[00:00:05] Speaker 04:
Thank you and good morning, your honors.

[00:00:08] Speaker 04:
Thomas Friedberg on behalf of plaintiff and appellant Wallace Petrie, I'd like to reserve five minutes for rebuttal.

[00:00:16] Speaker 04:
There are two issues I'd like to address this morning before the court.

[00:00:19] Speaker 04:
First is, did the district court err by ruling as a matter of law that it was not an obstruction and thus no negligence per se or violation of statute?

[00:00:29] Speaker 04:
If there's a violation of the statute, there's presumption of negligence under federal rule 301 that gets us through the issue of notice.

[00:00:37] Speaker 04:
In looking at the issue of obstruction- What's the second issue that you want to discuss?

[00:00:41] Speaker 04:
The second issue is notice, Your Honor.

[00:00:44] Speaker 01:
I suggest you do the second first.

[00:00:46] Speaker 04:
All right.

[00:00:46] Speaker 04:
When the defendant creates the condition, they're presumed to have notice.

[00:00:52] Speaker 04:
And in this particular situation, the evidence- Would you call that constructive notice?

[00:00:58] Speaker 04:
I would say yes, it's constructive notice.

[00:01:01] Speaker 04:
I mean, the question, it's somewhat twofold to a certain extent.

[00:01:06] Speaker 04:
The buildings were remodeled a number of years earlier.

[00:01:09] Speaker 04:
It's our contention and the evidence presented is that the remodel was on violation of building code.

[00:01:14] Speaker 04:
But be that as it may, the question becomes is the defendant knowingly created this condition.

[00:01:19] Speaker 01:
Is that the general negligence law?

[00:01:21] Speaker 04:
I'm sorry?

[00:01:22] Speaker 01:
Is that general negligence law?

[00:01:24] Speaker 01:
Is that what the restatement would say about negligence law?

[00:01:27] Speaker 04:
Well, that's general negligence law.

[00:01:28] Speaker 04:
But also, as in the McDonough case in the Second Circuit, in a maritime context, they basically said the same thing.

[00:01:36] Speaker 01:
Well, I thought what they said, what I understand, the sensible rule, general rule, is that in a non-maritime context, maritime law applies general ordinary negligence law.

[00:01:52] Speaker 04:
Yes.

[00:01:53] Speaker 01:
So therefore, you would look at ordinary negligence law.

[00:01:57] Speaker 01:
Now, somehow that's gotten off track.

[00:01:59] Speaker 01:
And what?

[00:02:02] Speaker 04:
I have an agreement, Your Honor.

[00:02:03] Speaker 04:
In ordinary negligence law, especially in California, it's been well-defined for decades that a defendant creates a condition to presume a notice is imputed.

[00:02:13] Speaker 04:
And that's California law, and that still is California law.

[00:02:16] Speaker 04:
Unfortunately, I was not able to find any Ninth Circuit maritime law on point.

[00:02:20] Speaker 04:
So counsel, on this point,

[00:02:22] Speaker 03:
You're familiar with the Samuels case, right?

[00:02:26] Speaker 03:
The ship was, the owner was sued for letting the guy go to some beach where he was injured by the way of action.

[00:02:38] Speaker 03:
And the court said basically where the condition constituting the basis of plaintiff's claim is not unique to the maritime context,

[00:02:49] Speaker 03:
A carrier must have actual or constructive notice.

[00:02:52] Speaker 03:
And in that case, they said Holland America didn't.

[00:02:57] Speaker 03:
So is there some special rule in the maritime context that overrides regular negligence principles?

[00:03:07] Speaker 03:
And if there is, is it your view that that doesn't apply when the defendant created the condition at issue?

[00:03:14] Speaker 04:
I don't think there's a special rule, Your Honor.

[00:03:16] Speaker 04:
I think it's general negligence is what the standard is.

[00:03:20] Speaker 04:
And the question becomes is how do you satisfy the notice?

[00:03:23] Speaker 04:
And in this case, it's our contention that notice was satisfied because the defendant created the condition.

[00:03:29] Speaker 04:
They drew up the plans.

[00:03:30] Speaker 04:
They built the specification.

[00:03:32] Speaker 04:
They changed several of the bathrooms.

