and let everyone get completely s ok mr barkley thank you your honor may it please the court this case goes back to an accident that occurred at a dock and claude arthur texas my client mark hilton was employed by enter tech would go on various barges engage them and that's essentially the same as the mechanic in your garage in your service station going in and running a dipstick down and pulling out a sample or seeing how full the oil tank on the car is and what mr hilton's job was to go and take samples from product in these barges there were a kirby tug and two kirby barges involved and the tu had pushed the two barges into the dock which was owned by two booking they then called later tech to come out and gauge the barges after kirby had in fact transferred product from one barge to the other so you had an empty barge and a full barge now the accident occurred when my client and a coworker went down to to book a day to gauge the bar the barge that had product it and he was required to go from a dock on to the barge but there was no gangway and the lighting was poor now he had not yet begun to work on the barge and this is important when you look at sandia because what my client did when he went from the dock to the barge he immediately slipped fell down and injured his knee and factors not been able to work at the previous at the job he was doing since it was a wet misty day is that right wet misty and dark was there any evidence for transmission fluid or motor oil where he stopped on the d evidence for that now we do not have that at this point now if you look at sandia sandy as says that a long short company you know there were sponsible for cleaning for protecting their people in their work area but mr hilton had not yet reached his work area he hadn't had a chance nor had anybody to really look and say well golly we've got a problem here and kirby said you know you know we've got the right to provide lights and then we also talked about the lack of gangways they said well we only provide gangways when we know the  empty barge and i guess what my client would have had to have done is to go to the tug and say hello would you please put out a gangway what difference would it have made in your view if there had been what you would consider adequate lighting my client could have seen if there was something on the deck of the barge and he was experienced enough he should have been able to see if there was something on the deck of the barge in fact was slippery well but he but he  that the weather was wet and misty so there would be a certainty that he that the deck would be would be wet i think that's a fact issue your honor and the reason i say that is that kirby has taken the position that in fact there was a nonskid surface on the bart you know it's not just was the barge deck wet it was was there evidence i mean as a matter of law was there evidence that something other than a slippery product caused the cause my client to slip and fall now that's a fact issue for the jury and the honorable trial court decided that she would make that decision just based on summary judgment evidence and that's not what you're supposed to do if you have if you read the judge's opinion you almost think you're reading an opinion of something that's occurred after a trial or after a take nothing judgment or trial and we haven't been there yet now with it's course part of the record and he manages kirby's hundred eight tugs in that inner coastal trade along with about eight hundred barges and he said that kirby had control over the lights on the tug which could have eliminated the barge the captain had the right to do that ordering gangways kirby could have ordered gangways and again walk irby knew that kirby kept a knew the folks from enter tech were coming to sample this barge he didn't do anything he left he didn't turn on the tug lights and he didn't provide a gangway additionally they said you know we had kirby people actually did the transferring from the half empty bar to the other barge and then as part of that was just kirby folks did that and as a result with the kirby people that they'd go around and they'd look for leaks he also said if there was a slip slippery product where mr hilton fell that that would have come from leaks on the barge and that would not have been entered tech because the only people who had been working on that barge up to the point that my client was injured were kirby people and if you look at sandy and you know i know i'm beating it but sandy is as you know for sandy mccain we looked at that and i agree that the case against tubal cain is a premises liability case under texas law the honorable trial court in her refusal to remand the case indicated that she would submit both the case against to book and the case against kirby to a jury so we're not faced with that so frankly i'm not going to pursue the fact that the court was improper in refusing to reasonable care to provide a safe workplace and that would include the lack of lighting on the pier they make the interesting argument that well but that doesn't apply because mr hill was injured when he got on the barge there's a case there's case law of a judge in houston state judge and used as now it goes a little further than that and we think there's a jury issue presented on that as well really what we believe well kirby controlled the lighting gangways inspection cleaning of the barge mr gold had nothing to do with that and he hadn't even begun work when he got on the barge and was injured