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                                                                                [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                               Nos. 13-15858 & 14-14467
                              ________________________

                          D.C. Docket No. 1:13-cv-21413-JIC

TERESITA SORRELS,
JOSEPH SORRELS,
her husband,

                                                        Plaintiffs - Appellants,

versus

NCL (BAHAMAS) LTD,
a Bermuda company
d.b.a. Norwegian Cruise Line,

                                                 Defendant - Appellee.
                              ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                            ________________________

                                     (August 4, 2015)

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

JORDAN, Circuit Judge:

∗
  Honorable Steve C. Jones, United States District Judge for the Northern District of Georgia,
sitting by designation.
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       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, 

, 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.” 

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., 

, 1193–94 (11th Cir. 2011)

(ceramic tile floor in cruise ship); Great Am. Ins. Co. v. Cutrer, 

, 80–81

(5th Cir. 1962) (sidewalk); McNeilly v. Greenbrier Hotel Corp., 

, 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


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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.




1
  The district court also entered an order taxing costs in favor of NCL. Mr. and Mrs. Sorrels
separately appealed from that order, see D.E. 111, and we granted the parties’ joint motion to
consolidate the two appeals. Because we vacate the district court’s summary judgment order, we
vacate the award of costs. See Howard v. Roadway Exp., Inc., 

, 1536 (11th Cir.
1984).


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       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, 

, 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. Campagnie Generale

Transatlantique, 

, 632 (1959); Gibboney v. Wright, 

,

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., 

, 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

2
 We discuss the maritime negligence standard in more detail in Part III, which analyzes the
district court’s grant of summary judgment in favor of NCL.
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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 

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.” 

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


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warning signs about the deck, they would have been inadequate to warn passengers

of the potential “hidden” danger. See 

      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.” 

But the district court concluded that Dr. Zollo’s opinions were

not based on reliable methods. 

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. 

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.” 

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.” 

to

the ATSM 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. 

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      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., 

, 1316 (11th Cir.

2005), and Heath v. Suzuki Motor Corp., 

, 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.” 

                                         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, 

, 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


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SunAmerica Corp. v. Sun Life Assur. Co. of Canada, 

, 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., 

, 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 testimony will be helpful to the trier of fact.

See United States v. Frazier, 

, 1260 (11th Cir. 2004) (en banc).

Through the application of these three requirements, a district court acts as a

“gatekeeper” with respect to the admissibility of expert testimony. See 

of [this gatekeeping] requirement is to ensure the reliability . . . of expert

testimony.” Kumho Tire Co. v. Carmichael, 

, 152 (1999).

      NCL does not challenge Dr. Zollo’s qualifications, and we have held that

expert testimony relating to the COF of a flooring surface can be helpful to a jury

in a slip and fall case. See 

(“A qualified expert who

uses reliable testing methodology may testify as to the safety of a defendant’s

choice of flooring, determined by the surface’s coefficient of friction.”). This case

turns, therefore, on the reliability of Dr. Zollo’s opinions.


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      The Supreme Court has identified four factors to guide district courts in their

assessment of the reliability of expert testimony:

      (1) whether the expert's methodology has been tested or is capable of
      being tested; (2) whether the theory or technique used by the expert
      has been subjected to peer review and publication; (3) whether there is
      a known or potential error rate of the methodology; and (4) whether
      the technique has been generally accepted in the relevant scientific
      community.

United Fire & 

(citing Daubert v. Merrell Dow Pharm., Inc.,

, 593–94 (1993)).

                                          A

      We begin with ASTM F1166-07, one of the publications Dr. Zollo relied on

for his opinion of the industry COF standard.        As we have previously held,

“[e]vidence of custom within a particular industry, group, or organization is

admissible as bearing on the standard of care in determining negligence.” Muncie

Aviation Corp. v. Party Doll Fleet, Inc., 

, 1180 (5th Cir. 1975).

“Compliance or noncompliance with such custom, though not conclusive on the

issue of negligence, is one of the factors the trier of fact may consider in applying

the standard of care.” Id.at 1180–81.

