representing the poet thomas davis may please the court the what we have here is an issue kind of two issues that i want to hone in on one number one  that the principal was not protected by independent contractor defense if he implicitly you know implicitly authorizes the work and number two we're going to talk about ultra hazardous condition but starting with the first point i think it's important to note that the facts of this case dictate at this summary judgment stage they all should be construed in favor light most favorable to the plaintiff well established case law and i think if you look at the order that was rendered they were construed against the plaintiff what we have here is a person personnel basket transfer and dynamic who is a principal who authorized work on a day when there are thirty to thirty five mile an hour winds recorded at a buoy and dangerous conditions going on but the person who  the transfer did more than on that time correct correct there's a dynamic who is the principal was not actually on the platform they are on a platform there is a group of platforms in the gulf of mexico seventy nine eighty nine and think you saw some of the terms but he is at a different platform but he is overseeing all twenty two platforms how does he know the wind condition because the wind condition there is a boot right there and you know he knew it how do we know he knew it because all these platforms come from that same area and they all look to that buoy which is a weather buoy for wind that's the only one there are other platforms that actually have a fixed wind gauge themselves their platform that our client was on did not have a fixed wings wind gauge the platform that he was on there were other people near that platform who said that they thought there would be no work on the dang question because of the dangerous wind conditions what do you  warty and i think that's important in this case because stop orkut the wording was not exercised from the standpoint of they told thomas davis you're going to have to do this when he says or excuse me you're going have to repair this one which he says i'm not going to do that i want to talk to the boss i want to talk to dynamic why didn't he call him up instead of taking the personnel basket to a different platform why don't you just radio well the i think the issue with that is exercising stop work at the already offshore is a sensitive topic in itself and he wanted to have a discussion and the way he described it in his deposition which is in the record is he thought it was a more professional way to go up to the top and talk to the dynamic personnel but now i heard that wasn't saying much less professional to giving the person a basket to get in the personnel basket well we i mean that is right but i guess what we have here is what plane of says it is not dispositive in and of itself and i think if you look at the case law regarding implicit control over work it dictates that even if he's done basket transfers a thousand times even if he has stop work authority i think judge jones talked about some of these facts in the callahan case which show that what plaintiff says in an of itself is not dispositive and facts need to be you know laid in favor of the plaintiff at the time but i don't understand what the factual issues are in the case that that's good what you've explained to us is not good it's what the letter there's a duty and that's what the issue is though so correct and let me explain that for a second what we have is platforms where tori rocca unexplored on explicitly says he has the supreme authority he's a dynamic personal supreme authority who determines the work to be performed he assigns the work on the day in question he had no discussion with anyone about to sign the work he assigned the work of working on cranes ok he admits in his deposition that he would didn't check the weather the way he should he and he admits some of the things and he has a duty to when he is assigning work to not do it when there are dangerous conditions and i think that that fact issue exists that he assigned work to work on a quiet crane on the day  question despite the fact that there being heavy winds of thirty five miles an hour and whether or not that was a reasonable decision on his part to authorize his work and to do this work is a fact question for the jury and for and i think what it's important to say is if you look at the magistrate freshers order what he has ordered turns on is the fact that he says there was a fundamental fall because dynamic did not order the work he simply asked if thomas davis had time to do it and in that is stepping in the shoes of what a jury should determine and it goes against what the law says regarding when you consider a motion for summary judgment every inference were guarding the underlying facts need to be construed in favor of the plaintiff so you're saying just because he if we assume that he ordered the work then you should get get a chance to go to the jury what i'm saying is he has a duty to not conduct a war he is the one who looks at the whether he is the one who makes the determination he has a duty to not authorize work or forced to work in dangerous conditions or you back in office alter hazardous argument you started with in the briefs i'll get to that argument a second but i can address it right now if you like i don't think we're backing off a bit our only point with ultra hazardous is the case law that's been cited regarding alter hazardous as court is well aware of the three point factor test we meet that it's really what the case law says regarding basket transfers is a basket transfer ultra hazardous that's not correct and i'm not here to say that basket transfers in and of itself is a alter has of his condition and i'll agree with that and the case law is clear on that however the basket transfers  law works is it what it does it look at the particular facts and circumstances around to find altering hazardous instead those things become issues related to the people involved in the activity which may create some negligence or other issues but that's not an alter has risk condition is a small universe of defining things that are by their very nature alter hazard and they don't depend upon is still there that's what alter has as it's dealing with explosives while driving i think those are the terms they use what we're saying in this situation was you have almost hurricane type ones ok at that point does it matter how much care you use in a crane with doing a personal basket transfer when you have winds that helicopters will not even land in is there still a risk that is present that your client had the authority not to take the person i think that would go to comparative fault and i think it would still go to a fact question for it's not a matter of wall that because he got in the basket transfer therefore he can never ever as we've seen welding can be an alter hazardous activity to so you're really asking for a significant change in louisiana law are you by saying it's a fact pacific determination as far as alter hazardous it would be a change from what we've seen previously but not a drastic change well tell me the louisiana case law that supports your i mean we are working with the louisiana law right directly or well the the case law that is out there for basket transfers right now  the ones that were cited by the defendants have nothing to do with whether or not dealing with older hazardous now they did cite a case that recently just came out i believe it was  the case and i think that well first of all that case talks about whether in a footnote altered hazardous condition in a footnote what the case stands for what i took out of it was the fact that they specifically that there is no evidence of implicit or expressed authorization it does talk about there being rough seas but i think our biggest point of view regarding this case