depositions and put some additional facts in which we did and then the court gave us a very short decision a short order granting the motion for summary judgment with no real analysis we believe that the decision of the trial court should be reversed for three reasons first we believe that the law of the case from the last time we were here should apply the second we believe that there are factual questions as to comparative fault and third if the defendant part and the part that they reversed and sent back was the warnings issued the warnings claim of the players and in that decision the apes you got to you at this court said this is a viable point go back in  inconsistent with what this court because of that we feel that at that time that was the law case it was a stales we believe that that was a viable claim that is for the trier of fact to determine whether or not there was comparative fault on the part of anybody besides him right that brings us to the test and it was put into evidence at the hearing before the trial court which means that there clearly are factual questions that should apply this case for the trier of fact the questions that were put in effect clearly favor the plaintiff in this case as creating question of fact will start with mr plunket it was a retained expert people that he sold risks to and when he gave them the odorants he gave them this literature and he talked to them about what they should do in their warnings and in those warnings pamphlets he gave to them he said the strong sense or the we set of odorant should never be something that the people should rely on when determining what to do with a reaction to the smell of natural gas if you leave it to the person in the house to smell odor and a strong or a faint as it is put in the am right but you're asking for trouble the only thing you should do when you smell gas is get out of the house that's what he piece program for working people and we talk to her about what they do and we talk to her about the surveys that they gave to see if their warnings were affected and the statistics show that they probably weren't very effective in getting those warnings out to warn these people on how to react when gas comes and she's admitting that they probably did not know what to do and the statistics there were quoted in her deposition show that they were making an effective message get through to these people it just didn't happen there's evidence of that in the jury can consider that to determine whether or not the sole proximate cause of the of them dying in the interest is because they didn't know what to do it's a duty under our people and sixty two do effective warnings and even miss me hands that there are there's zero good to a warning if it isn't effectively received by the person and that comes back to th house what they're going how they're going to interpret it and there's something called olfactory fade which if you've been in gas for a period of time you don't smell the the organ anymore and that's a question that is a question of fact  him and witness me here mr feeney we had questions different direct and then we asked them isn't it a fair question of fact as to whether this was an effective morning and they both said yes we said her isn't it a fair question of fact as to whether or not these people in this house knew what to do yes we said to her whose responsibility is it to tell and she said it's an i p s we're going to go that's a that's a great question and then but they didn't tell us what that affected so yeah i mean will correct some of the stuff was some of the people that were injured and killed were not residents of this house either they were staying there overnight with grandmother and my god how do we get around the languages the been occasions so by the negligence of tilling well as i said earlier in a morning's case the damages are caused because the people did not leave the house and it is up to the utility to work people and to override and tell them what to do when they smell natural gas say that i'm not  in the house what do you do when there's cast in the house if there if they don't if that is the case then they don't have to want anybody and they haven't won the fight and we have the same set of circumstances there is no liability if they sent zero warning to these people and did not do anything to warn anyone then you know what if this house blows up they're off the hook if that's the correct reading i don't think that makes sense because they pick clearly had it didn't work because  say they don't have a duty to war i mean that's a very strict reading of it but i think that it can't make sense that way in terms of their obligations under r p eleven sixty two which has been adopted by accomplish the mission and was in effect at this time persists or doesn't go away for if it's strong well how many people that cook would think that it made much sense to leave the house without checking  people call in come in have them come take a look and that is different than what they're teaching the students in school jimmy have talked about they have a slogan says snodgrass the pastor something might on board with that and that's different than what they're telling people in their bill stuffers that's different than what they're telling people in their newspaper and so those are all questions as to what were they doing and were they doing it correctly and so that's kind of your view is there might be an expert that would dispute you'll have a problem if you care more in your honor more to please the core counsel this accident is undeniably tragic it was an unfortunate circumstance and i feel for the family involved it is not however an accident for which a hammer is liable if we look at the tear which this court has previously done you will see that hera provides for liability somebody who improperly installed display or they don't dispute that the trout or i'm remanded give them time to conduct discovery they chose to focus on the warnings and whether or not there was know i don't know why i don't think that is the issue before the court i understand that last year pressure i believe that arkia levon sixty two provides guidance and provides through the regulatory agency  commerce commission and the department of transportation they have the authority to enforce those regulations and they in fact you enforce those regulations if they thought humorous program was in adequate they have the power to take corrective action against this player fitting and that's of course you know because this course previous interpretation of the tariff does not mean that they are without running it means that they're without around to be against it they still had a remedy for whatever reason they chose not to pursue a possible action against the people who actually caused the leak that caused the explosion now well good better versus connects kind of public policy or it seems that you're saying we have a tariff language is clear in that regard and the purpose of viability limiting tariff is recognizes that utilities are highly regulated monopolies that have to keep their rates low and a rule limiting liability accomplishes this go now they talk a lot about well this this interpretation will get rid of warnings claims altogether because the cost only or the cost of the explosion is going to be the gas leak in the house and in this case the person who well i think that's precisely the purpose of the terror is to get rid of nebulous claims if they were average category claims to get rid of i think warnings claims on that category for the same reason that justice mention he can go next for i can get an expert and they could all these filed a failure of one claim against the tele company even though its utility companies warnings had nothing to do with that and underlying cause the actual cause of the explosion provided absolutely no warning of any card whatsoever and they still would have no wife ability because whoever put in the player fit is responsible we legislate and we contract out of our common law duties all the time if you look at governmental immunity not all we don't always get a result that under the common law we would ar but that goes to the legislature that goes to the commission in this case the legislature and the commission saw fit to limit liability in this manner and specifically in regard to the warnings for this very reason the fact that they are not  nebulous claims and you can always find an expert to say you know you provide him with a phone book well there were too many more provided with a sheet of paper there were enough warnings it wasn't bold enough we didn't we didn't read it we the content was a correct we did read it but we relied on this content right there are so many different possibilities here i think best for cites and the purpose of this tariff and our me and the show as a matter of law which is completely undisputed by them they had  this appeal as well to no higher court has addressed the issue in this case and come to a contrary and that's worth noting because the supreme court had an opportunity to do so they the last appeal it was the not so there's no you know there's no basis to throw out the law the case and the law the case to me is clear as the that went to the supreme court when they said there was still some liability there so they made a terrible are stronger i find it interesting that we may now know the reason why let's just get rid of the words cases he said we also know that there is a statistical probability based on this me hands testimony that the warnings never got to these players and finally he was talking about all the immunities that we give up contractually all the protocol was things that we give up contractually