or alternatively a new trial for wedge laysan be in or asking for a reversal of summary judgment that was entered against eric decker we asked if they'd both be allowed to have what we think is their right which is a trial on the merits of their case as to of comparative fault the evidence that we submit requires that result is the testimony of the owner of mark's construction mr coble ours and he said that under the safety custom and practice is in the construction business over unprotected open for openings were forbidden he did not testify that there are any exceptions to that prohibition today that to that mandate he further testified that he knew there was a hole in the floor and that he knew it was dangerous and he left without taking any efforts to repair the hole under those facts alone we think that that's enough to entitle mr lay's only to jail me as to the issue of the negligence of mark's construction we supported that what's the standard review  issue was in fact warranted again he testified that the hole was forbidden he shouldn't have done it he did it anyway in fact earlier that day he had had its sorry prior to the day of the injury he had installed fall protection around the hole he took it down because it was necessary in order for other construction work on the premises to be done but then the end of the day he left and there were still two people in the building the homeowner mr israel and i think someone else who was accompanying mr israel he left two people in the house with what he said was a known danger that he should not have been allowed to allow to exist he took for protection down didn't put it back and we think there's a clear cut case of negligence on the part of mark's construction they knew the danger they left it there because he's grown or wires that there is an issue of comparative neck in there as far as lays and listening to instructions and should have been there in the first place and why isn't this simple was a finding that the jury found mr l fifty one percent of all because your honor that they were sorry fifty one and there is that issue and that is an issue that should be addressed at the new trial if the reason that we did not believe that determination was made by the jury is that twice during the instructions the jury was told you need only consider comparative fault if you first find for the plaintiff which means you have to find of course a breach and proximate cause only then you decide the issue of comparative fault and since the jury came back with a general verdict they did not reach compared to false because under the case law dylan and the other cases that have been cited it can be said that the jury found in favor of most construction and breaching proximate cause but then because the jury was instructed not to consider comparative fault if it did not fine for the plaintiff the jury did not consider that issue i'm not denying that there is evidence of comparative fault but i'm saying that that evidence need only and should only be considered at the new trial if you grant one  the construction sites dillon in a few other cases but the one they cite in particular that applies here they claim at least applies here is the guy case from the second district where the second district said exactly that in a general verdict we will assume that the jury found no breach no proximate cause or we'll find it's a jury found beecham cracksman cause but also found more than fifty one percent compared to fault we submit that guy does not apply because again here the jury was twice instructed don't worry about comparative fault if you don't find for the plaintiff or that those are double negatives so putting it differently you need only worry about comparative fault if you find for the plaintiff and i think it's  there was not know but it doesn't we didn't need one because the jury was already told you don't have to do this you do not need to consider comparative fault if you find for the defense and what guy does which i think is wrong to say we're going to sue one the one hand the jury found for the defense and found there was no breach no proximate cause but then we're going to now make the completely contrary because i'm sions and see the jury actually found for the plane to find those issues but now was it a jury decided it was also more than fifty one percent at fault i think to draw to to say that you can draw contrary presumptions it is a self illogical but more particularly in our case here the jury was twice told you don't worry about compared to fault until you find for the plaintiff and there's no evidence and guide that that instruction was given to the jury so a bit of a long answer but the answer to your question your honour's the reason you should compare to for what it was and that it's not an issue for this case for this trial that was already held it's an issue to be taken up at the new trial that we think should be held talk for a bit about the applicability of ironies certainly your honor the firefighters will slice to mister decker's claims under the firefighters rules this court set forth in denny and cords and washington owners and possessors of land are not liable for injuries to a firefighter caused by their own negligent acts to cause the fire itself what they are liable for injuries resulting from from negligence that is independent of the fire in our case here is there's no evidence that mr cole was negligence or will from one conduct which i'll get to in leading this whole unprotected cause the fire his negligence occurred when he left the building without putting fall protection over the whole there's no indication that that's what caused the fire to occur and for that simple reason we submit that the firefighters rule does not apply here whatever negligence occurred here which was about for protection didn't cause the fire and therefore the fire to sa the fire first rule applies really as it is in our opinion an overly generic statement painting with a broad brush to say well he was there was a fire mr lay's and he was fighting fire he fell down the hole mr decker then had to go get him and it was in the course of doing firefighters work that he did this so the firefighters will should apply that's not what the case