Aide Sepulveda Torres v. Carnival Corporation , 635 F. App'x 595 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13721
________________________
D.C. Docket No. 1:12-cv-23370-JLK
AIDE SEPULVEDA TORRES,
Plaintiff-Appellant,
versus
CARNIVAL CORPORATION,
d.b.a. Carnival Cruise Lines,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 20, 2015)
Before MARCUS, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Aide Sepulveda Torres appeals summary judgment granted to Carnival
Corporation in her action alleging negligence, causing her to fall and injure herself
while disembarking from the Carnival Splendor. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Torres and her husband, Robert, had been passengers for a seven-day cruise
on the Carnival Splendor out of Long Beach, California. At the conclusion of their
cruise on July 24, 2011, the couple went to a lower deck and entered a queue to
complete a standard exit interview before disembarking. Torres’s husband told her
to disembark, and he would “catch up.” Torres, who was wearing elevated,
platform shoes, approached the security booth to disembark thereafter by a ramp. 1
After clearing the security booth, Torres tripped on the ramp as she disembarked
from the ship, fell forward on her left side, and sustained a shoulder fracture.
While in line approaching the security booth, Torres testified she “didn’t
really pay attention” to the other passengers ahead of her, as they disembarked.
She and her husband, who saw her fall, testified at their depositions there were no
passengers or obstructions in the walking path between the security booth and the
exit doorway; only one person at a time could traverse the area between the
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Torres wore sunglasses, but she removed them at the request of her interviewer. Across
the room, sunlight streamed through an open watertight door, over which a two-sided ramp had
been placed to assist passengers in accessing the outer deck of the ship. While there were no
posted signs regarding the ramp, the carpet on the ramp was darker than the surrounding
flooring.
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security booth and exit doorway to the ramp to leave the ship. Torres testified she
was not paying attention, as she walked toward the carpeted ramp in the departing
doorway:
Q: As you approached the doorway, was there anything obstructing
you from seeing this black carpeted area?
A: No, sir.
Q: Did you see the black carpeted area as you walked toward the
doorway?
A: Didn’t even pay attention, to be truthful. It was just like automatic.
I just started to disembark.
The evidence is undisputed that Carnival employees, who inspected the scene
shortly after Torres’s fall, did not identify any defective condition that could have
caused her to fall.
Malcolm Stark, the chief of security for the Carnival Splendor, attended to
Torres after her fall. Stark inspected the ramp and determined it had not shifted
and there was “no damage to the carpet.” Olena Komarova, an assistant
housekeeping manager, who had inspected the area earlier that morning, observed
the outer deck was clean and dry, and the carpet on the ramp contained “no waves,
. . . [bumps or] damages.” Stark, Komarova, and an accident adjuster for Carnival
did not know of any other accidents on the threshold ramp.
Stark reviewed the surveillance recordings of the exit, but he “could not get
any footage [of the accident] because of too much glare coming through the
doors.” After Torres reported she had fallen on the downward slope of the ramp,
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Stark and his chief assistant photographed the ramp from the outer deck. The
photograph showed two yellow caution cones placed on each side of the ramp.
Stark explained there was insufficient clearance to place caution cones inside the
departing room, and the two-sided threshold ramp was used during disembarkment
from the Carnival Splendor exclusively at its home port in Long Beach, California.
He testified no other passenger had tripped on the two-sided threshold ramp.
Robert Torres completed a “Passenger Injury Statement” for his wife shortly
after her fall, before he left the ship. He reported his wife had “walked out of [the]
ship onto [the] deck, [and she] fell forward landing on [her] left side.” Robert
Torres attributed the accident to “[a] rise on [the] floor” or a “ramp.”
Torres filed a complaint in the Southern District of Florida, based on
admiralty and diversity jurisdiction, 2 and alleged Carnival was negligent for
covering the threshold with “a mat or similar material, which obscured, disguised,
or hid the raised threshold”; “failing to properly supervise and/or monitor the
disembarkation procedure”; “failing to properly assist [Torres] as she attempted
[to] disembark the ship”; and “failing to warn passengers of the hazard of which
[Carnival] knew or should have known in the exercise of reasonable care and of
which [it] had [superior] knowledge.” Torres represented, “as she was stepping
through the open passageway onto the exterior deck, . . . [she] tripped and fell over
2
Torres is a resident of California; Carnival is a Panamanian corporation, with its principal base
of operations in Miami-Dade County, Florida.
