relationship between lack of reasonable caring and struck and constructive knowledge under the louisiana premises liability statute so we could article twenty three seventeen point one and the second as that the the locavore issues relating to the summary judgment which are what the standard is whether that the planes only have to show that negligence is the most probable cause of the accident and to whether the control issue is even a factor anymore and if so whether the plaintiffs properly defeated summary judgment or submitted as it should have defeated the summary judgment on that matter this court is aware this is a summary judgment case stare of used in a in this case judge horns memorandum and support it was it was like the notice issues were almost a throwaway argument they spit their memory of his supporters one thousand pages long they spend page after page after page on causation issues and then they have nine sentences on notice that say here's the standard and they didn't prove we need there's no real discussion there's no real talk it's like they just threw it in there and and the the district court said well he didn't he didn't take the bait on the causation arguments but he said well they didn't show that there were any problems beforehand but the problem with that is under louisiana law and the quote you to quote the walters case second circuit case the periodic the periodic inspection of one's property for for defective conditions is intertwined with the concept of constructive notice and twenty three seventeen point one says you can prove law belittle or by showing actual knowledge or by showing constructive notice to what gave rockton a duty to inspect twenty three seventeen point one zero you're saying that implies a duty to inspect yes and how do we know that an inspection would have revealed the problem but that's a question of fact but i would say there's evidence in this record that shows it would have to because there was an accident to it late two weeks later they did th period but you know i was surprised when i read the case that the jones act scheme is almost identical to the twenty three or is it in a call to the twenty three seventeen point one scheme and it says you have to have actual notice or you have to not of exercise due care to be held liable and in that case the district court the plaintiff brought a suit because there was a defect a condition of the ship and and the district court said well you they they didn't do anything they didn't do their inspection ok and so they're not the defendants are not entitled summer to summary judgment it's a question of fact as to whether the inspections would or would not have shown to be the existence of point out that as they were quite going to rule fifty six that hey the plaintiffs can't show that there's a lack of a reasonable care or that or inspection would have would not have revealed issue specifically in their motion in say plaintiffs you got the burden on this and we point to the absence of evidence in the record where's your evidence it and they and nobody saw this coming reverse and send it back and now you're a trial what evidence are you going to put on the point that failing that had been inspected they would have found and then even sure i have to if you look at the if you look at the at the walters case and you look at the crooks constructed a notice and it's reasonable to infer that you would have found it they didn't they there's no it's one of the it's an inference your honor and in the end based on the facts well i guess the facts are a little bit interesting because the record because this didn't really this issue to get launched into but it seems to me your honor that that's not unusual you have a for instance a strange shape of struction and you can flow around in then it gets turned a certain way and stops it and then the pressure goes off and deliveries in between we had another and even rock tens expert agrees that this obstruction caused the accident issue in this case so we know that happened we know there was an obstruction in both cases with the matthews case it is this is exactly what we have here the court said look you have an obligation and you have evidence that obstruction is like this do you like our comment that they tend to build up over time i mean i'm looking for something that would tell me if i'm rock can that i need to be inspecting for this i think that's the point of the diligence i mean we can always look back and go something could happen because it did it but that's a backwards look looking forward the question is what wind know about this kind of line and what happens to it and so how would i use rocked and know that this kind of obstruction could build up over time so that i would be inspecting for it or regularly replacing the line or whatever  because the reasonable care that we're talking about is that by exercising reasonable care you would have discovered ok if exercising reasonable to care you would have discovered then it's irrelevant but it's just  oh i'm trying what we're all trying to figure out is what evidence do we have that regular maintenance regular inspections regular what ever was a required and b would have accomplished and so don't didn't you have ever i mean did your client have the evidence that they're going to present at this we have that we had the expert testimony ok and so you know what's in it i mean that's my point i understand that maybe the materials in the district court may not be as fulsome as we'd like them to be but now we're asking you what's the evidence when you're a couple of months on try to remember the timing the close to trial what do the experts say on a fairly key issue and i would i would say that your honor that it's not necessarily requiring of expert testimony you know i think you know an inference can be drawn if you have a if you have a dangerous system you never look at it and you never maintained asshole and the w one periodically check that this accident occurred it has all that it takes to establish life no ma'am no ma'am and that's what they tried to say in their report that i'm that the