               Case: 17-13602       Date Filed: 04/15/2020      Page: 1 of 19



                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT

                              ________________________

                                    No. 17-13602
                              ________________________


                          D.C. Docket No. 1:16-cv-20829-JEM


ELAINE CARROLL,

                                                         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
                           ________________________

                                      (April 15, 2020)

Before JORDAN, JILL PRYOR, and WALKER, ∗ Circuit Judges.

JORDAN, Circuit Judge:


∗The Honorable John M. Walker, Jr., United States Circuit Judge for the Second Circuit, sitting
by designation.
              Case: 17-13602     Date Filed: 04/15/2020    Page: 2 of 19



      Elaine Carroll tripped over the leg of a lounge chair while she was walking

through a narrow pathway on a Carnival cruise ship. She sued Carnival, alleging

that it negligently failed to maintain a safe walkway and failed to warn her of that

dangerous condition. The district court granted summary judgment in favor of

Carnival on both claims, concluding that the condition was open and obvious and

that Carnival lacked actual or constructive notice of the hazard.

      After review of the record and the parties’ briefs, and with the benefit of oral

argument, we reverse. In concluding that the condition was open and obvious and

that Carnival lacked notice, the district court failed to draw all factual inferences in

favor of Mrs. Carroll. In addition, even if the allegedly dangerous condition were

open and obvious, that would only defeat the failure to warn claim, and would not

bar the claim for negligently failing to maintain a safe walkway.

                                           I
      In March of 2015, Mrs. Carroll and her husband Michael were passengers on

board the Carnival Pride. On the first full day of the cruise, Mrs. and Mr. Carroll

were walking to one of the restaurants, David’s Steakhouse, on Deck 11 of the ship.

The outer glass wall of David’s Steakhouse is curved in the shape of a semi-circle.

Lounge chairs are set up in a semi-circular shape along the curved glass wall of the

restaurant.




                                           2
               Case: 17-13602      Date Filed: 04/15/2020   Page: 3 of 19



       To get to the restaurant, the Carrolls had to walk on a curved walkway

between the foot-end of the row of lounge chairs (on their right side) and the ship’s

railing (on their left side). When they initially approached the walkway, there were

approximately two to three feet between the chairs and the railing, so they were able

to walk side-by-side. At some point after passing the first chair, however, the

distance between the chairs and the railway narrowed, so Mrs. Carroll’s husband

walked in front of her and she followed behind him. While Mrs. Carroll was walking

behind her husband, her right foot clipped the leg of one of the lounge chairs, causing

her to fall and suffer injuries.

       Mrs. Carroll sued Carnival for negligence. She asserted, among other things,

that Carnival negligently maintained a dangerous condition—“lounge chairs that

narrowed and protruded onto a pedestrian walkway”—and negligently failed to warn

passengers of the danger associated with that condition.

       Carnival moved for summary judgment, arguing that the lounge chairs did not

constitute a dangerous condition, and even if they did, it had no duty to warn of the

condition for two reasons. First, the condition was open and obvious. Second,

Carnival lacked notice of the hazard. Mrs. Carroll opposed the motion, responding

that although the lounge chair that she tripped on was not hazardous in and of itself,

the location of the lounge chairs and the manner in which they were arranged

constituted a dangerous condition. She also argued that the condition was not open



                                            3
              Case: 17-13602       Date Filed: 04/15/2020   Page: 4 of 19



and obvious because, due to the layout of the lounge chairs and the narrowness of

the path, she was forced walk behind her husband, obstructing her view. And she

asserted that she did not need to prove that Carnival had notice of the hazard because

it created the unsafe condition.

      Both parties presented evidence in support of their positions, including the

deposition testimony of Mrs. and Mr. Carroll and several Carnival employees. Mrs.

Carroll also presented the affidavit of an expert, Randall Jaques, who opined that the

walkway was unsafe and fell below industry standards.