[00:03:34] Speaker 04:
And in doing so, they created a foreseeable risk of harm and dangerous condition.

[00:03:39] Speaker 04:
Now that's based not only on violation of statute, but also we had expert testimony by way of declaration in the court below.

[00:03:46] Speaker 00:
If they didn't violate any regulation, how would there be notice, constructive or actual?

[00:03:53] Speaker 04:
Sure, there's two ways.

[00:03:54] Speaker 04:
I mean, violation of the statute gets us overdue.

[00:03:56] Speaker 00:
I understand, but if we disagree.

[00:03:58] Speaker 04:
But putting aside violation of the statute, which I'm not conceding, you know, in this case we had expert testimony that the configuration of the bathroom presented an unreasonable risk of harm due to tight quarters and configuration.

[00:04:11] Speaker 04:
And, you know, the defendant has a duty to maintain it, the defendant has a duty to inspect it, and this is not a temporary condition.

[00:04:19] Speaker 04:
There is some distinction between permanent and temporary conditions.

[00:04:23] Speaker 03:
Your experts say in a variety of ways this was a dangerous condition they knew or should have known.

[00:04:30] Speaker 03:
for a variety of reasons, somebody in the ordinary use of it could be injured.

[00:04:35] Speaker 04:
Yes.

[00:04:36] Speaker 04:
That evidence was before the District Court.

[00:04:38] Speaker 04:
It wasn't taken into account.

[00:04:39] Speaker 04:
The District Court essentially relied on an unpublished 11th Circuit opinion in Pizzano questioning some other decisions earlier in the 11th Circuit.

[00:04:49] Speaker 03:
Well, I'll ask your friend this, but it

[00:04:50] Speaker 03:
It certainly appeared to me like the district court was almost setting down a categorical rule that if there was no prior accident and nobody actually said to them, this is dangerous, that they win.

[00:05:02] Speaker 04:
That's how we interpreted it, Your Honor, and we don't believe that's in accordance with at least general negligence principle, clearly not in accordance with California state law, which this court can look to if there's an absence of federal law on this issue, and not in accordance with the Second Circuit.

[00:05:20] Speaker 04:
The McDonough case actually had some very interesting language.

[00:05:23] Speaker 01:
What the Second Circuit said in Keith was that it's measured by ordinary reasonable care under the circumstances.

[00:05:32] Speaker 01:
which to me means ordinary negligence law.

[00:05:35] Speaker 01:
And then it says the carrier had to have actual or constructive notice of the risk-creating condition, not of the risk, but of the condition.

[00:05:46] Speaker 01:
And the ordinary negligence law, as I understand it, is that if you build it, you have notice of it.

[00:05:53] Speaker 04:
Sure.

[00:05:54] Speaker 04:
The condition, we believe, the evidence presents the few in the most favorable light to Mr. Petrie, as the standard requires, is that not only the defendant built it, but they were aware or should have been aware of and had constructive notice of the condition, the condition being the relatively inexcusably tight space that Mr. Petrie was confronted with.

[00:06:16] Speaker 04:
But that's a question of fact as to whether... That's a question of fact.

[00:06:20] Speaker 04:
And what happened is,

[00:06:22] Speaker 04:
we believe in the court below, is that the district court says, okay, no prior accidents, therefore you can't prove notice.

[00:06:28] Speaker 04:
Notice doesn't have to be proved in any particular way.

[00:06:31] Speaker 04:
You don't need prior accidents.

[00:06:33] Speaker 04:
If a condition exists for a sufficiently long period of time and there's reasonable inspections where the dangerousness condition is foreseeable, then it's a question of fact as to whether or not this charges and establishes notice.

[00:06:45] Speaker 04:
especially in the case where the defendant specifically calls out several rooms, changes several rooms, and makes this condition present.

[00:06:54] Speaker 04:
We had evidence before in the trial court, for the district court, that this is a remodel, and only several of the rooms were actually remodeled in this, what we consider to tend to be a dangerous condition.

[00:07:04] Speaker 04:
You know, the end of the day is that you shouldn't get the first accident for free.

[00:07:09] Speaker 04:
And that's really what the Second Circuit and McDonough case had said.