plaintiffs are trying to bring back the old strict liability and that's not at all a position because under the old strict liability if you had any and a thing in your guard and it was defective regardless of how much due care you exercise you were allowed in the legislature didn't think that was right and so in one thousand nine hundred six they changed twenty three seventy point one to a new paradigm and what they said was you can plan if you can prove fault by showing actual notice or you can prove it by showing line you have somebody who knows about these lines said you must inspect this why in this off i'm not sure that's exactly in the record you're on and i'll check i'm not sure those exact dangerous your arm and it and you needed a way to determine if that if the vet lines had pressure now don't i mean i don't think there was no expert testimony in cook's in any of those cases where they said we have an obligation to to do this this way this often it says you have to look please court john via tom half of rockton answer the questions there's not a single expert statement in the record or anyone's testimony in the record that while the argument is under twenty three fifteen twenty three seventeen point one which requires either actual or constructive knowledge an argument was in its undisputed that rotten had no actual knowledge of any problems the lines been used for years twice a day sometimes but every day at least without any prior incident but part of that is that there's no constructive knowledge in the definition of constructive knowledge  definition constructed knowledge contained in twenty three seventeen point one says that you either knew or you with the exercise of reasonable care should have known we're here where's your op you're for them is it our failure to inspect was exercising i need to come forward with evidence that we had an obligation to inspect this line and they didn't do it what we said is they have to show that exercise of reasonable care should have discovered the defect and that's the whole point that there was this what evidence is there that exercise a reasonable care should have discovered a defect i believe it was justified or argued earlier that they didn't even have that bird in the example given was i think a perfect example for this case but a club strong with ice just because there's a temporary home hazard which may occur over time doesn't make it a defect under twenty three seventeen point one which is the does not case there is no evidence and i'd like to point out the testimony that's repeated throughout the it doesn't seem reasonable that you could just have a law in that sulfuric acid is going through and you never have to replace it you never have to inspect it it just can sit there until it blows up in someone's face and then you'll replace it maybe second time i guess there was there wasn't your people say there was an obstruction i agree with one qualification there's throughout the brief there's the statement that our expert will linsky and i'm probably mispronouncing his name opinion which is the fact witness for martin after his investigation was that the vent pipe was clogged causing both incidents would you disagree with that the answer was i would accept that as a possibility the next question was ok would you accept it as a probability in the answer was yes that is a probability a probability is between zero and one hundred it can be one you can be fifty on it has to be more probably more likely than it has to be more likely than not to satisfy the bird in that's not the question i was asked is not the testimony that was solicited from our expert he just merely said it's a possibility and i would agree that it could be a probability and i think it's also interesting to look at the only evidence in the record regarding my point is that shows that there is a there can be a clock in there that can cause an accident just like this and what is your people say about well had we didn't know about the clock we had no reason no about the clock expecting would not reveal the clock what's the evidence about what you do to keep a clock from occurring with this is this is never occur in with not discovered anywhere near other of our our the other industry members such as ourselves who complained of having a clogging the vent line this is this is the first time mr dawsons the first times of where where that it's occurred and there's been no evidence that that's occurred anywheres else or that anyone else had any any any sort of inspection procedurally any of it's about what industry to show that we failed to meet industry standard you need to point that out so that they then know they need to meet that burden in the response to the summary judgment well i think your honor the the argument that there is no constructive knowledge that is the argument to the point reasonable was the exercise there's no evidence that we should have discovered they have to come forward the burden of proof to satisfy that the central element of their claim this is like i think there is a saying there's a general duty to x inspect where i and so the fact that you all been inspected all means we don't need to worry about every year every five years or every six months because you didn't inspect it all and therefore you didn't exercise reasonable kick in i think that's an important distinction the where i was the only evidence we have in the record which is also from our expert it records say eight hundred seventy two about how i clogged like that could occur if you know that was a specific question to him his answer was you could have debris in the line or in the piping and then the question was ok and where would the debris come from the material that was being conveyed could contain debris what about there are pressure gauge that cost three hundred dollars for the pressure gauge if you if it was clogged you could tell from that pressure again you could also tell from the pressure gauge on the back of the tanker pour it was working you could tell whether or not the tank was relieve the pressure but that was another factual issue that the tanker in this