be applied the goal here on appeal is to scrutinize that decision to make sure that mr till was not denied his day in court and when we look at the facts as designated to the trial court and again on appeal in the your honor in particular the contract provides that the independent contractors must comply with dollar general's own policies with regards to their direction in the loading and unloading of their particular merchandise in particular these roll tanner's are prepackaged by dollar general these are old painters and then packed into a trailer by dollar general the trailer is sealed by dollar general the seal is broken by dollar general and then can only be broken again by the managers of the individuals they can not i might add i'm sorry i'm sorry go ahead take appropriate precautions if he did and let's i would not conceive that he did but if he did and we are doing a comparative analysis of who should have done what that is not appropriate on summary judgment that is an issue that should be left for the jury in the case based upon the facts designated i would not concede that it had any responsibility nor was allowed to do so under the contract and the training he was provided by the contractor because he was to follow the dollar general's own instructions that was to take the roll trainers as prepackaged into the store and deliver them not to unload them not to change them but to deliver them as packaged they have a if you notice that it was top athlete again when we are judging the credibility of the evidence it should not be appropriate for summary judgment even if we would concede that even if we would concede he had this responsibility to do so there is no so i would concede that we have particular provided or the absence of that evidence is that he was not required to do that nor is he allowed to do it because they are prepackaged by them and he has to deliver them in the way that they were packaged by trained mr till appropriately in this case not at the trial court level nor to this panel has anyone ever alleged that mr tell did anything inappropriate that he didn't follow the policies or procedures that he didn't do what it was supposed to do or that he wasn't trained appropriately importantly in this case dollar general points out that mr temple on the day of the incident was able to deliver five to six year old trainers and eventually without incident and he did that in the same way he delivered the next one and the reason the one that caused the injury was because it was the one that was improperly packed by dollar general it was the one that was packed in violation of their own policy and that is why this happened and that is and applies here they were in control of this routine and they are there rotators they are packaged by them at the distribution center they are put in the trailers and then they are delivered in the manner dictated by dollar general in the wait to be delivered they have to go through a specific egress door which is the back door of the store he has no independent ability to change that process nor can he and so therefore it wasn't this protein or that was improperly packed on that day that caused the injury it was in their exclusive control we believe there is no evidence in this case that u s express did not comply with his contractual obligations as a relates to mr tail on may t dispositive in this case physical control of something is not the only thing to look at rather one must look at who has the opportunity and access to retain that control and in this case it's clear that was not mr tell that was dollar general and so therefore based upon their own policy based upon their control of that role to enter that causes injury race if some would have required that summary judgment not be granted in this case there are two other causes a few other theories or reasons the assumption of duty as well as the common long and legends of premise liability and i want to take a moment now and i will just those two theories in rebuttal but i want to address  important one of the arguments raised by counsel was that we have waived those arguments because they weren't specifically in the lower court at the trial court because i believe that that's an issue that this court will take up and consider we have not waive those arguments the issue has always been facts are so intertwined with the issue to be decided it is appropriate for the appellate court to consider alternative theories and that's exactly what happened here no matter which basket we put this in whether it is race of whether is arguments by dollar general in response to those two claims are identical as well it doesn't matter the issue has always been duty and no matter what basket we find duty duty should have been an issue that went to this jury case there's no picture of the one in this case this is just the demonstrative that was used in questioning but i think it provides an interesting context while the issue of here today is duty i certainly provides a different context with regards to the duty obligates dollar general to make those royalties are safe and there's a number of provisions that that address rules here actually in the in the contract which i think are important to read the contract in this case the expectations between the parties was that the job that us express was going to do was pick up those roll trainers from the distribution center and deliver it to the store that was the expectations between the parties there's no there's no obligation of dollar general in that contract that ensures their safety that ensures they have to train the u s expression drivers u s express contractors specifically states they're doing this as independent contractors and in fact even specifically says u s expression have exclusive control in direction of the persons operating the equipment or otherwise engaging in such services that stuck in the documentary forty seven deaths three  four paragraph three unloading the actual role teachers so the policy that's been referred to in designated is the policy of how that whole entire delivery process works so they pick it up from the yard at the dish of business and they deliver to the store they yes and the reason the reason is is that in indiana noreen existing common law there's no duty owed to an employee of a contractor now there are five non bailable exceptions so that in the  off of the trigger toppers of the stuff that they kind of throw on top of the roll trainers that are in life in the truck or there's a gap between the top of the truck trailer in the top of the world d to here he takes those off there's no policy on whether he toxic chemical or an explosion or some kind of real if a knife or ashamed or something like that that you know could cut delivery person in a really bad way which i thought you were going to say is that indiana law and this might get to that specific it's a hazardous times what's the driver what's a what's a delivery driver supposed to do if you know she or he is a machine that pushing something like that into a store and all of a sudden there's an explosion that blinds sure i think that would i have just one brief question final question fraser anything in the record that shows that when something's mixed up with the way that things packed or what have you that the driver goes and gets the store manager and says hey look i can't i can't will this thing and so you break the seal i break the seal we break the seal together but we've got to repack this thing because there's no way i can wheel it in like this great question the up to me mr chill testified in his deposition that he had prior instances with  where we had exclusive control over that rules here in this in station that's why this is not an unusual circumstance where research that should apply because those and that's what we think that's what we think in races that just generally doesn't apply in the case and i think i would like to add respects races for my time runs out there's also no evidence that we did argue this actually in the briefing but judge exercising proper care so this is you know a barrel should not fellow pull out of a warehouse without some ablutions i think it's very difficult to say at least without some technical input of some sort that properly packed in accordance with dollar general's duty with out of that and it's when he ran into one that was not have to appropriately that he had that and what we can see clearly from the briefing as well as the arguments today is there is a dispute in unloading and loading the trailers that contract was designated by dollar general was dollar general negligent in packing the routine or the answer is likely yes and because we have these different inferences that can be drawn summary judgment should not have been granted in this case despite the fact that he was an independent contractor because in the contract they specifically say they are not going to contract away their negligence and there is them and that's fine he senses he's got a damaged one should he have just halted what what what should he have gone forward what it was the delivery response of the livery person's responsibility of the in that particular instance he was committed to his delivery and he should have finished his job but she attempted to do and we attempted to there is just so i understand the practicality suppose something's falling it and not let it fall which is exactly what he described happened here well shouldn't if you sense the imminent danger that's about to happen because of a poorly packed roller should you just stop through should you go forward i'm just trying to get his sons where responsibility lies here i appreciate your argument but was he aware that he is pushing the damaged roller it saturday much rollers and over hazard was when he was pushing it into the threshold designated by dollar general into the store at that point the only choice he had was either to attempt to roll it back down or to attempt to roll it into the store and he made a choice based upon his best judgment and when he did that that top heavy roll teener is what fell over and that's what occurred here so i would say that he did what most people would have done under the same or similar circumstances when he realized the danger when he was pushing it through the door designated