charges will be taking five my first section will go for seven minutes and i've reserved three minutes for a bo may please the court and the council this appeals of involves two issues of first impression under kentucky's strict product liability and negligence law we have moved to certify both issues to the kentucky supreme court as the case law in this area remains unsettled the first issue relates to the application of shelton which is a twenty thirteen negligence opinion issued by the kentucky supreme court to our negligent failure failure to warn instruction used in this case second this in peel involves the prejudicial use of the presumption of non defective ness and strict liability instructions used in this case in reviewing the pleadings for this appeal your honour's it came to my attention that i think the real disagreement between ourselves and appellate pelly here is that we're talking about a disparity between federal knowing users i'm sorry that there is no duty to warn in knowing user it appears that these cases seem to derive from a six circuit case from the seventies called garrison it is it's called garrison the roman haas and it's interpret in the post case which is the seminal case on an adequate warnings in kentucky that case issued out of the kentucky supreme court in  products liability case like this of course it has comparative fault was adopted in the eighty's both by by case law and by statute so it applies in all cases involving to negligence case both premises liability and was an all accident or negligence case but i'm asking you about this is a product liability case where dog this case is a product liability can you cite me any kentucky case th that it was wrong to give this kind of instruction on failure warning a product liability case i cannot yet i will tell you that yes well i'm sorry go ahead go ahead i will tell you that in the case mess li which we've cited in our briefs the kentucky supreme court did grant discretionary review on a products liability case that was not negligent failure to warn but that would have applied that possibly the shelton rule in a products liability case know the problem i have i guess the shelton with the promises liability cases based on the theory that look even if the hazard is equally known to the person it comes to our promises as a look there's still a further duty a landlord has cause  landlord retains ultimate control over its premises and could fix the problem whereas there's nothing equivalent in our product liability case i mean once the product leaves the manufacturer the manufacturer don't maintain continuing supervision over the way a landlord well i would say that to stand in contradiction to kentucky law and actually if you were to look at the waters case which apartment appellee i keep wanting to call the defendant i'm sorry sites to the waters  case they say that there is a continuing duty to warn on manufacturers after sale so if there's some known hazard i mean the manufacturer in evidence was introduced at trial that establish that there was a known hazard what with that the pinch point that was created between the pusher jacks and a guide rail well this outside guy a great deal right the outside guy guide rail was not part of joy's manufacture of this product that was added by the foreman on the job of your call have this right according to him he had seen the product before it was actually put on the market and it did have a guide rail then it also had a tow board at the time the contention that it was sold for scrap is a little but it was also sold for i think over a million dollars but i would say that with respect to the duty to warn that's heightened invitee is are to a certain degree actually fairly comparable under products liability law to a consumer in that they don't have the same amount of control over a product and they don't have the same amount of knowledge here we're talking about somebody who had some knowledge of the danger but he didn't have all of the knowledge because he didn't have flashing lights who didn't have a warning alarm letting him know not to put his foot in this quote pitch pension point that he knew not to do that but when you're trying to uncouple a cat head which can be twenty pounds and it stuck and you don't believe that it's moving then you're even you may accidently put your foot and in harm's way and that goes precisely to the issue of an adequate warnings but what are the low didn't have a pitch point right ted said that he saw it before it was actually sold the first time and it did have a guide rail in the pedal added that our right he added it later after he had it had been sold a couple times when he rehabbed the machine have it already did they leave a varied was that according to him it is necessary for the machine to work so the fact that a guide rail would be added was reasonably foreseeable because it was required for the machine to work and unfortunately i think my time is up and if we were going to i think we're going to have the other half of the opponents here my name is kelly graham here on behalf of the intervening plaintiff appellant charges casually company who was the worker's compensation carrier for southern call who was mr smith's employer at the time of the subject accident i have requested that one minute be reserved for  uttal may please the court your honors chartists as argument in this claim is very narrow and it also enters around kentucky revised statutes for eleven point one eight to entitle allocation of fault in tort actions and in this claim or in the statute what the statute did was indicate that in a case where a party who may be a negligent party has otherwise settled their liability they may be of them relieved