      The district court granted summary judgment in favor of Carnival. In doing

so, the district court concluded that Carnival had no duty to warn Mrs. Carroll of the

allegedly dangerous condition because it was open and obvious. The district court

stated that, because the condition was open and obvious, it did not need to reach

whether Carnival had actual or constructive notice of the risk-creating condition. It

nevertheless also concluded that Carnival lacked notice of the danger.

                                           II

      We review a district court’s grant of summary judgment de novo. See

Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019). “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 judgment as a matter of law.” Sorrels v. NCL (Bahamas)


                                            4
              Case: 17-13602     Date Filed: 04/15/2020   Page: 5 of 19



Ltd., 796 F.3d 1275, 1286 (11th Cir. 2015) (citation and internal quotation marks

omitted).

                                         III

      This action is governed by federal maritime law because Mrs. Carroll’s injury

occurred on a ship sailing in navigable waters. See Guevara, 920 F.3d at 720. “In

analyzing a maritime tort case, we rely on general principles of negligence law.”

Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (quoting Daigle

v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)). To prevail on her

maritime negligence claims, therefore, Mrs. Carroll had to prove that (1) Carnival

had a duty to protect her from a particular injury; (2) Carnival breached that duty;

(3) the breach actually and proximately caused her injury; and (4) she suffered actual

harm. See Sorrels, 796 F.3d at 1280.

      With respect to the duty element, a cruise line like Carnival owes its

passengers “a ‘duty of reasonable care’ under the circumstances.” Id. at 1279. This

requires, as “a prerequisite to imposing liability,” that Carnival “have had actual or

constructive notice of the risk-creating condition[.]” Keefe v. Bahama Cruise Line,

Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). Thus, Carnival’s liability “hinges on

whether it knew or should have known” of the dangerous condition. Id.




                                          5
                Case: 17-13602      Date Filed: 04/15/2020       Page: 6 of 19



       We begin by analyzing Mrs. Carroll’s claim that Carnival negligently failed

to warn her of a dangerous condition, and then evaluate her claim that Carnival

negligently failed to maintain a safe walkway.

                                              A

                                               1

       “An operator of a cruise ship has a duty to warn only of known dangers that

are not open and obvious.” Guevara, 920 F.3d at 720 n.5. In evaluating whether a

danger is “open and obvious” we are guided—as in general tort law—by the

“reasonable person” standard. Cf. Lamb by Shepard v. Sears, Roebuck & Co., 1 F.3d

1184, 1189–90 (11th Cir. 1993) (explaining in the products liability context that

whether a danger is open and obvious is determined “on the basis of an objective

view of the product, and the subjective perceptions of the . . . injured party are

irrelevant”) (citations omitted); McCarty v. Menard, Inc., 927 F.3d 468, 471 (7th

Cir. 2019) (explaining in the premises liability context that “[w]hether a hazardous

condition is open and obvious is an objective inquiry”). The question, therefore, is

whether a reasonable person would have observed the chair leg and appreciated the

risk of walking through the narrow passageway under the circumstances.1


1
 We have repeatedly acknowledged and applied this reasonable person standard in unpublished
maritime decisions. See, e.g., Frasca v. NCL (Bahamas), Ltd., 654 F. App’x 949, 952 (11th Cir.
2016) (explaining that an operator of a cruise ship has no duty to warn of dangers that are open
and obvious and that whether a danger is open and obvious is based on a “reasonable person”
standard); Horne v. Carnival Corp., 741 F. App’x 607, 609 (11th Cir. 2018) (“A cruise line does


                                               6
                Case: 17-13602       Date Filed: 04/15/2020      Page: 7 of 19



       The district court concluded that Carnival had no duty to warn Mrs. Carroll of

the dangers associated with the walkway because the “placement of deck chairs on

an open deck, on a clear and sunny day, was an open and obvious condition.” D.E.

