address an issue not raised by the appellant in the district court and the answer is yes because it's a pure question of law and there would be substantial is it a question your question of law isn't there a question as to whether the injured chipper operator but i'm not sure what that even means exactly what is there in the record as to his duties and what he was doing at that particular moment that he was injured there isn't much in the record about exactly what he was doing at the moment that a problem if what we're going to say is that there's an indemnity because he was operating a wood chipper when one way of reading this is the wood chipper is just humming along he's down on the ground or something sweeping up and throwing things in is underneath the convention or in ethiopia rattus of there the police in the chains and his arm gets pulled up into it i don't think so you're i know the defendant has made an issue of that on appeal that we have to look at exactly what he was doing but the defendant is the one that called him a waste tender slashed your property but you're the one who didn't really the reason there is no record on this is because you argument didn't go below didn't go to what he was doing or whether he was operating machinery your argument was an entirely different argument based on an entirely different section of the contract correct you are correct but there was record evidence we start with the opening memorandum of law first insofar as some are judged by the defendant that specifically says he was injured while operating the widget that was under their heading of undisputed facts the district court adopted that statement almost verbatim word for word and said in its fax section of the decision that he was injured while operating the woodchipper and there's a lot of a totality of evidence that shows that in their e mails to my client the defendant said his job is waste tender slash chipper operator there's deposition testimony from adecco that's what his job is that submitted there is the accident report that the defendant did the day after the accident which they say his job is chipper operator that's what they say there are a lot of things that are taken for granted in a case when they're not really being put in issue or where nobody thinks that's what we're talking about because we're talking about something entirely different and the record might look very different if the parties are alerted that the whole case is different because he's operating equipment i agree with that hypothetically in this case they're the ones that took it out of dispute because they said it was an undisputed fact and the record supports their statement that that's what his job was and the district court i said so as well we didn't dispute that statement so there is no dispute in the record as to what his job was and now want to go back and on top of that your honor they recognized the argument we're making now and they say well we mentioned it they did more than mention it they talked about it in both their opposition of law and their reply and they said well they aren't really raising this issue but if they did and here's why and that's not an argument well he wasn't really operating the woodchipper they they were is this argument as an alternative and still you didn't even oh my god and i you know they say we intentionally nobody and would intentionally not make this argument you know unfortunately the trial counsel for adecco missed it was a mistake but there's no reason to create more litigation over a mistake when the record is very clear here and we meet the standards as far as i can tell each member of this panel has been on a case where you've applied this discretion and in fact i can't find a second circuit case where the court says well ok it's a question a law and there's substantial injustice but we're not going to apply the standard in fact in the merrill lynch case the court said well we're not really sure that merrill lynch has got substantial injustice but it's a pure question of law so i mean in their brief columbia products basically comes back and says well if you really are going to follow this then you've got to send it back for a fact finding issue about whether he was truly operating the chip or nobody's really going to know no nobody's and he has no memory given the traumatic injury that he received nobody else was in the room at the time of the accident exactly what he's doing so you could send it back to create a phantom record that's really not going to get created end more importantly there's no reason to it's columbia forest products who has made this an undisputed question undisputed fact that he that's his job and at that it precise moment that he's injured i'm sorry grotto no one was in the room i that's my recollection of the trial the record here that nobody else was in there in fact they had they were outside and somebody got alerted that the conveyor wasn't moving anymore and they came in and they found mr fort hanging there by you know what was left of his arm on the police system is somebody say that prior to the accident nobody was in the room at the time of the accident which i believe was kind of the operative believe my my understanding is i could be corrected but i don't like i think it's correct the record establishes he was in there along nobody was observing him who says i don't recall your honor i  apologize and my point would be you can't just look at that moment in time when his arm got caught what was he doing right then no what was his job and they said his job was waste tender to proper air and in fact in the accident report and think they used the words waste tender they used the word chipper of fact that it's somebody who's job doesn't mean he was doing it at the time well look like i said you're i think it's inappropriate to say at the moment his arm got caught exactly what he was doing was his overall job waste tender slash chopper operator that's completely established on this record there