from the duty of contribution but there may be an a pportionment of damages within the jury instructions an order to reduce appropriately the fault that otherwise would have been attributed to them the specific issue in this case is the fact that the defendant or not defend it in this claim southern coal was not a party who had settled their civil liability there was no settlement southern coal paid workers compensation benefits consistent with an administrative law judge order now that the kentucky supreme court cases there are three cases that have specifically mentioned how this into place and in those cases all of those cases either the third party defendant who would be southern call was either added as a party or there was an actual settlement of worker's compensation claim and the one thing i would like to hit on most is that it will be portrayed that that is the splitting of hairs as the kentucky courts have said in dicta not in direct holdings that by coverage of workers compensation that equates to a settlement worker's compensation in kentucky is an opt out not an opt in that is that is my field and i have yet to see anyone who opt out and otherwise it is state mandated coverage  if we get from there in in we get to go back to trial argument then is that southern coast should have either been added as a party even though they can't have direct liability and given the opportunity to decide whether or not they would mount a defen scorning fiberglass murders parish the two thousand was well the big distinguishing factor in the zero in the parish case was first that the workers compensation claim did settle it did not go to an award now in both cases yes workers compensation benefits are paid but the difference is if i is the worker's compensation carrier in the employer decide to settle that claim then i intrinsically have been able to take into consideration all of the effects of that settlement such as my potential l my insurer being reduced by a portion that instruction when i am allowed to be my employer southern coal is allowed to be part of that importation meant determination in the court and in this benefits paid to date are over two hundred fifty thousand dollars in worker's compensation in kentucky they're entitled to lifetime medical benefits so the amount of benefits are unknown in likely not not to be ending but in final final comments is the two cases the rice case in the paris case which are the two cases in kentucky supreme court that have dealt with this issue neither one of those holdings directly dealt with the situation where there was a non settling third party or non settling employer in those cases either the employer was added as a third party and had their opportunity either to defend or represent their interests or they their workers compensation claim had settled and when there is a settlement that is exactly what was in morning your honor is my name is nick pappas my partner casey hensley and i represent joy may please the court the judgment on this jury's unanimous verdict that the high wall mining system was not defective enjoy not negligent should be affirmed because the two instructions two out of thirty three that the plaintiffs challenge accurately and appropriately and appropriately stated kentucky law the law is and always has been in kentucky and in other states throughout the circuit that a manufacturer has no duty to warn of a known danger and that's exactly what the court the district court told this jury and secondly the rebuttable presumption instruction was based almost verbatim on the kentucky statute it was consistent with kentucky supreme court precedent and in any of that resulted in no prejudice to the plaintiff i would like to clarify some of the facts that your honour's brought up this system works  warning by the person who's operating this push pusher to the person out here who's trying to adjust the chords and so on kno that he or she is about to engage the pusher and there was no there was no device which would give that warning that's true oh no i was with you all the way until the end there was a device he had a p a system he could have used he had hand signals he was taught to use that he didn't there was no automatic device that sounded a bell or an alarm when the pusher jacks when moved for good reason the pusher jacks go back and forth all day long and but that's a very good question your honor and it gets to our main point in that that's a design question right and they tried to persuade this jury that this product was defective because it didn't include design features like that and they lost in the jury distant termonde that it was not defective an unreasonably dangerous and they haven't appealed that that finding so you're owners question gets to the heart of our argument and that is they are confusing statements in premises liability open and obvious danger cases regarding the duty to keep the promises reasonably safe they are confusing that with the duty to warn which their own cases from the kentucky supreme court establish that there is no duty to warn of a known danger getting back to briefly to the facts this product was made in one nine hundred ninety four it was least initially used for five years and in one nine hundred ninety nine sold for scrap there was no evidence that this guy had rail that created the danger that ultimately resulted in the injury was on the product when it left my client's hands in  this year it was on the air somebody testified about that or that it was ambiguous or something was a test it was not on there there was there was testimony that that platform was clear when joy manufactured this machine and teddy triplett the man who did modify it testified that when he