your honors mr weber nonuse the bard passed on the day he was injured did not cause a branch to drag off the dead tree high above and strike him in the head and we know the comparative fault act requires a still needs to be a causal connection we certainly would concede that mr weber if he knew that there was a dangerous condition and he decided to go out and cut the trees that day that you assume the risk of being present there and his standing in that place cutting the trees was causally related b to take your logic to the next step your honor suppose that mr buckner wasn't wearing steel toed shoes or safety goggles or hearing protection when he was cutting the trees is that it and obviously that has nothing to do with preventing an injury from falling branch getting somebody in the head could that evidence also be considered in deciding if he was a fault and if the ball contributed to the incident i would say not it's just it would it would open up the floodgates to to point to every irresponsible thing that mr weber may have done whether or not it had any kind of causal relationship to the injuries that he sustained and here there was no such relationship and that's that's why your honor the seatbelt cases which we've the the idea from the seat belt cases that that you cannot introduce evidence of seatbelt usage in a motor vehicle accident which of course is as well stablished even before it was codified in the compare fault there has been extended to other safety devices  forest he wasn't wearing our hat and oddly enough a jet flew overhead and dislodged a branch in the in the district court in that case so you could not introduce evidence of non hardhat use to show his contributory fault because in the court's extensive discussion they say the fact he was wearing a heart had nothing to do with the fact that he got his head with a branch that didn't contribute to the injury causing event that's the key point your honor so what do we make of the language  seatbelts which is relevant here and then we have the supreme court in a case that had nothing to do a safety equipment making passing reference and addicted to safety goggles but here's what i'll say about safety goggles your honor first of all the court does not accept all the court is saying is s so it's not clear from coker whether the supreme court would necessarily allow evidence that somebody was wearing safety goggles as a basis for shifting fault but if there is evidence that the nonuse of safety equipment imagine a worker working on a not a late for example metal shavings or flying a small metal shaving even at a low and injure a soft i goggles in that instance could literally prevent he is not the one operating a chain saw at the time and that's really the main difference in this case and music is a mystery and in the music case nothing to do with mr music cutting down a tree facts the music cases mr music was standing you might as well been walking through the woods he had no involvement in cutting down a tree at that time he was not using a chainsaw at that time he was merely standing under a tree when a jet flew over and the jet which was flying low under the water cumulation where someone drives through and they were not wearing a seatbelt that's again a contributory fault case not a comparative fault case but that had that issue a back case was just mitigation of damages it was only sought to put into evidence to say that the child on a motorcycle crashed into a car and the issue in that case was whether wearing a helmet not would preventers injuries knowledge that was reasonable but whether that will be the state in that case argued that the dust got into his eye which would he was aware of the danger he specifically testified he was aware these were dead trees he specifically testified this was a known danger of falling branches and he did not take the precaution of wearing a hard at which is again not acting as a reasonable  agrees definition of fault is brought by instructing the jury  and he was not injured so there was he was testimony in this case about being struck and in the head heart and not being sort of those circumstances are you saying that was enough for the jury to find that mr weber's  situation in that point i would agree he does not have that duty to wear a helmet that puts us into the music situation where he's not actively the causing the of that in this case mr weber is mr weber is the one that is causing the event in this case stevenson's in your questioning and his response to it demonstrates that the defense has taken over simplistic view here they think that of something meets the definition of fault as provided to compare to fall to act and and discuss and by the court and kolke that evidence gets introduced we don't know what the jury considered but it essentially pollutes the arguments they have a pretty good argument that says that mr weber should have been out there that day and that's that's an assumption of risk argument that the jury may have found compelling but then they had to sprinkle in this idea yet he wasn't wearing a hard hat and he was wearing tennis shoes that day and all the sudden we have the jury considering things they should be considering and i would go so far as to say that although the jury thought that it couldn't consider the hard hat in deciding whether mr weber's massive permanent brain injuries would have been different they probably did they may have i know they were so instructed but it's hard to tell a jury to forget about that measly in the jury room could've said well it's only been w the fine right now and those are the kinds of problems that we run into when evidence is introduced that shouldn't be there in the first place there wasn't any discussion of the invite or bear your honors but i would like to simply point out if that's all there was was a discussion with her honor where she said you could offer a limiting structure but there's it was only our education we might do that and secondly when she read through the number of jury instructions at the end of the case the number she was referring to referred to the jury instructions that we had submitted