[00:07:13] Speaker 04:
This is a tribal issue of fact as to whether or not the length of time, the configuration of the condition, the manner in which Mr. Petrie found himself, and the fact that the defendant regularly inspects and maintains these rooms.

[00:07:25] Speaker 04:
I mean, this is a hotel.

[00:07:27] Speaker 04:
You know, they're in there between guests, changing them, setting the shower curtain however they want to change them.

[00:07:33] Speaker 04:
And so to suggest that they were not aware, not only of the existence of the condition, but the potential dangerousness of the condition.

[00:07:41] Speaker 04:
These are issues that should go to the jury.

[00:07:43] Speaker 03:
Well, as Judge Berzon said, if this went back, there's a difference between you're creating a tribal issue and you're convincing a jury.

[00:07:54] Speaker 04:
We believe that there is a tribal issue.

[00:07:57] Speaker 04:
The facts will speak for themselves.

[00:08:00] Speaker 04:
When we compare, we did this in the record below, we did in the record before this court.

[00:08:05] Speaker 04:
There's two types of configurations in this building.

[00:08:08] Speaker 04:
The configuration that was chosen to remodel Mr. Petrie's room in presented a condition, a dangerous condition.

[00:08:15] Speaker 04:
And there are a number of factors that go into this, but essentially it's the closeness, the connection, it's the decision of how to set the toilet vis-a-vis the shower and the shower curtain.

[00:08:24] Speaker 01:
But with regard to the shower curtain, and this goes both to the ordinary negligence and to negligence per se, there is no evidence that the shower curtain was

[00:08:36] Speaker 04:
I respectfully disagree.

[00:08:40] Speaker 04:
The evidence that we have is that Mr. Petrie, while he was seated, his right shoulder was rubbing against the shower curtain.

[00:08:47] Speaker 01:
But he said he didn't know.

[00:08:49] Speaker 01:
When that was asked, he said he didn't know.

[00:08:52] Speaker 04:
And his experts said it was open.

[00:08:56] Speaker 04:
If he would guess he believed it was closed, but he did say he did know it was rubbing against them a reasonable inference drawn from that is the shower curtains least partially drawn and so you know It's our position that the shower curtain the shower like they're all part of the same system We're talking about the functional width and the functional width was less than what was

[00:09:18] Speaker 04:
Required to be safe and appropriate and therefore that leaves the issue is and there's testimony which That only works if the shower curtain counts as an obstruction, right?

[00:09:29] Speaker 04:
Well on the violent violation of statute and an issue of an obstruction the code is the silent it basically says a sidewall or obstruction Well, I thought it says something about it anything that's pliable isn't an obstruction.

[00:09:43] Speaker 01:
I'm sorry I thought it said some somewhere it says anything that's pliable is not an obstruction

[00:09:48] Speaker 04:
No, I think that deals with a plumbing code that deals with the door to the bathroom, which is something else.

[00:09:54] Speaker 01:
Another place, too.

[00:09:56] Speaker 04:
But I think the point of the matter is that safety codes, and we cited a lot of this in our reply brief, they're to be construed to promote user safety and liberally construed.

[00:10:08] Speaker 04:
And the concept of the safety code in this instance is to make sure there's ample space between the side of the toilet

[00:10:14] Speaker 04:
And any type of obstruction functional visual physical or otherwise I can't say you've used your time, but we'll give you a little bit of time Good morning your honors may please the court andre precaro on behalf of princess cruise lines Ltd and Alaska hotel properties LLC and

[00:10:44] Speaker 02:
The requirement under General Maritime Law that the defendant have actual constructive notice of a dangerous condition has existed for decades.

[00:10:55] Speaker 02:
It's been Everett, which is an important case, because Everett decided the specific issue of whether... But as I understand the sequence here,

[00:11:05] Speaker 01:
The original dispute was about whether there was a higher standard than negligence as there is as to maritime matters, a more of an insurability standard.

[00:11:16] Speaker 01:
And the conclusion of the case law was that when there is a non, a matter that is not specific to the maritime circumstance, ordinary negligence law applies.

[00:11:29] Speaker 01:
That language is repeated.

[00:11:31] Speaker 01:
or the ordinary reasonable care standard.

[00:11:34] Speaker 01:
So where did we get to the point that now it's a specially high standard under maritime law for things that have nothing to do with maritime circumstances?

