and a little bit into northeast washington fifteen thousand customer member owners in idaho and about fifty customer owner members in washington but two of them turned out to be in swung his ten foot metal pole out behind him he touched my client's wire which was eight point eight feet away from him the code required that it only be seven point five feet it was where it was supposed to be by one point three feet mr punch in contrast was not where he was supposed to be there was a statue to prevent him being within ten feet of that wire is a violation of the safety statu he was in a location where it was illegal to be he wasn't paying attention to the wire he swung the pole out and he was injured notwithstanding that the wire didn't move but that mr combs one is pull of the trial court and of course this court that broad question has now evolved in just five sub issues presented to the court number one is there diversity jurisdiction in light of the fact that fifty some owner member customers of the kootenai electrical co op live in washington the same as the plaintiff is their diversity jurisdiction when an incorporated rural electrical co op is in actuality more like a partnership or a limited liability company there is a business model corporation and is there such a gratis jurisdiction in light of the fact that  has not been weighed by the federal tort claims act if we are correct on any one of those spies then the case has to be reversed remanded an order to be dismissed if i the law in this area it is our position is very clear unlike the areas in the jurisdictional questions where i get into concepts that i don't understand and i certainly hope this court  but as far as submitting reckless misconduct to the jury in a perfect world and unlimited time today i would walk you through the prober case but i can't do that so i want to make some points about of fault in program which was tried on ordinary negligence and this is critical ordinary negligence is what was considered in progress we're up we've cranked it up the step we're talking about reckless misconduct a power company didn't know it was being done it could not have knowledge of it and they didn't probe or it requires actual knowledge and in this case not only of the activity out there but in particular the use of that ten foot metal pole because if he wasn't using that ten foot metal pole and swung out behind him he never would have touched that wire the fourth point and prober prior accidents do not create constructive knowledge in program there have been two earlier accidents involving cranes touching that wire through the courts that they don't prove knowledge you've got to have actual knowledge here in this case is your honour's where from reading the record there was a great deal of talk about other things fall over northern idaho all that came up don't add anything to the argument that this was reckless misconduct prior accidents do not constitute knowledge the third point i would like to leave with you from in the final part of the opinion constructive knowledge constructive knowledge of a temporary condition cannot be imputed to a power company that is a lot i don't know and that is what we have here is we had a temporary condition mr posts and his crew went up on that sign that day they were up there for twenty minutes and the accident occurred under i law the power company electrical co op cannot be charged with constructive knowledge that they were there on a temporary assignment for the record tell us what happened to the billboard company or settlement with the point on constructive knowledge on reckless misconduct which cited a lot of cases mr good friend also points out of senate a lot of supplemental authorities let's go focus on prover the one case i want you to study on this issue because it shows what i don't whole lot is an under idaho law it didn't make it there under ordinary negligence and if it can't make it under ordinary negligence then it cannot make it under reckless misconduct the trial court in failing to direct a verdict on the reckless misconduct misconstrued pro also turned the high voltage act on its head in there and in effect that the power company was to have constructive knowledge the obligation to follow the statute and give the power company notice if they had received notice they would have gone out there and covered those lines as the statute says they are supposed to know notice to the company the company did not think mr combs was injured because he touched the lines there was reckless misconduct or are but it was on the part of mr cootes who violated a safety statute that was designed solely to protect work maher was also and the crowd court also ruled that lamar was not listed as a matter of law mr koontz is an independent contractor is not an employee of lamar so they both have the obligation and neither of them did when it comes to sorting this thing out the trial judge in shoojit knowledge allowed knowledge to be imputed to the power company that it never received and the reason it didn't receive it is nobody nobody at the power company knew that these people use ten foot metal poles in fact one of the plaintiff specs were witnesses when he was testifying it came out he didn't even know that these people looking what he's doing swings that around he's violating the law in the first place he's not taking care of himself in the second place i don't think we're charged with knowledge or anticipation that they're going to violate a safety statute and then when they violated the safety stack statute compound it compound it by not taking care of yourself he testified yes there was a safer way to do the job if you  the inside out approach with that metal pole instead of the outside in with roach with that metal pole he wouldn't have been hurt he did everything wrong i don't think any power company i don't think power companies in general ar charged with knowledge that human beings can do everything wrong there's got to be a limit otherwise every wire is just an accident waiting to happen and a lawsuit waiting to occur and that's not the way that's not why that statute was put into place we have at least five most of which involve concepts that i'm not familiar with i've read an awful lot of supreme court cases and nine circuit cases preparing for this no action or inaction by the parties can create the jurisdiction not only that i was surprised to read that under your general atomic rule in this circuit a federal court is presumed to be in a sense it might all be in so that you think here's what we do for a corporation so i mean is there any authority any legal authority where  been able to find it what i found was judge posner who sings the written three or four opinions skirting this issue he said he could not find a case that answers the question is a that hears that we deal with a corporation how can we make up and i think when we start looking at these cases look at the cases of professional corporations look at the cases on limited liability companies that's the one that really jumps out at me the limited sir but when we go down the list of the characteristics of a limited liability company and the corporation is a ninety six ninety percent i get it they're the same thin we're not we're not a corporation for purposes of federal jurisdiction federal diversity jurisdiction analysis that i believe this was the position we're taking we have incorporated limited liability companies the order in one of the cases