is no question about it and quite frankly they have to establish that the district court's finding based on their memo of law and the facts in the record is clear air there's no basis to find that it's clear error here i know it's not truly a factual fine like after a trial but every error with what he was doing at the time yes that he was there he was injured you're with your i think i thought point was should we exercise our discretion to look at an issue that was raised yes it is but the the main argument against doing that is that it's not if you're question of law and i submit it is a pure question law because the record leads to only one conclusion he was operating record a record undeveloped because there was no need to develop it and i submit that's the defendant's fault because they started with the proposition that he was offering which up early he was injured and that was mccormick who is my co counsel on appeal and was also the trial attorney in the district court adecco concedes that it made no claim in the district court that mr fortan the injured worker was operating equipment at the time of his injury or that the defendant hold harmless language in the contract applied adecco also concedes that it is completely shifting this issue on appeal and raised an issue for the first time that it could have raised below this was a one page contract and i think that they could recognized the fact that this language in their view might have been irrelevant but they didn't do so the only excuse offered is that somehow the trial attorney missed the notion that mr fortan was operating equipment now counsel is correct that this court has on occasion exercise discretion to consider issues that were raised for the first time on appeal however that's the exception not the rule the preservation rules an important rule to the administration of justice and certainly in this case were prejudiced by the fact that for the first time in the appellate brief we've learned that adecco now claims that mr fortan was operating equipment at the time of this injury something that we had no clue about and the district court had no clue about i don't understand you did state time of his injury and the answer it mended that and then in the brief that we made in support of the motion for summary judgment there was an inadvertent misstatement and that misstatement as  has been recognized was later corrected in the appellate briefing or the excuse me of the summary judgment briefing where counsel for columbia forest products plainly stated that mr fortan was not operating equipment and i would submit there is no evidence in the record that he was operating equipment other than the inadvertent statement of counsel which was not based on any evidence the statement that counsel made was based upon an undisputed material fact number fifty six which merely said that there was a serious injury that was sustained on february eleventh two thousand and fourteen so there's no evidence in the record other than the the so called admission that it is pretty odd to make such an admission right or to say that he was operating a wood chipper why would you say that because he was classified your honor as a waste tender slash chip or operator and it was unfortunate but by that claim as alleged in the complaint there was no relevance to what mr ford was doing at the time of his injury the only issue that they raised was that we somehow breached the supervision and safety provision  contract and therefore the only thing that was relevant was whether there might have been an osha violation that was not relevant at all to this case what he was doing at the time of his injury anything in the record of the woodchipper operates there's very little your honor i think you've made the point that there's two rooms to the chipper room there is the upper room which is where the chipper actually is which is a set of rotating knives that takes veneer and ships and into small pieces for uses fuel that is where theoretically one would be operating the chipper but there's not a lot of evidence in the record since no one ever raised it that is to say is there some person who flips the switch that turns it on and off the end whether that person is mr the fact of the matter is there is abundant evidence that he was cleaning up waste sweeping up under the return belt not in the lower room as again i'm at when there's nothing in the record as to how far it is from the actual chip or operator or station but the at the time of his injury was sweeping up wood to breathe out of falling off the belt but what i'm what i'm getting at is a guess and i don't know woodchipper works i don't know that these are two separate rooms and how far separated they are and evidently they're not separate enough that his arm doesn't get caught in the mechanism of the conveyor belt which either is or isn't part of the wood chipper i don't know you referred to a ship or operator station and i don't know where that  is and i'm not you know maybe there's something in the record about just referring to something you know from having visited the factory well there is there is some evidence in the record your honor but really this underscores the prejudice to my client of having something raise for the first time in appellate brief had had this been even a hint of this been raised in the district court we would have developed the evidence on this but the evidence that does exist there were investigation reports and so on shows that this is a multilevel chipper room and at the upper level there i believe there is evidence to the record that there are areas where you can shout on and shut off and turn on the chopper and mr ford and was cleaning up debris that's what he was doing now i would say under any  common sense use of the term operate one who is cleaning up would debris is not operating the machine and so this is something that that you know i think what's happening here is they're trying to switch the burden of proof notice any idea that