traverse the crossing and go to different sides of their property the district court we believe failed to properly applied a standard for some adjustment for three reasons secondly there are many and i parse a number of uncontroverted facts that way heavily against somebody judge and we will talk about those a little more later and then finally the court this land leveling earth moving equipment was allowed to cross this crossing it was seventy and eighty feet in length it weighed seventy to eighty thousand pounds it was a very low clear different duties and i'll say it different ways one they knew they admitted they knew this was heavy load clearance acquit an admitted your honor that they knew this was going to be a dangerous movement that could get stuck on or damaged the rail freebie testified they knew that in the banks they also knew this kind of equipment had never gone across across it before traverse they had used spotters on prior occasions not just once their testimony was we had use fires quote a lot and on this occasion when the most dangerous movement they were ever aware of exactly it's a legal issue under these particular facts and of these particular facts secondly when there is an unreasonably dangerous condition under article twenty three seventeen that their work that that is an issue they cannot convert a crossing leveling earthmoving equipment had been working on adjoining property for five and a half months you got the s k the owner and three the lessee the farmer lessee he was leasing both properties he had worked with them next door for no contract or agreement appeared there was no contract or agreement secondly another hickman factory as you got to look was there any duration of the work specified in the work there's no contract so there is no ration specified number three third there needs to be a price or discussion of a price it is admitted there was no price there was no discussion of a price  and finally another one that is critical to defining an independent contractor relationship is the factor that there's got to be some liability attached with a breach some liability in this case anybody groups stumps dirt gravel whatever they're powerful and they make the there's no way the rail going over it can withstand the lateral force rail is designed to take vertical force so this was a dangerous li unsafe practice exception to the independent contractor rule even if we set aside the factual issues on the factual as fierce unsafe practice acception says if he exercises control over the well really took them to the seine showed them where they wanted the work done on the private road which is a factor because it's a integral part of their work and they said and i want you to move the dirt here then thr this kind of equipment can and can exceed back about ten times what is necessary to displace the right and it doesn't take much real slave to result in a major boost for the realm and here we have three engines sixteen cars on the ground crew member think the important point when you look at all these facts the size the weight the very low clearance some of our folks were calculating at most you could have maybe had two and a half inches of clearance on a good day but the tires were full but they can't really out for you know might have come quickly but this is a issue reserved for the jury to determine whether this was an unsafe practice and that's what all these other cases say say various situations is kind of like f spotters that's part of what they did even we had testimony it's in the record on a weekly basis somebody calls garnishee they provide certified spotters that have radios etc we can prevent this problem but in this case as far as we used in the past they weren't used at this town there was no notice whatsoever and they didn't take precautions themselves between all of their own to make sure that this could have been accomplished safely they took no  were to the train cannot be rail unless the perception tractor literally cries apart tracks the tracks cannot be pried apart unless the position tractor for one of these trackers to go across the tracks with this for a brick in the elevated position answered no not want not twice repeated occasions the other  grounds that it's a safe practice is the proof is in the pudding when the operators for perception did their job they lifted up the scrapers and went across the crossings seven times this including this particular driver who had the operational error when he went over to the other side of the rare tracks when he was in the travel mug these drivers all testified we elevat scrapers and they drive these on the highways your honor it him counsel makes it sound like these are some sort of monster machines these are tractors that are driven on the state highways in caravans with convoys and they have their of the unsavory alleged unsafe practices the trial court under rule fifty six said are any of these facts about the unsafe practice exception material materiality we believe starts and stops with very disingenious language and that's an appropriate term where the experts say there were successive incremental damage successive incremental damage is the term of art that used and they say well when the these heavy machines when properly put back and forth across the trucks there was successive incremental damage the point of that is those experts don't say and it caused th tracks to spread apart and the dram and they never link the two so what they're basically saying when they talk about successive incremental damages i can damage this table by tapping it according to their experts but him suggested the court look at the legal duties of the first legal duty which was not mentioned by opposing counsel is on the legal duty under wheezy in a civil code twenty three twenty twenty three c s had its day in court in the trial court the dispositive issue on a twenty three twenty claim is did the landowners have operational control that is control over the step by step process of what was going to be done by precision answer is no they weren't there secondly how could they have if they're not there they're not going to have any operational control and what work with are they supposed to have operational control over normal one driving a tractor back and forth with the elevated scraper so that you don't need have someone  watch you do that these are professional tractor operators second do they need to have someone go tell them where to put the dirt over a culvert that something borders on absurd so the  problem with the vicarious liability claims by the plaintiffs is they did not prove an essential element based upon rule fifty six their failure to prove an essential element on vicarious liability means there is no vicarious liability the there is sort of a red herring if you will on the independent contractor basis the independent contractor defense is an alternative to vicarious l case and that's not what the district court found that doesn't follow the independent contractor issues you could have all sorts of fact issues but it wouldn't make them wouldn't make my