law says in our judgment your honour's again the firefighters rule applies to conduct because of the fire but not a new statute well from what from what i just said right now about the applicability to firefighters rule i would say no because the rule itself doesn't apply here because the negligence of the defendant did not cause the fire and therefore the firefighters rule has no occasion to be applied but if you want to say that for some reason the negligence of most construction did result in the fire such that then that triggers the application of the firefighters rule nine f such inane f the amendment that was effective in two thousand and three randi said the second district said in a grandest that will not be applied retroactively the first district in our case here said the same thing we would submit that that is wrong first of all the legislative debates which are mentioned in it was amicus brief senator jacobs made it very clear that the intent to own firefighters any duty because there were people in the house when he left there were two people in the house that's not disputed his indifference was nat says the limit is solely to fire fires in other words he didn't say i know about this firefighters rule i know i don't have to worry about firefighter so i don't care he he did more than just that he manifested an indifference to everybody because there were people in the house and he left them without any fault having any fall protection and therefore i think the  policy considerations justifying the cases you mentioned were in the taurine context and school district cases that that's just in our opinion apples and oranges here he had a duty to act and was also manifested by the fact that he put four protection up in the first place he took it down granted because working needed to be done but he chose not to put it back up and that has to count for something so that's how we would distinguish these cases stronger and i'm trying to i want to give you another chance because i'm trying to understand completely your argument on this general berg you know we the jury find for the defendant right area right ok your argument is the comparative fault is not address jury instructions that respect were given unless you first find for the point that is correct and why shouldn't this court just assume that there is the possibility that the jury just accepted the universally held we don't indulge in that presumption just trying to understand why or why your position is there is the verdict form or comparative fall comes out with a number at the at the end of it or the later right yes right  where there are told there's an instruction saying if you find the plate of more than fifty five fifty one percent that with it you should find for the defendant right that's what did it with no special w found for the plaintiff and found they point to fifty one percent it would would they have filled out that form that showed convert of no right no they would have to stay if that was the determination they would have what happened is the instruction was if you find find for the defense use verdict form seat that's what they were told but they were also told don't worry about comparative fault unless you find for the plaintiffs so since they were told don't worry about compared to faultless you find for the plaintiffs it can't be assumed that the jury decided to find that the plaintiff was more than fifty one percent fault anyway again because a jury does not we don't assume that the jury ignores the instructions it is given and therefore the only conclusion we can draw  instructions is that the jury found for the defense negligence and proximate cause and stop there and therefore we don't have a fifty one percent hurdle to overcome in this case it's obviously an issue if you order a new trial that will have to deal with but that's all we're asking is for that opportunity that were went to trial the circuit court denied a motion to dismiss you will find one claims alleged by mr lay's and be granted a motion to dismiss as to mr decker but only did that after the court had already determined to would not apply to fight and i'm sorry that the firefighters rule did apply and therefore when you look at that in tandem the court upheld the sufficiency of the will from one claims and therefore we think that at the very least mr decker's will someone claims should go to a jury and ran discourse on statements in three d any case that the firefighters rule under that rule a landowner owes a no where to duty then to and then engage in will floor intentional misconduct and therefore that's the basis for arguing that the firefighters address it in our briefs and that's why there's no jurisdiction either in just court or the appellate court over any claims regarding state farm and mr israel so for these reasons runners we would ask that you reverse the circuit court order new trials for both parties thank you good morning your honor i'd change granted for the defendant appellee marks construction may please the court mr gone counsel for codefendant michael israel has asked me to leave two minutes to address his issues i want to first talk about lazenby justice thomas he asked the exact question why isn't this simple it is simple the jury found as presumed to have found that mr lazenby was more than fifty percent at fault therefore even if a jury a directed verdict had been entered against marks construction on negligence and proximate cause the jury still wasn't titled and correctly found in our favor because that was exactly what the jury instructions told them to do i want to go through the sequence of the jury instructions the jury instructions were if you find that the plaintiff has proof that mark's construction breaks the standard of care then you go on to the question of proximate cause but if you find he did not prove they out and fill out verdict form seat in favor of mark's construction the jury then would have looked at the jury instructions about proximate cause if you find that the plaintiff has proved proximate cause then and this is the instruction he's going to reach you on rebuttal then you go to comparative negligence but if you find that he did not prove proximate cause then fill out forms verdict