[00:11:44] Speaker 01:
I mean, the Keefe didn't say that, Sam Lewis didn't say that, Everett maybe said that, but it doesn't make any sense, does it?

[00:11:52] Speaker 02:
Sure, the requirement that there be actual or constructive notice when you create or maintain the condition, I don't view that as a higher standard.

[00:12:03] Speaker 01:
That's not the standard under California or Florida law.

[00:12:07] Speaker 01:
For example, whenever the evidence was under Florida law, if you've created the problem, maybe they say you have constructive notice, maybe that's the interim

[00:12:22] Speaker 01:
the connection, but in any event, it seemed clear under Florida law that if you built it and created it, then you didn't need specific ascertainable notice of its dangerousness, and the California law, I suspect, is the same.

[00:12:41] Speaker 01:
So why do we have a special standard for ordinary negligence under maritime law?

[00:12:48] Speaker 02:
because the courts have decided it that way.

[00:12:50] Speaker 01:
Who has?

[00:12:50] Speaker 01:
Who has?

[00:12:50] Speaker 01:
Other than Everett.

[00:12:51] Speaker 01:
The court in Everett.

[00:12:52] Speaker 01:
Maybe Everett, but what else?

[00:12:53] Speaker 02:
The 11th Circuit and then 9th Circuit cases have followed that 11th Circuit.

[00:12:58] Speaker 01:
What 9th Circuit?

[00:12:59] Speaker 01:
What 9th Circuit?

[00:13:00] Speaker 01:
What published 9th Circuit case?

[00:13:02] Speaker 02:
There's no, Samuels would be the closest one.

[00:13:05] Speaker 03:
I don't see that in Samuels.

[00:13:07] Speaker 03:
I mean, what I see in Samuels is

[00:13:10] Speaker 03:
They specifically emphasize that the record does not include any evidence that Holland America knew or should have known that the Pacific Ocean side of Lover's Beach was so dangerous that it needed to warn passengers.

[00:13:25] Speaker 03:
They wouldn't have said it if it wasn't relevant and to me that's just a restatement.

[00:13:29] Speaker 03:
of ordinary negligence principles.

[00:13:32] Speaker 03:
So how can this special rule that you're advocating be, why would they have said what they said?

[00:13:38] Speaker 03:
Why wouldn't they have just said they didn't know about prior similar accidents?

[00:13:43] Speaker 03:
Why would they have used this should have known language if we're looking at something far beyond ordinary negligence?

[00:13:51] Speaker 02:
The general maritime definition of ordinary negligence includes the concept that if you create or maintain the condition, that's not as stated in Everett.

[00:14:02] Speaker 02:
The Everett Corps was very specific in distinguishing general maritime law from Florida law.

[00:14:06] Speaker 01:
Is it anywhere but Everett?

[00:14:07] Speaker 02:
I'm sorry?

[00:14:08] Speaker 01:
Is that rule anywhere but in Everett in a published decision?

[00:14:12] Speaker 02:
Anywhere other than Everett?

[00:14:13] Speaker 01:
In Everett.

[00:14:14] Speaker 01:
Yes, other than Everett.

[00:14:15] Speaker 01:
Other than Everett in a published decision.

[00:14:20] Speaker 02:
Not in the Ninth Circuit.

[00:14:21] Speaker 01:
Or anywhere else.

[00:14:23] Speaker 02:
The courts that have followed Everett have specifically addressed the issue that an owner who maintains or creates a condition... In a published case.

[00:14:31] Speaker 01:
I'm sorry.

[00:14:32] Speaker 01:
Is there a published opinion anywhere other than Everett?

[00:14:35] Speaker 02:
Yes.

[00:14:37] Speaker 02:
There's the Meyer case, Meyer v. Carnival.

[00:14:40] Speaker 02:
That was a case where it's within the Ninth Circuit, Central District.

[00:14:46] Speaker 01:
No, a published appellate decision anywhere other than Everett.

[00:14:55] Speaker 02:
More recently, there's a case.

[00:14:58] Speaker 02:
No, I don't know that there's.

[00:14:59] Speaker 02:
I think Everett is the primary case where this all came from.

[00:15:03] Speaker 01:
Primary or only?

