Can a Plaintiff Offer Evidence of Past Accidents to Show Constructive Knowledge?

Posted in Georgia Supreme Court decisions on April 29, 2022

The issue of constructive knowledge was at the core of a lawsuit heard by the Eleventh Circuit Court of Appeals.

“Actual notice’ is defined as notice expressly and actually given. In contrast, “constructive notice” is defined as information or knowledge of a fact attributed by law to a person (although he may not actually have it) because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.

A woman sued a cruise line for negligence when she slipped and broke her hip on a ship. The Court of Appeals found that a reasonable jury could find that Carnival had constructive knowledge that its flooring was dangerously slippery when wet.

Plaintiff Takes Cruise to Celebrate Anniversary

To celebrate their wedding anniversary, the plaintiff and her husband took a cruise on the Ecstasy, a Carnival cruise ship. On the second day of the cruise, they went to eat, taking an elevator to the ship’s Promenade Deck. After getting off the elevator, the two passed by the ship’s Metropolis Bar and near its casino’s roulette tables.

As the plaintiff and her husband approached the roulette tables, they encountered passengers walking in the opposite direction. She moved to her right to make room, and when she did, her right foot slipped on a puddle of liquid, and she fell to the ground.

The plaintiff said the floor where the plaintiff fell was “very, very, very slick.” The puddle of liquid was about five inches by seven inches and consisted of a brown liquid that “looked dirty like it had been there for a while.” The plaintiff didn’t notice the puddle before she fell because the flooring, a dark granite tile, was “very shiny.” She was unable to identify the specific liquid in the puddle but believed it was a “brown drink or Coke or just dirty water.” She noticed that the liquid was room temperature.

When she fell, her dress absorbed the puddle’s liquid. The spot with the liquid felt a “little tacky” and “[s]lightly sticky.” It left a large stain on her dress. She was wearing gold wedge sandals with two straps across the toes on top of the foot and an open heel when she fell. The wedge sandals were two-and-half inches high and had rubber soles.

Reporting the Injury

After their dinner, the plaintiff’s husband took her by wheelchair to the ship’s medical office. She reported her fall to the nurse on duty. The nurse told her the ship’s doctor was “not in,” but he could call the doctor to see her. The plaintiff said she’d wait and see how she felt in the morning. The nurse told her to take ibuprofen and use ice.

The next morning, the plaintiff returned to the medical center and was told the doctor was unavailable because he was off the ship. In the afternoon, when the doctor returned, he saw her. She told him that she’d fallen the night before on the Promenade Deck and was having trouble walking. She didn’t mention that she’d slipped on a puddle of liquid, and the doctor never asked what caused her to slip. After conducting a physical examination, the doctor took x-rays.

The plaintiff had a telemedicine appointment with an orthopedic surgeon, who diagnosed her with a broken femur and advised her that surgery was needed. The surgeon said she could remain on the ship but that she should stay on bed rest and would need to go to the hospital at the end of the trip. For the rest of the voyage, she stayed in her room except when her husband transported her in the wheelchair to get fresh air or to take meals in one of the ship’s dining rooms.

The day after the incident, the medical center staff reported the plaintiff’s fall to the ship’s security officers, who opened an investigation. The plaintiff was asked to complete an incident form, and she wrote that she fell after “slipp[ing] on a slick tile.” In response to a question asking what caused the accident, she answered, “tile floors are very slick, could have [been] the type of shoes.” The plaintiff signed the form. Based on the investigation, a security officer created a written report, which said the plaintiff stated that the floor was “dry” when she fell. However, she denied saying that the floor was dry.

At the end of the voyage, the plaintiff disembarked from the ship and was taken to a nearby hospital. She required two surgeries, including a partial hip replacement. Even with the surgeries, she continues to have trouble walking and must use a cane.

The Plaintiff Sues and Discovers Past Slip and Fall Accidents Aboard the Ship

The injured passenger sued Carnival. She alleged that it was negligent in failing to warn passengers that the granite flooring was unreasonably slippery when wet; failing to keep the floor clean and dry; constructing or designing the use of flooring that was unreasonably dangerous when wet; and failing to adequately maintain the flooring.

During discovery, the plaintiff asked for information about prior incidents where ship passengers had slipped on the granite tile flooring used on the Promenade Deck’s walkway. She learned that Carnival used the same granite tile flooring for the walkways on the Promenade Decks of other ships in the same class. The cruise line disclosed that there were dozens of other incidents that happened in the three years before the plaintiff’s fall in which passengers had fallen on the same type of granite flooring. In one of these incidents, which occurred less than four months before the plaintiff’s fall, a passenger on the Ecstasy was hurt when she slipped on liquid on the Promenade Deck’s walkway across from the roulette tables.

Other information Carnival provided showed that officers on the Ecstasy and other ships were concerned because passengers were slipping and falling on liquids that had spilled on the granite flooring. A few months before the plaintiff’s fall, Ecstasy’s chief security officer reported an ongoing problem with accidents that happened when passengers slipped on spilled liquids on the Promenade Deck near the casino. The CSO believed that passengers were spilling liquids from drinks at a nearby bar. That bar didn’t have any seating, so passengers carried their drinks through the walkway to find a place to sit. The captain of another ship also reported similar accidents. He said that it was “difficult to see as the floor is dark.”  And the captain of a third ship raised the concern that ice was being “dropped” on the Promenade Deck, so he told the staff to take “extra care” as the floor was “very slippery when wet.”

Carnival moved to dismiss that case, and the district court granted the motion. The trial court said that the cruise line could be held liable only if it “had actual or constructive notice of a risk-creating condition.” The trial court found that the evidence, even viewed in the light most favorable to the plaintiff, didn’t demonstrate that Carnival had actual or constructive notice of the dangerous condition. As far as constructive notice, the trial judge acknowledged that the plaintiff had identified dozens of prior incidents in which passengers had fallen on the same granite flooring, but the court found that none of these incidents were similar enough to establish constructive notice.

The Eleventh Circuit Says Maritime Law Applies

The Court of Appeals said in its opinion that there are at least two ways to show constructive notice.

  1. A plaintiff can present evidence that the defective condition existed for a sufficient period to invite corrective measures; or
  2. A plaintiff may show evidence of substantially similar incidents where conditions substantially similar to the occurrence in question must have caused the prior accident.

The Court explained that as to the substantially similar-incident requirement, it doesn’t have to be “identical circumstances[] and allows for some play in the joints.” As such, the relevant question is whether the two incidents were similar enough to allow the jury to draw a reasonable inference” concerning the cruise ship operator’s “ability to foresee” the incident at issue.

The plaintiff argued that she established that Carnival knew of the dangerous condition created by its granite flooring, which allegedly became unreasonably slippery when wet. She contended that the cruise line knew about this dangerous condition because of substantially similar incidents in which passengers had slipped on the same flooring when it was wet. In addition, because officers had brought up passengers slipping on liquids spilled on this flooring.

Viewing the evidence in the light most favorable to the plaintiff, the Court of Appeals found that she established that Carnival did have constructive knowledge of the risk-creating condition based on the evidence of the other passenger’s similar fall.

As a result, the Eleventh Circuit reversed the district court’s grant of summary judgment for Carnival and remanded for further proceedings. Cogburn v. Carnival Corp., 2022 U.S. App. LEXIS 11177 (11th Cir. April 25, 2022).

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