good morning judge cotton judge sheppard please the court my name is marion riley and i represent the appellant mr benjamin vander walker in the present appeal your honor permitting and in recognition of the court's limited time i would like to discuss the merits of the case during oral argument today and i will stand on my written submissions regarding continentals failure to answer the complaint and the effect of that failure on the present appeal yawners there are three reasons why this court should reverse the decision of a court below first the district court erred in granting summary judgment because it failed to consider continentals own direct conduct  stemming therefrom second section four fourteen of the restatement second of torts does not apply to this case and third even assuming that section four fourteen applies continental continental owed mr mann or walker duties stemming from its own direct conduct north dakota sentry code nine and one mandates that every person is bound without contract to abstain from entering person or property of another or infringing upon that person's rights everyone is responsible for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person in the instant case continental as the premise owner was obligated to perform as a reasonable prudent oil and well instant case i would look through the district court record to see if there was an argument about premises liability because that seems to be what you're getting at here premises liability law but the district court didn't address that at all which made me wonder whether it was raised in the district court and i had a hard time finding it in the district courts and i wonder if that's been presented yes or no i would contend that it has been presented and we focus the response to the motion for summary judgment in both the original and in the supplemental summary judgment response on the defective condition of the stairs the condition of the stairs and stairs effective conditions stairs was focused on but a lot of the f those amended complaints and i recall correctly that there were some amendments that carry my off the the court's decision they didn't come after the court that or what happened the court did not in fact continental fail to answer either of those two amended complaint plaintiff did submit a supplement to brief that addressed some of the the arguments with respect to the defective condition of the stairs but alternately the district court does herman and that the sole decision that was before it was whether or not continental retain control over mr bender walker's work or control over our hearing back to the procedure it was that effective way that time didn't file a motion to to move the motion for summary judgment although as your honor small know that that is the appropriate procedure under federal law for a motion for summary judgment to effectively be considered moot on the filing of an amended complaint but ultimately be the decision of a problem if if you tried to raise a new theory after the briefing is completed and didn't do anything to discontinue the briefing process then the judge understandably second amended complaint alternately though the district court that brings me to the second reason this quarter reversed the decision of the court below and that is that section four fourteen of the restatement an importance does not apply here the district court determined that the sole decision before it was whether or not continental retained control over the manner and means of mr vander walker's work however looking at the plain language of section for fourteen there are two elements that are required and truckman of work and retention of control here we don't have any indication at all and in fact the records support the exact opposite conclusion that continental never intrusted the work with respect to the stairs to an independent contractor in the absence of that in trust meant the the court didn't need to consider there were tension of whether tyson controlled retain control of al or is jobsite by controlling the physical activities of our employees or the details of the manner of a work in which the work was performed because the present case  railing system was caused by improper installation maintenance or missing components and that failing to repair the staircase in the railing systems caused a defective condition of the staircase and the railing system yawners in the monas case mr mullins was an employee of little rock electrical contractors and he was hired to install permanent lights and electrical wiring for the main hallway of a tyson foods building the court determined that the stairs were i'm sorry that the main hallway was a common area that was not related to the performance of the independent contractors duties but a mechanism of ingress and e and that's precisely what we have here in your honour's the stairs were something that were maintained expressly by ponton until they maintained control over the stairs they emitted that they had responsibility for and inspecting the stairs and we have testimony in the record from continental's own corporate representative zachary magnum who testified that continental had the responsibility for inspecting the stairs and for maintaining them thank you ron with the corporate that of testimony in this case with testimony coupled with the fact that continental express fully iterated that it maintained control over those stairs that it court to have even reached the retention of control prong again that supported by the mullins case and it's further supported by an illinois court of appeals case cabrera vs e s i consultants  court held that whether a duty exists under section four fourteen turns on whether the defendant entrusted work to an independent contractor and yet retained any control of any part of the independent contractors work thus the court held that the prerequisite for appliance action for fourteen was and trusts meant of the work to an independent contractor absent which section four fourteen is in applicable  of control is never reached here because the district courts conclusion turned slowly on the retention of control element and failed to consider the entrustment prong the case needs to be remanded for further consideration that is the appropriate course of conduct as noted by this court and the mini mart versus direct sales tire case the court in that case this court in that case remanded additional court's decision granting summary judgment where the district court did not provide a reasoning as to how it arrived at its conclusion and ultimately noted that matters of state law are better decided in the first instance by district court and target in the state law further on our the north north dakota supreme court has recognized the petition that the plaintiffs are recognize the position that the plaintiffs are asserting today for over one hundred years and the rule versus leider would telephone case north dakota supreme court refused to allow a defendant to escape liability on an independent contractor theory the court held there that it was in material in that case whether zimmerman was an independent contractor or not it was the legal duty of the defendant to properly safeguard the holes there is no evidence that the defendant transfer this duty to another and we are in serious doubt as to whether it could this case is analogous to that case because there is absolutely