they were making an allegation that he was operating machinery or that the defendant hold harmless language applied we would have certainly put on the record all that all those facts and again it underscores the importance of preservation and require that we defend and hold harmless the plaintiffs and we raised below and also in this court that there may be a difference that we would want to pursue in the district court if the if this issue is somehow felt to be preserved about the difference between indemnity and defendant hold harmless but in this particular case again i would keep going back to the fact that the only evidence that he was happening the chipper comes from the statement of trial counsel which was not based on evidence in the record it was a misstatement and i would point you to the hub floral case from this court which basically says that a statement in a memorandum of law is not a binding judicial admission especially in this case where the so called them admission was never even relied upon by adecco if they had given us any indication that they were relying on this kind of offhand statement about the chip or we would have corrected it more explicitly as it is we did correct that in our response to their motion for summary judgment in which we plainly stated that while there's this other sentence in the contract this other sentence wasn't reliant on by adecco and certainly there was no evidence that mr ford was operating equipment now at that point i think it was incumbent on adecco to say no there is evidence of mr fortan operating equipment the only other evidence that they rely on other than the statement of counsel below is the fact that his job classification is waste tender slash chipper operator well just because your job classification is something doesn't mean you are doing that task when you're injured if i'm a truck driver and i get injured walking to my supervisor's office for a discussion with my supervisor and i trip and fall i have been injured operating a truck obviously not and so the really the only evidence that they rely on again is the statement of counsel and then the evidence that his job classification was a waste tender flash chip or operator now in their complaint they allege only that mr ford was a waste tender which is what he was doing at the time of his injury he was tending the waste that was falling off the  or the conveyor system and in our answer we admitted that allegation so as far as we're concerned that's kind of final by operation of one that's where the court should be going with this is that really the evidence isn't contradicted that he was acting as a waste to your point that certain confusion about this when it doesn't get it your honor it doesn't really matter what the job title is the issue under this contract is what was he doing at the time of his injury was he operating equipment and under any fair reading of the term operate i don't see how you can take a guy who's got a shovel and he sweeping up debris and say that he's operating the equipment and as i stated several times we have been really severely prejudiced here because we would have settled all these so called facts that are being bandied about and i would guess point you to that the joint appendix citations where they stated several times exactly what he was doing at the time of his injury which was sweeping up thank you thank you mr pierce you have two minutes  let me start with you know counsel relies on the general rule i know i know that's the general rule but this court has uniformly and regularly applied this exception that we're relying on it's not new as i said  of you have been on panels or written opinions where you applied it when those standards were met and i said even in merrill lynch they didn't have to be any substantial whether the standard as it is against is an exception the question is whether the exception which is why it all comes down to whether or not this record undisputedly shows that he was that mr fortan was injured at wall he was engaged as a chopper operator operating operating the the woodchipper and and and again i don't think we can pinpoint that precise moment you look at what colombia foreigners forest products repeatedly on numerous occasions in this record said his job was and it's bad but that's something different than what your people said his job was how they did it has made it have access to all of that then of course they didn't that's the whole point if there was a record that established how this machine works who turns it on and off what is involved in turning it on and off is the person who turns it on and off the same person as the one who sweeps up underneath it and throws stuff back on the conveyor belt i mean that could be even talk about truck drivers if you're driving a truck and you leave the engine on and you get out and start cleaning out some obstruction under the wheels and you didn't put the emergency brake on you get run over to reasonable to say you're the truck you're injured while operating the truck on the other hand if you're not the truck driver but you're somebody who's assigned to do some kind of cleanup and you go underneath the truck that's a different story we don't know why if i'm a janitor at that plant and somebody says hey when you go move that truck i'm not a truck driver this man was classified as a waste tender slash where i just want to say two two things he talks about they had no reason to raise the whole harmless language we now are a lot but they did address it on pages one fifty two of the rest of the appendix and i'm pages one sixty eight one since they addressed the actual argument i'm making you know why because they knew that was the right argument that my client should have been making that the trial counsel should have been made and they kind of but they addressed it there certainly is no prejudice when they actually address the argument i'm making on appeal very much and hub floral is clearly distinguishable where you have an affidavi