84 at 10. In reaching this decision, the district court relied on Mrs. Carroll’s

deposition testimony that she could have seen the chair leg had she looked down.

See id. at 9. The district court also relied on Mrs. Carroll’s testimony “that she did

not walk behind her husband because the area narrowed, as her husband explained,

but rather, because ‘you do that.’” See id. at 2.

       But there was also evidence in the record—which the district court did not

acknowledge—that Mrs. Carroll was forced to walk behind her husband after

passing the first lounge chair because the walkway narrowed. Mrs. Carroll testified

that, as a result, her view was blocked by her husband, who has a large profile, so

she could not see the foot of the lounge chair that she tripped on nor around the curve

of the walkway.

       In our view, the district court erred by crediting some statements by Mrs.

Carroll—which favored Carnival’s open and obvious argument—over her other


not need to warn passengers or make special arrangements for open-and-obvious risks. . . . In
determining whether a risk is open and obvious, we focus on ‘what an objectively reasonable
person would observe and do[ ] not take into account the plaintiff’s subjective perceptions.”)
(internal quotation marks and citations omitted); Krug v. Celebrity Cruises, Inc., 745 F. App’x
863, 866 (11th Cir. 2018) (“Under federal admiralty law, a cruise ship has no duty to warn of
known dangers that are open and obvious. . . . We evaluate whether a danger would be open and
obvious from an objectively reasonable person’s point of view and do not focus on the plaintiff’s
subjective perspective.”).


                                               7
                 Case: 17-13602         Date Filed: 04/15/2020        Page: 8 of 19



statements that she was forced to follow behind her husband due the layout of the

chairs and the narrowness of the walkway. Viewing the facts in the light most

favorable to Mrs. Carroll, as we must, the record supports an inference that a

reasonable person in Mrs. Carroll’s circumstances would not have observed the chair

leg obstructing her path. There is a genuine dispute of material fact as to whether

the danger associated with the walkway was open and obvious.

                                                   2

       After concluding that Carnival had no duty to warn Mrs. Carroll because the

allegedly dangerous condition was open and obvious, the district court stated that it

need not decide whether Carnival had actual or constructive notice of the condition.

It nevertheless determined that Carnival lacked such notice. In reaching this

conclusion, the district court again failed to view the evidence in the light most

favorable to Mrs. Carroll and overlooked evidence in the record from which a

reasonable jury could find that Carnival had notice.2


2
  Mrs. Carroll contends that evidence of notice should not be required if the owner of the cruise
ship created the dangerous condition. She urges us to modify or reject our decision in Everett v.
Carnival Cruise Lines, 912 F.2d 1355, 1358–59 (11th Cir. 1990), which held that the district
court’s jury instructions were erroneous because they did not require the plaintiff to prove notice
if she established that the cruise line created the dangerous condition. As a panel, we are bound
by Everett even if we had misgivings about it. See Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8
(11th Cir. 2001) (“Under the well-established prior panel precedent rule of this Circuit, the holding
of the first panel to address an issue is the law of this Circuit, thereby binding all subsequent panels
unless and until the first panel’s holding is overruled by the Court sitting en banc or by the Supreme
Court.”). In any event, we need not address Everett because, as explained in the text, Mrs. Carroll
presented sufficient evidence to create a genuine dispute of material fact on notice.



                                                   8
              Case: 17-13602     Date Filed: 04/15/2020   Page: 9 of 19



      Evidence that a ship owner has taken corrective action can establish notice of

a dangerous or defective condition. See Guevara, 920 F.3d at 720–22 (holding that

a warning sign alerting passengers to “watch [their] step” was sufficient to create an

issue of material fact on whether the cruise ship had notice of the dangerous nature

of the step down); Sorrels, 796 F.3d at 1288 (holding that a ship employee’s

testimony that the ship would sometimes post a warning sign on the pool deck after

it rained was enough to create an issue of material fact on whether there was notice

that the deck could be slippery when wet). Here, there is evidence reflecting that

Carnival took corrective measures to prevent people from tripping over the lounge

chairs in the walkway on Deck 11.

