kentucky this court sitting in diversity must determine whether the kentucky mining laws were meant to protect david mccarty a visitor an independent contractor to cobol's surface mine and to prevent the harm that befell him while he was working from a step ladder installing a garage door without question the outcome of this appeals not just important to the estate and family of mr mccarty or to cobol but it's important to mind across the commonwealth of kentucky and to visitors in independent contractors working at those mines the short answer is absolutely those kentucky mi  laws meant to protect mr mccourty and the harm that befell him or that they meant to protect miners doing mining work well of course kentucky's mine laws are meant to protect miners but not exclusively doing miners work doing mining work or visitors and contractors that are exposed to mine hazards and even though mr mccarty was installing a garage door and on a step ladder at the time he fell what happened to him was a result of a hazard that was specific to cobol's mine facility what do you mean when you say that specific to the my absolute because it occurred the mine property or is it specific to mining it's not just that it that it occurred on mine property there could be something else such as if he was putting together lug nuts in with the garage door and something happened that wouldn't be specific to the surface mine that could have happened any place but because he fell off the step ladder without being tied off how to implement a four prevention system and what would have been a suitable anchorage point for him to tie off in to use it wider or guideline in lassos and de rings had to be incorporated into the physical structure of the mine there that may be a safety feature the the coal property in a surface mine and you're correct that look he's installing a garage door but the hazard that befell him which is which he must be the expert he's a subcontractor that's doing that's that's not true in this case your honor there is no evidence before this court that mr mccarty had any training on how to safely implement a saw a fall prevention system at that location in idea workers cut up presumably that the employer didn't train their employee correctly but but and that's where you get workers compensation but to say that everybody that contracts and has subcontractors that the owner some property has come on cross examine their ability to do their jobs seems well whether a off the scope to me and i understand and whether one would agree with there or not sitting in diversity this court is tasked with making the best prediction of what the kentucky supreme court would do even in the absence of absence of direct precedent if presented with this question and if we look first at the plain language of the regulations and of the statutes they specifically state that they apply to mr mccarty if i grant ask you a basic question are we does the record show what the building was going to be used for kind of as a storage type facility for equipment and things used in the mining process this land was actually owned by the commonwealth of kentucky and was leased to the coal mine for mining purposes and so if we look at the plain language of the regulation of hazard training it's specifically states colin zero nine zero and this is the regulation that deal specifically with hazard training and it says the administrative regulation and regular good relevant court regulation establishes a training programme for visitors of the mine site it doesn't say coal miners it says visitors a bit of a mine site and it goes on to say surface have a train shall be provided by the licensee meaning cobol to visitors exposed to mind surface hazards hazard training shall include in then what was the mine surface the mining surface hazard he was exposed to was working in this building where there was no suitable anchorage point for him to tie off while on the stepladder that could have been next to the kroger store to a storage thing that's not a mine has but it could have been next accredited but how you would implement the system is specific to the location into the site and that's why kentucky is so adamant that they want the mine who is has superior knowledge of how to implement that system in fact  superior knowledge goes to mining activity that no no not at all your honor in fact that what a mine hazard would be well i hazard that specific to that mining location i mean i think i would have you interpret this very narrowly and say this has to be a mine hazard meaning someone underground with a pick axe swinging it rock but that's not what the kentucky legislature has said but is there something specific within any of the regulations that would help us i know you've taken the seven call and zero nine zero which does talk about surface hazard training shall be provided to visitors exposed to mines surface hazards but is there any yes reg defining line surface hazards well if you look in that regulation your honor under section two a it says hazard record avoidance and then under see it differentiates and says mining in mine safety related issues and so maybe the best evidence of whether if he were hazard trained it would have included what he was doing superintendent superintendent of kobolds mine who under sworn testimony more color testified had i had to train this man the first question i would have asked him is what are you doing here at the mine and then i asked well if he told you he was going to be working on a step ladder at an elevated height at that building what would happen he said i would have walked him down there and i would have explained to him how to do it safely and what equipment he would have needed and to make sure that he had that and then i went to ask had you know he been tied off as as you would have you know done do you think it would have made a difference in this case and he said he would still be with us today hoop who provided the ladder the ladder was provided by h and b builders that make a difference no it doesn't not under this the the regulation here under eight zero five three colin one hundred if you look at the plain language of that regulation it puts the onus on the coal mine to him inspect and remove any unsafe equipment and it would be i believe subsection thirteen and that's why i could all for this very building had inspected the man with the skin steer and all the other equipment used on the other day in fact the whole wall has admitted that they should