Sorrels v. NCL (Bahamas) Ltd.

• Decision Date: 04 August 2015
• Docket Number: Nos. 13–15858,14–14467.,s. 13–15858
• Citation: 796 F.3d 1275
• Parties: Teresita SORRELS, Joseph Sorrels, her husband, Plaintiffs–Appellants, v. NCL (BAHAMAS) LTD., a Bermuda company d.b.a. Norwegian Cruise Line, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

796 F.3d 1275

Teresita SORRELS, Joseph Sorrels, her husband, Plaintiffs–Appellants

v.NCL (BAHAMAS) LTD., a Bermuda company d.b.a. Norwegian Cruise Line, Defendant–Appellee.

Nos. 13–15858

14–14467.

United States Court of Appeals, Eleventh Circuit.

Aug. 4, 2015.

Carol Lynn Finklehoffe, The Law Offices of Maria L. Rubio, PA, Robert D. Peltz, The Peltz Law Firm, PA, Miami, FL, for Plaintiffs–Appellants.

Michael John Dono, Jerry D. Hamilton, Hector Virgilio Ramirez, Hamilton Miller & Birthisel, L.L.P., Miami, FL, for Defendant–Appellee.

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:13–cv–21413–JIC.

Before WILLIAM PRYOR, and JORDAN, Circuit Judges, and JONES,^* District Judge.

Opinion

JORDAN, Circuit Judge:

In slip and fall cases involving an allegedly dangerous or defective surface, the question of liability sometimes turns on (or is at least informed by) the surface's coefficient of friction (COF), which is, in layman's terms, “the degree of slip resistance.” Mihailovich v. Laatsch, 359 F.3d 892, 896, 921 n. 2 (7th Cir.2004). See also Shorter Oxford English Dictionary 1035 (5th ed.2002) (defining COF as “the ratio between the force necessary to move one surface horizontally over another and the normal force each surface exerts on the other”). “The higher the [COF], the less slippery the [surface] w[ill] be.” Mihailovich, 359 F.3d at 921 n. 2.

Evidence concerning a surface's COF is generally presented through the testimony of an expert witness, who opines on the appropriate COF industry standard and on whether the surface in question meets that standard. See, e.g., Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193–94 (11th Cir.2011) (ceramic tile floor in cruise ship); Great Am. Ins. Co. v. Cutrer, 298 F.2d 79, 80–81 (5th Cir.1962) (sidewalk); McNeilly v. Greenbrier Hotel Corp., 16 F.Supp.3d 733, 735–36 (S.D.W.Va.2014) (hotel bathtub); Frazza v. United States, 529 F.Supp.2d 61, 69–70 (D.D.C.2008) (vinyl tile floor in White House).

While on a cruise in 2012, Teresita Sorrels slipped on the pool deck of NCL's Norwegian Sky —which was wet from rain—and fractured her wrist. She and her husband sued NCL for damages, alleging negligence. To support their claims, Mr. and Mrs. Sorrels sought to present expert testimony concerning the COF of the pool deck of the Norwegian Sky, as well as publications which, according to their expert, set the COF standards applicable to the pool decks of cruise ships. The district court excluded all of the expert testimony and publications submitted by Mr. and Mrs. Sorrels with respect to the COF, and granted summary judgment in favor of NCL.

After review of the record and the parties' briefs, and with the benefit of oral argument, we conclude that the district court properly excluded some of the expert's proposed opinions, but erred in striking all of the expert testimony and publications concerning the COF. We therefore vacate the summary judgment in favor of NCL.¹

I

In the early morning hours of April 14, 2012, Mrs. Sorrels exited the lounge of the Norwegian Sky and made her way onto one of the adjacent exterior pool decks. The deck was wet from rain. After walking approximately 100 feet on the deck, Mrs. Sorrels slipped and fractured her wrist.

Mr. and Mrs. Sorrels sued NCL for negligence under maritime law, which governs the liability of a cruise ship for a passenger's slip and fall. See Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir.1990). Under maritime law, the owner of a ship in navigable waters owes passengers a “duty of reasonable care” under the circumstances. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959) ; Gibboney v. Wright, 517 F.2d 1054, 1059 (5th Cir.1975). To prevail on their negligence claim, therefore, Mr. and Mrs. Sorrels had to prove “that (1) [NCL] had a duty to protect [Mrs. Sorrels] from a particular injury [i.e., her slip and fall]; (2) [NCL] breached that duty; (3) the breach actually and proximately caused [Mrs. Sorrels'] injury; and (4) [Mrs. Sorrels] suffered actual harm.” Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1253 (11th Cir.2014) (internal quotation marks and citation omitted).²

To help establish the duty and breach elements of their negligence claims, Mr. and Mrs. Sorrels had Dr. Ronald Zollo, a civil engineer, conduct COF testing on the deck. The testing by Dr. Zollo (and by NCL's own expert) took place approximately 520 days after Ms. Sorrels' accident. Dr. Zollo—who performed his tests following a rainfall—reported that wet testing produced a COF range from 0.70 on the high end to 0.14 on the low end. The average value for all wet testing was 0.45. In addition to conducting on-site COF tests, Dr. Zollo also reviewed video of Ms. Sorrels' accident, as well as Ms. Sorrels' deposition testimony and other documents relevant to the litigation.