      For example, Mrs. Carroll presented evidence, including the testimony of one

of Carnival’s employees, that if the lounge chairs were arranged in the “lay-flat

position,” rather than upright, they would protrude further into the walkway—

making the walkway even narrower. As a result, Carnival required them to be set

up in the upright position, and employees regularly patrolled the area to fix the

chairs. See D.E. 49 at ¶¶ 12–13, 32–36.

      Specifically, one of Carnival’s pool deck supervisors, Viktor Symotiuk,

testified that the lounge chairs on Deck 11 were supposed to be arranged in the

upright position, and he was instructed (and trained other employees that he

supervised) to make sure that the chairs were not protruding into or blocking the



                                          9
               Case: 17-13602       Date Filed: 04/15/2020       Page: 10 of 19



walkway. See D.E. 49 at ¶ 12; D.E. 48-5 at 30, 36–38. Although he testified that a

lounge chair may be used in the lay-flat position if it is occupied, he also stated that

“[y]ou never leave the chair unattended and flat in that area.” D.E. 48-5 at 33. He

further acknowledged that “[i]f the lounge chair is set on the passenger walkway, it

would be an obstruction[ ], it’s a reason why a person can get injured.” Id. at 64.

       The district court relied on the deposition of another pool deck supervisor,

Denys Stavyts’ky, who testified that that the chairs could be set up in either the

upright or lay-flat position. See D.E. 84 at 12. But the conflict in the testimony of

Mr. Symotiuk and Mr. Stavyts’ky demonstrates that there is a dispute of material

fact, making summary judgment inappropriate. 3

       In addition to the testimony of Mr. Symotiuk, there was also the testimony of

a Carnival security officer, Manolyn Saldo. She testified that part of her duties

included patrolling Deck 11 and moving any lounge chairs that were blocking the

walkway. See D.E. 44 at ¶¶ 39–41. The assistant chief security officer, Siddhartha

Kokate, likewise testified that because passengers sometimes pull out chairs and do

not put them back in place, they can create an “unsafe condition,” so it is part of the

staff’s duties to take corrective action and remove that hazard. See D.E. 44-6 at 14;

D.E. 44 ¶¶ 45–47.



3
 We note that Mr. Stavyts’ky also testified that hotel stewards were required to inspect that the
chairs were arranged properly every 15-20 minutes. See D.E. 44-3 at 45–46.


                                               10
                Case: 17-13602        Date Filed: 04/15/2020       Page: 11 of 19



       As in Guevara and Sorrels, a reasonable jury could view this testimony as

evidence that Carnival has taken corrective measures—i.e., adopting a policy of

keeping the chairs in-line and/or in the upright position and instructing employees

to ensure that they are not blocking the walkway—due to a known danger. This is

enough to withstand summary judgment on the issue of Carnival’s notice.

       In sum, there were disputes of fact on both the obviousness of the condition

and Carnival’s notice of the danger. The district court therefore erred in granting

summary judgment on Mrs. Carroll’s failure to warn claim. 4

                                                 B

       The district court appears to have concluded that Carnival was entitled to

summary judgment on both Mrs. Carroll’s failure to warn and negligent maintenance

theories because of the open and obvious nature of the condition. The district court

reasoned that it need not reach notice after determining that the condition was open

and obvious, suggesting that its decision on the latter was dispositive of the entire

case. That initial conclusion, however, should not have ended the analysis for Mrs.

Carroll’s negligent maintenance claim. As Mrs. Carroll correctly argues, Carnival



4
  Mrs. Carroll also asserts that Carnival had notice of the dangerous condition because there were
12 separate instances where passengers tripped and fell over lounge chairs aboard ships in the same
class as the Carnival Pride. The parties dispute whether these prior incidents were sufficiently
similar to Mrs. Carroll’s accident to put Carnival on notice of the risks associated with the walkway
on Deck 11 of the Carnival Pride. We do not reach this issue because, as discussed above, there
is other evidence in the record establishing that there is a genuine dispute of material fact as to
whether Carnival had notice of the dangerous condition.