have provided hazard training have admitted that they should have inspected that work area and they have admitted that they should have inspected the equipment that was there that day and you got workers kupfer you do but worker's comp exclusive it he was shot down by the district  know you've talked about is what their negligence was in the good bad or indifferent that's what you get for wearing in the commonwealth of kentucky making a worker's comp claim does not exclude necessarily bringing a personal injury case and in fact they have not raised that issue on this appeal the district court shot that down correctly this man was not involved in an activity that was regular recurring to the mine he was hanging out garage door however he was exposed to certain mind specific hazards which the kentucky legislature meant to remedy and protect him against is a saint and intellectual problem for someone dealing with this for the first time is how can you say it's a mine specific hazard when really if this building had been right here down the street the same injury an accident could have befall that's true your honor but there's that saying too much is given much is expected in the commonwealth in their legislative intent has made a declaration that underwrote unregulated surface mines are dangerous not just to coal miners but to all people and property of the common law and in this case the supervisor from evansville garage door said unless he was more than ten feet off the ground we did have a policy that we should be ti we didn't have a policy that the step ladder itself should be tied off to prevent it from moving when struck kentucky has made the decision we're going to put some of that onus on the mines to protect the people and protect the property that's a decision kentucky has made so now we address the spoliation issue absolutely that is part and parcel with everything about this case you have a case where a man fell from a stepladder to his death and within clearwell knew that there was going to be future litigation within a few days after that you have a investigator from the work comp insurance company out there inspecting it taking colors watching him do it and they're discussing how there are deficits in defects with that ladder that predated this incident and to be clear this man did not just fall off the ladder that ladder there was the garage door descended it struck the ladder the latter then began to walk folded together and then he fell law how far up was he was about seven feet approximately seven  when did the latter disappear we don't know exactly but it disappeared after we know this it disappeared after he was aware future litigation would arise it disappeared after he had met and spoken with the work comp investigator mort keller the superintendent of the mine and if we look at the b even case which judge moore brought to us and judge white concurred with i'm sorry i wrote it you did wri sorry and judge wright concurred or joined in the opinion in the six circuit the discovery process should be above board good bad ugly or indifferent whatever the truth is preserve evidence in produce it in every piece of evidence not just physical evidence electronically stored evidence evidence in different people's possession all kugel is all gone none of it has been preserved none of it has been produced in this case not only just from the jur of the circuit but also their own document retention policy said they had a duty to preserve the evidence they have given absolutely no good reason at all ever for failing to preserve or produce that evidence and without that latter how do we know that the cleats on that ladder worn to a point that it contributed to that ladder walking in him falling off we don't know you said that the ladder was provided by the night by the mine that's true but if we go back to the the the regulation it kentucky my in laws put the onus on clay wall to inspect all equipment on the property being used on the property than if the equipment is being provided by a subcontractor absolutely so absolutely and in fact in this case quote all inspected other equipment provided by contractors and used at that building during this process your position is that if if if you are the contractor and you bring a defective ladder and the whole cause if your accident is your defective ladder the coal mine is still liable under what section of the provisions it would be eight o five k or three colin one hundred i don't know if i would state my position exactly as you framed it your i was a hypothetical you know what i what the way i feel comfortable answering that is kentucky my in laws have put an obligation in a duty on cobol and other mines to inspect property and equipment coming on and being used on mine property clay mines section one the following items shall be guarded to prevent injury and again it doesn't say just the coal miners and then we get down to subsection thirteen unsafe equipment or machinery and in that regard i'm so this was tailored specifically for cobol section one of three cohen one hundred says the following items shall be guarded to prevent injury and there is a list of a through j but then you're going to thirteen which is a different section i'm sorry it's j thirteen i don't see j having ok you think it's j thirteen i thought then there's two three there's j and then there's two three four but now i know you're right section one thirteen then i'm sorry one kind of confusing here the thirteen simply says unsafe equipment or machinery shall be removed from service the media absolutely in this this step ladder arguably was unsafe the fact that they destroyed it knowingly when they had a duty to preserve it that they knew it was a contested issue in this case they've hired an expert to say it wasn't on the jury  it was his before or after the worker's comp took pictures after after so you have photographs and we have poor quality photographs which show that the cleats on the bottom of the step ladder which are designed to create traction and prevent the latter from moving were warm we also know that there was a crack in the step ladder and one of the pictures show that the spreader got the things you really need you don't have the entrance but but the adjuster came out and at least made some photographs but your honor i disagree a photograph of this versus having the actual i don't to have a forensic engineer inspected and offer opinions that would meet the d'albert standard are two different things all right thank