      Entitled “Standard Practice for Human Engineering Design for Marine

Systems, Equipment, and Facilities,” ASTM F1166-07 “provides ergonomic

design criteria from a human-machine perspective for the design and construction

of maritime vessels and structures[.]” ASTM F1166-07 at § 1.1. In relevant part,
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it specifies that “[w]alkways, passageways, decks and all other walking surfaces

shall have a nonskid surface sufficient to provide a coefficient of friction (COF) of

0.6 or higher measured when the surface is wet.” 

11.12.1.2.

      On its face, § 11.12.1.2 applies to the pool deck of the Norwegian Sky. The

district court, however, held that this standard did “not govern cruise-ship

passenger decks” because it only discussed general safety standards for “workers

aboard ships and d[id] not address the appropriate standards for passenger areas on

cruise ships.” D.E. 93 at 11 (emphasis in original). In so ruling, the district court

relied on another section of ATSM F1166-07, which reads as follows: “The criteria

contained within this practice shall be applied to the design and construction of all

hardware and software within a ship or maritime structure that the human crew

members come in contact in any manner for operation, habitability, and

maintenance purposes.” ATSM F1166-07 at § 1.2.

      The district court abused its discretion. See Sun 

. On a

cruise ship like the Norwegian Sky, there are numerous areas traversed by both

crew members and passengers, including the pool decks. Even if they are not

enjoying the amenities, crew members come into contact with pool decks for

things like “operation” (e.g., bringing drinks to passengers) and “maintenance”

(e.g., cleaning the pool or making repairs to chairs and tables), as described in §

1.2. As a result, in such commonly traversed areas the COF standard set forth in §


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11.12.1.2 may apply. 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 time.                     The fact that Ms. Sorrels was a

passenger, rather than a crew member, did not necessarily make § 11.12.1.2

inapplicable. 3

       One other point merits a brief discussion. At oral argument, counsel for

NCL argued that the COF standard from the ASTM does not apply because it was

promulgated after the Norwegian Sky was built. We decline to consider this

argument because NCL did not press it below, the district court did not address it,

and NCL failed to present it in its appellate brief. See, e.g., Marek v. Singletary, 

, 1298, 1301 n.2 (11th Cir. 1995) (issues not briefed are considered

abandoned). Should NCL make this argument on remand, the district court may

want to consider cases like Keller v. United States, 

, 26 (1st Cir. 1994)

(holding that district court did not err in finding that ASTM standard for fixed

ladder safety possessed some probative value in determining industry safety

practices, even though standard was promulgated after accident).




3
  The district court did not abuse its discretion in excluding the COF standards from OSHA and
the Federal Register, as Dr. Zollo was unable to explain how they applied. With respect to the
standard promulgated by Carnival, a rival cruise line, we think it is best to allow the district court
to take a look at that standard on remand in light of the portions of Dr. Zollo’s testimony that are
admissible.
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                                          B

      The district court provided a second reason for excluding Dr. Zollo’s

proposed testimony with respect to the COF of the area of the deck where Ms.

Sorrels slipped. Because “[Dr.] Zollo conducted his slip-resistance tests nearly a

year and a half after [the] accident,” the district court concluded that Mr. and Mrs.

Sorrels had not shown that “the same conditions existed on the deck at the time

[Mrs. Sorrels] fell.” D.E. 93 at 10. The district court also noted that the surface of

one of the planks Dr. Zollo tested had a “slimy” substance on it, which may or may

not have been present when Ms. Sorrels slipped. It further explained that Dr. Zollo

had stated in his deposition that the problem with the deck related to maintenance,

and not construction. See 

reported that the COF of the deck at the time he tested it in wet

conditions fell below what he believed to be the minimum acceptable COF for

cruise-ship passenger decks. See D.E. 60-1 at 3 (“the deck surface in its present

condition does not qualify as suitably slip resistant”). He did not opine that the

deck at the time of Ms. Sorrels’ accident was below the minimum acceptable COF.