                                                 11
               Case: 17-13602    Date Filed: 04/15/2020   Page: 12 of 19



may still be liable for maintaining a dangerous condition even if the danger was

obvious.

                                          1

         As noted earlier, this action is governed by federal maritime law. See

Guevara, 920 F.3d at 720. “Subject to direction from Congress, the federal courts

fashion federal maritime law.” Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986,

992 (2019). In doing so, we “may examine, among other sources, judicial opinions,

legislation, treatises, and scholarly writing.” Id. See also E. River S.S. Corp. v.

Transamerica, 476 U.S. 858, 864–65 (1986) (“Drawn from state and federal sources,

the general maritime law is an amalgam of traditional common-law rules,

modifications of those rules, and newly created rules.”) (footnote omitted); Franza

v. Royal Caribbean Cruises, Ltd., 722 F.3d 1225, 1231–32 (11th Cir. 2014)

(discussing our “broad discretion in admiralty and maritime” cases to “develop th[e]

law”).

         The open and obvious nature of a dangerous condition negates liability for

failure to warn. See, e.g., Guevara, 920 F.3d at 720 n.5 (noting that the duty to warn

only applies to “dangers that are not open and obvious”); Benedict on Admiralty §

5.04 (7th ed. 2019) (stating that the duty of cruise lines to give notice of defective

conditions “extends only to those dangers which are not apparent or obvious”);

Thomas J. Schoenbaum, Admiralty & Maritime Law § 5:11 (6th ed. 2018) (“[T]here



                                          12
             Case: 17-13602     Date Filed: 04/15/2020    Page: 13 of 19



is a duty to warn passengers only of dangers that are not apparent and obvious.”).

We have not squarely addressed, however, whether the open and obvious nature of

a dangerous condition also bars liability for a maritime negligent maintenance claim.

Because Congress has not spoken on this issue, “[w]e start with basic tort-law

principles” to determine whether such a distinction exists (or should exist) in

maritime law. Air & Liquid Sys. Corp., 139 S. Ct. at 993.

      The Third Restatement of Torts imposes a duty of reasonable care on

possessors of land—even if a danger is open and obvious—if the possessor should

anticipate harm. See Restatement (Third) of Torts § 51 cmt. k (2012). It notes that

that such a duty is consistent with § 343A(1) of the Second Restatement of Torts,

which requires land possessors to take reasonable precautions for known or obvious

dangers when the possessor “should anticipate the harm despite such knowledge or

obviousness.” Restatement (Second) of Torts § 343A(1) (1965). As relevant here,

the Second Restatement of Torts illustrates this principle with the following

example:

      Through the negligence of A Grocery Store a fallen rainspout is
      permitted to lie across a footpath alongside the store, which is used by
      customers as an exit. B, a customer, leaves the store with her arms full
      of bundles which obstruct her vision, and does not see the spout. She
      trips over it, and is injured. If it is found that A should reasonably have
      anticipated this, A is subject to liability to B.

Restatement (Second) of Torts § 343A cmt. f, illus. 4.




                                          13
               Case: 17-13602    Date Filed: 04/15/2020    Page: 14 of 19



      The Third Restatement of Torts distinguishes between failure to warn claims

and negligent maintenance claims, explaining that the open and obvious nature of a

risk negates the duty to warn because “[t]he primary purpose of a warning is to give

notice of the existence of the risk. . . . Risks that are known, open, or obvious already

provide notice to those who might be exposed to the risk, making a warning

superfluous.” Restatement (Third) of Torts § 51 cmt. k. By contrast, the open and

obvious nature of a risk does not render the duty to exercise reasonable care

superfluous:

      Known or obvious dangers pose less of a risk than comparable latent
      dangers because those exposed can take precautions to protect
      themselves. Nevertheless, despite the opportunity of entrants to avoid
      an open and obvious risk, in some circumstances, a residual risk will
      remain. Land possessors have a duty of reasonable care with regard to
      those residual risks. Thus, the fact that a dangerous condition is open
      and obvious bears on the assessment of whether reasonable care was
      employed, but it does not pretermit the land possessor’s liability.

