Eleventh Circuit Vacates Summary Judgment Against Plaintiffs in Slip and Fall Case

In Sorrels v. NCL (Bahamas), Ltd., 796 F. 3d 1275 (11th Cir. 2015), the Eleventh Circuit affirmed in part and reversed in part the district court’s evidentiary rulings regarding expert testimony, holding that an expert’s testing of a deck surface 520 days after a slip and fall was sufficiently reliable, and hence admissible. On April 14, 2012, Teresita Sorrels was walking across the teak-surfaced exterior pool deck of the Norwegian Sky, a cruise ship. The deck was wet from rain. Ms. Sorrels walked approximately 100 feet, at which point she slipped, fell, and fractured her wrist. The Sorrels then brought suit for negligence under maritime law.

The Sorrels enlisted Dr. Ronald Zolo to testify about the coefficient of friction (COF) of the deck. The COF, simply put, is the level of slip resistance. Dr. Zolo tested the deck 520 days after the accident, when it was similarly wet from rain. He found that the COF varied widely across the deck, with an average COF of 0.45. Dr. Zolo entered several opinions, including the following: the COF did not meet the minimum recommended COF for passenger walkways, based on the American Society for Testing and Materials (ASTM) recommendation of 0.50. Second, the range of COF on the deck trapped individuals into false sense of security. The district court determined his methods—including testing the area 520 days after the incident and reliance on standards recommended by an ASTM publication dedicated to boat worker safety—were unreliable; the court thus ruled that his testimony inadmissible and granted summary judgment for NCL.

On appeal, the Eleventh Circuit noted that courts consider three requirements for expert testimony: “the expert’s qualifications, the reliability of the testimony, and the extent to which the testimony will be helpful to the trier of fact.” The only requirement contested in this case was the reliability of the testimony. The Eleventh Circuit determined that Dr. Zolo’s first opinion, that the deck’s COF did not meet minimum safety standards, was sufficiently reliable. Although the ASTM publication made recommendations for surfaces on which boat workers walk, it was reasonable to assume that crewmembers regularly traversed the teak deck, as well as guests. Furthermore, the fact that the test was conducted 520 days later did not render it inadmissible, where experts on both sides admitted the conditions were similar, and an NCL representative testified that no changes had been made to the deck. However, the Eleventh Circuit ruled that Dr. Zolo’s opinion that the deck created a false sense of security was not reliable, and hence not admissible, because he had not conducted COF tests along the path Ms. Sorrel walked. Dr. Zolo’s subjective experience of walking the path himself did not qualify as a reliable methodology.

The Eleventh Circuit also vacated the grant of summary judgment, noting that the district court will have to determine whether summary judgment is appropriate in light of the now-admitted expert testimony. Although notice of the dangerous condition had not been at issue at the district level, the Eleventh Circuit preemptively addressed the issue. Twenty-two other incidents of slip and falls had occurred on the deck, but the Eleventh Circuit found they were not sufficiently similar to admit into evidence. Substantial similarity does not require identical circumstances, but in this case, only three of the twenty-two incidents involved people who slipped on rainwater, and of those three, two people were wearing treacherous footwear. Furthermore, Dr. Zolo had not tested the COF at the location of the other incidents. However, the court determined that the testimony of two NCL employees, who admitted to sometimes posting signs to warn guests that the teak floors were slippery when wet, was sufficient to withstand summary judgment regarding the notice element of the negligence claim.

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