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[the] raised threshold that had been covered over with a mat or similar material,
which obscured, disguised or hid the raised threshold.” She requested
compensatory and “[a]ll other damages as allowable by law.”
Torres testified the lighting inside and outside the ship did not affect her
eyesight; she did not require assistance to walk off the ship; she saw a “rise in the
floor” and a “mat” consisting of “dark carpet” in front of the exterior door; and no
object or person obstructed her view of the ramp or her path to the outer deck. As
she approached the doorway and not paying attention, Torres testified she suddenly
“tripped, . . . stumbled” forward, reached for something to steady her, fell onto her
left side, and then “slid a little bit right into the railing . . . right outside the doors,”
which would have kept her from going overboard. She “remember[ed] [her] left
foot hitting something” and thought the accident had “[s]omething to do with [the]
mat,” which had an “elevation.” She asserted her fall began on the inclined section
of the ramp.
Robert Torres testified he “just remember[ed] . . . [his] wife falling”; after
recalling she wore a “platform shoe” on the day of her accident, however, he stated
“she hit something, . . . a carpet, raised carpet or device that is put there, . . .
start[ed] stumbling and trying to reach for something, . . . land[ed] on her left side
and slid right to the outside rail of [the] ship.” Robert did not observe a defect in
the carpet, when he examined the ramp shortly after his wife fell. He confirmed
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his wife began to fall on the “[i]nterior” side of the doorway “right from possibly
the beginning part to maybe a foot in.”
Kevin Rider, a human-factors engineer retained by Torres, provided a report
in which he opined the height of the carpet affixed to the ramp interrupted the
“swing phase of [Torres’s] foot” and caused her to fall. Rider prepared his report
using photographs of the accident scene, Torres’s statement, exemplars of new
carpet obtained from three companies that produced the model of carpet affixed to
the ramp, documents produced by the parties, and their answers to interrogatories.
He opined Torres had tripped on “[t]he exposed edges” of the carpet because it
“exceeded the maximum-1/4 requirement” for carpet thickness and for vertical
changes in elevation endorsed in the 1994 Guidelines for Buildings and Facilities
to the Americans with Disabilities Act (“ADA”) and the standards for Accessible
and Usable Buildings and Facilities issued by the American National Standards
Institute.
Rider concluded Carnival could have prevented the accident, if there had
been “rubber borders to provide a slope or bevel of the edge” of the carpet, as
recommended in the standards created by American Society of Testing and
Materials, and “effective warnings,” such as “caution tape . . . [to] alert[]
passengers of the trip hazard.” He opined three “factors affected Torres’s ability to
detect and identify the raised surface of the incident doorway as a trip hazard”: (1)
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the “use of carpet to cover the threshold[, which] . . . violated [her] reasonable
expectations of a flat, level and consistent walkway”; (2) “[t]he change in
brightness between the interior and exterior of the doorway”; and (3) the lack of
“effective warnings” on or near the flooring.
When deposed, Rider equivocated regarding what had caused Torres to fall.
He testified “it’s more likely than not” Torres’s foot struck the front edge of the
ramp because the carpet appeared in the photographs to be rounded instead of
beveled. Rider conceded he had no information regarding whether the subject
carpet edge was beveled or not. He also testified “it’s possible that [Torres]
tripped on the incline,” because “the whole [ramp] is above a quarter-of-an-inch”
and creates a “trip hazard.” When questioned about the guidelines cited in his
report, Rider acknowledged he did not “know the extent of [the] application” of the
ADA guidelines to cruise ships, and the standards created by the Society of Testing
were considered a “consensus standard,” which was treated as “relevant for the
country” by the Standards Institute. Rider was unfamiliar with the Access Board, a
federal agency that advocates for accessibility for the disabled, or any of its
publications about the application of the ADA to passenger vessels.
Rider did not inspect the Carnival Splendor, measure the threshold ramp, or
consider its slope as a factor in his analysis. He testified a ramp “can be” an
acceptable means of traversing a high threshold, if it is “reasonably detectable or
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conspicuous to someone that’s walking through on an otherwise level surface.”
