arrives here as a result of summary judgment granted to the defend american greetings by judge miller in this tragic personal injury case this to which we take exception and it begins with the elementary review of rule fifty six it being a negligence action which grew fifty six is not favored and is not to be utilized in any circumstance as long as there are material issues of fact in dispute of which there are many in this case but judge miller granted summary judgment holding as a matter of law that there was no duty on the part of american greetings to warn of the danger of arc flash and i want to address those points what he did not do in his analysis and ruling in this case was analyze what constitutes duty and the law is legion on that the examination the first being the relationship of the parties in the second being for c ability i do not believe that there is in a dispute in this case that the relationship was one of invitee though part of the order from judge miller would indicate otherwise and i will address that as an invitee of the duty of reasonable care is owed by law for c ability takes care of itself in this case what i want to do is hone in on what we respectfully submit are very serious mistakes made by judge miller and ruling on this case which begins with th either five or six times in the order judge miller is mistaken in what he considers the employment status or the training status of these plaintiffs to be he refers to them as he they are not they are a line that becomes important when he makes his pet a gene comparison to this case secondly over and over again in the order judge miller says that these men were hired to do a specific job it is undisputed that that is not correct they weren't hired to do anything they were invited there by american greetings own testimony to help them figure out why because the recent broken stinger on one of the poles that the plant had not lost power but they had not been hired to do anything again judge miller uses that to scrap this case to come that come in to perform their work or for compensation they categorize them as invitees where you have a situation like the us a can it really matter whether it's coming to help me or here's a work order coming into your work that's maybe maybe not the way in which judge miller used it was significant to him i would agree that under the law it may be a distinction without a difference but again to try to make it fit the pigeon exception to the duty rule it was significant to judge miller and then third emphasize again and again and again that the plaintiffs in this case knew about the risk or the danger of arc flash and therefore there could be no duty to warn them and there's no question as electrical workers they knew about the generic risk of arc light that is not the point we have never contended in this case that american grading should warn them that when you work around electricity there is a risk of arc flash rather what we have contended is that the unique circumstances that existed in this case of which the us were unaware and about which american greetings was of where was the danger and so he has mischaracterized the danger in fact he says on page six and page not of the opinion i want to quote unquote american greetings owed no duty because the danger of arc flash was known to the plainest and was an ethical part of the work they were hired to perform number one they were not hired to perform work but comported to this point is not an intricate part of the work that language again comes from pity gene where what they were hired to perform work own energy as limes was an intricate part of the job you're specifically hired to work doctor and compared fault with an assessment of duty again on page nine after saying that he believes that there is no duty on the part of american  then addresses our contentions in the case of the various violations of american greed to sit here the plaintiffs theories but they fail in this case because they didn't have anything to do with causing the issues that we contingent that judge miller or his said fail because they didn't have any causative effect is just wrong and let me address them any one of the things that we have said american greetings did wrong if done would have avoided this ever occurring period end of quote no question about it and they are these if they had simply labeled  transformer as they're required to do showing the voltage on the exterior this never happens if they had done the lockout tag out that they're required to do by ocean by the ne sea and by their own written procedures this never happens if they had had the one land diagram that they are required to have but did not this never happens if they had done the arc flash analysis that they were required to do but did not this never happens if they had dropped the load d n are just the equipment as david duncan asked them to do and they declined this never happens if they had simply told them that the vote was four thousand one hundred  sixty instead of four eighty that the plaintiffs thought it was this never happens and further and this is even expansion of the point lance collins was they are standing there when david duncan was told to go get the vote meter he comes back with obviously a low vote meter mr collins knows the difference the low vote meter looks like your t v remote control how voltmeters several feet long  approach he's heard him to check the voltage on this transformer he sees and come back with what has to be a low vote meter he says nothing in this happens he had control another distinction from petty gene because he has declined to drop the load he denies that the plane is content that he did say no shook his head no that's disputed issue of fact which makes summary judgment inappropriate and it shows control which is another distinction from pedagogy page ten and this one i cannot state emphatically enough how wrong this one is but this again was an important part of judge  owed no duty and again i want to quote what he said is no juror could reasonably find that american greetings a land orner with no specialized knowledge of electrical lines