Notably, NCL did not urge that the delay in testing was a basis for excluding the

testimony or opinions of Dr. Zollo, and therefore did not make any claim that the

time between the accident and the testing adversely affected the validity of the

tests. That was not surprising given that NCL’s own expert, David Wills, tested


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the pool deck at the same time as Dr. Zollo and used the same measuring

equipment and testing protocol employed by Dr. Zollo. See D.E. 57-3; D.E. 66 at

3–4.

       In our view, the district court abused its discretion by improperly applying

the governing legal standard to the record before it. The “substantial similarity”

test—a test found in various evidentiary standards—usually governs when a party

seeks to introduce an out-of-court experiment to recreate a critical event or

incident. See, e.g., Bish v. Emp’rs Liab. Assurance Co., 

, 70 (5th Cir.

1956); United States v. Gaskell, 

, 1060 (11th Cir. 1993); Burchfield

v. CSX Transp., Inc., 

, 1336–37 (11th Cir. 2011). For example, in

Barnes v. General Motors Corp., 

(5th Cir. 1977), a design defect

case involving a Z-28 Camaro with engine mounts, the jury rendered a verdict in

favor of the plaintiff. We reversed because the district court had improperly

admitted evidence of a test performed by the plaintiff’s expert on a different Z-28

vehicle without engine mounts; that test, we said, was conducted under

“significantly different circumstances.” 

       Assuming without deciding that the “substantial similarity” test applied to

the COF measurements taken by Dr. Zollo, the district court erred. To the extent

there was any evidence concerning the similarity of the deck at the time of testing,

all of that evidence was contrary to the district court’s finding. For starters, both


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experts, Dr. Zollo and Mr. Wills, testified that the wet condition of the pool deck

when tested was substantially similar to its condition at the time of the accident.

See Deposition of David Wills, D.E. 66-6 at 17 (“The condition that I created by

doing the wet test by the pouring of the water . . . on the deck is very similar to the

condition that is present after rainfall.”); Deposition of Ronald Zollo, D.E. 88-3 at

214 (“Yes, I did have similar conditions. . . . Wet conditions are similar.”). And an

NCL representative, Jane Kilgour, testified that the deck itself had not been

changed since Mrs. Sorrels’ accident. See Deposition of Jane Kilgour, D.E. 66-6 at

16 (“Q: Has the teak deck been changed in any fashion on Deck 11 between 2009

and the present? A: No.”). Such testimony constituted sufficient evidence of

“substantial similarity” to allow admission. See Buscaglia v. United States, 

, 533–34 (7th Cir. 1994) (that COF testing was conducted on tile from

replacement stock, and not on the tile on which the plaintiff fell, went to weight

and not admissibility); Sparks v. Gilley Trucking Co., 

, 54 (4th Cir.

1993) (whether officer properly performed COF test on road “goes more to the

weight to be attached to his opinion than to its admissibility”).

      We have long held, moreover, that a delay in viewing or inspecting the place

where an accident took place normally goes to weight and not to admissibility.

Our decision in F.W. Woolworth Co. v. Seckinger, 

(5th Cir. 1942), is

instructive. In that case, a patron who fell at an F.W. Woolworth store claimed that


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her fall was caused by a defective condition in the floor. One of the witnesses at

trial testified as to the condition of the floor 45 days after the accident. When the

jury rendered a verdict in favor of the patron, Woolworth appealed. We affirmed,

rejecting Woolworth’s argument that the witness should not have been allowed to

testify as to the condition of the floor:

       The testimony relating to the condition of the floor a month and a half
       after the accident occurred was evidential of its earlier condition.
       There is no evidence in this case that the condition of the floor had
       undergone any material change in the months immediately following
       the accident. Furthermore, the defective condition of the floor
       complained of as causing the injury was shown to result from wear
       and decay, rather than from any abnormality or unusual circumstance
       of a temporary nature. Where the condition is of such character that a
       brief lapse of time would not affect it materially, the subsequent
       existence of the condition may give rise to an inference that it
       previously existed.