[00:15:05] Speaker 02:
only that I'm aware of, the only appellate-level published decision.

[00:15:10] Speaker 01:
And Keith and Samlin say that they have to have actual constructive notice of the risk-creating condition, not of the dangerousness, but of the condition.

[00:15:22] Speaker 01:
It doesn't say whatever it says.

[00:15:25] Speaker 02:
Well, you know, that's a good point.

[00:15:26] Speaker 02:
I mean, there are cases that say that there's no dispute that Princess Alaska Hotel properties know that the shower ledge is there.

[00:15:33] Speaker 02:
We know there's a condition.

[00:15:35] Speaker 02:
There's no knowledge that it's dangerous.

[00:15:37] Speaker 01:
But Sam, Lewis, and Keefe don't say they have to know it's dangerous.

[00:15:41] Speaker 01:
They only have to know that it's a condition.

[00:15:45] Speaker 02:
That's correct.

[00:15:46] Speaker 02:
All right.

[00:15:47] Speaker 02:
So I... No, in Samuels, the issue in Samuels was the cruise line had no notice that the ocean was dangerous.

[00:15:55] Speaker 02:
Someone went swimming in the Pacific Ocean.

[00:15:56] Speaker 03:
No, no, they said known or should have known.

[00:16:01] Speaker 03:
And the should have known part is just, to me, just towards 101.

[00:16:07] Speaker 03:
That's correct.

[00:16:07] Speaker 03:
It's constructive notice.

[00:16:09] Speaker 03:
And so what rule are you advocating for vis-a-vis something where

[00:16:15] Speaker 03:
Their experts say, at least the way I read the expert declarations that you guys built it.

[00:16:24] Speaker 03:
You should have known that this was unreasonably dangerous to people who were using this bathroom because you built it and you maintained it.

[00:16:34] Speaker 03:
Are you saying as I read the district, as I read the district court is saying that without, that that alone doesn't get you there without notice that somebody else had been injured?

[00:16:44] Speaker 02:
In this specific case, the court is not limited to prior incidents to prove constructive notice.

[00:16:51] Speaker 03:
So what could have gotten them over the threshold here under General Maritime Law in your view that they didn't have?

[00:16:58] Speaker 02:
In my view?

[00:16:59] Speaker 03:
Beside actual notice of a prior incident.

[00:17:01] Speaker 02:
Right.

[00:17:01] Speaker 02:
In this specific case, because this is a threshold case, if we analogize it to Everett,

[00:17:06] Speaker 02:
In Everett, it was a threshold very similar.

[00:17:08] Speaker 02:
This one was in a passenger walkway instead of a bathroom, but there was red and black tape on it.

[00:17:13] Speaker 02:
There was dents on it showing that people hid it with their foot or more carts.

[00:17:16] Speaker 01:
I suppose if somebody came up with an email that said, we know this is unreasonably dangerous, but we're going to build it anyway, before they built it, that might meet your standard.

[00:17:27] Speaker 01:
But that's not ordinary negligence law, is it?

[00:17:32] Speaker 01:
Under ordinary negligence law, if you build it and it's unreasonably dangerous, it's your problem.

[00:17:38] Speaker 01:
You don't have to know it's dangerous.

[00:17:41] Speaker 02:
That's not the general maritime law.

[00:17:44] Speaker 01:
Under Everett and nothing else.

[00:17:46] Speaker 01:
Is that right?

[00:17:47] Speaker 02:
Under Everett and its progeny.

[00:17:49] Speaker 02:
Under maritime law.

[00:17:49] Speaker 01:
Which progeny are we talking about?

[00:17:51] Speaker 01:
There are no published appellate progenies.

[00:17:55] Speaker 02:
Well, the progeny are the district court cases and the circuit court cases that have relied upon Everett.

[00:18:00] Speaker 01:
What circuit court cases?

[00:18:02] Speaker 02:
Samuel cites to Everett.

[00:18:04] Speaker 01:
No, it doesn't.

[00:18:04] Speaker 01:
It cites to Keefe.

[00:18:21] Speaker 02:
There's a principle of uniformity.

[00:18:25] Speaker 02:
The general maritime law is in large part created by judicial decision.

