they that there were no reports on that well ok worst the policy that says that's what you do we don't have a written policy where's the log that says that they did that on that day we don't have that one of the names of the engineers who did that we don't have that so they came in and said they've got a or five hours we know forty five minutes after it is still hadn't been replaced and on an exit mystery maybe they need to make sure that they're changing their light bulbs on a schedule versus you know waiting to see whether they go by but but putting aside the light bulb people there are nightly inspections or as i understand it right that's what they say yes or but let me it would and we were not ever given the names of those people to depose and time ran out on the on discovery but so this this case could be reversed on the sole danger of the of the step the single step which is like the single step entire roll it those are more dangerous than regular steps because you don't expect them you know we had  norwegian has a duty to and they warned there was a sign that says rocks your stone but is it sufficient it's not it's not a sufficient warning i mean there was there was testimony i mean the district court thought that the sign doesn't even apply to that evidence in the record to establish that they knew that the light bulb was out and if they knew the light was out there would be you know there be liability on the part of the which well again we don't have any evidence because we were not ever provided with any information to depose anyone and that was the second issue want to be which is that we were not the we were not permitted to take that discovery the they there was a hearing after the thirty six deposition they were supposed to provide us with the names of the of the people who were doing the injured ears and they didn't so at the very least we should be permitted to go take those depositions but again to the fact that the light bulb was out in my mind goes mostly to his lack of open obvious we still have a warning sign that it's in big us as to whether it applies to the step afterwards in fact the district court ruled that it didn't she weighed the evidence and said it didn't apply to that stuff so you know and fresca says once there's a there's a warning given whether or not it's sufficient whether or not it applied to the step afterwards after the landing which by the way was too short whether it applies to that is a question for the jury so on the basis of that the entire issue in this case turned on the issue of notice and when questioned at the summary judgment hearing the court asked because half of the response to the summary judgment was that they didn't have to prove notice and that was pending at the time positano came out and the reason why they said they didn't have to prove notices we created a dangerous condition that position ok and out on september twentieth we gave notice of supplemental authority the oral argument was heard one week later in front of the trial judge and she says pacino really changes the posture of this case because you've got what is the theory of your case it can't be that you don't have to provide constructive notice or actual notice and the answer to that question of what of the theory of my case is found at the record at page one sixty two it's the summary judgment hearing it's page twenty nine and the answer is it's a combination of factors and this is this is mr parrish page twenty seven your honor because she's saying you're trying to get around all these cases on constructive notice what is your theory of the case that is simple they didn't warn it was slippery they didn't or none of the step down she said you're conflating a bunch of issues and mr parrish responds this is a case where there are a combination of factors that cause the injury so let me start backwards ok a there is no notice to anybody that the light bulb is out the plaintiff testified he didn't know whether it went out one minute before or one hour before the testimony in the record was that for engineers inspected twice a day for the lighting issues once in the morning  interrupted your ex from understand how this constructive notice and actual notice work so the part that's easy for me to understand is you have some water spills the cruise liner puts up the com so now they're on notice now the h reasonably with respect to this danger when i'm struggling with how this works when you have a ship that has preexisting signs like this will soon that's what happened here for the sake of argument and so what would happen in the case of the sign had said hold railing watch step there's seven inches down sometimes the lights go out and sometimes it's way i take it that the way this i'm with you all works is now you're on notice so even though you've given it all the notice you are now viable i get that that is what the plaintiffs position is it any time you have a sign that gives notice any time you give say isis right maybe they're right i don't know how this works well first of all if you look at the sign cases that he's referring to remember it's notice of the risk creating condition to the plaintiff that's the notice it's not notice of an object it's notice of a risk creating condition to the plaintiff if you can have notice because you just someone called and said there's something going on and you can have constructive notice because it's obvious well if it's obvious things could happen on a ship the deck could get wet and if it's obvious there's no duty to warn ok that's that's clear maritime law so you don't have to give notice you only have to give notice of things that are not open obvious but in this case his his two theories negligent maintenance and negligent failure to warn converge because this was not a temporary condition that's why i said i was wanted to start backwards because the two cases he relies on frasca and sorrells are both cases in which there was either a tape or the warning cones put up about the risk creating condition which was the deck is slippery when wet and there were there was the the rain or water emanating from a source that caused wetness that put them on notice so you had coupled with they knew the cruise line knew that a temporary condition could occur that the this particular deck could become slippery when wet and they either put out cones in a situation to give notice of that temporary condition or they