got ahold of the machine after it was sold for scrap and that was the testimony in one thousand nine hundred nine he rebuilt there and there was certainly conflicting testimony about whether this was foreseeable i mean and that was the juror a jury question right i mean that was it an issue not appealed and that is was it defectively designed was this we had the modification defense that was clearly our primary defense was this was not our product they changed our product and there were bottle to that defense was well you should have foreseen it and we had a lot of testimony that there was no way to foresee it we've never heard of anyone doing this before there is no reason to add this outer guide rail the reason they had added is that they used a different continuous miner which is sort of the tractor at the front of the train that cuts into the coal seam these a different one is a different size and that's why he had to add our cars or bigger cars ours where he rebuilt the cars unclear whether it's there big or not there were different they were enjoyed cars the law and then importantly your honour's the pla testified unequivocally that he knew about the stain ger that teddy triplett the ironically the same guy who created the pinch point that wasn't there when joyce sold it warned him about it and told him you gotta keep your body out of there and then when his own attorney plaintiff's own attorney on direct exam asked him at the time the accident were you conscious of that warning he said remarkably yes question were you consciously aware of the danger in this is when she's asking about the time of the accident answer if i noted my foot was there yeah but we're trying to a couple of them catalogs and i just didn't realize where we were at he knew of the danger he admitted he knew of the danger at the very moment of the axe and he just didn't know where he was on the platform they challenge the instruction and do to the one that simply told the jury what the law is in kentucky and that law is as remained unchanged for years and years and as this court said an opinion  judge merit that you joined in versus gibson fiberglass the general rule however is that there is no duty to warn the user of a product when the user is aware of the products danger that was a six circuit case applying kentucky law the kentucky case is edwards versus hops in ink where the kentucky court of appeals said there is no duty to warn against obvious risks that's black letter law throughout law it's simply black letter law that a manufacturer does not have a duty to warn of known risks and why is that we can look to the promises cases that they cite for instruction from the kentucky supreme court on the reason for the rule and the reason for the rule is to equalize knowledge the judge if you have a man in the premises cases if you have a landowner who knows of a danger and you have a invitee who does not we have an equal knowledge that landowners going to have a duty to warn to equalize that knowledge even if we make the jump from promises to product liability which i don't think we should i don't think it's appropriate but i don't even need to argue that if we do those promises cases ma very clear that there's no duty to warn of an open obvious danger so the incredibly read those cases and try to apply them to the product liability context the key question is you defense was modification and arguing as a defense to the strict liability claim that the product was unforeseeable e modified there wasn't a huge battle over intervening cause and it's not the subject of any of the issues raised in the appeal but i think it's also though would have been an appropriate consideration for the jury but in the first instance the jury didn't even get to cars because they checked the first two boxes and  not if the district court was wrong about which question the intervening cause modification i think the district corps certainly could have granted a dispositive motion to jo in and it was the basis for a summary judgment that he denied i think also honestly and the failure to warn it would have been and he took this under advisement he never did issue a ruling the jury was only out in an hour hour and a half and came back and failure to warn it clearly could of and that's where we did argue proximate cause your honor we argued that how on earth could a warning be even be an issue where our product was painted over on product warnings undisputedly had been painted over before this accident and where the sorry the jury resolved all these questions but their verdict they absolutely did i mean all of the warning cases most of them anyway are summary judgment and directed verdict cases and here they got the benefit of the doubt the judge said we're going to let it we're going to let it go to the juror initially on the changes to the product when you raise that on summary judgment the district court essentially said there could be circumstances in which that this is a foreseeable situation so we'll let the jury figure that one out absolutely ok let me ask you this on the carter case which is i gather the most recent of the applicable that it has a call it is time to clearly say that all whether the court should apply its analysis in open obvious danger to promises liability cases where it's an outdoor condition do naturally occurring circumstances in that case it was it was on ice right right right but that there is no duty to warn when the condition is open and obvious even in a premises case i think the court said it best in in this sort of sums up i think the error in the plaintiff's arguments where they kind of conflate this duty to keep premises reasonably safe and that's why the court said question of fact it's