it was they provided some lighting it wasn't adequate but you repeating your arguments yes your honor i realize that i'm just making ok i have a question i guess ma'am your i don't recall your honor that's it would be in his deposition and i'd be glad to supplement that if the court would like that ok his right foot had to be surgically rebuilt mr as shown in the record mr hilton testified that as a result of the surgically rebuilt right foot he favored that right foot it was that right foot that he claims went in word or twisted mr barkley said on a couple of occasions that he fell down actually what happened is his right foot when he planted it on the deck of the barge he said it moved in word toward his and laughed and as a result the nature of the injury that mr hilton received was a plateau fracture of his right knee or did he step on to the barge down with the right price he stepped on to the deck first with his left foot planted with his left foot then brought his right foot on to the deck of the barge he says that his right foot moved in when he didn't testify that he fell or that he had slipped and caught himself it's that his right foot moved in one of those no testimony that he slept at that point correct or honor the issue because the the those three limited duties to stevedore such as mr hilton there the turnover duty the active control duty and the duty to intervene mr hilton has not raised any issues as it relates to the dismissal of his duty to intervene at the trial court level he did not respond to the summary judgment seeking dismissal of the active control duty which was noted by the court in its opinion and that also would be off the table so the remaining duty is the turnover duty the standard for the vessel owner under that turnover duty is well settled in this circuit probably the best explanation recently has been this court's opinion in courtesy versus tong hi maritime and in that case the turnover duty is the vessel owner has the obligation to use reasonable care to turnover the vessel in a condition that an experienced stevedore such as mr hilton can conduct his operations in reasonable safety also with the turnover duty there is a duty to warn of what are considered to be latent dangers and latent dangers are either those that are hidden and are known by the vessel owner or dangers that an experienced stevedore would not reasonably an accountable and this instance what mr hilton complains about according to his appellate brief are three things that absence of a gangway so called insufficient lighting and the condition of the deck at the barge mr hilton admitted he was out there to oversee the work of a trainee he assessed the situation the fact that the balance of the barge was firm up against the dock and that about a foot or eighteen inches separated it and you could step down to the deck of the barge we provided a copy of the picture of the beast bow of the barge there's no railing or anything like that it's just a flat open surface that you can step straight onto a much what was the distance between the dock where you had to step down mr hilton testified that in stepping from the dock onto the deck of the barge that you're stepping down approximately one foot now mr hilton let the trainee board the bar at first and before the trainee boarded the barge mr hilton instructed him to be careful watch your step mr hilton testified his deposition part of the summary judgment record that he was subjectively aware that it was misty and that it was windy out and that the deck of the barge was slipper he knew that so what discordance said and kirk see is that if a condition is open in obvious then the vessel owner has no duty to warn the stevedore that condition and what kirk said goes further in saying is they don't have a duty even to guard against or remove the open and obvious condition but what do you do with the suggestion that there may have been some oil or other liquid on their own along with any water from the atmosphere and that it otherwise would have been a non slip surface so one would not have expected it to be slippery your honor when mr hylton gave his deposition was asked what caused him to lose his balance or his foot to buckle in word he said he had no idea he didn't know he didn't know what the composition of the surface covering was later he submitted two different affidavits and he said that it may have been his emphasis on may may have been transmission fluid or motor oil kirby submitted an affidavit  captain of the tug coolest kirby barge to seven seven five eight captain how well he testified and we provided pictures that the opens surface of the biology of the barge there are only two fixtures there to winch is neither of which use oil this court recently in a long shore case that was decided on august second of twenty sixteen a case called kitchens versus stolt tanker encountered a very similar situation we had a terminal operator boarding a vassal during cargo transfer operations that gentleman claims to have slipped on a foreign substance on the vessel itself and asserted along for a claim against the owner of the vest in that case the plaintiff mr kitchen's said that he believed that he slipped in either what was called the veg boil this cargo that was being transferred or some sort of other untoward substance that shouldn't have been there on the deck and what this court said is that that testimony didn't create a fact issue that it rose it was merely unsubstantiated assertions improbable inference and unsupported