taking out railroad bridges way more complicated and bigger than this one received many accolades awards the safety commendations that saturn and so what was the risk they decided to take what well there's two years and then between the two years there is about forty beams connected and then there's a metal floor plate the runs the whole length of the bridge and what they did was three or four days before this happened they started to put away the floor plate in the beams they work in the middle and they go out to the end when they got all done they had three girders on the south side when that last thing was cut again in the process of that just snap and that whole wesker as they were all concerned it was going to do crash now the measurement was ok it didn't hit the well but unfortunately of sun come out to the job he had worked once bringing the cream cables to the east curb then he was forced to hold the packing line that they lifted when it didn't come up he went up on top and offered his dad some suggestions as to what might be out some of the facts in this case my question to you here today is are there legal issues involved in this case or is this a case where there is merely an application of subtle legal principles to the facts of this case where we believe there are all questions a law presented in each section and i don't mean that the sense of the standard summary judgment either you understand th it's fair to say not all laws systems but i think we've got some general principles but that's why we're thankful that we can bring this case to that but i don't know if you're going to solve all the issues legal issues today because this case i mean for one four is an exception to the general rule that independent if you hire an independent contractor you're not liable for their negligence now the cases that have gone against the defendant and  and then in all of those cases undertook a pervasive boots on the ground if you will supervisory activities on the job site so that this is the final element of for one for there was ample evidence to find that by their pursuit pervasive supervisory activities they knew or should have known of the dangers condition time to prevent the acts of service is the opposite of that case if union pacific had a duty to facing is is there some duty is certain that if or when for i mean that that would mean you'd be liable every time you hired an independent contractor now the argument that plaintiff makes as to why he had it maybe what you're addressing here is in two thousand and four before the two years before this ever happened we hired engineer to prepare drawings for the hall rock so it's not and i want to get back to justice tyson's question i'm just looking a little summary of what we're bound to hear from plaintiff and without even going into a lot of that  work approval of his demolition plan fact upon fact upon fact upon fact now your i know you can test all that in a circuit court found that there was a question of fact whether defendant hired an incompetent contractor is back to her question are there issues of law here well this case i think you even said we're not going to solve everything here isn't it true that these type of cases hinge on their facts when when the that's those are common provisions in most every contract and comment see a form one for deals with that and it says that's not the kind of control we're talking about here who holds liability th law can't be that if you make the state the suggestion after hansen that makes you reprint rebut pro actively libel for action and that that principle isn't in any case that that's really the knew or should've known of an unreasonable risk than before this before the accident you didn't do well actually it did sit in your seat as could be for a hundred years that the bridge was one hundred years old it was going to be safe that negligent hiring of an incompetent contractor or lower court or circuit court followed the majority of cases in the country that have looked at the language for what and said it's it's true it's not by carious liability but it's not it's not like or one four where you're implicated in actually that on the job and justice twice again i can refer you to your possible it's possible versus all a very for affirming that for one one there's one or if i could sneak it in for one one doesn't apply unless there is some deficiency in the contractor skill or experience that you should have found that cause is there some general rule i can ask this court to derive from the many facts before it in the answer was i could not come up with a general rule the problem is if it is the case each each issue in the case involves an incredible number of facts  i want to start just first by looking at seeing that resonated in the briefing and also this morning and that's how can we blame the railroad because they hired happy and even if happy wasn't any good they hired are very good expert and there's two things wrong with that first the evidence was that the railroad did not rely upon hap hiring an expert in this area i think it's mr benbow said somebody in to show that he was an expert at demolishing bridges all have to do with explosives mr carney doesn't do anything with trains more to the point mr mr carney wasn't there to take this pitch down have noticed that's because not only was i was curry not a sub contractor technically on this job thus dropping him out of the restrictions on section fo you even if you adopt the others that some states rules that for eleven rather that for eleven does not apply to employees of a sucker contract carney's not that sub contractor because he wasn't a contractor and if we look through the employ carney he wasn't he wasn't anything he wasn't a second part to third parties maybe a fourth party in that chain of command and he showed up if you recall simply because his father said would you come here and do one thing for us we need somebody young and strong  comp and i presume that he was paid workers comp coverage because he was in the scope and course of his employment in the sense that his father who he worked for on occasion doing this told him to come out and do it but he is a can too the person who is sent to another job site and does the work there and then returns to his home if that's not his normal work site if i'm sent to care to do a job i'm actually covered on my way to and from decatur and that's the cox case i cited with the court so that i am in i am able to have worker's compensation coverage because the peculiarities of worker a traveling employ he comes to the site he does some things he's waiting there is at last he then files a working comp claim obviously he only received that if in fact his team it's like it's it's like a non delegate will duty i guess is the closest analogy you're deemed to be in the course of your employment even though you're you're not working at the moment and that's what he was doing here he was in the course of  worker's comp but he wasn't working at this point he was done he he could have simply maybe the best analogy get