that set this case apart from some of the other cases number one miswrote was fifty one years old at the time this incident occurred she stood five foot four inches tall and she weighed one hundred and sixty dollars pounds so she was not a young young woman and she certainly wasn't a large woman and that becomes especially important when you consider that these lottery carts are on wheels they can be over six foot tall and that they can weigh three dollars to four hundred dollars pounds so obviously these carts loaded with dirty laundry can be taller than she was and can weigh twice early even a little more and she weigh do we backs indicate what the weight of this laundry cart was they do not specifically throughout the scot free i mean obviously there was that for any investigation done the way the actual carpet fell but the general consensus what the testimony by the corrections officers and everybody involved seemed to be that the lottery carts were about three dollars to four hundred dollars pounds and at the very minimum i believe there is testimony at the very least it would weigh fifty mr can it can and can i ask you a couple background questions on that how did she get the laundry detail job so my understanding is is that it's a violent position and so i'm not a one hundred percent sure but it would seem to be signed up for it i know that there was criteria and because it was termed i think it was called a gate pass position that you had to obviously have exhibited here because they couldn't be a flight risk those types of things and so we know all those calculations were taken in consideration she wasn't deemed a person who they thought would be a risk know your honor i know this was the gate past job and whether or not she was paid i don't know that that was brought out through the discovery in the case and one other question on what were her job duties basically was to assist in the loading unloading the laundry carts and basically the eighteen wheel semi truck and she was at an all women's prison and there's only one of those in michigan and that was that they would bring the semis and they went on over the laundry carts and mowed them back and was there any indication in the record about training that she had according cording to the records she didn't receive any training from any officials there was very little i guess on the job training essentially by fellow inmate that was with her and again this was only her nd day on the job there's no indication that they're you know sometimes in a workplace traditional workplace you know you watch safety videos or you read safety pamphlets things like that no indication on the record that anything like that was done nor any indication that the officials here or any officials otherwise took his individuals or separated them gave them any type of significant or really any type of training at all if you had to point to the best evidence in the record to show that jones and pearson were deliberately indifferent but would you point to well i would point  and specifically what did they do that show deliberate indifference oh st of all as to joe i mean the record clearly established that he was already behind schedule everybody knew that these vaudrey carts were on wheels and that they were very happy and very tall and both jones and at st and even no and corrections officer nohant testified these are these are dangerous jobs they you know people can be injured when these jobs are done but what did he do so he so he'll to do so he's at the front of this semi and he's supposed to warn them and he supposed the guy that cart down to where the hydraulic lift is the testimony was very clear that he took this car and literally just spun it down without any verbal war don't fly off the gate they knew that wasn't there as well and they didn't take any efforts knowing that it wouldn't stop or wasn't there took no efforts to deal with that and there is no efforts knowing that custom and practice was to an thomas senate one point in her deposition he did and then another point he didn't did it was i understand it and you correct me if i'm wrong as i understood reading the depositions the laundry cart was already starting to fall when he may have started to lower the gate and then appears to have stopped is that accurate i think oh i'm sorry you know i should have finished it he didn't go in the gate never went all the way down as i understand or at least i didn't see that in the testimony it didn't make it all the way to the ground but my understanding is that it did begin to lower and prior to you know that that car getting out there before so you're saying it got it lowered before the car getting on right ok thank you so so again nancy judge moore you know i think that's what jo that rhodes was not paying attention is that part of the record that he could see that rhodes was not paying attention but he continued to let them go down yes there was  said look as as i saw august car how many now on the trailer i also see kelly row so it's clear there's a question of fact there that he did see her at the same  time that this car was coming down whether or not i don't recall specifically that she wasn't paying attention or maybe there was something about looking away but i don't i don't think there's any indication there record nor do i recall other defendants pacifically stating that she was somehow negligent or not paying attention or and that's the reason why this happens mr cabot in your brief you cite a bunch of compulsion cases is there any evidence they compelled her to stand there because it page thirty six of your brief you say that jones directed