should have been aware of the this is a large sophisticated company with a huge electrical operation that they owned american greetings and american greetings maintained it and worked on it american greetings had electricians on staff including the two people involved in this incident ronnie housman and last collins one of which is a journeyman electrician the other of which is a master electrician and it goes without saying that they conceded in their testimony that they certainly understood the risk of arc flash including the risk of our clash if you approach a four thousand one hundred sixty vote secondary site of a transformer with a low voltage transformer that that could cause an arc flash so everything that he says in that important part  ruling does not fit the facts of this case and in the last thing i want to say about that before is i'm getting into my rebuttal time is that we offered we pointed this out in a motion to reconsider and requesting oral argument saying judge all these things that you set out in your order are wrong please let us come talk to you about it and explain and show you this testimony which we had cited previously without comment that request was denied and he went on and i  a recollection is that we have some testimony from mr duncan in the record concerning his training to work with transformers in his knowledge of of job hazards and its analysis and as my recollection that the testimony was at that training requires require him in individuals and it's in his position to analyze the job environment identify lines each and make sure that tools were rated for the voltage that were involved in the work at how do you what do you do with that that acknowledgment all of that is absolutely correct but here are the two responses to number one that only goes to whether or not david duncan breached a duty free zone care which is the function of comparative fault the trial judge one step further and found that they were ne with placing the duty on the in this case american grading where an independent contractor comes in who has particular and specific knowledge and is trying with respect to these kinds of hazards and that's why they are that's why they are brought in to to work on projects like this but to simply test the voltage on this transform a routine function on a transformer that everything about his training would indicate is for aig the only people who know it's not are the american greetings people and so is the knowledge in this case that is peculiar to this case about it being a complex and you'll see that word in brief that's not just a made up word that is an industrial term of art this configuration is known a complex configuration which if american greetings had told them or supply them the proper documents they were supposed to supply them would have told them why there had not been a drop in power and you don't need t own duty that's a jury question that's a jury question but it has nothing to do with whether or not american greetings also violated a duty imposed on them under common law under the ocean regs on the outside number to these men and never seen anything other than for ag they're assuming for a d apparently mr collins assumed it was for eighty and third that nameplate does not satisfy the regula of warning as you'll see in our appendix and in the testimony of mr manyata only the exterior warning satisfies the regulatory requirement while it does have that information on it and there's a question about it being hidden inside the doors was closed it is designed by regulation for people who are doing the complex work on knowing what the temperature requirements are what the oil requirements are etc it's not really th effort to try to clarify or thinking i hope you will hear from the apple leave mr bronson chiles are shot child shots very well sir mr charles you may proceed thank your honor and may it please t court generally the duty owned by the invitees by a landowner is to exercise ordinary care for their safety and to warn them of any hidden dangers or unusually hazardous conditions this duty of ordinary care or to warn of latent dangers however does not contemplate a duty to warn of known and obvious hazards that are integral to the work this fundamental principle of arkansas  only in cases about electrical workers like jackson and stoltz but also in cases about other types of workers including roofers a person hired to stain the entrance of a subdivision like crenshaw d b griffin warehouse and cole hain there is no sliding duty of care then in other words a duty of sliding off on me now falling off a roof as compared to touching a forty one hundred sixty vote transform and saying your honor that the  way this duty is articulated by the cases can apply in a variety of contexts the plaintiffs in the district court and on appeal have taken this to task and and taken judge miller to task for trying to say that electrical workers are somehow insulated from any negligence and the point i'm making is that arkansas law articulate to duty that applies in this case and applies in a variety of contexts and sound policy supports that rule it  reasonable to impose on land owners a duty they could impose then to civil liability to get into the intricacies of the work of independent people who are not their employees duty is a question of law it is never a question of fact for a jury and here the duty spelled other words in the arkansas cases so pure and simple your argument is your client had no duty whatsoever of warning these people have anything no duty to warn them of known obvious hazards in terkel to their work so what then was the hazard to which the electrical workers in this case were exposed well they were injured by an arc flash that's an indisputable fact and it an arc flash i think i know what it is flash it was something different even though that's indisputable what injured them and it's indisputable ie a hazard of which they were aware and trained and to guard against the only other hazard that could even arguably make any sense is the secondary voltage of the transformer determining the voltage of equipment light transformers before