produce was not an indirect employer under oregon's employer liability law because it lacked actual control as a matter of law over the method and manner of the risk producing activity in this case the first fact is that the plaintiff testified that there was an industry standard for defendant to provide a targeting station for a plaintiff to safely complete the risk the work in this case and the second is that that station was the only safe method to prevent the risk producing activity in this case the first fact is the industry standard and that fact is particularly important because in spain versus jones the court of appeal stated that such an expert statement regarding industry standard suggests that the defendant rather than the direct employer is ey were not in the business of providing any assistance person who was doing the turning right so i don't understand how that expert opinion helps you on the actual control i think that when you look at who is responsible you have to look at the only way of preventing that fall and in this case the direct employer and the and the plaintiff didn't have the ability to provide that that fall protection and the industry standard creates a question of fact because it presented evidence that the defendant was responsible for providing that fall action and preventing not fall so even though the defendant didn't provide that fall protection here it resented a question of fact as to whether they were responsible for doing so and in spain versus jones that says if you're responsible for doing so you have actual control over the risk producing activity the other important factor here which is also found in the expert opinion is that the tarkhan station is the only safety equipment that would have prevented the fall in this case the district court held below that the defendant did not have actual control in this case because plaintiff or the direct employer in this case brought along with him their safety equipment such as a ladder or scaffolding and that was error because there was no evidence in this case that any other safety equipment would have prevented the fall in this case for evidence that there was a different i think that's important to understand that it's visible physical quinta has to be present on the site it's not something that you can carry with you there's no evidence of any other safety equipment that could be  transported with you there's no evidence that a ladder would have prevented or scaffold would have prevented plaintiffs from having to crawl on top of the load and move these tarps over the load and the record that that's what they do sometimes but in this case they didn't do that they put the tarp on the back of the boat in this case such that she wants the load was fully the truck and lean down to where the tarp was and move it all the way to the front and that was a process that he had to do after it was fully loaded unlike other occasions w well sometimes do it halfway through the loading process i think it's important to understand too that when plaintiff got the call about this project this particular job he and he has to take this job he doesn't have the ability to go back to alabama to get safety equipment he doesn't have the option of getting safety equipment in boise that's not where his employer is located i think it's important to understand that he is really logistically unable to get the tarping station or the safety equipment that's necessary yeah i understand that but let me just take you back to a point you made earlier about  this because when i hear you saying is that basically if even if as a direct report employer i guess i don't want to see where you're not able under oregon law to how they're going to do the details of the work here it's very clear that the defendant said the tarkhan part is not our responsibility we're going to have nothing to do with that you guys are basically the experts and figure out how to do that safely that's not on us and you're saying that as a matter of wall they can't do that because you know your client didn't have any other way to do the task safely that's correct your honor i think spain versus jones really sets the standard here which  if you are the party that is responsible for providing the fall protection and the industry standard has set that standard where you are part of the you are the only party that is responsible for providing that fall protection then you have actual control and that makes sense when the rest producing activity is working at height because if the risk if the risk is falling and you are and there is no other way to protect from that other than providing protection and you are the only party that can provide that problem to action then you necessarily have actual control over the rest you just tell the person we are exercising no control over this just to be clear it is all in your control and we have nothing to do with it you're just saying that that's something that indirect employers permitted to do under spain that at handful of times he has he has climbed on these before and has had no fall protection and inspecting the plane to testify to the same thing he said i didn't expect there to be fall protection and i've shown up to many houses before and there was no fall protection and that did not sway the court of appeals that there was not a question of fact as to and i think the important part of that is to cover it from top to bottom because that requires him to climb on top of the road of onions i don't think there was only one way to apply the tarp but i do think that he did create the risk producing activity and requiring him to climb on top of the load of onions he couldn't warning me please the court counsel i'm curt peterson to represent why he produce i'll address initially the interpretation span that your honor pointed out playing with like spain to hold that evidence of a standard of care in an industry means control under the e l l and that's not the holding of spain although there is some in my opinion confusing language regarding that the holding of spain was that the trial court erred in its walking by this hole that was holding number one holding number two was simply who controls this whole protection of the whole is a question of fact what plaintiffs would like this spain to represent is that when you have evidence a standard of care or custom