Rider testified footwear “can be an issue in terms of walking,” but he did not think
Torres’s platform shoes were a factor in her accident, because “research [had]
show[ed] . . . that in most cases[,] . . . people . . . develop a gait pattern based on
their shoes.” Although Torres was not paying attention, she was “blameless” in
Rider’s opinion, because “the cause of [her] fall was an inconspicuous trip hazard,”
which was “foreseeable and predictable and supported by science of how people
walk through a facility.” When asked what had “prevent[ed] [Torres] from seeing
the ramp,” Rider answered only “the glare coming through the doorway.” He
conceded none of Torres’s “testimony . . . relate[d] to glare being an issue,” and
he had “speculate[d]” from Stark’s testimony about the sunlight affecting the
surveillance video that the “reflective glare” in the room “inhibite[d] [Torres] from
detecting floor-level hazards.”
Carnival moved to exclude Rider’s testimony. In granting its motion, the
judge determined Rider’s testimony about “floor features, lighting, and warnings”
would “unnecessarily complicate[] the case.” He explained Rider’s testimony was
not helpful, because jurors readily could “understand the simple mechanics of
walking and the various reasons one [might] fall, including tripping on a carpet”;
how the human eye requires “time to adjust” to changes in lighting and how
“during that interval it is more difficult to see”; and whether the “placement, color,
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size, etc. of cones” provided an adequate warning. The judge also determined that
Rider’s “opinions [were] not based on a sufficiently reliable methodology,” and his
“lack of first-hand investigation [made] the relevance of [his] experiments quite
attenuated.” The judge reasoned Rider’s “methodology [was] questionable,”
because Rider had “never investigated the subject vessel and felt it was
unnecessary to do so”; his “analysis of the carpet [was] based on comparisons of
swatches exemplary”; he was unable to “quantify the differences in lighting
between the interior and exterior of the ship”; and he based his analysis of the
lighting “on photographs . . . even though he acknowledge[d] that [they] do not
adequately depict how ambient light is seen by the human eye.”
The district judge also granted Carnival’s summary judgment motion,
because he concluded “there [was] no genuine issue of material fact” concerning
whether Carnival breached a duty to Torres, since she had failed to prove the
carpet was “unreasonably dangerous.” “Given that the record evidence[d] no
dispute that there was [a] hazard,” Carnival also did not have a duty to warn about
a latent defect. In addition, the judge reasoned Carnival did not have a duty to
warn about the “obvious hazard” created by the ramp, when Torres had testified
she saw the “carpeted area and that there were no obstructions in her path.” The
judge explained Torres’s claims that Carnival had a duty to assist her and to
supervise her disembarkation failed, because Torres had “testified that she did not
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feel she needed any assistance in leaving the ship,” and she did not submit any
evidence to prove otherwise. On appeal, we determine whether the district judge
properly excluded Rider’s expert opinion and granted summary judgment to
Carnival.
II. DISCUSSION
A. Expert Testimony
“We review for abuse of discretion the district court’s decisions regarding
the admissibility of expert testimony and the reliability of an expert opinion.”
United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc). Under
Federal Rule of Evidence 702, district judges “perform the critical ‘gatekeeping’
function concerning the admissibility of expert scientific evidence,” id. at 1260
(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 n.7, 597, 113 S.
Ct. 2786, 2795 n.7, 2798 (1993)), as well as “technical expert evidence,” id. (citing
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 1174 (1999)).
“[I]n determining the admissibility of expert testimony under Rule 702, we engage
in a rigorous three-part inquiry”: (1) the expert must be “qualified to testify
competently” concerning the subject matter he addresses, (2) the expert’s
methodology must be “sufficiently reliable,” and (3) the expert’s testimony must
“assist[] the trier of fact” in understanding scientific or technical evidence. Id. at
1260. “The proponent of expert testimony always bears the burden to show that
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his expert is qualified to testify competently regarding the matters he intended to
address; the methodology by which the expert reached his conclusions is
sufficiently reliable; and the testimony assists the trier of fact.” Id. (citation,
internal quotation marks, and alterations omitted). The determinations of a district
judge concerning the reliability and helpfulness of expert testimony are accorded
“‘considerable leeway’ . . . ‘unless [they are] manifestly erroneous.’” See
Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1305 (11th Cir.