       Although Seckinger involved a lay witness, we do not see why its rationale

should not apply to expert witnesses, particularly where, as here, there is evidence

that the deck on which Mrs. Sorrels fell had not changed in any material way since

the accident. Any issues concerning the 520-day delay, or the one “slimy” plank,

go to the weight, and not the admissibility, of Dr. Zollo’s testimony. Cf. Hurst v.

United States, 

, 311 (8th Cir. 1989) (upholding admission of river

hydraulics expert on cause of flood even though he had visited the site of the flood

only once, and that one visit was two years after the flood: “Any weaknesses in the


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factual underpinnings of [the expert’s] opinion go to the weight and credibility of

his testimony, not to its admissibility.”). Cross-examination and the presentation

of contrary evidence “are the traditional and appropriate means of attacking shaky

but admissible evidence.” 

.

      We recognize that the district court also relied on Rule 403 to exclude Dr.

Zollo’s testimony and opinions concerning the COF of the area of the deck where

Mrs. Sorrels slipped. See D.E. 93 at 13 n.8. But we cannot affirm on this basis.

First, the district court’s Rule 403 balancing was based in part on a belief that Dr.

Zollo’s testimony had minimal probative value, and that belief was in turn based

on rulings we have found to be erroneous. Second, to the extent the district court

was concerned about the jury giving significant weight to Dr. Zollo’s opinion

about the applicable standard of care, that concern might not have been warranted

given what we have held with respect to the standard of care.              See Muncie

–81.

      There is a difference between unfairly prejudicial evidence, which may be

excluded under Rule 403, and evidence that is “simply adverse to [an] opposing

party.” United States v. 0.161 Acres of Land, 

, 1041 (11th Cir.

1988) (internal quotation marks and citation omitted). Rule 403 calls for the

exclusion of the former, not the latter. We leave it to the district court to consider




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Rule 403 on remand given what we have said about the admissibility of portions of

Dr. Zollo’s expert testimony.

                                          C

      The district court also excluded Dr. Zollo’s proposed testimony that “[t]he

subject conditions will trap individuals via a false sense of security based on the

wide range of friction resistance along the walkway.” D.E. 60-1 at 4. As to this

ruling, the district court was correct.

      Dr. Zollo’s theory was essentially that, because the COF values in the area

he tested (the area where Ms. Sorrels slipped) ranged from 0.70 to 0.14, the same

range of values can be expected across the entire deck surface. In other words,

someone could walk across the deck without experiencing any instability, and then

suddenly, step on an area of the deck where the COF drops significantly. And so,

presumably, one would feel secure until one is not secure.

      As the district court pointed out, there is a significant problem with Dr.

Zollo’s opinion as to this purported “false sense of security.” And that problem is

that Dr. Zollo did not perform any COF tests along the path Ms. Sorrels traveled to

determine whether the COF values along that path varied to the same degree as the

values obtained from the area Dr. Zollo actually tested. See D.E. 93 at 9–10. That

Dr. Zollo saw a video of Mrs. Sorrels walking along the deck just before her fall

does not give him the ability to opine on the COF measurements of the portions of


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the deck he failed to test. Moreover, Dr. Zollo could not cure the deficiency in his

methodology by merely walking along the same path that Mrs. Sorrels covered and

saying that he did not feel he was going to slip. Dr. Zollo’s subjective physical and

mental perceptions are not the sort of reliable methodology Rule 702 demands.

See United Fire & 

.

      At bottom, Mr. and Mrs. Sorrels argue that Dr. Zollo’s testimony is reliable

because Dr. Zollo says so. But “‘[t]he [district] court’s gatekeeping function

requires more than simply taking the expert’s word for it.’” 

(quoting advisory committee’s note to Rule 702). And “nothing in either

Daubert or the Federal Rules of Evidence requires a district court to admit opinion

evidence . . . by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 

, 146 (1997). The district court correctly ruled that Dr. Zollo’s “false sense of

security” theory was unreliable.

                                         III

      We now turn to the district court’s grant of summary judgment in favor of

NCL, which is “subject to plenary review.” Harris v. Liberty Cmty. Mgmt., Inc.,

, 1301 (11th Cir. 2012). Generally speaking, we “will affirm if, after

construing the evidence in the light most favorable to the non-moving party, we

find that no genuine issue of material fact exists and the moving party is entitled to




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judgment as a matter of law.” Alvarez v. Royal Atl. Developers, Inc., 

, 1263–64 (11th Cir. 2010).

