please the court your honor so this dispute concerns or arises out of a serious injury suffered by my client rayburn the mike down yes you my client rayburn bedford following his opening the doors of a trailer truck that had been loaded by defendant apple international paper company if i can just address the elephant in the room obviously the central issue here the main issue with the litigation was some previous failure to submit a timely statement disputed facts by counsel for the plaintiff which obviously dealt a pretty major blow to the case and yet the reason why we're here the reason why i want to talk to you is that once you really dive into the relevant law this dispute is not really black and white and i would say the case actually strongly favors the plaintiffs because of the relevant law and i would just you know rai to you that the district court judge holmes she does hold him in his may thirty first two thousand and sixteen opinion he didn't really explore the relevant law at all and there is a lot of laws regarding properly loading and securing and transporting without putting the facts in dispute the court was essentially looking at what proof had been put forward to establish the elements of the claim and with the the only evidence being before one of the versions of the facts put forth by the defendant it appeared to the court that there was no dispute of fact and therefore you had failed to you had a failure of proof yeah  i understand that completely but if you look at the statement of honesty of facts that was submitted by the defendant there it was are are fully done obviously but there are some some pretty glaring omissions  and and i wish this kind of obliquely raised in the briefing can argue from the omission standpoint you have to argue for what they are what the courts looking at is what what was the version of facts presented there in the car and the version of facts that they present they do not claim that they did anything to secure the cargo they didn't they did not use a load lock which is very common in this instance and they didn't stack down and actually admit in deposition testimony of gerald walk ins who was responsible for loading the cargo and securing the cargo he admits that it's their practice in the car goes to full not to stack it down so he basically admits that if we want to fill it to the brim we will cut corners on safety in order to produce an economic advantage for us so that's that's just the fact and another issue is  that in itself was the breach of the relevant duty here it's uncontested that the cargo moved because it was against the door so the mere fact that the cargo moved and was against the door is primus facia evidence that that that a duty was was breached  and while there are other factual issues and i'm sure opposing counsel will probably talk about relating to driving patterns of a truck driver or taking a steep turn those facts go to w you can you can look at the failure to secure you can look at the the route that was taken you can look at the driving pattern but that goes that to weighing whether the failure to secure was possible was was was that the cause of the accident or whether it was something else i'm s sense if you just read the rule for summary judgment but if you read the cases it seems to me that cases tend in the direction of saying well you have to you have to come up with something at that point to make your case that we survive a motion for summary judgment and i and yeah and i'm sorry yeah i know i know exactly what you're saying that if you read the rule what you're saying as i said has a lot of logic to it but yeah read the statement of undisputed facts they they avoid the major issue and it's because it's a factual issue and say we admit all that well we still have a claim that's you could say that but you didn't you know and then not you savage rule and in that case they assumed they as soon that the loading of the truck was negligently done that i would ask this court to adopt the same identical position opposing counsel again a very interesting litigation strategy they stressed repeatedly that he had no experience in opening these types of doors that goes the fact that he open the door the way that you or i would open the door someone who has no experience which points the fact that it's late and deep that so one of the savage rule i would submit to you that everything is here in order to find that the case was a little bit more complicated than then she judge holmes alluded to and in his opinion an order and that as facts stand this was not something that was right for summary judgment because it really got into the weighing of the evidence which is something that's just not really pertinent at this point in the litigation the facts as they stand they really need to be done and weighed and due to cater by the tri was michael thompson and i'm here on behalf of international paper company mr raydon bedford failed to file a response to international paper companies motion for summary judgment as a result he was deemed to have admitted international paper company statement  undisputed fact and mis read does not challenge that decision on appeal that leaves mr bedroom facing the uphill climb of arguing that international paper failed to satisfy its initial burden on a motion for s wasn't proximate cause we can simply point out the absence of evidence to support our thoughts point in other words we can say you can't prove we were negligent you can't prove that our conduct was the proximate cause did they have a geishas of the complaint go past just a simple statement of allegation of neg was was an allegation that there was some specific responsible action that was not taken your honor i have not i would defer to reviewing the allegations of the complaint i am not aware of any specific allegation of here's what was wrong with here's what was wrong with the load from the compliant but if the complaint has something i'm not aware of it  what we putting in from our statement undisputed material facts we talked about the experience of the person who who had loaded it he'd been doing this for nineteen years we talked about how he'd never have we had a statement in there about how he'd never had a prior prior drive on that case and even though the court assumed that the shipper there was negligent of course we moved for summary judgment on negligence in this case even though the court assume that the shipper had been negligent they said boy too much could have happened in that eleven mile drive and it would be speculation for us to say that the danger caused by how they how they wanted this was the cause of was the cause of this accident and so they farm somewhere this court affirmed summary judgment for an eleven mile drive this was one hundred fifty two mile drive and that's due to the absence of showing what did happen as opposed to saying any number of possible things could have had that's right because arkansas law when there are multiple part possible causes arkansas lot of making out a case proximate cause ation requires you to put forth evidence the point is to put forth evidence to tends to eliminate those other possible causes so again from our standpoint we don't have to prove what happened here we have to prove we just have to show that they can't prove what happened here and when we pointed out and they admitted that there were these other possible causes that could have happened on this one hundred fifty two mile trek with this woad then the burden is on them to come forth with evidence show no it was and the savage rule it's really a limited duty rule for shippers because under d o t regulations it's the carry here mr bedridden his employer damn corps that always retain primary responsibility for the safety of  the savage role does not impose a duty on shippers and i haven't actually cited a case that says this to absolutely achieve the result of a have a safe load it's still a negligence case strict liability imposes liability for just not achieving a result negligence depends on your conduct and it depends on what you did or failed failed to do so the mere fact and this is judge around characterized it just basically the mere fact that the accident occurred mere fact that this won't failed isn't evidence of negligence on anyone defect that is obvious to a experienced driver may be hidden to an inexperienced driver but to get to that step you first have to find that there is a defect in the well that there was something there was some negligence in the load and then you can distinguish was it a hidden or a peyton defect so the experience does not prevent mr bedford's lack of experience or lack what he was an experienced driver he had been properly trained which speaks to the negligence of his employer counsel i'm sorry to interrupt your tests are running out so i have one question if you don't mind yes your honor the procedural posture here as i read to record this case comes to us on appeal from  and and in fact the rule fifty nine emotion was of course denied because you can't make a rule fifty nine emotion based on evidence that you could have presented before the right judgment so it's not a get out of jail free card for having failed to follow a timely response they would have to shown that there were some reason they couldn't present this this evidence and there's been no showing there's been no showing of that so there is no c principles that preclude this quite and on part the second half immersion is on proximate cause and again you can't make a case on proximate cause when there are other possible causes out there that you can't eliminate and by failing to respond they demonstrate that they can't eliminate the other thank you for your honour's so two things that i'd like to respond to first he said that they all they had to do was point out the absence and what i would argue is that they failed to do that they failed to put forth any evidence regarding loading and securing the trailer the way that is done by the industry their failure to do that oh please and not clearly and not not as transparently as assumed assumed that the trailer had been negligent really load it i'm asking you to do the same assume that the that they trailer was negligently loaded then looked to see whether the defect was latent or patent and based on their vigorous