[00:18:29] Speaker 02:
And the Supreme Court recently, in a unanimous decision in 2024 in the Great Lakes case, the Supreme Court reminded the importance of uniformity in the general maritime law.

[00:18:40] Speaker 02:
And general maritime law comes from decisions.

[00:18:43] Speaker 01:
So I'm not suggesting that they should adopt Florida law or California law.

[00:18:47] Speaker 01:
They should adopt general

[00:18:50] Speaker 01:
non-maritime negligence law, because that's what they said they were doing.

[00:18:53] Speaker 01:
All these cases say it's ordinary negligence law, and you can look at the restatement then for what's general ordinary negligence law.

[00:19:00] Speaker 01:
But my understanding of general ordinary negligence law, and maybe you should have an opportunity to brief this, I don't know, but it just seems to me that general ordinary negligence law would provide that if you build it,

[00:19:16] Speaker 01:
that way, and you know you built it that way, as you said, you know there's a ledge there, then you are responsible if it's dangerous.

[00:19:25] Speaker 01:
You don't have to know that it's dangerous.

[00:19:29] Speaker 02:
That's certainly state law and that's the Florida law, that's California law, I agree with that.

[00:19:35] Speaker 02:
The general maritime law has veered from state law and the general maritime law for 35 years has required that there be actual or constructive notice and the mere creation or maintenance of that condition is not enough.

[00:19:47] Speaker 03:
If you're right, that's what the law is, then my question doesn't matter.

[00:19:54] Speaker 03:
Other than uniformity, what public policy does your, does that rule serve that if you built it, that's not enough?

[00:20:07] Speaker 03:
If you built it, you know you built it and it's unreasonably dangerous that you're not responsible.

[00:20:12] Speaker 03:
What public policy goal does that serve?

[00:20:15] Speaker 02:
There's a public policy of the, if you are a property owner and there's, and you build something like this, a shower ledge that is to code,

[00:20:23] Speaker 02:
And there's no evidence whatsoever that this shower ledge is a problem.

[00:20:27] Speaker 02:
In fact, it's probably safer than a shower tub considering the population.

[00:20:32] Speaker 02:
But there's no evidence whatsoever.

[00:20:34] Speaker 02:
There's no prior incidence.

[00:20:36] Speaker 02:
Why would someone be liable?

[00:20:38] Speaker 02:
Why are you going to impose liability on someone when they have zero?

[00:20:39] Speaker 01:
They are liable under general state law, as you just said.

[00:20:42] Speaker 01:
Or they could be.

[00:20:42] Speaker 01:
It would depend on the record.

[00:20:45] Speaker 03:
Every hotel owner in that neck of the woods would be Based on this evidence would get to the jury on ordinary negligence except for this hotel Not necessarily is that the first of all there's no concession that this is a dangerous condition even with knowledge of Mr.. Petrie's incident

[00:21:03] Speaker 02:
The record evidence shows that he didn't even trip over the shower ledge.

[00:21:06] Speaker 02:
That's part of the record.

[00:21:07] Speaker 02:
He was trying to catch his balance because he was already falling when his heel hit the shower ledge.

[00:21:13] Speaker 02:
So I'm not conceding that even after this case, this is not a one free dog bite case.

[00:21:18] Speaker 02:
Even after this case, the defendants are still, or at police at this point, have notice of a dangerous condition just because he fell when there's no evidence that he fell because of the shower ledge.

[00:21:32] Speaker 00:
seems to me that this is coming down to when someone built, whoever built the ledge in the configuration of the bathroom, what means they have noticed that they built it.

[00:21:46] Speaker 00:
Do they have to have noticed that it's dangerous or unreasonably dangerous?

[00:21:51] Speaker 00:
And how do you prove?

[00:21:53] Speaker 00:
Is that a disputed question of fact here?

[00:21:56] Speaker 00:
How do they prove when in the absence of an actual accident that the condition not only exists, but is unreasonably dangerous?

[00:22:06] Speaker 00:
When you walk around, there's a danger you could walk into a wall, but that's not unreasonably dangerous to have a wall.

[00:22:12] Speaker 00:
So you have to show that it goes beyond just

[00:22:16] Speaker 00:
what could cause an accident normally, right?