                                          A

      Mr. and Mrs. Sorrels argued that NCL created a dangerous condition by

failing to properly maintain the pool deck where Mrs. Sorrels slipped and by

failing to warn passengers of the danger. The district court ruled that, without Dr.

Zollo’s testimony, the evidence submitted by Mr. and Mrs. Sorrels was insufficient

to survive summary judgment. We vacate the summary judgment in favor of NCL

and remand for the district court to apply the Rule 56 standards anew.

      In this circuit, the maritime standard of reasonable care usually requires that

the cruise ship operator have actual or constructive knowledge of the risk-creating

condition. “[T]he benchmark against which a shipowner’s behavior must be

measured is ordinary reasonable care under the circumstances, a standard which

requires, as a prerequisite to imposing liability, that the carrier have had actual or

constructive notice of the risk-creating condition, at least where . . . the menace is

one commonly encountered on land and not clearly linked to nautical adventure.”

Keefe v. Bahama Cruise Line, Inc., 

, 1322 (11th Cir. 1989) (“BCL’s

liability thus hinges on whether it knew or should have known about the

treacherous wet spot.”).




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         The district court ruled, however, that where, as here, the claim is that the

ship owner itself created the dangerous condition, a plaintiff need not show that the

owner had notice of the alleged condition. See D.E. 93 at 4 (citing cases such as

Long v. Celebrity Cruises, Inc., 

, 1316 (S.D. Fla. 2013), and

McDonough v. Celebrity Cruises, Inc., 

, 264 (S.D.N.Y. 1999)).

NCL does not take issue with this standard on appeal, so for purposes of this case

we will apply that standard without passing on its correctness. Cf. Pogue v. Great

Atl. & Pac. Tea Co., 

, 581 (5th Cir. 1975) (noting that, under Florida

law, “the creator of the dangerous condition is charged with notice of the danger

caused by his own creation”).        On remand, the district court should analyze

whether the admissible portions of Dr. Zollo’s testimony and related evidence

(including the evidence concerning the industry COF standard) are enough to allow

a jury to determine whether NCL created a dangerous condition.

                                           B

         In case NCL’s knowledge (actual or constructive) becomes an issue, we

address the evidence submitted by Mr. and Mrs. Sorrels in an attempt to establish

such knowledge.        That evidence consisted of allegedly similar slip and fall

incidents, and testimony by an NCL employee concerning the posting of warning

signs.




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        Mr. and Mrs. Sorrels introduced evidence of 22 other slip and fall incidents

on teakwood flooring in public areas of the Norwegian Sky over a four-year period.

The district court, applying another of our “substantial similarity” doctrines, see,

e.g., Heath v. Suzuki Motor Corp., 

, 1396, 1397 n.12 (11th Cir.

1997) (explaining that “before evidence of prior accidents or occurrences is

admitted into evidence, the proponent of such evidence must show that conditions

substantially similar to the occurrence cause the prior accidents”), found that none

of the 22 incidents could be considered. See D.E. 93 at 15–17. First, none of them

occurred where Mrs. Sorrels fell. Second, the 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 of rainwater, the liquid that

supposedly helped cause Mrs. Sorrels’ fall. Indeed, only three of the 22 passengers

reported slipping on rainwater, and of those three, one was wearing high heels and

another was wearing worn sandals. Third, in 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

pool.

        The   “substantial   similarity”   doctrine   does   not   require   identical

circumstances, and allows for some play in the joints depending on the scenario

presented and the desired use of the evidence. For example, in Borden, Inc. v.