engaging that equipment was an enterable part of the electrical work that these people admitted in their depositions there's no way to get away from it they admit in their briefs that their job required them to determine the operating voltage before engaging the equipment they admit in their brief that it's obvious that approaching an energized transformer with a tool not rated for the operating voltage would expose them to arc flash they admit that they merely assume that the secondary up orating voltage was four hundred eighty volts when in fact as stated on the specification plate on the transformer which none of the electrical workers bothered to look at it was four thousand one hundred sixty volts it's  supervisor their employers representative who was on site supervising their work directed them to get a volt meter and check the voltage it is undisputed that they selected the wrong tool and as they say in their summary judgment response brief if they had chosen the right tool the arc flash never would have happened both the hazard of art flash and the hazard of an determined or misunderstood or incorrectly assumed voltage are known and obvious to these people and to their work american greetings didn't know a duty to warn of these types of obvious hazards integral to the electrical work of electrical workers i would like to comment on a few points that mr smith made in his argument are what i would call pot shots at judge miller's order but they really are issues of picking at words rather than legitimate criticisms of his reasoning the plaintiffs want to complain that the electrical workers weren't hired well you know they were they were invitees that's undisputed so whether they were paid by american greetings is irrelevant the fact is they were they were paid by their employer who was charged with ensuring the safety performance of their duties that's not an obligation that american greetings undertook nor does it matter that they were not technically licensed electricians they were employees of the municipal electrical utility people who might logically be called when there is an electrical issue in fact these particular pla blown fuse on an overhead electrical pole it's in a stinger isn't forgotten exactly how to describe it in my own mind a line that goes from the fuse and feed the main line going down to the transformer but it's an overhead electrical  piece of equipment so the gentleman in stoltz one of the cases are allowed on r and r brace was not a trained electrician a licensed electrician this is irrelevant these people are electrical workers with with decades of combined experience working around electricity and they forthrightly testified in their depositions about the hazards they were  jobs and the steps that were required in their jobs to ensure that they did not expose themselves to those hazards it was not american greetings duty as a landowner to involve itself in the intricacies of their work or to ensure the safe performance of their work they were not our employee nor as mr smith suggested did judge miller make the error of conflating articulated by the arkansas courts did not include a duty to warn of any known obvious hazard interval to the work of art flash unknown obvious hazard enter girl to the work determining voltage or failing to do so before engaging or quit a known obvious hazard and trickled to the work the fact that this transformer was energized an undisputed fact that it was known and obvious to the electrical workers there's no need to compare negligence or to compare fault the d d which isn't always an issue of law not an issue of fact it's spelled out in the arkansas cases it plainly that rule applies in this case and american greetings didn't breach any duty to these plaintiffs so there's no need to get into comparative fault all men will turn out goes to the electrical  that your client either complied with or didn't well oh sure you're honor is a statute that governs conduct as between employers and employees these electrical workers were not employees of american greetings o does not create private rights of action by its own terms it does not expand to modify or enlarge duties that common law we have today in our brief indicated what arkansas clearly says is the duty that's owed in this case and that was not violated on the undisputed facts so with respect to regulations our courts have held in both stolt and in horn versus sixty five the young case in two thousand and five and the bedel case in two thousand and twelve from the arkansas supreme court internal regulations internal policies do not create legal dut osha the labor regulations and internal policies may create standards of conduct that could apply in certain circumstances as between certain people they do not create legal duties that can expose a land owner to civil liability that is beyond the duty articulated in the arkansas common law in cases like jackson stoltz crenshaw call hayne and the b griffin warehouse  of liability well the issue there i guess would be a worker's compensation type of issue and osha specifically says that it doesn't alter or affect workers compensation laws so just as the situation between the electrical workers here to exercise ordinary care for their safety and to warn them of any hidden dangers or unusually hazardous conditions however that duty does not contemplate and this is the language in the cases over and over it does not contemplate the duty of reasonable care or the duty to warn of latent dangers does not contemplate a duty to warn of known or obvious hazards integral to the work here these electrical workers were not exposed to any hazard that was neither known nor obvious and not enter girl to their work they were injured by an arc flash it is undisputed that the art flies happened because they incorrectly selected a piece of equipment that was not rated for the task their supervisor instructed them to undertake and it is it is undisputed that part of their job required them to determine the operating voltage of equipment before ever engaging that equipment  at where was this is affixed to the inside of the exterior door there are two