you  it please the court the factual situation here is that kovel was dealing with an expert david mccarty was a very experienced garage door installer undisputedly he had installed over a thousand of these doors he worked for a reputable company evansville garage doors in evansville indiana he had worked for them for many years i don't think it's unfair to say that mr mccarty was the expert on garage door installation how did he come to use someone else's ladder we don't know precisely your honor although there was testimony from his coworker jeremy means who was there witnessed the accident that they had ladders and other equipment on their truck but just elected not to use the ladders that they had brought the agent the latter there was testimony the agent the stepladder which is what he was using was already there at the site ag b of course played a part in constructing other parts of the building they turned it over to evansville garage doors because of the size and weight of the garage door and because agent b builders were not experts in the installation of that type of door either so the reasonable thing to do we think under those circumstances is to hire the expert david mccarty was that expert but is here isn't there a basic where there cobol as a surface mine and has a duty under these kentucky statutes  to inspect equipment of accepting your position that this is an expert of an expert who comes on to attach things to a building that's being built on your behalf on the surface of the mine if your honor please i'm not aware of a regulation that says to a mine operator in kentucky you have a duty to inspect every thing that's brought onto your property whether it's used in manning or not i'm not aware of such a regulation and if the plaintiffs were aware of such a regulation they did not cite it to judg our three coal one one zero zero which is the one there was a an exchange about unsafe equipment or machinery shall be removed from service immediately the official to that regulation says this this administrative regulation establishes safety standards controlling that use an operation of equipment in the commonwealth's surface type coal and clay mines in the mines this man was not in a mine he was in a garage which as has been pointed out already could have been anywhere there was nothing about this garage on th connection with the workings in connection with the workings that of course relates to an underground mine yet it also relates to the workings of producing codes i know but this is a place where your story of the equipment that that really is that that building is used in connection with the working you're not some strangers and storing furniture there well two things number one the building was unfinished it had not been turned over to koval number two the equipment had nothing specifically to do with mining they had tools hammer saws pliers that sort of thing it was a tool shed in large part we're not we're not storing augers and we're not storing mining equipment not going to store those things and that don't but they tools that were going to be used in connection with the mining right tools that were going to be used well i guess you have to have saws and so forth to him they were going to be used for some other no no ma'am there's not another business taking place on the property it's a it's a coal fine recovery facility i would also point  and the whole purpose of these regulations is to provide hazard training for man hazards mr mccarty didn't fall because of a mind hazard  another regulation that they've pointed to eight o five k are three colin oh two zero zero zero just basically says you need a form and they're not really exactly specific to nothing to do with my with with all a lot of with all due respect to am sure in the manning business there the eight hundred pound gorilla they come and they take over and they did the investigation i would also point out in that connection they did a very thorough investigation they reconstructed this accident it wasn't just that there were work comp adjusters photographs of the latter and so forth him show had photographs sure i'm sure les shared their findings with the kentucky department of mines but the investigator was william barnwell who was a federal m p employee so i'm curious about the  key pieces when they disappeared and under control they were when they disappeared there's only a small amount of evidence on that but it's undisputed marc keller who was the foreman at the site was told by get rid of that latter there was also blood on some of the pieces of physical evidence obviously for health reasons connected with other totally unrelated topics but mark keller testified on equivocally i was told get rid of the latter and i did that was only after him should have done the investigation and had instructed him you know we've done what we want to do with the latter we don't find that anything wrong with the latter because this door to come down or cause this man to fall to his death and  order destruction of evidence that is likely to be relevant to a federal or state court proceeding i don't know the answer to that your honor but i would say that from the standpoint or from the viewpoint of somebody in the mining industry who is regulated very carefully by a federal agency if i were in mark keller shoes i'd have done exactly what he did follow the instructions of him they certainly  have broad discretion in interpret in their own regulations and in deciding what powers and authorities they have i think it would have been i think it would have been quite risky for mr keller to do proof i believe that there was blood on the harness it was not it was not without risk because of blood i don't know whether there was specifically evidence of blood on the ladder or not i suspect not but i don't i don't know definitively on that what i do know is mr keller said no one contradicted this told me to get rid of it but that was if it was determined that the letter was and say well i don't think there was a determination that it was unsafe i think there was a determination that there was a crack but obviously believed that the crack didn't have anything to do with the door coming down hitting the ladder and this man going off in other words and incidentally the latter if someone says get rid of that letter in the context of workplace i think it kind of means get there were get the letter out of the workplace what did he how did he get rid of it i don't know the record i think just says