Myrna Taiariol v. MSC Crociere S.A.
677 F. App'x 599
11th Cir.2017Background
- Plaintiff Myrna Taiariol slipped on a metal-and-rubber nosing (a wear strip projecting from the step edge) while exiting the Pantheon Theatre on the cruise ship Divina and fractured her ankle.
- The step had a projecting metal nosing with a rubber strip and was illuminated; a “watch your step” sticker was present on the nosing.
- Taiariol sued for negligence, alleging the nosing was dangerously slippery and that the carrier failed to warn of the hazard.
- Defendant moved for summary judgment arguing the condition was open and obvious, did not create the alleged hazard, and the carrier lacked notice of any risk-creating condition.
- The district court granted summary judgment for the defendant; the Eleventh Circuit reviewed de novo and affirmed because Taiariol failed to show the carrier had actual or constructive notice of a slippery nosing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the carrier had notice (actual or constructive) of a risk-creating slippery nosing | Taiariol argued prior incidents on defendant’s ships and the presence of the “watch your step” sticker show the carrier should have known the nosing was slippery | Defendant argued prior incidents were not substantially similar and its records show no accidents involving a nosing’s slipperiness; the sticker merely warned of a step, not slipperiness | Held for defendant: plaintiff failed to produce evidence of substantially similar accidents or other notice of a slippery nosing; notice is a prerequisite to liability, so summary judgment proper |
| Whether the “watch your step” sticker shows carrier had notice of slipperiness | Sticker indicates the carrier knew of a hazard (per Taiariol) | Defendant contended the sticker warns only that the step exists/changes in level, not that the nosing is slippery | Held for defendant: sticker, at most, warned of a change in level and does not create evidence that the carrier knew the nosing was dangerously slippery |
| Whether counsel’s brief and general observations create evidence of a defective nosing | Taiariol argued the nosing was worn down and thus defective/slippery | Defendant pointed out lack of admissible evidence tying wear to a risk-creating condition; counsel’s assertions are not evidence | Held for defendant: counsel’s statements are not evidence; no admissible proof that nosing was defective or more slippery than other nosings |
Key Cases Cited
- Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275 (11th Cir. 2015) (shipowners owe passengers reasonable care and must have actual or constructive notice of risk-creating conditions)
- Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir. 2012) (elements of negligence and reliance on general negligence principles in maritime torts)
- Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318 (11th Cir. 1989) (carrier liability requires knowledge or constructive knowledge of the hazardous condition)
- Jones v. Otis Elevator Co., 861 F.2d 655 (11th Cir. 1988) (prior accidents only show notice if caused by substantially similar conditions)
- Travaglio v. Am. Express Co., 735 F.3d 1266 (11th Cir. 2013) (statements by counsel in briefs are not evidence)