in the industry then that equates control and under the would thirty three part test that is not that's that would essentially rewrite the employer liability law as it has been those facts the trial court judge simon specifically asked counsel are there issues of fact that i need to be concerned about the greenman was no there are no issues of fact and so er that was operated by another contractor or other employer there was an accident where there was a safety problem with that log loader and boothby was in the area and was injured the issue in like the plumbing on the second floor in spain the court said no you're going to require this person to be in a dangerous situation where there's a lot of water that's part of his work but the important thing about boothby is the court also said look there's said that this work could have been done more safely but the court said it doesn't matter whether this is the most dangerous work in the world what matters is does the defendant exercise the control of the manner and means and he said and the court said no and that's the way i interpret spain because simply said there is a question of fact that was not determined and sent back down so your honor with all due respect i don't think that spain changed anything i don't think it was a seminal case that altered the way the employer liability law is going to be interpreted in oregon but i mean why isn't the an unavoidable hazard that he has to encounter given the way that your client has sort of arranged the situation right yeah that's an excellent question and i'll tell you why that's not the case the cases are distinguish paint it room and leaves it complete like in this case leaves it completely up to the contractor about how that is done ok the contractor determines that they're going to use ladders he falls from the ladder and he's injured the court in brown  said there was no control over the man or means they didn't they didn't require him to be up on that ladder that was up to the his employer about how to determine they could have used any other method and what's important in this case would like his or her expert affidavit to signify that there is no other way to do this work either it's a topping station the safe way or it is him alone without any other possible that basically if you don't provide topping station then you exert the kind of control that you need to prove under the e l l playing if council was not able to iterate and that's because it doesn't exist now in the briefing plaintiffs affidavit it doesn't say talking stations are the standard that says cupping stations are the standard and it says otherwise yes to get up on the law what it doesn't say is and there is no other practical means to do it besides the way he did it it would have been just that simple to have the affidavit say that or have mr gibson testify there is no other practical way but the judge judge simon spotted it and said what about all that or isn't there a device that might be in the market where it  doing this you don't have to go up on a loan there's no evidence as the move i move for summary judgment they have to come forward with that evidence that says yes indeed these are the only two choices the binary choice spain the plane different case was required to be in a hazardous situation the evidence was clearly in that case that in order to perform his work the general contractor or the defendant required him to go on that second floor and be near  hazardous whole this case are different because there's no evidence that or why he required him to get up on that on that load of onions how is he going to do your honor the problem is that plaintiff presented ever worked on a truck yes your honor i have your honor the issue is the fact that they didn't control the manner or means in order for this court to find that judge simon was correct that they didn't control the manner and means then the court has to find that defeat summary judgment and you didn't hear the question is whether or not there's a genuine factual dispute over the question of control that's all and that's is one of the key parts of their claim under the employer liability statute yes you're right and all i would i don't have to prove their case on summary judgment maybe a weak case they don't have to prove and they don't have to show we're going to when we go to trial they just have to raise a genuine factual dispute and i would say your honor that they didn't raise it judge simon worked hard at trying to get trial counsel to tell him why is there a factual dispute there isn't evidence cell a he produces the the affidavit from the expert that a parking station would be a reasonable way of targeting the load that's correct correct and that's an industry  if they weren't satisfied with the painting they don't get paid i don't see how requiring an end result means under the e l l you control the manner in means the question is completely different about how it's done like in woodbury where woodbury the defendant and the plaintiff were working together deciding about safety issues about full protection the defendant was in on how it was done the risk producing activity was done oh he's totally different he said go pay the room was that the plaintiffs a direct employer and thankless direct employer alone made the choice to use less safe equipment in that case and here are just simply was not the choice to not get on the top of the load of onions as for the reasons that i just asked earlier in brown the employer was onsite with the plaintiff it was a painting contractor and had had the safety equipment  scaffold in that case and simply chose not to use the scaffold chose to use a ladder instead in that case there was evidence that the employer had asked the defendant to move in another room and the defendant had done so there was some a commitment in the way in this room and defendant chose not to ask the defendant to move that equipment so the court said that the defendant had no control over the the scope of the work in spain was also working out because the plaintiff was required to walk across this hallway as part of the scope of the work and here there's just no dispute clear why they didn't do that in this case it's unclear in the record why that is so but they didn't do it in sections in this case and i think had control over that part of the loading process thank