comparative fault testimony in this case that the pla that if there were going to be a problem at the pinch point he would be warned in advance now no there wasn't any of that your honor a that was part of the  parties and the joy that they were there would be no i misunderstood absolutely plaintiff plaintiff mr smith and he understood that he put it he put his foot in the p when the device was being triggered that he would end up with an injured foot understand that to that extent he understood that this was a dangerous situation but i just wondered if they were if there were any evidence that he thought that that would be satisfied that problem because he would be warned in advance if the device was going to be stored he he absolutely expected the operator adam hall to warn him in advance he trained out in ha to use this machine and there's there's two pages of my cross examination of him where he acknowledged when he trained out of all he told him make eye contact with the guys on the platform he told them announce on the p a system before you move the pusher jacks he told them don't move them when your guys are in the way he blamed adam hall at trial for running the pusher jack into him and again their design theory is that well this should have been automatic and you should have a bells and whistles going off all the time they tried and lost that that was their theory the quote that i thought was was really dreck point in in mackintosh is where the court said in short even where the condition is open an obvious landowners duty to maintain the property and a reason the safe condition is not obviated but it merely in the gates the duty to warn of such a condition that's where they keep mixing up the two issues the duty to keep promises safe and the duty to warn the kentucky supreme court has said it stated over and over again there's no duty to warn of a known risk even in the premises  extent you are saying doesn't this motion to certify doesn't make any sense because there is still a distinction between premises and product liability case yes  there's still a distinction between premises and product liability cases and even if there weren't a distinction the premises liability cases are dispositive even if we apply that reasoning to products because even in promises there's no duty to warn so we asked the court to affirm thank you your honour's several issues i just want to point out one factual thing the projects do you go back and forth all day except when the cars are stopped and somebody is working beside the car so at the point when anthony smith had his foot in a danger zone the pusher should not have been moving and there should have been no buzzers going off another just factual correction have been worn by a fellow employee but wasn't right but let's take into consideration that we're relying on somebody to who in fairness was new at that job term member to do that to know not to accidentally push that be if it was their fault with this occurred how do you attribute that to joy in that situation well ok so manufacturers still have a duty to warn the continues consider let's compare shelton which talks about open and obvious risks and how there can still be duties when there is an open and obvious routes could be dirty but is there still a duty to work different question well i think if you look at the residual risk discussion and shelton there is a duty to warn and and the duty to warn includes an adequate warning so what the residual risk section talks about  says that mornings must be adequate if a warning is inadequate than a residual risk remains just remains that is akin to a latent danger and by using that term latent danger i think the court is actually bringing in concepts of products liability it's not saying let's only look at this is process liability it's trying to bring in other areas of tort law to show that these are general principles that need to be used in all tort cases and that would be buttressed by carter  i do want to just make a couple comments on the rebuttable presumption issue i would like to point out that and there is a longstanding tradition in kentucky law to not put presumptions into instructions this instruction on the rebuttable presumption of not effectiveness was clearly presidential prejudicial and misleading and really just wrong a wrong statement of the law according to how kentucky courts have interpreted it for all the reasons that we've discussed today i hope that this current well overrule the district court and remand for a new trial thank you so much for your time  honour's one quick follow up in my remaining minute here i wanted to touch more specifically on judge tillman's indication or question with regard to how the pair's case did not apply and again we're talking about the apportion issue what i wanted to point out is there are two federal district cases one out of the western district of kentucky and one out of the eastern district of kentucky which they only two cases that have applied that law keris four eleven one eighty two in a circumstance where the worker's compensation carrier has not settled well the what i wanted to point out is that they in correctly utilize the holdings of the two supreme court cases that we've discussed first of all the rice case  that case was decided it was instituted prior to the application or prior to the institution of kara's for eleven one eighty two therefore any language about its interpretation or application would not be holding and  the final case as to perish is that the one thing i wanted to point out is that the holding in that claim was whether or not a settlement of workers compensation meant the same thing as a settlement in the statute which again this is the