her to stand it be and but when i looked at all the cites for that judge thomas says no i tool i told her to stand there we rotated and took turns standing there as the cards came down so i'm just wondering if there's any evidence jones or macpherson directed her to stand there and where i can find that in the record i'm not aware at this point of an order of that but i do know that that was how something wrong or if she was not in the cracks there is no evidence in the record fersen jones or anyone else prison official for that matter told her to correct her  that that lack of evidence also indicates that they acquiesced in a degree that she was doing what they expected her to give acquiescence and off you have many cases for that proposition i don't have any cases that we cited in  brief but the fact that they they knowingly saw our they were aware of what she was doing and didn't correct any of her actions i think that that shows that they had a duty to certainly has no safety equipment and now and get injured lifting weights would that be subject to be th amendment i don't know the answer to that i don't know if that was that her charm and your honor but i do know that they were aware that there was not a stopper on that day decision my contention is this court should hold similarly and i can address any questions you have i can you know i sat through the depositions i interviewed most people i could answer your factual questions pretty well if you have any my understanding is that the district court did find jones that means there was a genuine issue of material fact he said be jones on the deliberate indifference claim and then the district court went off on the question about shoving allegedly shoving the laundry bins toward the back toward the tailgate was reckless i mean i don't agree with it i don't think the evidence supports it you know just to point out the in the complaint you know it's all couched in terms of negligence they failed to train they failed to do this failed to do that and it's only through her testimony that you get this the factual statement that he was flinging the carts but you know you listen to jones jones is not a big guy he said you know these cards can weigh fifty to four hundred pounds depending on how much how much a clean laundry is loaded him he said it took all of his weight all of his str he'll those things from the from the front of the trailer all the way back to the tailgate or to the lift and that direct caster style wheels that he said those wheels will you can't shove it in a straight line it will turn it causes these thing with florida real no way to sew the other woman the other laundry porter and so they would do that and then when they were done doing that they would reverse the situation store loading the truck with dirty laundry so essentially really the state prison was relying on two women dealing with two carts that weighed up to four hundred pounds to steady them so what on earth you know a normal person would not have the strength to stop four hundred pounds from nobody but nobody assumed that they would do it in fact the testimony from her to her cole porter don't why do you have people steadying them if when the minute they start to tip the people are supposed to get out of the way it's a good question your honor i don't know if i say this about the lip on those things on the on the on the thing at the back the the liftgate normally had a lip a metal left but on this particular truck it didn't have that metal is the lip at the end where where the  by the and that's where people are standing on the ground where the people are standing and so this one this one didn't have at the end it didn't have the stockers that's right in the stop or was what they're talking about is because this truck w mr mr thomas testified that jones often pushed the carts quickly and that no proprietor inmates had been injured is that accurate other and maybe no that is sacred i was going to comment on that you know instead of you know the way i'd characterize what happened here was you know jones is a kind of all business kind of guy and you know he's so he wouldn't stop and talk to the prisoners and stop and talk to the the c e o he was just the testimony that he was flinging carts i think is in reality he's a guy who works fast and so he would bring the cards out you put him on the thing he walked right back to have another car put it out on the a he even testified he did not witness this accident happening because he had already turned around and walked back to get another car if there's one other thing i should i want to note for the for the panel and that's you know this was  this is a you know i don't want to say garden variety workplace accident you know as the result of negligence but it's close to that and it's really it's an it's an all liability case i mean plaintiff filed suit in the state court you know seeking michigan no fault benefits and we settled that claim we settle all state law claims of the no fault claim which is benefits paid without regard to fall we paid or fifty thousand dollars on this case what the plaintiff would not did not want to resolve these federal civil rights claims and so we could resolve those but we you know this was this is an auto type k i mean michigan no full applies to the loading starts to lower it ness when it started the it could have been that the lowering itself caused the lauder to shift cause the thing to tip off but we don't really know and you know the th way but interestingly you know she claims that she suffered some additional hearing loss as a result of the skull fracture she got but she