no evidence in the record that the defendant transferred any control with respect to maintaining those stairs finally your honour's even if this court determines that section four fourteen applies continental nevertheless retained exclusive control over the defective stairs and assumed affirmative duties were guarding their repair here we have evidence in the record that mr vander walker approximately three to four days before the incident told a continental employee that the stairs were loose and that they needed to be repaired that the continental employees turned around and represented to mr vander walker that the stairs would in fact be repaired relied upon that representation to proceed about the work on the day that he did on october eighteenth of two thousand and twelve believing that the stairs had been repaired he proceeded to conduct his activities when he found out that the stairs in fact fact patterns as you'll see probably in this session i think the most confusing part of this appeal is likely the procedural aspects that were discussed during counsel's arguments i wasn't going to focus on those but i think after the discussions i want to dress those a little bit because they are important in the timeline in those filings are important the summer the original complaint was filed soley against continental and alleged claims for negligence gross negligence an intentional glitch an emotional distress continental followed summary judgment motion it was fully briefed in fact there were sorry plies and supplements to the server replies followed by the plaintiff after that was fully time potentially the park's liability claim but why it works l c was the entity that was responsible for installing the stairs at issue in this case then on september nineteenth two thousand are september ninth two thousand and fifteen sustaining con that was motion so with that said the amended complaints that were filed were not necessarily addressed continental in their conduct they actually added parties and it was after the summary judgment motion was fully briefed and i think this actually goes to carnivals position because in this whole case carmel's position is it is not responsible for the acts of its independent contractors its independent contractors are responsible for their own actions and here by adding weight works and palmer to manufacture the stairs installed the stairs we can see the reasonableness of that rule under north dakota law because at that point in time mr vander walker's not left yes your honor i am in this context specifically assuming for the sake of argument that plaintiffs added a premises liability claim against continental that claim is obscene within the independent contractor an the premises liability corning is actually governed by the more specific rules of section four fourteen we're talking about here today and for sixteen and for twenty seven now other case laws so that section four sixteen a section four twenty seven which involve inherently dangerous activities or some some work that is dangerous don't apply to an independent contractor doing work for an employer and employee or those actually apply to third parties the general public coming onto a site so not liable for the acts of that independent contractor and at this point in the jurisprudence that's really just a preamble to getting to these exceptions namely the retain control exception under under section four fourteen and i was a little when it started to want to person having control of the premises employs an independent contractor to conduct a work and a claim is brought against that person the more specific provisions of restatement torts sections for fourteen for sixteen and for twenty seven govern with respect to a claim of a failure to provide a safe workplace in each of these instances when a premises liability claims asserted the courts continue to go back to the idea that it's actually safe workplace claim which is assumed within section fourteen and the analysis under section fourteen of retain control and did that entity who owned the property retain sufficient control over it or over the work that was to be done to impose liability and to get outside of the general rule of non liability for floors and here in this case there is no evidence that continental retain control of the work at that well site at that ten batter were numerous independent contractors at the well site i don't think it's disputed that mr vander walker and his employer great western was an independent contractor to that point we have to determine did thought and or do anything to retain control over mr venner workers work sufficient to impose liability on continental i think the answer is no there's nothing in the record that we can point to to sufficiently establish that degree of retain control mr vander walker was instructed where to go by great western he was paid by great western he could decide exactly how to do his work when to start a continental was only interested in the outcome they wanted to make sure that salt water in those tanks were drained and taken to disposal site so they could continue producing from those wells so here we believe that mr van walker failed to uphold his burden to present evidence to the district court to establish retain control its continental in summary judgment motion but for such evidence and mr bennett walker failed to uphold his burden why did the second amended comply didn't include any of the allegations or claims against the owner continental resources i don't believe so your honor and counsel suggested maybe some additional facts were pleaded but acknowledged that no heading of acorn on premises liability was pleaded i recall and i should've looked at this closer but that the amended complaints were solely to add these additional parties which i go back to were the parties that were responsible on that well site and that's why they added them as practical matter because that's who their cause of action is against so not in that instance continental not only were we done briefing the judgment but i don't believe any additional claims were made against connell there against these additional parties and so the edelman case we started on the seventh circuit i believe is really close on point almost exactly where an amended complaint was filed confusion or to cut off any arguments like we're reading in the briefing i agree your honor and looking back that would have been the prudent thing to do however at the time when summary judgment briefing completed we didn't believe any additional claims different claims were made against continental and our previous answers and of course our summary judgment briefing put the plaintiff on notice of our position or defenses responses to their allegations the allegations deemed admitted we would contend that that doesn't apply in the instant case the amended pleadings superceded the original complaint and required an answer under the federal rules second your honor continental again  retention of control element with respect to the section four fourteen analysis but again for fourteen under its plain language and under the stations that have interpreted it require two different components first the entrustment to an independent contractor and second the control if there is no one trusts meant the second element does not need to be considered therefore an honors respectfully request this court reversed the decision