played a video to warn the passengers of what occurred in this case however first of all with regard to the wetness n c l had no notice as to the wetness let me because i say let me set the scene it has not rained all day and the plane of says it's clear it never rained it's clear at the time of his incident it had never rained all day the pools were closed the hot tub was closed and what he saw he didn't see any wetness when he fell when he got up he noticed a sheen of water across where he fell there's no notice to n c l of that there's water there it's not a temporary condition the notice that's attributed to this staircase which we say is going up because it has a handrail that notices an attribute it to a wet spot in which he claimed he slid in there's no notice of that so when i say his theory is there's a combination of factors it's not merely a step down it's he has a combination of factors he's alleging caused the injury of which at best the sign goes to one come out a few said fine i'm getting rid of the water i'm going with the light bulb it all comes down because he does say or in the complainer thing so he says it's a step down problem you may notice the step down problem see the sign and i broke my arm because the stepped on problem let's take water in light of it that's an open an obvious condition and or there was a warning along sign but i agree it does not apply to the step going down it applies to the step going up because the handrail it says hold for your own safety hold and rest there is no handrail where the step is going down there's and if you look at the picture of there's a step on either side this was the design of the shep you saying just on clear so you're saying that the warning does not apply to the step down correct it applies to the stairs going up that have the handrail correct and that as a matter of law so you're relying on the fact that the step down was open and obvious not that you warned about it yes yes i am but again the new issue which is essentially what he's saying is it's a disguised optical illusion we have no notice  disguised optical illusion there were no incidents no accidents no claims action it's an illusion how right it's an uphill but what for somebody to say it's an optical illusion after the fact i looked at it and i can see the still you would expect if this was a dangerous condition of which we had notice of somebody somewhere would have slipped and fall and filed a claim filed an accident report something it's norwegians obligation to warm there may be liability on the part of norwegian for failure to maintain lighting so that its passengers can see the signs which no region says satisfies its duty to warn its passengers and so my question is could not discovery uncover liability on the part of norwegian for failing to make sure that the light bulbs were if there had been a motion to continue discovery if there had been a motion to extend the time period for discovery if there had been a motion to ver to firm on the motion to summary judgment which the trial court could have done i might agree with that but i don't because there wasn't one procedure under the rules that the plaintiff availed themselves of in this case not one and if you look at the reason why their expert report was stricken each time the expert their expert was hired eight days before he issued his tentative his pro quote preliminary report his preliminary report said nothing about lighting conditions what it said was i assume that the light bulb was out and i assume and that evidence will show whether or not the whether or not in the future it remains to be seen whether or not the product is slippery or not he never inspected the shop he never tested the materials so his testimony was stricken for unrelated if you look at record one twenty seven a one eleven the magistrate judge and the court spent a great deal of time going through the experts opinions and what he did in this case and you will see the first a preliminary report is assumption assumption assumption no facts and then our expert issues an opinion and the opinion pertains soleus to lighting and everything is to lighting is he actually tested the lighting night and day there are pictures in the record where the light bulb was out on one side then he tested it with a light bulb out on the other side  then he tested it with all three lights on and there was no distinguishable difference there was some other lighting that he described in his report and his entire report went to his inspection of the ship and it didn't make a difference with regard to ability to say so what comes back is a rebuttable a quote rebuttal report in which the expert who was not prevented in any way from finding out information as to lighting not in any way whatsoever an expert report which ended up getting stricken because it had a whole bunch of new materials with regard to lighting that that criticized our expert's report and a whole bunch of new standards that's one of the reasons the second reason is and this is a red herring but i do and i address it's his second expert report they talk about the fact that the bowl leet testing was not turned over which has slipped resistance want to make it clear our expert never did a  friction test it's not he didn't offer any of his expert opinion he didn't offer any opinion on slip resistance what we got back was two supplemental reports this is this is the area that they claim they didn't get discovery line is they didn't know about of coefficient of friction dest the coefficient of friction test that they are talking about was one provided by the manufacturer in two thousand and twelve testing a sample of the flooring which showed that it net slippery as a stance it was not tested on the flooring at the time of this accident it's a manufactor sample it's not something we did our expert offered no opinions on slip resistent what did we get we got a month and a half after the deadlines we got a supplemental report with new opinions and slip resistance which they were not prevented to which we had not presented any expert opinion testimony on and there was no request by the court to reopen or to allow the supplement to extend the time period to permit it and that got stricken so what we're down to in this notice issue is we're down to arguing whether a sign when you put up a sign does the sign up tain and applied to all conditions which is what the plaintiffs can