speculation which cannot create a fact issue here mr hilton says it may have been transmission fluid may have  been motor oil but at no time did he provide any kind of corroborating evidence to suggest that that is in fact what happened he has no source of this transmission fluid is no source of this motor oil as judge clement you observe there is no evidence that there was some sort of oil on his pants or on the the the surface of the shoes in fact what mr hilton testified to is that after his accident occurred he sat there near  the front the the bow of the barge and waited for his trainee to do the gauging and sampling and at no time went and inspected the area where he supposedly slept there is no circumstantial evidence to support the assertions by mr hilton and the district court correctly did not use his change in testimony from his deposition where he said i don't know what caused me to slip to his later affidavits where he posit alternate explanation and the court the district court correctly pointed out that you can't change your testimony to create a fact issue for all of those reasons the district court correctly granted summary judgment t statement that we preach to duty the problem with that is first there has to be established that we owed a legal duty to the appellant and i would respectfully represent that that's a question of law which was properly handled and disposed of by judge crone the only duty to cain had was to provide a reasonably safe dock from the real answer but that is the real answer and i'll get to that because it was mentioned in by mr barclay that unpublished decision the fletcher decision to harris county we do not owe a duty to eight the the barge because again it's adjacent property but there are four assumed duty exceptions and i'll get to that but it comes down to a simple question none of them applaud the first contract we don't have a contract with curbing the second dangerous condition we had we have no duty to ascertain whether there is a dangerous condition on the adjacent property because in fact selection is truly distinguishable from our case because in the fletcher case that was a case where the defendant built maintained infrequently used the adjacent property so we don't have anything to do with the kirby barges the third assumed exception is we assume control of their barges we don't do that and the final exception is an obscure danger exists i respectfully represent that misting for an experienced stevedore is not an obscure danger and again there was no evidence and the judge crone article very articulately went through all four demonstrated that there was no evidence to the exception and since the accident did not occur on our property our dock because it's undisputed he fully boarded the kirby bard before this happened we have no liability of a texas state law to that he just said that if we wonder just a bit on what the law is not maybe the implication here you said he had fully aborted if he had not if one foot was on your property in the other does that alter the analysis under pressure but to this court the answer is no florida months that is the way i view texas chromos live below the law it is an oversimplification there's got to be a dangerous there's got to be excuse me a dangerous defect or dangerous activity there's neither on our property in the final thing i'd like to point out is i also thought judge crone was very articulate in demonstrating that the lighting in the gangway which are not our are not really what's at issue here because what's it issue here is the appellant is claiming on the kirby barge there was a substance which caused his right leg to  move so to speak and i just want to be crystal clear that despite that whiting and the gangway are not the dock owners of the sponsibility regarding the bar so unless they're any further questions i want to thank you for allowing me to thank you mr lane mr barkley you save time for about three issues related to lighting the gangway and the slippery substance on the bar and when i climb or come down a set of stairs i expect there to be a hand grell so that i can safely descend a set of stairs if i'm trying to step from a dock onto a barge that's a flip blow me hopefully if there's going to be a set of stairs or something that i can safely go down on to the doc had responsibility to order the barges knew that mr hilton was i'm sorry kirby order to order the gangways kirby knew that mr hilton was coming it was kirby's barge testified that if there was a slippery material on the barge that it could have come from leaks and that would not have been caused by anything mr kirby's employer d melky gave a very good deposition significant portions are attached to the brief referenced in the brief and he's the one is that if there was a slippery surface on the barge that should not have been it shouldn't have been there that we should have found it should have cleaned it up but that's only want to three things the other thing is it would have been nice if mr hill had been able to see where he was stepping he said that while there were no lights on the barge that there were lights on the curb the tug and that the captain of the curve could have turned those lights on to to shine onto the barge and given mr coming to gauge these barges he said there was a gangway to the other barge there was your honor or could you use the gangway to the other barge to get to the barge where your client was entered how were they figured they were significant difference