Id. (emphasis added).

      Thus, the Third Restatement of Torts treats the open and obvious nature of a

dangerous condition as a factor to be considered in a comparative fault analysis—

not as a bar to liability for negligently maintaining premises. See id. (“An entrant

who encounters an obviously dangerous condition and who fails to exercise

reasonable self-protective care is contributorily negligent. Because of comparative

fault, however, the issue of the defendant’s duty and breach must be kept distinct



                                           14
             Case: 17-13602     Date Filed: 04/15/2020    Page: 15 of 19



from the question of the plaintiff’s negligence.”). As the Third Restatement of Torts

notes, a contrary rule that would preclude liability because a risk is open and obvious

would “sit[ ] more comfortably—if not entirely congruently—with the older rule of

contributory negligence as a bar to recovery.” Id.

      We think the approach of the Third Restatement of Torts is consistent with

maritime tort principles, and we adopt it. For starters, it aligns with the Supreme

Court’s adoption of comparative negligence in maritime cases. See Kermarec v.

Compagnie Generale Transatlantique, 358 U.S. 625, 628–29 (1959) (holding that

because maritime law governed the plaintiff’s negligence claim, the district court

erred “in instructing the jury that contributory negligence . . . would operate as a

complete bar to recovery,” and that “[t]he jury should have been told instead that

[the plaintiff’s] contributory negligence was to be considered only in mitigation of

damages”); Smith & Kelly Co. v. S/S Concordia TADJ, 718 F.2d 1022, 1029–30

(11th Cir. 1983) (applying comparative fault principles in a maritime case).

      The approach of the Third Restatement of Torts is also dictated by the former

Fifth Circuit’s opinion in Arthur v. Flota Mercante Gran Centro Americana S.A.,

487 F.2d 561 (5th Cir. 1973). In Arthur, the plaintiff set out to board the defendant’s

vessel to inspect the loading of grain. See id. at 562. To board the ship, he had to

cross a brow gangway and step down a bulwark ladder. See id. As he stepped down

on the ladder, he slipped and fell, causing injury. See id. The case proceeded to trial



                                          15
               Case: 17-13602        Date Filed: 04/15/2020       Page: 16 of 19



solely on the plaintiff’s negligence claim against the shipowner. See id. After a jury

verdict in the plaintiff’s favor, the defendant appealed, arguing in pertinent part that

“it owed no duty to protect the plaintiff from the risk of harm created by the

dangerous condition of the vessel because [the] plaintiff, as an experienced seaman

[an inspector], knew or should have known of the dangerous condition.” Id. at 563.

The Arthur panel rejected this argument, explaining that “[t]he trial court properly

considered this contention as relating to plaintiff’s negligence in boarding the vessel

in the condition in which it existed. Comparative negligence is the rule to be

followed; the negligence of the plaintiff, regardless of how gross, does not preclude

recovery, but only mitigates damages.” Id. Though Arthur is not often cited for this

principle, it constitutes binding precedent and demonstrates that the open and

obvious nature of a dangerous condition does not bar a claim against a shipowner

for negligent failure to maintain safe premises.5




5
  It is unclear from Arthur whether the plaintiff was covered by the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. § 901 et seq. But even if the plaintiff would have been
covered by the LHWCA, Arthur is still controlling because the plaintiff’s claims arose prior to the
enactment of the 1972 Amendments to the LHWCA, which added § 905(b), a statutory negligence
action against the ship. See Scindia Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156, 165
(1981). Prior to 1972, a longshoreman injured in the course of his employment could receive
compensation from the shipowner if he could prove that his injury was caused by the shipowner’s
negligence or the ship’s unseaworthiness. See id. at 164; Clark v. Bothelho Shipping Corp., 784
F.2d 1563, 1564–65 (11th Cir. 1986). Arthur was decided on negligence grounds and involved—
as here—the duty a shipowner owes to an invitee.