see if you find both negligence and proximate cause but you also find that the plaintiff was more than fifty percent at fault fill out verdict form seat so all three paths lead to the same result verdict form because each jury instruction lead them to verdict form seat what counsel is trying to do is use the presumption that a general verdict means that the jury found in favor of the defendant on all of its defenses and he's trying to truncate it trying to cut off half way through he's trying to say that while there presumed to have found that you were not negligent or that there was no proximate cause therefore they would not have considered the comparative fault but that's an abuse of their presumption and you can't use a presumption to rebut it selfe that is what is illogical here he's trying to manufacture a fact out of a presumption and that's not the way that the law works the law works here is that the presumption is that all three defenses not as a matter of logic but as a matter of policy art were found in fate she was meat were found in favor of the defendant and this is the reason for that presumption is not logic it's because of the burdens of the plaintiffs or the appellants in this case of getting a new trial if the jury properly found as he c that they could find based on that evidence that mark's construed that he by his lazenby was more than fifty percent at fault then it was entirely proper for the jury to find in our favor and we don't know whether they did that so we're not going to speculate that they didn't so the contrary we're going to put the burden on the opponent and that's absolutely necessary because if you don't put that burden on the appellant then everybody's entitled to a new trial there's no way of  new trial because we can always speculate that they took the wrong payout that they did something a logical but that's where the speculation comes in here and it's just as thomas pointed out the ads where the speculation comes in is he speculating that they ruled based on only on negligence or proximate cause but we don't know that and the jury instructions don't tell us that either because all those train structures lead us to the same point very formal see and that's a simple as that counts there's harm whatever error he's alleging as to lazenby is harmless and it passed because the jury properly found that was lazenby was more than fifty percent of all we going to great lengths as to why the evidence supported that conclusion in our brief so i'm not going to repeat it here because it's unnecessary it's conceded on their part even if we look at the substance of their errors about allegations of error as the website lazenby their without merit the trial court properly denied their motion for directed verdict or their motion for a new trial based on the issue of whether mark construction committed negligence breach the standard of care it is true that america called the arts said yeah you're supposed to put a barricade around the whole a contrail a council told you he did not say there were no exceptions to that the evidence he didn't specifically say there are exceptions but he talked about the exceptions he testified to them and this case there were two times when he took down the barricades both times when necessary to do the work to do the drive old work the jury was entitled to find therefore that there were exceptions to this requirement of barricade when the work necessitated it you can't build a building you can't he couldn't build the building and the home without taking down those barricades at times so the question then becomes was it within the standard of care for him after he finished the work or quire in the removal of the parakeets was it within the standard of care than to leave out to not put back up the barricades until the following morning and he testified why that was in the standard of care again he was this is a polish american while a polish immigrant construction worker he didn't use the phrase standard of care but we don't require them to say those kind of legal words the jury is instructed to look at their testimony and see was this contrary to the standard of care and here's the important point what he talked about was there wasn't going to be anybody in that building in that house i locked up the building when i left i cleaned out i locked up and i left i never thought that there were going to be any workers in that building i never thought there would be anybody near that hole i didn't even have the materials to put the barricade back up i wouldn't be able to get in until the next morning so i was going to wait until the next morning to put the barricade back up also it's been suggested there were two people in the house and i'm sure that you know that was makes a difference it's argued first of all there were no people in the house there were two people the owner mr israel and a friend of his were in the garage they were not in the house there was not access from the garage to the house those doors were locked and that's what mr koby arts testified to so you know if they were in th rise they were not able to access the whole this terrible and that's the key here is that in fact they're arguing that we didn't leave a barricade the fact is there was a barricade there was it's called the walls of the house with lock doors the wall of the house surrounded that stairwell opening the doors were locked there was no access to them there was a barricade there when you have a hole it doesn't have to matter it doesn't matter whether the barricades right around the hole or whether it's three feet away or five feet away the fact is that the walls of the house and the locked doors acted as a barricade in any event the testimony was such that the jury was entitle to find that mr colby arts marks construction complied with the standard of care that what he did was reasonable and that's exactly what the trial court said after he looked at all this evidence so it is a matter of did overview for a directed verdict but that's only because the question there is is there any evidence whatsoever to stew support a verdict in favor of the defendant and there is there is evidence there is testimony from mr called the arts himself saying not the standard