Dr. Zollo opined that a COF of 0.45 is “below minimum standard values that have long been accepted as required in order to classify a walkway surface as slip-resistant.” D.E. 60–1 at 3. According to Dr. Zollo, the American Society for Testing and Materials (ASTM), the Occupational Safety and Health Administration (OSHA), the Federal Register, and the Hospital Research Bureau set the minimum COF value for passenger walkways at 0.50. See id. Dr. Zollo further reported that, pursuant to § 11.12.1.2 of ASTM F1166–07 (entitled “Standard Practice for Human Engineering Design for Marine Systems, Equipment and Facilities”), walkways on ships “shall have a non-skid surface sufficient to provide a[COF] of 0.6 or higher measured when the surface is wet.” Id.

Based on his investigation and the COF testing, Dr. Zollo rendered a number of opinions. First, at the time the deck was tested, it did not meet the minimum COF standard for passenger walkways under § 11.12.1.2 of ASTM F1166–07. Second, based on other reported slip and fall incidents that occurred aboard the Norwegian Sky, NCL knew or should have known that the condition of the deck in question posed an unreasonable risk to passengers when it was wet. Third, due to the “wide range of friction resistance along the walkway[,]” the deck “trap[ped] individuals via a false sense of security[.]” Fourth, even if NCL had posted warning signs about the deck, they would have been inadequate to warn passengers of the potential “hidden” danger. See id. at 3–4.

The district court granted NCL's motion to strike the testimony of Dr. Zollo and the publications he submitted in support of the industry COF standard. The district court ruled that Dr. Zollo was qualified to testify as an expert with regard to the slip resistance of the pool deck of the Norwegian Sky, see D.E. 93 at 8–9, as well as “(1) individuals' mental and physical reactions to surfaces with varying slip resistances and (2) the necessity and adequacy of warnings concerning such surfaces.” Id. at 9. But the district court concluded that Dr. Zollo's opinions were not based on reliable methods. Id. With respect to Dr. Zollo's “false sense of security” theory, the district court held that Dr. Zollo's testimony was unreliable because he had not tested the COF of the deck along the path Ms. Sorrels traveled before she slipped. Id. at 9–10. The district court also excluded Dr. Zollo's testimony as to the COF results obtained from the area where Ms. Sorrels slipped because the tests were conducted “nearly a year and a half after [the] accident.” Id. at 10. The district court believed that Mr. and Ms. Sorrels had failed to show “that the same conditions existed on the deck at the time [she] fell.” Id. With respect to the ASTM standard Dr. Zollo cited in opining that 0.6 was the minimum acceptable COF for the deck, the district court ruled that this standard was applicable only to crew members aboard ships. Id. at 11.

The district court also granted summary judgment in favor of NCL. Having excluded Dr. Zollo's testimony and opinions, the district court concluded that the other evidence presented by Mr. and Mrs. Sorrels failed to create an issue of fact as to whether NCL had created a dangerous condition on the deck by failing to properly maintain it. First, although Mr. and Mrs. Sorrels had submitted evidence of 22 other slip and fall accidents over a four-year period on teakwood flooring in public areas of the Norwegian Sky, those accidents were not “substantially similar” under cases like Tran v. Toyota Motor Corp., 420 F.3d 1310, 1316 (11th Cir.2005), and Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir.1997). None of those other accidents, the district court noted, occurred where Mrs. Sorrels had fallen. See D.E. 93 at 15–17. Second, although Solange Winifred, an NCL restaurant employee on the Norwegian Sky, testified that the ship's deck department would sometimes post signs warning that decks could be slippery when wet, “she admitted that she did not actually know whether those signs were posted because she worked in the restaurant.” Id. at 18.

II

“[We] review[ ] the district court's decision to exclude expert testimony under Federal Rule of Evidence 702 for abuse of discretion.” United States v. Paul, 175 F.3d 906, 909 (11th Cir.1999). A district court abuses it discretion when it makes a clear error in judgment or applies an incorrect legal standard. See SunAmerica Corp. v. Sun Life Assur. Co. of Canada, 77 F.3d 1325, 1333 (11th Cir.1996). Where a portion of the proffered expert testimony is reliable, wholesale exclusion can constitute an abuse of discretion. See, e.g., United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341–42 (11th Cir.2013) (holding that wholesale exclusion of expert testimony constituted an abuse of discretion and reversing as to one of the expert's opinions).

In determining the admissibility of expert testimony under Rule 702, courts analyze three basic requirements: the expert's qualifications; the reliability of the testimony; and the extent to which the...