                                                16
             Case: 17-13602     Date Filed: 04/15/2020    Page: 17 of 19



      Accordingly, even if the risk was open and obvious, that does not preclude

Mrs. Carroll’s negligent maintenance claim. See Lewis v. Langenfelder & Son, No.

2:01cv804 & 2:02cv622, 2004 WL 2996780, at *6 (E.D. Va. Aug. 17, 2004) (“If the

nature of the gap between the vessel and the shore was a dangerous condition, it was

created by the defendant through its employees, and the defendant had a duty to

correct this condition, regardless of whether it was open and obvious. The decedent’s

decision to proceed despite this condition may have been contributorily negligent,

but this conclusion is not a per se bar to recovery under the law of admiralty.”).

                                          2

      Mrs. Carroll presented evidence creating a genuine dispute of material fact as

to whether Carnival negligently maintained an unsafe walkway. This included an

affidavit from her expert, Mr. Jaques, who opined that the width of the walkway

would have been below industry standards if the chairs were in the lay flat position.

This testimony is relevant in determining whether Carnival’s conduct fell below the

standard of care. See, e.g., Sorrels, 796 F.3d at 1282 (“[E]vidence of custom within

a particular industry, group, or organization is admissible as bearing on the standard

of care in determining negligence . . . 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.”) (citation and internal

quotation marks omitted).



                                          17
              Case: 17-13602     Date Filed: 04/15/2020    Page: 18 of 19



      According to Mr. Jaques, the maximum amount of room possible in the

walkway was 35–36 inches if the lounge chairs were in the upright position and

pushed up against the glass wall of David’s Steakhouse. If the lounge chairs were

in the lay-flat position, however, the width of the walkway would be 28 ½ inches if

the chairs were only two inches from the glass, and between 23 and 25 inches if the

chairs were approximately six inches from the glass. If some of the chairs were in

the lay flat position or pulled out a few inches, Mr. Jaques opined that the walkway

would violate industry standards, including but not limited to the ADA standards,

which require “a clear width of not less than 36 inches[.]” D.E. 49 at 37.

      The record further reflects that there are disputes of material fact regarding

whether the chairs were in the upright or lay-flat position at the time of the accident,

and whether the chairs were in line or out of position. For example, both Mrs. and

Mr. Carroll testified in their depositions that at least some of the deck chairs were in

the lay flat position. Mrs. Carroll also testified, however, that at the time of the

accident the chairs “weren’t messed up.” D.E. 48-1 at 41. In contrast, Mr. Carroll

testified that the chairs were not “orderly,” explaining that three or four of the chairs

were “out of position” and “were pulled back from the glass several feet[.]” D.E.

48-3 at 25. He explained that the chairs “were in the walkway,” which he described

as being “more like an obstacle course,” and estimated that the width of the walkway

was about 20 inches. See id. at 25, 29.



                                           18
             Case: 17-13602    Date Filed: 04/15/2020   Page: 19 of 19



      A reasonable jury could find that at least some chairs were in the lay-flat

position and out of order, and thus conclude—in conjunction with Mr. Jaques’

testimony—that Carnival negligently maintained an unsafe walkway that fell below

industry standards. The district court therefore erred in granting summary judgment

on Mrs. Carroll’s negligent maintenance claim.

                                        IV

      We reverse the district court’s grant of summary judgment in favor of Carnival

and remand for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.




                                        19
