name is dan harrington i represent the petitioner jacobs field services north america common referred to as jacobs in the case before the court today the issue is whether or not jacobs complied with an osha standard that requires the employer to assess hazards associated with the work that it task its employee was performing to determine what type of electrical protective equipment the employee should wear jacob complied with this standard over fact witnesses agree that had the employee in this case stayed within the scope of his work he would not have been injured by an arc flas don't i don't see it at all i think i think that's an invention after the fact that blame the employee the employee said he had to get to the ground by the ground bar was it was behind disconnect box at the top of the box is what's considered the line side equipment there are three phase wires that come in and they connect to fuses or they would if this once this box was completed where that connection between for those three phase wires coming in through the line side those are energized but in front of those connections is an arc she'll put in place by g e designed to protect that they didn't miss it your honor this is a common practice this is the industry practice you do not have to d n r job those lines if there is an arc shield in front of their own body i mean that expert went through all the believe osha's expert as well as the employers as well as the three electricians testifying all testified that it's common practice not to be energized the lines in a defense if it's if it's protected that the standard for guard is not and this is a very clear notion of jurisprudence it does not have to make it impossible for somebody to reach around or behind to be properly guarded it just has to make it not reasonably predictable but you know your policy shouldn't be oh you can take off your protective shield if we're going to if we're going to if you're reaching around with half of the box live there is no requirement for the employer to reach around behind that the ground bar but aren't some protections the air to account for actions that may not be perfect or may not be the wisest choice is screwing in three lines down here at the bottom that's it he's not supposed to move the ground bar and then the employee admitted that he said that was wrong but he has to reestablish well he didn't know he's not doing anything with that groundwa neutral just outside neutral to the ground to the ground war and that was it he did not need to move the ground bar to perform that we left with the with the neutral from the energized side coming down well the ground it's not a neutral to ground but it's connected to something else but it comes down the side inside the box unrelated to his test match to the ground yes which is why you don't move the ground bar he just detach the neutral to it and go about your business and he had made it all he had to do it because what he did he took the three phase wires and he connected them st and then he couldn't get to the ground or behind it so instead of detaching one of these three phase wires bringing the neutral up screwing it in place he did something he had never done before nobody  said i did not need to do that i should not have done that everybody agreed it was outside the scope of his work he should not have done that he should have just attached the neutral to the ground war would be the equivalent are you getting your definition from what the standard says it is is it documentary or are you complaints exhibit c twenty three so when was it created prior to the task how much prior immediately you have to do right before they do this all day every day so you have to walk up you walk out the job yeah and you go thr you may not assess many hazards with that task all the employees to do so take the phone over plug it into the outlet but if the employee decides well there's something in the way so i'm going to take the outlet box out of the wall this connect it from whatever's around it bring it over to your phone plug it in and now i'm going to take everything back and reattach the outlet box under osha's analysis under the j's interpretation that's a possibility and because and merely because it's a possibility you could be cited as the employer that's not how osha law has ever been interpreted the employee's actions have to be reasonably predictable it's not just what's possible it has to be what is reasonably predicted where the standard review commission is rockwell and fabricated metal and they both make it very clear that the standards not just because it was merely possible to go around a guard it has to be reasonably predictable and there's no other way for the standards to be applied on a daily basis in the real world if there's not some limiting principle in the judge in this case removes all the limiting principles when he decides that exposure existed simply because it was possible that the employee might somehow circumvent that the arc shield at the top of the box that was attached equipment he had no responsibility for working on and the employee is no longer employed by jacobs at the time of the trial agreed that what he did was outside the scope of his work it wasn't work he was assigned to perform and therefore there were no hazards associated with that jacobs assess for purposes of protective equipment these these individuals have to every day go through this analysis and if this court decides that there the employer is responsible for anything that's remotely possible then we've basically gutted the value of the standard  valdez court cases involving employee misconduct or an employee whose as you say responsible for the accident i'm not familiar with that the specific case by name but the employee misconduct in this case an employee acknowledged this is a former employee at the time when he testified he's obligated to stay within the scope of his work and he testified he didn't do that here then if you have any questions or concern or thinks he may have to do something different moving or ground bar he's obligated to stop work consult with the supervisor reassess the hazards the employee had a good track record of doing that these are things that happen on a daily basis he had reliably done that in the past he admitted he should have done it in this case but did iran have a little bit of time left like reserve that  but is there any evidence that taking off the p p e after the one side has been the energized isn't custom and practice in the industry where customers testified that that was the custom and reason a person and to conclude that temp the scott it was not a qualified electrician and as a qualified electrician under the n f p a seventy he's allowed work within that distance of energized equipment think