here because i used the walls of the house nobody was going to be around that hole and i protected the hall with the locked doors and the house itself on the new trial it's abuse of discretion the trial court heard all the testimony heat assess the credibility along with the jury he did not abuse his discretion in denying a new trial on this issue now here in this  trying to resurrect the issue of whether he should have been granted a directed verdict on the issue of proximate cause and first of all he's for thread of this issue he didn't raise it in the post trial motion he didn't raise it in the appe court at all and he didn't raise it in the petition for leave to appeal to this court so it's forfeit you don't need to address it but even if you ted again it's without merit that the there was definitely sufficient verdict for the jury sufficient facts for the jury to find that we were not the proximate cause of mr lay as and b s injuries the jury was entitled to find that mr lazenby never would have gotten anywhere near he never would have been countered that opening in the floor if he had just followed orders if he had followed his training if he had followed his protocol he disobeyed orders by barging into the house he disobeyed orders to wait for disobeyed his training by going into the house without a thermal camera or an axe to sound in front of him to look for holes everybody including mr lazenby himself admitted he had responsibility for that for his own injuries the jury was entitled to find not only that it was fifty one percent at fault but based on that evidence they were entitled to find he was one hundred percent at fault he was the sole proximate c therefore the trial court judge correctly denied that motion for directed verdict on proximate cause we have other grounds on proximate cause but will rust on the arguments presented on our in our brief movie on decker the only issue decided by the appellate court and the only issue properly on review here is whether section nine out of the amended section can be constitutionally applied apply here and we know that the legislature wanted to apply it retroactively so the question here is not what their intent was the question here is can they do that constitutionally and they cannot  process clause of the only constitution prohibits what this court and others have called retroactive changes in the law and the court has already defined what that means that means laws that create a new obligation that impose a new duty or that attach a new disability for a transaction that took place in the past and the hundred cases directly on point where this court said debt a legislature cannot retroactively impose new duties and their case it was only a day the new law effectively imposed a duty on the part of the school to refrain from willful and wanton conduct and the court said that no that's not constitutionally permissible the school district had a const constitutional right a vested right in the law as it existed on the day that liability was sought to be imposed for the act on which liability was sought to be imposed that's exactly the same here on august thirtieth two thousand  under this court's law's cases under the firefighters rule it had no duty to mr decker what they are trying to do is impose retroactively a new duty and that's exactly the kind of ex post facto law that they had merican jurisprudence airports the idea that you don't know what you're required to do but we're going to hold you liable because sometime later we decide that what you did was wrong that's contrary to every notion of justice and fairness that we have here we need to know how to judge our behavior how to guide our behavior and you can't do that unless if you're trying to do that retroactively their only response is we didn't rely on the out rule and they cite again the two people but again those two people were not in the house they were in the garage and that there that's a red herring in any event because they weren't firefighters the question here is if section i now have abrogates the firefighters rule that imposes a whole new set of obligations on the part of landowners we landowners effectively if the firefighters roles abrogated become insurers for firefighters we not only have to protect against people falling in homes the holes we have to protect against firefighters being insured by fire or by the emergency so we would have had to do things to protect against a fire taking place from that article negligently causing a fire that's what they're trying to do is by every getting the firefighters rule under section one of his to retroactively impose a new duty a new obligation on the part of landowners to take extraordinary steps to prevent fires or any emergency and that's not right it's not allowed and it's contrary to the to the notions of due process in the only constitution out with respect to whether section nine f abrogates the firefighters role whether that was legislature's intent i think grandage was correct that that's ambiguous and so consequently the court would have to look into not only the legislative history but also it would have to look into the constitutionality of it anyway whether it can do that and so i think the court is best served by sort circuiting that you're going to recollect to the determinative issue and again the only issue raised in the which is whether it can be constitutionally retroactively applied leave for another day the question of what the intent of the legislature was with that section because nobody's really briefed out that that never was even raised in the appellate court and it wasn't important here because i'm trying to protect the appellate court judgment not something that wasn't raised there at all and that gets into this final question about the new issues raised for the first time here about whether the common law firefighters rule applied to derrick tucker that issue was not raised at all in the appellate court nor was it even raised in the petition for leave to appeal to th counsel concedes that that under the normal rules a general rule he would has waived and forfeited those issues and you just say ask a sicko throws himself on the mercy of the court to address it anyway with notions of you