LAW LIFE: Slip and fall on the high seas

By Pat Murphy The Daily Record Newswire Lydia Rosenfeld's story about her fateful voyage to a buffet bar isn't exactly the stuff of Herman Melville, but it is a sea tale that should thrill personal injury attorneys. Rosenfeld booked passage on the cruise liner M/S Nautica. On Sept. 1, 2007, Rosenfeld slipped and fell on a ceramic tile floor near the buffet bar of the Terrace Cafe, one of the Nautica's many food troughs. The passenger fractured a shoulder in the fall. According to Rosenfeld, there was water or some other slippery substance on the floor where she fell. Rosenfeld subsequently filed a negligence complaint in Florida federal court, alleging that Oceania Cruises, the operator of the Nautica, failed to provide a safe flooring surface for the buffet area. To prove her case, Rosenfeld planned on introducing the expert testimony of Peter Vournechis, an Australian floor-safety specialist. The expert had performed coefficient-of-friction tests to determine the slip resistance of the Nautica's flooring surfaces. He concluded that, under wet conditions, the ceramic-tile surface in the area of the Terrace Cafe had an inadequately low coefficient of friction, making it unsafe for a self-serve or bistro area. Sounds pretty impressive. Unfortunately, the trial judge in the case was not so impressed and barred the Australian floor-safety expert from testifying. The judge said he was excluding the expert because his opinions were not "helpful" in understanding a matter of scientific, technical or specialized expertise, instead intruding on the jury's prerogative of deciding the ultimate issue in the case: whether the floor where Rosenfeld fell was unreasonably safe for its intended use. That's what the judge said. But my guess is that the judge really just had a problem with Australians. Yep, he probably saw that god-awful movie with Nicole Kidman and Hugh Jackman and thought it was high time for some pay back. Of course, we'll never know the truth, but that's the only way his decision to exclude Rosenfeld's key expert makes sense to me. Fortunately, the judges on the 11th Circuit have an open mind when it comes to Australian experts (or perhaps they never saw that god-awful movie with Nicole Kidman and Hugh Jackman). Wednesday, the court decided that the trial judge had it all wrong when he kept the expert from testifying. The court explained that "[b]ecause the jury was not allowed to consider evidence about whether the slip resistance of the flooring posed a danger to passengers aboard the Nautica, it could not have found in Rosenfeld's favor with regard to her main negligence theory; matters of slip resistance and surface friction are 'beyond the understanding and experience of the average lay citizen.'... "Accordingly, we conclude that the district court erred by granting Oceania's motion to preclude Vournechis's proposed testimony." (Rosenfeld v. Oceania Cruises) So Rosenfeld gets a new trial and the chance to win a bucket load of cash to pay for future cruise experiences that don't involve broken bones. And Peter Vournechis, that brave floor-safety expert, wins one more battle in Australia's never-ending fight to overcome the stigma of Nicole Kidman, Hugh Jackman, and that god-awful movie. Published: Wed, Sep 21, 2011