[00:22:19] Speaker 00:
So they're saying now that they have two ways to show that this configuration was unreasonably dangerous.

[00:22:28] Speaker 00:
One is they're arguing that it's a violation of building standards.

[00:22:33] Speaker 00:
And two, they're saying that even notwithstanding that, they have experts saying that this configuration is too tight.

[00:22:40] Speaker 00:
It is unreasonably dangerous.

[00:22:42] Speaker 00:
Anyone building this would know that.

[00:22:45] Speaker 00:
I think I understand your argument that it's not actually a violation of the code.

[00:22:52] Speaker 00:
So let's say for a moment, let's put that aside.

[00:22:56] Speaker 00:
Why isn't there a genuine dispute of fact just based on their expert testimony that this configuration is unreasonably dangerous and that whoever built it should have known that without any accident occurring?

[00:23:08] Speaker 02:
Yes, and that's that question.

[00:23:10] Speaker 02:
The expert testimony goes to standard of care, which goes to the breach element of ordinary negligence.

[00:23:15] Speaker 02:
That doesn't go to notice.

[00:23:17] Speaker 02:
There are maritime decisions that find that a building code violation, you may be on notice because you violated the code, but if it's requiring some expert to come in,

[00:23:27] Speaker 02:
and compare the room to an ADA room, which is what the plaintiff did in this case, is saying, well, this room is bigger.

[00:23:33] Speaker 02:
Well, that was an ADA-accessible room.

[00:23:35] Speaker 02:
An expert can always come in and say it could be safer this way or that way.

[00:23:38] Speaker 02:
That doesn't mean it's dangerous.

[00:23:39] Speaker 02:
But that expert testimony goes to the standard of care.

[00:23:42] Speaker 02:
That's a breach issue.

[00:23:43] Speaker 02:
That's not notice.

[00:23:45] Speaker 00:
Our argument is based on notice.

[00:23:47] Speaker 01:
You would agree that the more is required?

[00:23:50] Speaker 01:
Judge Sun is asking you, if you back out this notion that you have to have specific notice that it's dangerous,

[00:23:56] Speaker 01:
then what does the record show as to whether it's unreasonably dangerous?

[00:24:01] Speaker 03:
There's no record evidence that it's dangerous.

[00:24:02] Speaker 03:
Well, I mean, how can there be that there's no evidence?

[00:24:05] Speaker 03:
I'm looking, for example, at Engineer, I apologize, I'll mispronounce his name, Pozinac, looking at 2ER 196.

[00:24:15] Speaker 03:
Denali, Princess Wilderness Large, newer should have known.

[00:24:18] Speaker 03:
of the dangerous condition present in the bathroom of D120, Denali Princess Wilderness Large failed to take corrective measures to reduce or eliminate the danger posed to the users of their bathroom.

[00:24:30] Speaker 03:
There was no Daubert motion, right?

[00:24:33] Speaker 03:
No.

[00:24:34] Speaker 03:
Okay.

[00:24:34] Speaker 03:
So why doesn't that get to the jury absent a Daubert motion?

[00:24:37] Speaker 02:
Well, I believe the summary judgment was ruled upon before we got to the expert completion of expert discovery and dollar motions.

[00:24:45] Speaker 03:
Well, you got to do whatever you wanted to move for summary judgment, right?

[00:24:52] Speaker 00:
Correct.

[00:24:52] Speaker 00:
So just to put a fine point, you would agree then that what I was asking about goes to the reasonable standard of care

[00:25:01] Speaker 00:
Then you would be agreeing that there's no requirement that the defendant know that the condition is dangerous They just have to know it exists, and then it comes down to whether it was reasonable to build it that way No under the jet my position is and under the general maritime law that there has to be notice that it's a dangerous condition not that they have notice of a maritime lot, but if we were in general negligence land

[00:25:29] Speaker 00:
They wouldn't have to have noticed that it was dangerous.

[00:25:31] Speaker 00:
They would just have to know that it exists.

[00:25:33] Speaker 00:
And the dangerousness would come under the reasonable standard of view.

[00:25:36] Speaker 02:
But from what I understand, under California and Florida law, which has been distinguished from general maritime law, the rule is different.

[00:25:42] Speaker 01:
Has been in Everett.

[00:25:44] Speaker 01:
Zero.

