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 Sorrels slipped and fractured her wrist. Mr. And Mrs. Sorrels (the Plaintiffs) sued NCL for negligence under maritime law, which governs the liability of a cruise ship for a passenger's slip and fallâ.
Standard Of Care
âUnder maritime law, the owner of a ship in navigable waters owes passengers a âduty of reasonable care' under the circumstances...To prevail on their negligence claim, therefore, (the Plaintiffs) had to prove âthat (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. Sorrel's] injury and (4) [Mrs. Sorrels] suffered actual harm'â.
The Coefficient Of Friction
âIn 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, âthe degree of slip resistance' (citing Mihailovich v. Laatsch, 359 F. 3d 892, 921 n. 2 (7th Cir. 2004)...See also Shorter Oxford English Dictionary 1035 (5th ed. 2002)(defining COF as âthe ratio between the force necessary to move one surface horizontally over another and the normal force each surface exerts on the other'). âThe higher the [COF] the slippery the [surface] w[ill] be.' Mihailovichâ).
Proving The COF
âEvidence 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 (citing Rosenfeld v. Oceania Cruises, Inc., 654 F. 3d 1190, 1193-94 (11th Cir. 2011)...To help establish (NCL's duty of reasonable care) and (the breach thereof, the Plaintiffs) 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. Sorrel's accident. Dr. Zollo-who performed his tests following a rain-fall 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. Dr. Zollo also reviewed video of Ms. Sorrel's deposition testimony and other documents relevant to the litigationâ.
The Industry COF Standards
âDr. Zollo opined that a COF of 0.45 is âbelow minimum standard values that have long been accepted as required in order to classify a walkway surface as slip-resistant...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. Dr. Zollo further reported that, pursuant to Section 184.108.40.206 of ASTM F1166-07 (entitled âStandard Practice for Human Engineering Design for Marine Systems, Equipment and Facilities') walkways on ships âshall have a non-skid surface sufficient to provide a [COF] of 0.6 or higher measured when the surface is wet'â.
Dr. Zollo's Opinions
âBased on his investigation of 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 Section 220.127.116.11 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 of passengers when it was wet. Third, due to the âwide range of friction resistance along the walkway[,], the deck âtrap[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 âhidden' dangerâ.
The Court's Decision
In reversing the Trial Court's exclusion of Dr, Zollo's testimony and the publications he relied upon to establish an appropriate COF and granting NCL's motion for summary judgment, the Court of appeals, inter alia, made the following determinations.
COF Applies To Workers And Passengers
First, the ASTM COF standard applied not only to workers aboard ships but to passengers as well. â[T]here are numerous areas traversed by both crew members and passengers, including the pool decks (where crew members may bring drinks to passengers and clean the pool and repair chairs). A deck constructed of a single material (here, teakwood) cannot be designed to meet two different COF standards-one for passengers and one for crew members-at the same timeâ.
Delay In Testing
Second, although the COF testing by Dr. Zollo and NCL's expert took place 520 days after the accident both experts agreed that conditions for the test were the same as when the accident occurred. âWe have long held...that a delay in viewing or inspecting where an accident took place normally goes to weight and not to admissibilityâ.
Evidence Of Other Accidents
Third, the Plaintiffs introduced âevidence of 22 other slip and fall incidents on teakwood flooring in public areas of the Norwegian Sky over a four-year period. However, the Court rejected this type of evidence because (1) ânone of them occurred where Mrs. Sorrels fellâ; (2) âthe liquids that the other passengers slipped on differed-most involved unknown wet substances-and many of the incident reports noted that there was no indication or rainwater, the liquid that supposedly helped cause Mrs. Sorrel's fallâ; (3) âin some of the other incidents there were other factors involved. For example, three passengers slipped while playing table tennis and another (a 12-year old) fell while chasing someone around the poolâ.
Posting Of Warning Signs
Fourth, the testimony of NCL witnesses to the effect that âthe ship's deck department would sometimes post warning signs on the pool deck after it had rained. (However, none of NCL's witnesses) could recall whether signs were posted on the night of (the accident)...But the issue is not whether NCL violated any of its own internal policies and procedures by not posting warning signs. Rather, the issue is whether NCL had actual or constructive knowledge that the pool deck where Mrs. Sorrels fell could be slippery (and therefore dangerous) when wet, and whether it negligently failed to post a warning sign after the rain that preceded Mrs. Sorrels' accidentâ.
The author, Justice Dickerson, has been writing about Travel Law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2015) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2015), and over 350 legal articles. For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
This article may not be reproduced without the permission of Thomas A. Dickerson.
Read many of Justice Dickerson's articles here.