started the closing process in this case was an individual pressed up a closed door button on sunday so tell me how could the defendants have prevented this accident well it infrared detection i just would have prevented the accident i mean that's the very purpose of the is to avoid the door from continuing to close if an individuals in the threshold that that's the purpose of the device as held out in their own documents in fact the chief engineer for the building the next day in an e mail said thing that can happen when you're at the infrared mechanism is a malfunction i don't think it's a malfunction your honor but i think under the facts of this case the reasonable care in the highest degree of care is to reach require them to have that in adage delivered there was also some very general testimony from mr toovey from severe mechanical that this type back so it happened in the past but certainly this you know our timeline starts with a nother accident on another freight really an easier case than most you know the average tort case you have some expert the comes in and says you know i've worked at these ten other companies and this is how you know they did it and i think that's what the defendant  here it's a very unique situation where these two defendants are the ones who decided this infrared edge should be installed on this very freight elevator and yet they waited seven months to do it until more accidents occurred  greenville saxony herd and then they come up with this story though that the park was on back order which we know isn't true of the part was available for at least a month even when this paperwork was executed and would have been available much earlier  just the sheer amount of time involved there was one second between when the door close button was pressed and the door started closed and mr greenfield struck he had no idea the door was closing he had no idea that it would when you have one second there's no opportunity for someone to avoid an accident yet he had no idea it was happening the only authority that the fantasize that murphy versus ambassador east case where the plaintiff himself was trying to close the door so he certainly knew there was a possibility that this door would close and that's what he was trying to do mr greenhill was not trying to close the door had no idea that the door was going to close they had him personally gotten off on the wrong floor so there's operated exactly as it was designed and is exactly as it's supposed to break someone press the button and the gate descended that's how it's supposed this is not a case of malfunction secondly handy infra re him then something that could have prevented the sensor i don't think it could have and we addressed that in our brief i think mr johnson the plaintiff's expert side to cave the blanket opinion that it would have prevented it but if you look at mr johnson's methodology all he did was look at a video video we provided to the court and he said he believes that the plaintiffs lacked lack would have gone inside the cab right i believe that in order for there to be competent evidence for the court there needs to be a legitimate opinion that complies with right and the methodology five of them by the supreme court but but needless to say i don't think we have to get to that point because this is an issue of duty and the nd point i want to make is we are not the nine existence of dude i want to be very very clear about that mr lynch is correct that there is a duty there is a duty of reasonable care with respect to our premises  the building over there is also a height duty the highest duty with respect to the conveyances within the building ok but even being a common carrier does not make someone an absolute ensure of safety and required to tell us if there's any safety related issues and they have the opportunity to take elevators out of service if there are safety related issues and they did it and the reason they didn't is because the elevator as it existed was not unsafe this w upgrade and add on new technology whatever it is and i would agree with the court that it is probably safer than the existing technology on the elevator but we see that all over the place there's i mean ok i know i understand your argument that that's not a problem the problem is that with you're telling us is that there's an issue of fact here there's an issue of fact and he decided by the chyron fact i'm suggestion that there's not a duty just because there's a duty of care and there's a heightened duty and defect is did you violate the duty of reasonable care i mean that's normally what happens in a negligence action so i respectfully disagree the point where i disagree is that for example a manufacturer has a duty of care manufacture has to make a safe product the manufacturer has a duty toward a manufacturer does not have a post sale to its war that is law that's been cracked and the reason for that is the ramifications in doing so let's take a promise a promise a solar has a duty to maintain their premises in a reasonably safe condition a promise owner does not have a duty to repaired samina mis deviations in the pavement that's all wa based upon the ramifications and here's the rub if occasions of imposing mechanisms on this one doesn't happen to their borderland you have a question of fact i still think comes back to duty and i agree with the court there was one that was installed after we took over owning the building in two thousand and eleven  installed one on a separate elevator and i do want to address that the two accidents that you know are brought up but that doesn't necessarily mean they have to install all simultaneously there's a lot of reasons that property managers building owners might not do that maybe they can't the behalf of property owners to accept proposals that is that has major ramifications and if you look at the four factors here though that triggers two it's a massive expense where does it end this rate if they go on the property six questions that are valid that twyla that whole point here is you're asked and asked jumble are all that i think it's a question of duty and the reason i think it's a question of duty is because it's not unlimited it's not enough to just come in and say not i'd like to talk about us i'd like to talk about it because we had no notice no one had any notice the reason that we had no notice is because the elevator was safe it was never taken out of service it was never suggested to us that we should take it out of service even after the polls was issued no one came to us and said until you have an opportunity to install and pay for this proposal you should take this elevator out of service and make sure no one need our company added on to technology if if well i think but that's a question of back again i think that's over the driver back to determine whether your company was doing this because they were doing it for public safety you whether they were doing it as an upgrade no it's a question of duty it's because it goes back to those or factors i really don't believe that it's a question for a trier of fact to determine why things were being done the issue is are you going to impose an obligation elevator three times within the course of the two minutes prior to the incident so murphy under murphy and that's the head of the distinguish by this court or another says that the fact that doors open and close is open obvious but notice it i think is a critical issue because no one could point out a legitimate notice on the part of either my clients or to some prop that there was anything wrong with the elevator because there wasn't there was nothing unsafe about the elevator the suggestion is that we needed to immediately upgrade the elevator in order