[00:25:44] Speaker 01:
Only that.

[00:25:45] Speaker 01:
As to an appellate opinion.

[00:25:48] Speaker 02:
I'm sorry?

[00:25:49] Speaker 01:
It is only in Everett that that distinction was made.

[00:25:53] Speaker 02:
Everett is zero.

[00:25:54] Speaker 01:
And a published opinion, appellate opinion.

[00:25:57] Speaker 02:
Everett is the highest published, yes, is the most persuasive authority.

[00:26:01] Speaker 02:
We just ask that the court not break with general maritime law in light of the uniformity principles.

[00:26:06] Speaker 03:
All right.

[00:26:07] Speaker 03:
Thank you, counsel.

[00:26:08] Speaker 03:
I'm sorry.

[00:26:08] Speaker 03:
Did you have another question?

[00:26:10] Speaker 03:
All right, we'll give you three minutes.

[00:26:11] Speaker 03:
We took a lot of your time, and we've allowed your friend to go over as well with our questions.

[00:26:19] Speaker 04:
Thank you.

[00:26:19] Speaker 04:
There's not a higher standard in maritime law.

[00:26:21] Speaker 04:
It's known or should have known.

[00:26:23] Speaker 04:
I'm going to cite the court to Sorrell's versus NCL, a published 11th Circuit decision that basically says the standard of care usually requires act for a constructive notice, and it hinges on whether you should have known or should have known.

[00:26:39] Speaker 04:
You know, in the Sorrell's case, they basically cited the second in New York in the McDonough case and basically says is that when the ship owner itself creates a dangerous condition, a plane of need not show they had noticed the alleged condition.

[00:26:54] Speaker 04:
Ordinary negligence principles apply.

[00:26:56] Speaker 04:
There's not a heightened standard.

[00:26:58] Speaker 04:
I mean, even Everett says that, you know, which counsel keeps citing, that you don't have to prove notice in any particular way.

[00:27:07] Speaker 04:
And in Everett, the case went to a verdict, and then the 11th Circuit remanded it to test the issue of notice before the district court.

[00:27:16] Speaker 04:
That's what all we're asking is let the case go to the jury.

[00:27:19] Speaker 04:
Let the jury determine, you know, whether or not creating this condition... No, but Everett did hold that the instruction that said,

[00:27:27] Speaker 01:
Carnival cruise lines negligently created or maintained its premises, which would have been the ordinary negligence rule, doesn't apply.

[00:27:37] Speaker 01:
maritime law for some reason.

[00:27:39] Speaker 01:
It doesn't explain why, but it does say that.

[00:27:42] Speaker 04:
Everett says that.

[00:27:42] Speaker 04:
The 11th Circuit in Sorrell seems to be contrary to that.

[00:27:48] Speaker 04:
But we're not in the 11th Circuit.

[00:27:49] Speaker 04:
We're here in the 9th Circuit.

[00:27:51] Speaker 04:
And unfortunately, the 9th Circuit, we're not able to find any specific maritime law on point.

[00:27:56] Speaker 04:
This circuit is free to and can look to state court decisions.

[00:27:59] Speaker 04:
And the state court in California is well-developed on this issue.

[00:28:02] Speaker 04:
There was evidence with the engineer Pochenok, his pronunciation,

[00:28:06] Speaker 04:
Sorry.

[00:28:08] Speaker 04:
No problem.

[00:28:09] Speaker 04:
Engineer Pachinok, he said, listen, this was built, the premises was maintained, it was inspected, you know, it was unreasonably, it was foreseeable, this was a reasonable risk of harm to the configuration, and this in and of itself should have gotten plaintiff over the burden, and especially in summary judgment, looking at all inferences most favorable to the non-moving party.

[00:28:32] Speaker 04:
This case should not have been summary judgment out.

[00:28:35] Speaker 04:
We're requesting the court remand to the district court.

[00:28:39] Speaker 04:
The issue of notice is a question of fact, and the record amply supports the fact that it's a determination that should be made by the jury.

[00:28:49] Speaker 04:
Thank you.

[00:28:49] Speaker 03:
All right, thank you.

[00:28:50] Speaker 03:
We thank counsel for their arguments, and the case just argued is submitted.