what if what if p j instead of coming back up on top had instead simply been standing downstairs down below waiting for his mother to come back and pick him up and when this plate fell something also fell into him i think then you can see even more could he's still covered by worker's comp because he's still under the specific worker's comp cases like oxy still within the scope of course of his employment even though he's done and if you look for the purpose of the kind of purposes to the restatement for fourteen for eleven they're looking to protect people on the job site that range no because then he would be in a continued course of his employment if i'm if i'm at the factory and i'm on my lunch break and i'm on the on the on the factory grounds i'm still covered i'm trying i'm trying to think in my experience of workers comp if i could ever think of anybody who's ever argued that if i have an eight hour shift if i leave the job for my lunch break and i go down to a diner i'm not covered but but that's my own choice comp carrier at that point if it becomes a very close case workers comp frankly whether at that point he would he would be covered assuming assuming he was done with his job and what he had decided to remain on the site that's about that i'm not said he was using tag line that shows he had a bigger role here that's going to be for jury because toby was a welder toby was up on top he jay carney's down below if if at your car you could not see his son down below then it follows that o b who is a welder and is down on the ground could not see him down below and that occurred an hour earlier there was no evidence that he was holding a tagline or doing anything i said pj's not test me i was standing as i was doing so if he was in the course of his employment which he must have a relationship with union ficek because union pacific under section four one one under the cases that are most adverse to me union pacific cases most adverse to our site say that that case and a possible and a possible the injured worker was injured by his co employee and the courts have apparently reasoned that when you have one when you have a duty under four one one of they've likened that i think wrongly to vicarious liability and basically to put they put somebody like u p a in the shoes in the shoes of the employer well here first that that's wrong even even commercial in california said it's not vicarious liability and then they switch and said it was restatement third which i mentioned in the motion i felt that the court in the introduction to the statements of third clear these are these are direct liabilities even the relevant bits four four four eleven is a direct liability scenario so you have it you have a situation we have direct you have it a direct liability to somebody who is not an employee of the incompetent contractor not an employee of incompetent contractors you're a third party i i believe would be the logic and they're there for even though if that person gets worker's compensation that did not change you piece the question would be with you p have some different duty to two people standing there p j carney and somebody who was even though it does not address a possible the not address for fourteen is addressed or thirteen i'm still a possible do not dress a dress for eleven added it addressed for thirteen for thirteen has frequently been interpreted to be very curious employee of the incompetent contractor or under for thirteen comp the contractors taking risks i understand i'm best suited to understand what's going on so for that reason the courts have said we're not going to hold this higher level person responsible that's not p j carney here because he's not employed by haps he doesn't know that half is incompetent he doesn't even know who have says he had no idea and the other reason that they gave was that somehow when the u hires pack in haste happy happy took into consideration when it sent the bill up when agreed to pay u p a it's so backwards because it's not usually how you would do this instead of you peeping have to have best i can say i will be the first to admit that i've read the cases over and over every time i read them i get more confused but i can point to the court to cases like sievers in alaska and banking in indiana which have no problem with that they said that based they basically said rest sex right and interesting enough in the hot current case which the railroad added information hunt in its reply brief if the court looks at  if i can step back a step and i'm more than happy to try to really answer that question but i think that's about the best i could do with it to step back a step as to section four fourteen you heard some of the that they made him check in every day and that they would check his job because there's a paragraph or two of the plans and the testimony from one witness was that the plans were in fact available to happen he did look at what they were available opposing counsel said well how would happen while how could happy obligated the answer to that is within those plans which were made available to happen was this requirement that half produce  a step by step sequencing so that the real work could see if he was doing his work safely if meyer said that that was a requirement of the plant and i would like the court just to keep in mind that the contract going back to the contract he gave the river road not just this discretion and contrary to my opposing counsel i do read my cases in their cases it gave them the sole discretion to terminate at the stop the will terminate this contract there isn't any other case that i've seen that gives a party that particular right that's a right because way beyond anything in the calmest the four fourteen the right the sole discretionary right to terminate the contract if you're not happy that means that the railroad put it said you never gave us the plan and if have said i'm not going to they were within their rights to terminate and they would have to cement a fact mr meyer said if you don't have a plan we will not let you work that's the that's the testimony the river it came storming in after the accident said you're not going to do that again this bridge was pretty much completed by ocean but it wasn't just this bridge it's a whole project the next bridge was done by somebody else and my brief contains the comments mostly by our expert witness who points out it wasn't in the agreement meyer said i never saw the purchased removal agreement he says by the way i never even got involved with another one i don't know what they contain and so council says that it is briefly said well that was a technical truth wasn't in the agreement wasn't in there but it's a legal truth it's a legal binding truth that you're going to go back to thomson gordon i mean the contracts that's the duties and again you pete you wanted that sequence you played reference in there stoppel case i think they apply here i mean there's all kinds of pleadings in this case in the worker's comp cases in the record in which bernie alleges he was a current employee