the real problem is that there was not a parent and couldn't be a parent to anybody coming onto the scene and observing that without any knowledge of it the strong both just committed take a look at the at the fan he came in and was taken in by the super site allegation was by the nature of what the property go with owner told him what they knew what they didn't know and what they were required to do they were liable you see there is an essential fact part of this that raises the issue about liability und a homeowner and you say i need this done right away and as a result i don't want you to turn off the power to the house do what i want you to do despite the soka top and he'd be electricity my bathroom right away and i'm also doing some work in the basement so you can't turn the power off to the house you have to work on a top if i instruct a if i as a property owner have the position and authority to tell a sub contractor somebody is working on my house to do with bad way and if they follow my instructions then by following my instructions i may have assumed liability for what happens to them i think that in this case what happened is and part of the ledge is that the property owner could have specific instructions about doing it standard and it says the retained power comes power to forbid work from being done in a manner likely to be dangerous forbid work so that it is done in a manner that's likely to be dangerous you can't shut this blower off it must be locked down while you work on the other piece of duct work in first versus personal projects the property owner maintains control over operative details or routine and incidental aspects of the work if the property gives the property owner can give instructions so as to create a danger they open themselves up to a problem but ok these are all cases that are cited material so they all come up with similar rules defense counsel has written an excellent brief property owners liability kind of analysis section three forty three was part of our complaint the case and we alleged by realty under the theory that if possessor of land can be held liable for physical time quest would cause to invitees by condition on his land if he knows about the exercise of reasonable care would discover the condition there's evidence they knew of the condition sure realize it involves under reasonable risk of harm if there is evidence of back should expect  to discover or realize that in fact that's what happened here and the landowner fails to exercise some reasonable care to protect against that danger and again there's evidence that they have him  good cases that say one of the first places it worked was the contractors who retains control but i think the court lost its way in this case the reason why i think the court lost its way in evaluating contract is because the court  the contract properly for the detail of what the relationship between the parties should have but the court lost its way because you overlook the fact that there's not really what happened the contract clearly does say we're not going to tell you how to do anything you're going to it by yourself you are an independent contractor you make decisions on your own and if it were just the pantry and not the facts and the truth of what happened the courts analysis i think would be right on point but the problem is i think the court lost twenty because he failed to look at what really happened i mean the analogy in one of my briefs about how the court said something like this this  couldn't have been caused by back i running a stop sign because i see there was a stop sign there and that means he had to stop the court overlooked the fact that in this case even though there was a stop sign the driver went through the intersection without stopping in this case the court pieces of evidence i think we can come to the conclusion that if we tried this case in front of a jury and we asked the jury to still have a special iraq atory that said  did you find it credible if the jury would answer such a special in iraq torie yes we believed them and we found them credible i think i would do in that case either the jury would have to find in favor the pla believe it could be mr truly indicated they could be i think he also i think it also could be read that it could be turned off entirely but suggesting to somebody who's on the scene look at this this  to because i think you're right just in summary first thank you for your attention and the second thing i would do is say again i think the trial court made two distinct here this morning is he read the contract which tells us what the parties should do but or will look what actually they did the contract says you know one guy is not supposed to control the government but in fact according to the evidence most favorable plaintiffs people from the hospital told them what to do and most important most most important knew that there could be shut off by pulling a damper on the guys from voting in a way that's why they retain control and way by defense counsel and by the judge but there's really a key to if your games condition your process and you know they're not going to figure it out standing in their room they couldn't tell the fear was circulating you know they're going to figure out and you know how to do it you know how to fix it you know how to solve the problem and costing you money doesn't do when you just walk over there the law should and does impose a burden  on property so i think the court confused the contract and most mostly i think a court would say it's still finding and deciding issue based on the of a situation where you have independent contractor who is in charge of the means and methods for all the work they do the premises of the land of the hospital there has been  today suggesting that the contract did anything but assign to the contractor the independent contractor the sole authority to determine the means and methods by which it would do the work of the hospital that's not sort of responsibility on the defendant in some way to argue that there was some sort of role retain the hospital the problem with the characterization made today is that it does not or problem in performing his repair work on the defunct term nonfunctioning air conditioning unit with this other one running he didn't believe there was a problem with making repairs he never talked to stops the or anybody else the hospital with the idea of can we turn that down because not turn it off or do anything with that other one that running which pose a safety hazard though the power to the malfunctioning motor had been the belts were still spinning no you don't have any indication knowledge that they knew that things were still standing i don't know and then he would say i asked neither you no ever told the hospital to leave the other motor running would have made the repair work and say no so damage wasn't even given a chance to shut down the second you know for purposes of safety is that right and he says no there is never discussed between the planet and anybody from the hospital to say to do this save safely need to shut this second  and then the hospital ers response and says no you can't do that yet that's the characterization that the plaintiff has just made his court and it's simply not the correct characterization so you would say the failure here may have absolutely they are but they're the experts they are the electrical experts the hospital doesn't is not the business of doing electrical work that's why they have this exclusive independent contractor agreement with code i collect area so when they have anything that's beyond changing a light bulb or team matters they call both time and say here's the problem is one of the tools that they would need to do the work so they said to the hospital we need to use your pulley for hospitals that ok so is not that is the context by which that problem or knew that it could exist his testimony is that yeah all about and i knew about that and he was and that that was his testimony our bosses know we didn't know about  that you want to believe doesn't effect the fact that they were the ones in charge of determining what had it doesn't affect the fact that they were independent contractors who were part of the whole the hospital that well except it's interesting the mayor i would have talked to shop shop mayor he's my boss and we would have figured out a way to do it safely he would not have checked with the hospital for his instructions on how to do the job he would have to the opposite of what has been argued by the time the trial court did not lose its way here i think the trial court examined all of this testimony very clearly and arrived at the correct determination that this is the classic example of an independent contractor who was doing its work without any interference or control by the hospital and that there was no attempt and there was or will fail to protect himself against his argument in effect is that the hospital which is in the business of healing ards surgeries that's where it should know part of his argument but he the the the only evidence about that regarding hospitals knowledge of the potential of safety issues the testimony of robert ro answer is i don't know for sure how long that will take and that isn't something that we need to be concerned about i don't think so because  appendix page one sixty six page eleven of the deposition after the fact they learned about the tamper i think i understand your point but the questions i asked were directed about the logical question therefore is that the hospital no i think mr jackson made a great argument but i think that his dismissal of mr truro his evidence is the same kind of problem that we have in the whole case and that is that he weighs one person's to him he did he was instructed to do not turn the other fan off and most importantly if you look at trialist testimony i don't think he even had to take this in the way most people like it i mean even if  again in the waiting evidence argument the waiting evidence probably going to hospital employee who's saying this i knew this would happen i knew that it could happen i knew there was going up there and i also knew how to change it and you know it didn't come to my mind at the time to tell i just didn't think to turn the damper on and i didn't tell him that we had one you didn't tell you to check for ten there was a damper that's right the option you gave them was turning the other  meyer that says we don't know but damper and you hear testimony from a hospital boy that said we did we knew it would stop the backflow we knew that they would have kept him from being insured but we didn't do it i just didn't think you know a lot of this discussion has addressed the issue of retain control of the hospital and i think that all this evidence is relevant to that point but i think this is getting more than fifty percent of consideration the rule the retaining control argument has absorbed a lot of attention one too but in closing i'd like to shift back to the old three forty three argument and that is if you have a property owner who  expects that the other side won't discover it gee i didn't tell them it just didn't come to mind i knew it would backflow our bargain but i just didn't tell them and they failed to exercise reasonable care to protect them they're liable