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Florida East Coast Railway Co., 

(11th Cir. 1985), an FEC train went

off the track and damaged a warehouse owned by Borden. The reason the train

derailed was that some young men had tampered with the track’s signaling and

switching system, causing the train to move from the main track to a short spur

track. Borden sought to introduce evidence that the vandalism was foreseeable to

FEC because of a previous tampering incident at a different location on the same

track some five and a half months earlier. The district court excluded the evidence,

but we reversed with the following explanation:

      The conditions surrounding the two incidents were similar enough to
      allow the jury to draw a reasonable inference concerning FEC’s
      ability to foresee this type of vandalism and its results. The procedure
      used to reverse the track switch and disable the signaling system was
      identical in both incidents. . . . The incidents involved identical FEC
      siding switches located on the same track just six-tenths of a mile
      from one another. Although the results of the two incidents were
      dissimilar, this difference is insubstantial in considering the issue of
      the foreseeability of this type of vandalism.

      Nevertheless, we affirm the district court’s ruling with respect to the 22

incidents. The district court acted within its discretion given that Dr. Zollo, who

opined about the allegedly defective and dangerous COF measurement in the area

where Mrs. Sorrels fell, had not done COF testing at the other locations where

there were accidents; that Dr. Zollo’s “false sense of security” opinion was




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properly excluded; and that only three of the other passengers reported slipping on

rainwater (and two of those three were wearing either high heels or worn sandals).

      The last piece of evidence concerning the notice issue came from Ms.

Winifred, an NCL employee who worked in a restaurant on the Norwegian Sky

adjacent to the area where Mrs. Sorrels slipped. The district court concluded that

Ms. Winifred’s testimony did not help establish that a dangerous condition existed

on the pool deck where Mrs. Sorrels fell—or that NCL knew of such a condition—

because Ms. Winifred admitted that she did not know whether warning signs were

actually posted. See D.E. 93 at 18.

      The testimony of Ms. Winifred was relevant, however, and went to the issue

of NCL’s knowledge that the pool deck could be slippery when wet. Ms. Winifred

explained at her deposition that the ship’s deck department would sometimes post

warning signs on the pool deck after it had rained, and that she had been told to

post warning signs in the restaurant whenever there was water or some other liquid

on the floor of the restaurant because it was known to her supervisors that the teak

floor could be slippery when wet. See D.E. 78-1 at 5–6; D.E. 66-6 at 105–07. The

same goes for the testimony of Milan Rai, an NCL security guard. He testified,




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consistently with Ms. Winifred, that he had seen signs posted on the deck when it

rained.4

       Neither Ms. Winifred, Mr. Rai, nor Ms. Kilgour could recall whether signs

were posted on the night of Ms. Sorrels’ accident. See D.E. 66-6 at 102 (Ms.

Winifred); 

(Mr. Rai); id at 109–10 (Ms. Kilgour). 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’ accident. See 

. Cf. Burrell v. Fleming, 

, 492 (5th Cir. 1901) (Texas law: “But,

knowing that [the trimming holes in the ship] were in this condition [i.e., without

coaming or railings], and in a dark place, a proper care for the safety of others

invited aboard ship would require those in charge of the ship to give notice of the

danger, or to have the doors that led to the danger securely closed.”).                   The

testimony of Ms. Winifred and Mr. Rai—that warning signs were sometimes

posted on the pool deck after rain—viewed in the light most favorable to Ms.

Sorrels, is enough to withstand summary judgment as to notice.
4
  The record before us is missing pages 17–18 of Mr. Rai’s deposition transcript. See D.E. 66-6
at 111–12. The parties, however, have represented that Mr. Rai testified that he had sometimes
seen warning signs posted on the deck after it had rained. See D.E. 66 at 2 (citing Mr. Rai’s
deposition testimony at pages 16–19); Appellee’s Br. at 40 n.7 (citing Mr. Rai’s deposition
testimony at pages 17–18).
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      We note, as well, that Ms. Sorrels testified that barring “barricades, or

something to that effect,” she assumed the deck was safe to walk on, despite the

fact that it was wet. See D.E. 66-6 at 103. A reasonable inference from Ms.

Sorrels’ testimony is that warning signs had not been posted on the night in

question.

                                        IV

      We affirm in part and reverse in part the district court's evidentiary rulings,

vacate the grant of summary judgment and the award of costs in favor of NCL, and

remand for further proceedings consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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