2014), cert. denied, 135 S. Ct. 2312 (May 18, 2015) (quoting Kumho Tire Co., 526
U.S. at 152, 119 S. Ct. at 1176; Rink v. Cheminova, Inc., 400 F.3d 1286, 1291
(11th Cir. 2005)).
The district judge reasonably determined Rider’s conclusions were not
reliable. Rider relied on new exemplar carpets to estimate the thickness of the
subject carpet; based on photographs of the ramp, he estimated its leading edge
was too high from the ground and needed beveling; and the guidelines he had used
to determine appropriate carpet thickness and vertical elevation governed disabled
persons and land-based buildings and facilities, not cruise ships. See Muncie
Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180 (5th Cir. 1975)
(“Evidence of custom within a particular industry, group, or organization is
admissible as bearing on the standard of care in determining negligence.”). Rider
could not quantify the difference in the indoor and outdoor light, and he conceded
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the photographs on which he had based his determination did not portray the
subject lighting conditions accurately. Significantly, Rider’s conclusion regarding
the lighting was misleading, because it was based on speculation and was
irreconcilable with Torres’s testimony the lighting did not affect her vision.
The judge also reasonably determined Rider’s testimony would not be
helpful to the jury. Rider’s testimony regarding walking and the efficacy of
different types of warnings can be understood easily and evaluated by jurors. See
Evans v. Mathis Funeral Home, Inc., 996 F.2d 266, 268 (11th Cir. 1993)
(affirming exclusion of expert testimony regarding the causes of plaintiff-
appellant’s fall, because they were “within the common knowledge of the jurors,
and thus the probative value of such testimony was outweighed by the danger of
prejudice” (citing Federal Rule of Evidence 403)). Rider additionally could not
assist the jury in determining what caused Torres to trip; he had disregarded
Torres’s admission about failing to pay attention or her representation she had
tripped on the declining side of the disembarking ramp. Torres argues the
problems in Rider’s testimony affected its weight and persuasiveness, but the
problems reveal Rider’s testimony is unreliable, confusing, and unhelpful. Cf.
Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193-94 (11th Cir. 2011). The
district judge appropriately granted Carnival’s motion to exclude Rider’s
testimony.
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B. Summary Judgment
We review an order granting summary judgment de novo. Chapman, 766
F.3d at 1312. Under Federal Rule of Civil Procedure 56(c), summary judgment is
mandated against a party failing to establish the existence of an element essential
to its case and on which it bears the burden of proof at trial. Optimum Techs., Inc.
v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007)
(affirming summary judgment). Summary judgment is proper when the record
shows there is “no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A cruise-ship owner owes an injured passenger “the duty of exercising
reasonable care under the circumstances of each case.” Kermarec v. Compagnie
Generale Transatlantique, 358 U.S. 625, 632, 79 S. Ct. 406, 410 (1959). To
prevail on her negligence complaint, Torres had to prove Carnival owed her a duty
of “ordinary reasonable care under the circumstances” that it had breached by
creating a dangerous condition of which it was actually or constructively aware,
Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989), and of
which it had failed to warn Torres under reasonable foreseeability, Daigle v. Point
Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980). Aside from Rider’s testimony,
Torres failed to submit any evidence the carpet was hazardous. Testimony from
Torres’s husband, Stark, and Komarova established the carpet was not defective.
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The undisputed evidence further established there had not been any other
accidents on the threshold ramp, which would have put Carnival on notice the
carpet was dangerous. See Keefe, 867 F.2d at 1322. Carnival could not be liable
for failing to warn Torres, because “[l]iability for a failure to warn . . . arises from
foreseeability, or the knowledge that particular conduct will create danger.”
Daigle, 616 F.2d at 827. Torres observed a “rise in the floor” and a “mat”
consisting of “dark carpet” in her path, yet failed to pay any attention to them.
Although Torres incurred injuries on a Carnival cruise ship, in the absence of any
evidence to create a genuine dispute her accident was attributable to any
negligence by Carnival, the district judge correctly granted summary judgment to
Carnival.
AFFIRMED.
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