this is one of the many cases pointed out that in construing the diversity statute it is to be narrowly construed one of the cases say the door of diversity is to not be open wide it is to be kept narrow and this is our point here we may be incorporated in idaho but we are a rural  that i see my time is up i will be back location of its lines caused a substantial rex because it was close to a billboard relocated its line to a position even closer to the billboard fail to measure the clearance electricity it owes the highest degree of care and that instruction was given to the jury it was instruction number twenty and there was no exception to it katie conceded that the beauty was not just to comply with the minimum standards set forth by the instructions twenty four and twenty five and there's no argument here that those instructions were incorrect but there are part katie see either knew or should have known that its conduct created an unreasonable risk of harm substantially greater than that involving negligence that it intentionally did in fact knowing or should have known that that act would result in some ar motion for judgment as a matter of law first of all this wasn't a temporary condition despite what you just heard from kate you see casey was concerned before it engaged in this reconstruction project that the clearance between the existing and the billboard was to close but it failed to measure and it fell to determine the actual clearance it was concerned because it thought that it violated the minimum standards set forth by the end you'll see the seven point five foot standard it actually ordered measurements to be taken and mr han and burke testified to that i believe that our team nine eighty eight and nine ninety nine k e c nonetheless relocated the lines closer to the billboard again without taking any specific measurements that again was testified by casey's own witnesses and in fact a lower conductor which in fact acutely aware that there was a risk involving this entire poll yet it nonetheless did nothing about that risk so it had actual knowledge and it's  off on an inspection without such as meeting the standards body and yes the want to certify this project to the federal agency providing funding for it that it was in compliance without again doing as any measure now negligence would be as casey perhaps it never checked this clearance or after determining as it did that the clearance would be a problem delayed front and reasonable to curried of time before doing the measurements and in that period of time an injury occurred or attempted to notify lamarr of a lack of clearance but through some inadvertence or mistake sent it to an incorrect egress that would be  determining that clearance is in fact a problem ordering measurements to be taken not taking those measurements moving the lines even closer to the billboard and again not doing any measure that's what makes this case reckless now i point out what's not at issue judge gould because the argument that you've been given by casey is not that it doesn't meet the standard for recklessness but they simply because mr prince was using a ten foot metal pole it was argument on the post and i believe that's at archie thirty five fifty one well they could have used the ten foot letter they could have used grant programs they knew that they were catwalks there they knew that people would be using tools to change the billboard so whether it was a ten foot pole whether it was a ladder whether it was those rights that changed vinyl signs with letters really is immaterial they had knowledge of the risk and they did nothing about that's why this was an issue for the jury and it was decided properly now regarding the statutory violations the relevance of the high voltage act here is that casey assumed a duty to contact the owners when they were aware that a structure was located within ten feet of a high voltage line not the seven point five feet required by the n s c but they in fact used themselves a standard of making sure when they osha a person a non electric accompanying worker can't be within ten feet of a high voltage line and they knew that under the idaho power act that they would be required to get notice when anyone was doing work within ten feet of a power line and in fact in a prior case involving another company notify the owner of the billboard that it signed catwalk were too close and required that that sign and billboard be moved in excess of ten feet away i because as their own witnesses testify the n t s b as a minimum standard just the bare minimum and that their duty was the highest degree of care and if they had reason to believe that someone could contact their degree of care and that's not just b obligation to maintain ten feet of clearance i think there's nothing in the record to support that the jury was instructed that under osha a power company has an obligation to locate its lines ten feet but it came in to show that  and i trust that's correct now as to the federal agency yet the fifth the fifth circuit case and i'm i'm looking for the site i believe it was alabama power versus alabama electrical cooperative and that was a public utilities action under learn to roll electrical cooperated so for that purpose they said it's and instrumentality the federal government and in fact this we're going to couple of other cases arising out of washington when public utilities try to condemn under state laws they're empowered to do the transmission lines and service disabilities of rural electrical cooperatives also held that under federal preemption analysis they would not apply a washington statute to allow a competing public any court that's considered including this court i'd like to conclude by noting that you heard a very impassioned argument relating to proceed and delivery and recklessness in this case and you probably hear a one on rebuttal i don't doubt it which met each of the standards that were set forth in its instruction twenty five on recklessness the evidence was there and the judgment should be affirmed thank you honor asked me for one case on the corporation issue which i couldn't provide you but i did provide you one against that says era lexical co op is an instrumentality of the united states that's the fifth circuit court this court has ordered the language and said we don't have to analyze it at this point in time because the uniqueness of the federal we're all electrical program means that state actions contrary to that program just simply cannot stand under the supremacy clause of this constitution that's your  i researched the rural electrical code again and i don't find a waiver but that's either mentioned earlier the concepts here are varied i saw last week the u s supreme court reverse this court in the flamingo case where the u s supreme court has now held that the post office cannot be sued under the sherman act but this court has said that they could having done the analysis so these things seem to be a pitch in quicksand i would close with pointing out going back to your honor's issue and the points made by mr good friend are covered introvert he talks about other accidents again he talks about other things that the electrical company did prober says that's not relevant the issue is what was going on out there that a temporary situation moving that being in from one side of the building to the other where the crane could get that wire what we had up there was a temporary situation mr coon with his ten foot pole