to make it safer it would be like yellow cab saying or someone arguing to yellow cab that they need to immediately put up really did receive a proposal and beat authorized the improvements they authorized the installation of this within thirty days before the accident and according to the plaintiff's own expert that was sufficient time for it to be installed and it was received twenty eight dollars days before the accident rate in other words this charge any duty that it had by doing exactly what the pla it actually is on p b s so let's assume that everything you say we take is true we still have the fact that the management company and the owner here ordered this infrared system your forget about the agreement to question it is that there was an order to put in and then for read in it wasn't put in so when the trier of fact the term and whether that act of that putting it in within a reasonable time was negligence  prevent this accident it wasn't even installed to prevent the accident on the other elevator where the woman tripped over the gate why do i say that because the curtain is on the inside of the and ever question thank you employer of mr green hills of superior mechanical of his a sprinkler subcontractor that was they contracted with our general contractor performs a sprinkler installations on the th raises one issue concerning concerning superior mechanical and the issue is whether or not the lower court error and finding that we owe no duty they will they raise no issues n i think mr mr plank or mr plant right who pressed pressed the elevator button work for a totally different trade i don't know what trade it was it's in the record yeah but there were other trades there and not only trade workers from the sprinkler fit or were on the elevator at the time of the incident so so that issue of proximate causes forfeit it and if we want to go beyond that if we want to go to the merits of the proximate cause argument they're only duty argument concerning superior mechanical is under and see a seventeen dollars and they argue that we are supposed to train our people including mr greenhill in the operation of a freight elevator and that's the only duty that they argue against period now if we go to the merits it's there still no proximate cause because number one mr green kill just entering i felt the contrivance and being brought up and down the building and that would be obviously a duty that would be overly burdensome for any for any employer but there's a case like that there's no case law  talking about vicarious liability if one of my employees did something that cause injury to a rd party then yes under a vicarious liability theory security or mechanical would be liable tor but that's not the scenario we have here we have a duty we have a duty to provide our employees with a reasonably safe place work but it were not an insurer of their safety and their main argument against going to their main argument which they  raised before this court but they never raised it in the lower court in their brief they argue that superior voting duty pursuant to n c a seventeen dollars in their in their short argument against superior  before this court but if you if you look at the record so that would be under a contract they're alleging and an answer duty under contract but their rd party complaint does not make any allegations that we owe it to eat pursuant to contract their rd party complaint does not make any allegations that we owe any duty under n c seventeen dollars and their response to our summary judgment motion does not raise that point before the trial judge either though it's inherently unfair for all of us in this room today to look back on an issue and say that the lower court erred on this issue when the appellate never even raise the issue before the court so that issue was not raised before before the lower court and then just talking about duty again americans so they had an expert eisen krupp head an expert says that power head duty to train someone to operate the elevator so they're only citation to the record in support of their argument against superior their only citation to the record in support of that argument doesn't even support their argument the only citation for the record that they give supports an argument against power and not against here nowhere in their own experts affidavit does he say that we had a duty to do that and actually my very last point on  years that they argue that we that we as a union sprinkler pipe fitter ok sub contractor that we had a duty to train our people to operate a fredo now this makes no sense at all in light of the fact that according to the has a provision about project harmony under article twenty one and that is it so contractors are not supposed to have their people do things that conflicts with other union sub contractors so what is arguing is that we as a sprinkler fitter should train our people to operate a freight elevator which is now invading in another union's operation  so the argument or the effort a bit from mr god only supports a strong of the underlying reason that power has a responsibility to provide an operator makes a lot of sense there are general contractor there are the ones that spread out and allocate who's doing what on the job they should have had to face if an operator is necessary they should have had someone from the heavy equipment operators union local one hundred and fifty operating a freight elevator not us not a scribbler so superior mechanical respectfully asses or in your honour's tough to affirm the lower court briefly your honors in terms of the testimony of my extra mr johnson about the accident being prevented he measured the infrared edge that was hollow how superior went about them the way to keep them in this case your honor it's not directly my fight but i do believe that an employer always has the overriding duty of care for all of its employees there was obviously misunderstandings as to the functionality of this elevator by both people from severe mechanical  as my employer so i have to try the worker's comp case but i don't have i believe but in my opinion i believe they have an overarching duty and it's best to have a jury resolve those questions but i be unable to provide more specifics you know there's been a lot of that a lot of emphasis was placed on the fact that you know this in frederick would of prevented this accident and it would have prevented the ones on six of the other ones on three either well they sure  it real quickly after the accident six and they should install the real quickly after this accident and we know from the building engineer that he believed it might order the accident so i think there's sufficient evidence there there's also been a lot of talk about good reasons to the cac and that mr greenhill was three quarters of an inch inside the cabin or triggered at the time i think a fair feeling of the video confirms that i think as to reach there's a binding commission from their chief engineer that  would have prevented it and i think that's also competent evidence against the other defendants and as well i mean that we've talked mostly about the infrared edge but there was also you know testimony that there should have been an audible alarm unconverted there if ever the time contradicted there was no visual strobe which also would have alerted mr green hill to the accident i just think it's important to mention all mr greenhill and mr plane believe there would have been in available and then finally as to the argument that you know this is the only elevator the th that goes to basements high take it out of order again i think that just reinforces that you have to get this part installed but please and if not that's what triggers a duty to