doors covering the secondary side of the transformer so you open that interior door yes it was visible to them or not someone employed by the utility opened it it's not abundantly clear from the testimony who opened it what we do know is that mr griffin requested of his crew that is the utility crew supervisor requested  crew a specialized socket wrench that is needed to open the exterior door you can't just walk up and open it it requires a special two so is it safe to open that without wearing these electrical gloves just to open the exterior door it is so when the exterior doors open there's a manufactures name plate there that provides the operating voltage of the primary and secondary sides among other information there's also a red inner  barrier flashcard door that says it reads danger high voltage and that door has to be opened as well before you actually get to the transformer terminals so the plaintiffs want to say that the manufacturer specification plate wasn't visible when they walked up to the transformer because these doors were already open but to say it wasn't visible implies that in some way it was hidden when in fact all that would be necessary to look at it is to to look between the doors and see did it's there they admit that they knew that the piece of equipment had a manufacture specification plate they admit that they just didn't look at it they incorrectly assumed that the secondary voltage was for eighty they never bothered to check how do you how do you distinguish the first griffin case there refer or  that the landowner had no duty to warn the skylights because exposure to the skylights was an integral part of the work well you know there are two griffin cases  apologiser on a perhaps i'm not keen on the one that you're referring to in the second case the court determined there wasn't enough evidence to find a hidden or light danger but in the first case the court sent the case back because it said there were disputed facts regarding whether regarding the hidden or lightened dangers involved  painting of the appellant's roof and whether or not those dangers were known or could have been discovered by the appellant with reasonable care fair enough and i apologize here on a for not having the case and i media recall but what i can say is that here the dangers indisputed li according to the electrical workers own testimony were known and obvious to them i mean it it is part of what they do in their jobs to determine the operating voltage of equipment before engaging it and undisputed fact and here there can be no hazard that expose them to injury besides exposure to art flush or exposure to the secondary voltage now the plaintiffs want to point to what they would call various acts of negligence but your honour's all of those arguments on their behalf devolve to the idea that american greeting somehow failed to warn and here there was nothing to warn that wasn't a known and obvious hazard integral to their work this court affirmed thank you appropriate consideration and jury instruction as it is embrace within the common law a duty that's just the law in arkansas he says that their policies and procedures don't create a duty well you can assume a duty number one but number two their policies and procedures incorporate the m d c and osha and they violated them in a number of ways hans is still good law and that's an electrical case they chat a somewhat in the for saying the case was nine hundred twenty five k starr decisis says it's good law peda jean did not or in the other case ever overrule it it's not to be forgotten lance collinses they are the whole time the plaintiffs are  this lance collins he is the maintenance manager master electrician who works on this system every day for american greetings who's supposed to know the system who watches them approach it with a low vote m questioned about that and he said oh they could have had it he could have a grass cutter for all i know his hand but he knows what a low vote meter looks like it's the t v remote size versus one it's three feet long he knew he did not have a have a meter and he knew that he had been told check the voltage that lower the undisputed proof is when the planes came up both doors rope and so the nameplates not visible now last point i want to make him please let me give you two analogies i could give you one hundred but if you take judge miller's ruling as it is then think of all the circumstances where this would create no duty if this were a case of a pilot a knows about the risk of crashing if you stall the airplane because you don't maintain sufficient airspeed but if the pilot knows that the one hundred knots is the appropriate airspeed to stay above but yet in this plane it goes up to one hundred ten if you're in a bank in the senate would anyone seriously argue that the owner and the manufacturer had no duty to tell him of that latent difference just like we have here last one surgeon every day right now in this town a lot of surgeries are going on in every single one of them the operative site is swab with an anti bacterial medication preoperative by the operative team the surgeon comes in the room ninety nine point nine percent of the time that solution is non flammable because it's not alcohol based but there are a few products out there that are alcohol based if it's alcohol based you have to wait ten minutes for it to dry out there are lots of reasons for fires in the operating room surgeons know that there's a risk of fire in the operating room but if the hospital changed the solution on that day and came in with an alcohol based when they are on the market starts and pops at bovey to start the case because it has dried up and the surgeon and the patient are burned up would anyone argue that that there was no duty on the hospital to tell the surgeon that we've changed to a solution that now creates a different risk we respectfully submit that the ruling the judge miller is wrong that there are multiple issues of material fact with respect to duty and to negligence in this case should be remanded for trial thank you very well the case is submitted we will take it under consideration