get position is like there's some evidence in the record that your client the winning side did having warnings that's that create an issue of fact it does not create an issue of fact with regard to that because she's talking about a generalized warning a generalized warning no different than the entire  with regard to watch your step watch your step that does not mean we recognize there is a dangerous condition from the backside bit by virtue of an optical illusion and we are giving warning as to that and that's what your expert also it says the area was asked what the sign pertains to is it pertaining to the transition on the other side no innocent i believe that it pertains to the area the area which is and again couldn't a jury conclude that that's talking about the step down no because there's still no matter what they said first of all the expert would just be an opinion there's no evidence from anybody remember we bought it we didn't construct the ship we didn't design the ship the a we didn't affix the sign we did not affix the sign the sign was on the ship at the time so the question is was there any evidence in the record with regard to the reason for this nine the reason why it was posted nine all they are saying is we adopted it by virtue of the fact we allowed it to to exist on the ship if you adopt that that is contrary to all of the law which is well set or that an operator view just to make sure i understand is if the manufacturer sign was referring to the step down as your view that so be it the only way my client can be liable so if we had a notice of an incident you know an accident happening is once we have notice of that we now have to do something but yes i would say in the abstract even if the sign refers to the step down even if it's the dealing with this exact risk that actually happened you can't be held liable for that because that was the way it was bought i mean well when she did that that takes it one step further than what my argument is my argument is no we can't but it's one or the other my argument is that it's open an obvious and we gave a warning which is on and that's what we were required to do but alternatively assuming that that it applied to the step down and applied to the step down without notice that that step down had ever been a problem with anybody that that was just a generalized warning and that's that's all it could ever be and under both tyrol and corsica it can't just be a warning of the fact that the steps are there those were both watcher steps in which somebody had in fact slipped on not the step itself but the covering of the of the step which they said was slippery and this court said a watch or stop sign is not sufficient notice that the step was slippery and that's again thank you judge prior getting to the question that you were posing to n c l there aspecific with a corporate present of here's the question i'm asking specifically what draws your attention to this step down in the area and she says there is and then she is interrupted other than again you know we were trying to suggest you weren't actually discharging your duty to warn but it then she says ok the sign that says the watch your step so the question was what specifically draws your attention to this step down she says the sinuses to watch your st tyro so that's from their their own corporate jets their own position in sales position is this sign applies to this danger and n c l says that that their expert's opinion is just an opinion it's evidence  the best kind of evidence is evidence from their experts melfi that this warning sign is intended to warn of the step beyond in the district court so just to make sure i'm getting this i'm just not sure i am wanted to get to that let's just take it out of the these facts and it's it's a watch simon let's say it's little more specific so watch your step it's a it's a longer drop or something's there quite specific about it it comes with the ship there's no evidence that the cruise liner out of the sign and so i get  that if people are following their injuries now they're on notice and they need to do more than that sign but i take your theory of the case is listen you're the manufacturer knew about this problem you know know about it because it's got this sign so even the first person that doesn't watch their step they're liable because they are the sickos they can be they're either at least goes to a jury because they were on notice because they would have seen the sign lo these ten years  for the jury now entire role the issue was whether the nose was slippery or not and this court said that it we were trying to argue that the watch your step went to the slippery and us of the nosing of the step and this court said  it doesn't do that it said common sense dictates that the sticker served to caution persons on the ship the at the step was there that is that one passenger service was not flat so here it clearly where we there's a dispute as to whether it applies to the step down they say it does the district court found as a as a finder of fact which is not permitted to do on a motion for summary judgment that it does not and the question becomes is it enough should have been a picture of three steps up and then one step down should have been to watch your step there including the additional step past the landing so the issue of whether the the warning was sufficient is goes to the jury that's what this court said in fresca once it's established that there is a warning and there is a there's a question of fact here as to whether it applies to the step down in addition to the three steps in the district court did not view the evidence in light most favorable to the plaintiff are so the theory that we would ask  so i'm saying today the court we pled in and or the the wetness of it might be a factor that plays into how we got injured but the it all got started with the misstep which you know i think the pictures of it show in daylight that it's difficult to discern to see this ik obviously occurred at night and with a light out but the issue is are they on some kind of constructive notice under fresca answer rails this is a permanent danger and therefore permanent sign versus a temporary danger a temporary sign like you might have had in surveils and it doesn't mean they're liable suddenly just means they don't get a summary judgment so we'd ask that the things of the cruise ship would still have other