case after martin inspected it in addition to finding the broken glass in the bottom of the tank car and the faulty spying which at the time of the original inspection martin's own folks concluded that that was the cause of the gas buildup in the line they also replaced the p s i i gauge on the back of the tanker because he probably couldn't see it or you couldn't tell if it was working correctly that's the testimony in the record from mr williams who inspected the with more new inspected the the tank or are you saying there were two different cogs in the two weeks in other words it was clogged never won that injured dawson and then two weeks later that was caught number two that injured the second worker and they were separate cloggs i'm not even acknowledging that there was a club in the first one what i'm saying is even if we assume there was a clogged there's no indication that it existed that morning there's no indication when we had offloaded tanks there's no indication it existed the next day even if there was a duty of care to every six months inspected or every year replacing there's no showing that would have mattered and that's required in the twenty three seventeen it's not just to do you care it's it is that the accessories of care should have known of the  damage could have been prevented by the exercise of reasonable care so what it takes is it takes testimony by someone that an inspection would have discovered this call and that an inspection of certain time that was reasonable would have prevented the accident so what if we inspected it that day in the morning it was a club but it was called in the afternoon when there is no evidence as to how this called occurred if it occurred other than the fact that our expert testified that one cause of the potential believe it is distinguishable because it was an instance where i was aware in terror of an item they found that the reducer would fail as in war as it were out and so they said because it's a wear and tear item that you do have a duty to inspect and you did nothing ever goes wrong if you could then you could add keep adding levels of safety my point is there was no indication require your people to certify that they're there gauges working before you  face and not only not only wondered that specific specifically at seven eight sixty eight of the record the driver's responsibilities and this is are written learning in hand unloading procedure it's as all hoses must be free from defects and void of other materials before hook up that's the driver's responsibility the driver's transporting these chemicals they're the one who's has complete control over this offloading process they're the ones who look up all the hoses we don't do it because it wasn't a clog in their line is a clog in your line and because they're going to is broke and i didn't know it and i can't look at the pressure gauge on your lawn because there isn't one if it's if it's clog who's not in our line know they're in their line you're in line not in their line they did exactly what you said their hoses didn't have a clog it was a clog in your arms and they couldn't they couldn't use their pressure gauge to measure because air pressure gauge was broken and they couldn't use yours because you didn't have in the requirement is that all hoses they're supposed to check their procedures they're supposed to check the hoses that they either houses or front it's just their gauge is broken and i'm sorry the question was whether or not we would accidents that may occur mean there was no indication prior to this that there was any any issues that may have occurred in in with regards to the duty of discovery under louisiana law and this is from the our case it requires a precautions taken against occurrences that can and should be foreseen but it doesn't require that i wanted to speed unusual improbable though entirely possible happenings we don't have to anticipate all the possible happenings the question is whether or not reasonable care would have discovered defect and would have prevented the accident and there's just simply no evidence of that and it wasn't addressed but i'm sure will be addressed in rebuttal but the application of louisiana's resit loquitur rule is completely in applicable to this situation the scenario where if literally of the thing speaks for itself as what it stands for in latin and louisiana law tells us that this is the exception to the general rule that negligence is not the presume that it must be sparringly applied presumption of negligence but it doesn't get rid of the knowledge requirement of twenty three seventeen point one and there's several reasons why reza should not apply there's not a case that they can cite where reserve supply where there is multiple probable causes of the accident they rely on lizzie's testimony that i went through that is the only problem cause but that's not the case the first prong of resits the requires that the injuries  which are nerd ordinarily does not occur in the absence of negligence that has been defined by the by the just princes only when circumstances surrounding the accident are so unusual as to give rise to an inference of negatives i believe we heard an example from the podium as how you could have a temporary clog which it could happen without anyone's negligence it could be in the material that's being offloaded that doesn't mean there's negligence i don't believe resignation applied to this scenario the one unusual circumstances negligence is usually the cause of that but then went further to find resits the didn't apply because they couldn't determine whether or not they kept control of the prior owner could have changed the setup of the airbags wh is what the court clued with the second prong of residence also doesn't apply and it's that the evidence must sufficiently eliminate other more probable causes such as the conduct of the plaintiff in the third parties in this case again the mischaracterization of lizzie's testimony does not say it's the most probable cause or more probable than not and the evidence identifies several probable causes which there's questions about