wasted your time and that's not fair that's not just itself it's not a good way of encouraging people to preserve properly the the rightful that the correct issues that this court should address it also deprives us of a whole round of briefing that we could have raised on this issue we also point out they are what they're trying to do is say that we are the ones that negligently cause the emergency here the firefighters rule applies to the emergency not just fires but the emergency the emergency was that lazenby was needed to be rescued so that's a direct application of the firefighters rule also the cases they cite talk about we had to do it with the exceptions apply only when there's a duty to warn if the firefighter doesn't know about the hazard but here decker himself admitted he knew of the hole he saw in the thermal camera and he knew about it that's why he was going down the land around it so he knew about the hole that wasn't the cause the cause of his fall was the last and these need to be good morning mate please court jim dawn on behalf of the appalachian michael israel was gone i don't want to take any of your limited time but i think it's worth noting that you filed a brief but your client both mr israel and to mark's construction and you're right your honor that plaintiffs do say that mr israel is not a party to this appeal but he was certainly a party to the  appeal before the first district in fact he was a prevailing party so your honour's whether the court would have the first district opinion or simply find his place would suggest that mr israel's not a party to these proceedings the result would be the same and that mr if in that the first district opinion would stand in favor of mr israel now this win win scenario for mr israel is certainly something that he's entitled to mr accident after mr israel prevailed at trial through a series of rulings plaintiffs challenge mr israel's counsel in a post trial motion plaintiffs then filed an appeal challenging  the ruling in mr israel's favor as to the firefighters act and as to mr israel's counsel mr israel then took it upon himself to raise jurisdictional issues before the first district and to establish over the firefighters ruling the first district interpreted the trial court's severance order the first district found and i quote the trial court severed all matters relating to state farm and its representation of mr izrael from issues relating to negligence claims and application of section nine out of the act as a result of the issues relating to the negligence claims and application of the firefighters act remained in this case the first district then went waived any challenge to the rulings in favor of mr israel and in any event there is no grounds to reverse the rulings in favor of mr israel in that he had no responsibility for plaintiffs and raise mr israel respectfully request that this accord affirm the fifty first district order or if the court finds that mr israel is not a party to this appeal that this this esteemed panel lead the first district order of standing as thank you runners i will pick up in reverse order the last page or upright briefs page nine hundred sites page two thousand five hundred forty five of the record that's the order the circuit court entered saying all matters and i emphasize that all matters regarding state farm and michael proceedings don't give you that your stiction eyes to the jury instructions page five hundred twenty of the record is where this instruction is found in it it says if you find for the defendant most construction and against the plaintiff wedge laysan be or if you find the plaintiff you have to take as a whole the jury was told don't worry about comparative fault unless you find for the plaintiff they didn't find it for the plaintiff so they didn't worry about comparative fault and to say we're going to presume you've found a and then presume and the other hand you didn't find a i think is  illogical and contrary to the instructions or to sue in this case as to the barricade issue and where mr is real his companion were at the time whether they were in the garage or not i think if you read the record i'm not sure that the source upon to the point his failure to provide any fall protection none of them want a hole in the floor walk in the door doesn't say if there's a hole in the floor or orange construction fencing doesn't say or if you go inside or is this hole in the floor that you should worry about so these things he did didn't run of this hole and b m bad even mr clover has never said i can do this he said that under the safety customs and practices open an unprotected floor openings were forbidden he never said well i can do it at night time and that's ok or i can do it if i don't think anyone's going to be in the house or it's ok if i walk to the door he didn't testify to any of that so his what he's doing the same here is why i chose an effort to take any action here is why i did nothing but that's not the same as saying it's ok they didn't do anything because of these reasons his testimony was that they were forbidden period he never said anything to the contrary and his rationalizations about why he did nothing or simply that the that didn't exist what this is all about is the firefighters were only applies if you decide that the negligence or worth of one kind of like that issued by mr colby as caused the fire caused the emergency as we've said we don't think that that's true but if that's what you rule anyway not imposing a new duty here that was here to for unknown because mr kirby was obviously over to duty to guard those whole against everybody else in the world that want firefighters mr israel his companion someone else who may have been in there a required to do it if mr decker and mr ray's were not firefighters they would be back in their claims dismissed for the lack of a duty being oh so we're not saying mr cobia should have done something that he didn't have to do he had to do it anyway we're just arguing that there's a class of people here that should fall within the scope of the protection of mr karr has had and we've taken some action to prevent this whole from being there unprotected nothing radical nothing revolutionary about that at all