i don't remember exactly what i did with it are probably threw it on the  recall mr killer's precise testimony that i'm sorry but as you know a neutral third party with considerable expertise and  if if there was the slightest question about whether that ladder was unsafe cracked or not i'm sure i'm sure would have called him other people they did but  it really was a fairly self explanatory accident because of mr means who saw the ladder was under the doorway the door was not blocked this man was not tied off he broke three basic safety rules sometimes even experts take shortcuts sometimes even experienced workers break the rules but i've been know if he didn't know how to tie off in this particular and buyer and keller says that part of his job to tell people what was he supposed to do there was testimony he already had been tied off that day he was not tied off at the time of the accident but jeremy means testified that meet that mccarty had been tied off earlier that day and means also warned him shortly before this regarding the minutes leading up to the accident in the end the day that they had spent there or the half day he had been tied off before and mean specifically told him you better time off site at my fingertips and that and that of course was undisputed there was also reference in the appellant's brief and mr that say the plaintiffs creates a duty to all persons here's the way that statute reads the general assembly finds that the commonwealth is the leading producer of coal and that the production of coal in kentucky contributes significantly to the nation's energy needs the general assembly further finds that unregulated surface coal mining operations cause soil erosion damage from rolling stones and overburdened landslides stream pollution the accumulation of stagnant water and so forth this is an environmental statute it's not a statute related to how to safely use a ladder and a coal fan recoded ends and in general create hazards dangerous to life and property so as to constitute peril to the welfare of the common oh and the like in general create hazards dangerous to life and property the the situation here is it's the mann act these are mining regulations and mr mccarthy was not a man or he wasn't doing mining and he wasn't in a mine when this happened all he needed to know were those basic safety rules about block the door don't put the latter under the doorway and tie off so if that's all we have you don't let if the door were being the surface i don't know your honor you have to say i would certainly think that there would be hazard training on you know how do you install a garage door he didn't need to know that he knew that he has well training like don't swallow it could it could be like don't smoke or watch out for the air quality if you see dust get a respirator or what or what have you things that are mind specific that but this i'm sorry i'm sure my time is up thank you thank you very much and please the court cobol's counsel said that mr means toby mccarty you need to tie off minutes before the incident it is true mr means testified to that but mr mccarthy did tie off that day when working on the man left mr mclarty nor did anyone else working from the step ladder not no one ever tied off in fact even mr means admitted that he would not himself known how to tie off and working from the step ladder evans her garage doors policy said you only have to tie off if you're more than ten feet above the ground and there was nothing in their policy about securing the top or the bottom of the latter had they provided hazard training to him like they did to me when i visited the mine property and gone over what i was going to be doing that day mark heller the superintendent of that mine said i would have walked him out there showed him how to tie off how to do the lassos in the wires and this man would still be with us today this ten feet wall that has no basis in anything i think it i think it supports our position that kentucky wants to prevent people from harming themselves by accidents i mean it's not what i'm asking you i'm saying they have a rule you have to tie off if you're higher than ten feet correct are you saying that that rule is insufficient it was in this situation absolutely without question ok so i would think that that's a pretty common thing it might be when you have to tie off it might be and you're saying that the ten foot rule has no basis in the in industrial safety well i'm not i'm not and there is some original terms on it i think that the kentucky legislators point is that we want uniformity we don't want people coming to mines in implementing their own policies whether they be deficient or what have you we want uniformity and we are going to play some of that onus on the mind to determine when you hazard training if so is there going to be uniformity if there isn't a mine rule that you have to ta inspected and improved by i'm sure but another mine might have a different number it would have to at least meet the minimum standard interest said was ok well i don't know was yahoo sent to know what's at your job to know it might be but i know what it was in this case and in this case at this mine in for this case when i went to the mine they has or train me they have to how to train everyone that comes to the mine or your testimony federal i didn't mind id number you can't just show up to a mine and start working you either have to have your own federal mine id number or work through cold walls and he was working through cobol's mine idea at the time the sense from where i have the impression that mr mccurdy may have come in through the main gate and checked and so forth but may have come around the back road can you tell me where that impression is correct or not and where i would find the answer mr means gave us that impression but cobol has steadfastly didn't deny that there is no back into the mind one other point i wanted to talk about the step ladder when i cross examined mr keller about the step ladder and what supposedly insured told him to do byrd when i said did they tell you to just get it off the mine property or did they tell you to destroy it and what he said about it being uncontroverted is not true h and b builders testified that they called mr keller and wanted the latter back they wanted the latter it was their latter they wanted it back in mr keller did not give it to them on your bed like this thank you thank you for your time thank you both for your argument the case will be submitted