was pretty deaf to begin with and i think she did not hear her coworker yell at or intel or get out of the way in the thing fell hit her on the ice knocked her to the ground she hit her head on the side of the bay but it was a pretty bad injury i mean they did know she was going to survive or not i mean she was bleeding all over the place they you know they responded immediately got her the hospital right away and all that but you know i don't want to denigrate what was going on here but it's this is sort of a well one might call a garden variety workplace accident you know maybe maybe i would say that you know maybe the guy pool in the car itself might have been negligent i think she was i think mrs rhodes was negligent  comparatively negligent so but i don't there's no it isn't this is in the context of a prison this is not a context of somebody out side you know a laundry service environment  was hard of hearing to begin with wouldn't that go to the question whether there was deliberate indifference in the lab going somebody who is hard of hearing to have a job that requires them to hear somebody yelling get out of the way well her being hard of hearing i don't recall being facts in this record i don't know if you if you can point us to somewhere where i probably can't point you to anything i just know i took a deposition that part of her damage claim was that it that the injury exacerbated her hearing loss and i know that she and we were trying to search for whether she had pretty accident hearing towns to see if you know what what level vereen she had were only found any but no i would i would say this is i don't it's of deliberate indifference here i see evidence of negligence i don't see deliberate indifference but well don't isn't there a th circuit case involving somebody who was a prisoner who was working in the prison library who had a hernia case ok so so hypothetically if if there is a case that says that a an th amendment claim can be stated when a prisoner is has it element that is exacerbated by the work they are doing in the prison would net the principle be applicable here i don't i don't think so because i you don't st you have to find deliberate indifference and just an exacerbation of a preexisting injury you know they can be read the result of negligence to him frankly plaintiff allegations their st minute complainer are almost all negligence based type claims i don't see any that anyone here there's no testimony no evidence that anyone was heading for a a substantial risk of serious injury people and said that this had never happened before you know the truck is their money through friday i mean they do it five times a week so there's don't know testimony that either of these two defendants jones or macpherson had inferred that there was a substantial risk of serious injury to his competitors back to prove that goes back to my question earlier about why have women prisoners at the end of a truck whose job it was to steady the carts which means to prevent the carts from falling over there's no other reason to study carts that's a good question your honor if you know what i don't i don't have an answer for i mean i frankly i agree with you you know i mean what's the point of them standing there with their you know they're supposedly standing there at their arms up what are they going to do they're not going to push a four hundred pound car back onto the liftgate if it starts to tip you know they're told to get out of the way so what's the point of them even standing there i don't even know it sounds fairly i don't know frankly i don't know i can't give you an answer for that  you know if i were in charge i wouldn't i would have done it differently but you know i mean that i don't see that is deliberate in the sort of prison officials record i can't dispute it that if he said it he said but according to jones who delivered this laundry every single day he said he did he didn't recall these things ever tipping off the back  so even but i'll grant i'll grant the court that even if it had happened before and you know we don't have any clear record of it had or had not i don't think that makes i don't think that creates any type of awareness  kind of piggybacking on some of the things that were just recently mentioned regarding the deposition in may thomas i believe that deposition testimony was on pages thirty seven and forty five or  deposition where she indicated that this was not the st time a car had fallen off and she also testified at a car had almost fallen off on her as well i'm so that kind of goes back to that and any evidence there that there's any injuries from those just out of curiosity not that i recall that she testified to i you know i know as far as thomas she said that it almost fell on her so i know she wasn't injured i don't believe there is any indication that there is actual injury but i don't think that's necessary in a case like this because as we cited on pages fifteen and sixteen of our principal brief of harm to the person receiving the car and that's why the carts are supposed to be guided so again you have evidence directly from the defense some south saying this is dangerous and i think you know i think the district court really went out of its way to branch summary judgment here and then judge moore i think the case quickly pulled it out as you were talking about it i think  issue to be submitted to the jury and so based on our briefing and based on everything you house i would request respectfully that the decision of the district court be reversed and i see many times thank you thank you both for your argument in the case will be submitted