landscape and cetera et cetera so we know what your argument is in the brief in terms of him being an employee of his company burson been a contractor was there something unique about his set up as a powlett quote unquote you understand where that argument kicks you cited some cases like preston bark which is unpublished which relies on men well which is a public opinion dealing with independent contractors is but so long as he's not acting as an individual we get money so if he does operate under some sort of business status as an employee at least for tax purposes or otherwise who did if an answer is that your position his is employment or his liability of your client would be analyzed and so what do we do after agreeing with you as to his  your point i mean it was a bent drag case the judge set them not given you my idea what you're right and not but it to me is a little much it's a bench drag case you make this argument you know and the other side says the guys come in not the son and you know he's guy glasses own it in you say contributory negligence because he didn't take the glasses all and the judge says no so he does spin ten pages saying that you want us to hold it because he doesn't explicitly explain why he didn't think that was contributory negs in the dead we ought to reverse on a point i say ask you as you point out that you just told me it is is not summary judgment it's not toil b six some but i mean we got your argument i just want to make sure i was clear i'm sure my colleagues are outswim make shot clear that daschle sunglasses are you may will prevail i don't know but i want to make sure the on demand well you keep coming back you don't really matter if you win no matter what we do but isn't that fair distinction between president back and we don't really have a precedent in this  court where somebody who was an employee of himself a president not just an opinion right employee of themselves at understeer aki that's exactly right your honor that's exactly right and that's why your where your orientation you really don't have much to recover other than to support that on all these different there is a liability you win and you have to support that the evidence is there to show that you win no  causation that we're looking at the same defenses lesions a whore as well as just case which is only contributory negligence i suppose i don't know what is the distinction generally between those two would be appropriately under that label and it would make no difference in how he tried the age as to whether he was able to active duty or he labelled at the terminal so we believe that we did we have ample evidence to support  located hatch to her if so is visible he said he could not discern the change in elevation created by the hatch cover and it's the change in elevation which was three times more obvious we have the statement that there is no contributory negligence so in effect what is he saying even you are happy were there or had taken his sunglasses off he wouldn't have seen the change in elevation because the hazard was not open  turning to the damage i have a question such was credible and are countless testimony says this is a good number to subtract and against that what does kirby bring this court to argue that you should say that evidence is not sufficient to support a judge  expert witness for kirby points to interest expense to dock sheets on the subject or as tax returns but kirby made no record to bring to this court