whether or being offloaded and it becomes clogged in the in the line the second problem cause is the court in this instance concluded that there was evidence from which result persons could find that there was a miscommunication between the plaintiff and mr brown who was a trainee on the job for the first day there was some discussion about the appropriate hand signals for when you open the valves and mr dawson said testified that he waited thirty seconds before he tried to open valve and mr brown said at a point closing the the point opening the bleeder valve he heard mr dawson yelling within five to six seconds which is is inconsistent in addition to that there's the initial report by martin can understand when they were deposed they changed their their their testimony regarding that but the initial report blames the incident on the broken spring and the broken glass negligence so in order to apply this rare occasion you have the plaintiff has to prove that eliminate all those other possible causes are eliminated the only times that that it's applied is when the only possible cause i rotten did not follow a summary judgment on the issue of resits loquitur trying to apply it to the plaintiffs did on theirs it was denied and i presume they're raising it at this stage for for trying to argue that residen should apply and so it's it's it's their burden to show that residents local applies in a situation even if it's appropriately before the court but it was briefed in there's no doubt it was all contained in all the br notice contained in twenty three seventeen point one in just briefly to address some of the cases and i know i'm going to jump back to twenty three seventeen point one but briefly to the dress this couple the cases mentioned by plaintiff by the appellant first is the matthews case that was talked about as to why there's why there's a decent spect in all scenarios well believe that case is distinguishable for a couple reasons as well and matthews the back of a casino stool broke and they only found one of the three screws that were attached to it they couldn't find the other two and it was concluded that when there was a recent upholstering job they didn't replace all the screws they just had one left but the court relying upon the warnings label on the chair the warnings label says this product must be inspected annually and specific attention should be given to the tightness of the bolts the court said once you have a nonstructural repair like the a postal you have to have to follow the warning label on this chair and you should have done an inspection it's not merely just because an accident occurred that inspection was needed to be done and in that situation there's the evidence clearly reflected that an inspection would have discovered the lack of two screws and discovering the lack of two screws would have prevented the accident as relates to the robber case which was was breached and that was the robber be turner specially scase which was another rotten case where they in that particular system incident it was an awful od'ing incident as well but in that in an inspection would have found that the valve is clogged and that was the evidence before them which is not the evidence in this case i think your hon you i wouldn't personally i don't think there's any dispute that his experts said were probably the nine we all know more problem means more than fifty percent and that's what he said in that good excluded because it was too that and that really he said but doesn't matter because i've ruled there wasn't any actual notice and so he gave it a one line you know well i've already ruled there's no actual notice so it doesn't matter that in consider frequency of the maintenance and they did in every two years and we said they should have done it every three months or they never did and they had the plants in the procedures to they never looked at this they never did they never touched it and and that was clogged was not assessable to the truck driver it's a valve that goes off under a great under ground and all the talk about the gauge on the truck is is meaningless in this case because you have a gauge on your truck and measures the pressure inside the tank and before you use the leader line you turn off the valve to the tanker and you turn off the valve to the facility so the only pressure gauge that would read anything would be one either that the one attached to the bleed or run directly there wasn't but whether or not the the pressure gauge on the tank or worked or not could not as a matter of fact and commonsense have anything to do with this because the tank or the pressure gauge on the tanker measures the pressure inside the tanker and that is closed before the  again sort of a throw away argument because their motion for summary judgment focused on causation and focused on things like there was a broken bottle in the tanker and they focused on that report which is repeated by all the authors their expert had had said well i agree it was a clog line but that was that that was the fight in this motion your honor was causation and they found a measure summary and causation had a couple throwaways at the end there and clearly they couldn't get summary judgment causation and but the big fight was on causation that's what they brief the rest of this was a throw at argument they didn't get into reasonable care and it's it's you know  try to do best we can to cover our bases and anticipate every argument but when reasonable care or lack thereof is not raised by this or pointed out to us it's you know there is evidence in the record that supports they do next as reasonable care likely and they don't me and i would point to the court they don't even dispute that in their brief they never argued we exercise reasonable care wasn't an end and it's in it's crucial to the to the motion for them to get summary judgment they have to have to beat that part of the statute they beat the first part no actual notice but did for them to get summary judgment on the second part they either have to put on evidence that we can't win i'm sorry a lot of time thank you very much