clients vicariously liable for the conduct of decision  the next issue is twenty three fifteen that's the next source of legal duties under louisiana law we brought the motion for summary judgment and the reason should be affirmed is because it's essentially a  motion where we pointed out that there are five essential elements that the plaintiff had to prove in order to preserve and go forward with its negligence claim they miss two of those and especially with respect to spotters because their claim is that we have the we the landowners should have foreseen that there was a need for spotters all we know is what we as landowners farmers are out there and when we talk about spiders which i'll address in a moment that's a whole different animal from what they're talking about with these specific machinery so first  the statute statute is thirty two cohen one thirty four it's a louisiana statute that express it says if these machines are heavy machinery and slow moving and if that statute applies there's one person one person has exclusive duty to call k c s the louisiana legislature says that person is precision and if you take their argument for argument sake if the caller been made a precedent had done its job then the call would have been made to k c s k c s within a come out and had the option of providing spotters arson we submit to you that's an exclusive element thing that missed was causation when we're looking at causation here the only operative event is ripping apart the rate you can have successive causation those are two of the a subtle elements for the negligence claim and they had their day in court on that under rule fifty six they didn't present material evidence that changes the outcome of the case the outcome of this case is governed by one thing the ripping apart of irresponsibility of them so they're saying that my client should have foreseen this irresponsible behavior and this whole calamity from prying apart the rails your honor ask a question earlier about assumption of spot duty assumption of a duty to provide a spotter that is based upon a case that is the harris person's piece of the case in the harris versus pizza hut case the case in balt a pizza hut that had been robbed twenty times and they'd hop they had assumed a duty to hire a security guard here and the public was rolling on that to protect them so here you have what and to use the terms of my posing council an unprecedented movement meaning it had never happened before that's not what will that st the reason that you have spotters there is because the guys driving the truck cannot see the middle of the trailer so he needs another set of eyes in this specific case it's in the record clears about the driver of the tractor that sit in his seat turn around look and see is my scraper up her is my scraper down there's no reason to have a spotter in this case it's a fiction fictional duty that's been suggested by opposing counsel here finally i thought their evidence was even with a scraper and there was only two in hand interest clearance that's their evidence and forth with encountering the slopes in homes eight times including the last one that's that messed up that he didn't encounter the hump he he was simply not paying attention and the scraper was digging and he didn't it up and that's how it got stuck it wasn't stuck because if there was a hump involved there is absolutely no evidence even from their experts that the humps or the slopes or the roads had anything to do with that in fact the testimony of their witnesses is crystal clear they're asked was there anything wrong with the road no have any issues with it know this so there's no dispute about how this happened that's correct there's no dispute about how it then when this guy gets stuck then if they had to get stuck he got stuck when he went into the crossing and between the rails and his scraper which was behind him had not been lifted up he was and then we also have the testimony from the fact witnesses for kansas city and i asked each one of them guys how do you think this happened and they said oh it's pretty obvious they're right marks there at the  from the tire spinning where the tractor scraper got stuck and the yahoo is my friend was pulling the rails apart and that's all there multiple times with the kansas city people talking about their own though there was no proof that they lost any profits or customer revenue while the three locomotives that were damaged were under repair we agree that the three locomotives work out of went and used substitute locomotives and they so we did another solid text motion and we said guys here's the legal standard the legal standard is in three income producing asset that income producing asset is damage you're not entitled to loss of use for that unless you can you as the owner and show that there was a loss of profits and you can you didn't substitute here they didn't lose any money and we said to him under some attacks show us how you lost any profits per customer revenue because of the absence of these three locomotives they came back and said well we're just entire loss of use and that's not it you have to have a loss of use damages so they're entirely put back in the position where they would have been but they don't have any loss so there is a war of loss of use damages without any showing that there was a loss of profit related to the absence of these three locomotives that's a windfall to them because they've already earn obviously addressed some of the points first the contention of the slopes didn't have anything do to do with it is the first i've heard of this if you look in the record the p i a report is in the report they have the drawings showing the slope of the crossing at what happens when a seventy taiji foot vehicle attempts is to cock temps to cross with a low clearance and his critique commonsense you've got an apex in the middle of two slopes on the other s that's going to be the highest point and whether it could cross it was very obvious and anyone should have know you cannot do this safely second place we're hearing the word tractors over time this is not the  place or not all the whole high and one of the places on any of the scrapers can be lower than the others particularly the center but it is come back to us do we think there was some contact with a rail and the answer is yes and we think th them are saying they lifted but as they're moving down the road this gentleman was moving down the road and say he lived how hard to the left did he get it fully engaged and lived it or not he also found problems with some of the equipment some of it wouldn't lift his power as it should but even if it did it on this slope and the slope and everything was torn up after the rail here it most most you're going to have two and a half acres and that's an eye on a good day that's with full tire pressure and everything working just like a ship and we think for these reasons it was a very very a movement that on its face they knew it was dangerous that's why they use fighters in the past and then they get to this movement and they don't for some reason