how it helps us is the fact that there was no one present at that rig but the court clearly states there was no evidence at all of l o g authorizing directing or dictating the work that is different from our case because our case there is authorization dictation as well as him unequivocally saying that he told them to do and that's where we get here is we have a principal who is directing work to contractors the contractor in order for him to do this work would have to get in a personnel basket and it goes back to your question earlier about your client got in the basket well in order to do the work whether he's stopping  work or whether he is doing the work in order to do it he has to get to the platform that's not correct why couldn't a radio or call he wouldn't had have to have gotten into the personnel basket if it was dangerous you're right and could have exercise stop work at the already what i'm talking about was a standpoint of in order for him to follow the orders i guess is about he's saying he's not going to do it i mean the worker who did the repair i don't have a timeframe eight but it was assigned that day i was  d to get it done but right have to get done and there's nothing in the record that says it has to be done in the next thirty minutes it has to be done in the next hour but it was a crane that was down on a platform that they want to repair and  they're not going to use the crane anyway right well they did if they were using cranes and that's the point the point is that dynamic was authorizing use of cranes or repairs of cranes in weather that it should not be and whether or not that was a reasonable decision for a dynamic to be authorizing war on the day in question goes to their duty to not a to monitor whether or not authorized work in dangerous conditions and to be able to you know whether or not that's reasonable or not reasonable would be left to the determination of a jury it's not a matter of law let me just ask you for my own information of what happened in this fellow od so he drop correct months later after this determination was made they were there was it's true there was a i guess meeting of minds between the parties prior to trial and we call it a soundman a payment of money right correct there is a settlement there was a payment of money  that happened much later after that i think it was about eight months or so after this summary judgment was right but going back two to i guess twofold when you look at what the determination support made is the court when it made this ruling stood in the shoes of a jury and the way the opinion is worried when it says to iraq it did not authorize the work instead he simply requested it to be done  that is making a factual determination so we feel that the court should be overturned on the fact that there is a authorization an evidence of an implicit or express authorization under the law which is an exception to principles liability for an independent contractor is our main point the other point is regarding the ultra hazardous condition that the best example i could come up with would be that when you are working with explosives it doesn't matter how much care you have things can still go wrong and that's what the court has kind of used as a guideline for what is all to hazardous in this situation when you have a crane being operated with a basket transfer in winds that a helicopter been landing due to their hurricane type nature that itself can also be characterized as an ultra hazard his condition and the reason for that is no matter how much care you exercise when operating it can't train and high win it please the court my name is penny nicholson and i'm here today representing the apple a dynamic offshore resources now both parties to this appeal agree on what the governing rule of law is and both parties agree on with the exception to that rule is that it provided the court with a dim sum demonstrative eggs and they set forth the that rule and basically that a principal is not liable for the activities of an independent contractor committed in the course of reporting its duties under the contract or the information that you gave us this morning including your brief yes yes all of the these cases were all cited in the brief and all record references are from the record and there's record cites for every factual statement  her provided two opposing counsel before the yes yes it was your own and so that the general rule is that a principal is not liable for the activities of the independent contractor committed in the course of performing it's kind of contract the there are two exceptions to that rule and one is that a principal cannot avoid liability if they can activity as alter hazardous the other  exception has two components to it the first one is that if the principal has exercised operational control the principal cannot you know will be liable also if the principal all has authorized an unsafe work practice the principal will be liable and so that's the general rule that everybody agrees on here from the alleged argued that there was not an independent contractor relationship between the plant and the gulf crane who was the plaintiff's lawyer the woodbridge that supplied the lead operator and shamrock are two overarching issues that this court needs to address in this appeal first whether a basket transfer is an ultra hazardous activity and second whether dynamic authorized  and unsafe practice and because we believe that the answer to both of those questions is no the summary judgment should be affirmed first i want to address the ultra hazardous activity aspect of the appeal vittie in the o'neil case this court defined it as an activity that presents a risk of harm that cannot be eliminated through the exercise of do you care the court put it a little bit differently same idea but a little bit differently when it said in hawkins that an activity that can be done safely with the exercise of do you care is not alter hazardous as a matter of law so that's what the law s in his deposition which is a part of the summary judgment evidence the plaintiff made of the mission that we believe negates his ability to contend successfully that and basket transfers ultra hazard with the wind and instead of into the wind so we what we have here is law that says that if an activity can be done safely it's not ultra hazardous and we had the plaintiff admitting that the basket transfer could have been  safely and so we think is a matter of law that means that the basket transfer was not ultra hazardous i don't want you to lose the train of your thought but technically speaking as art hurricane winds sixty five miles an hour in tropical storm or forty five well i might add well i'm not sure what the exact level is i think there's no i mean there's no question thirty five mile is very brisk but i just think technically it's not a hurricane but no i agree with that one hundred percent i think there's no evidence at all in the record of some of the seventy five or sixty five mile an hour wind so there's no evidence really of hurricane level weapons i think i agree that that is correct but with respect to this idea that the plane just admission precludes him from make successful succeeding on his ultra hazardous activity argument i would think that  and that is that page tap four of our booklet and edition has discussed the case law holds that basket transfers are not ultra hazardous as a matter of law those cases are set forth the tab five of the booklet the most recent case is actually from the last month it's the monarch a again recognizing that they're not a hazardous and a judge made a point that i think is an important line and that is plaintiff's main contention seems to be not the basket transfers in general are ultra hazardous but because this particular  allegedly this particular transfer was conducted and windy conditions it was ultra hazardous and i think the analysis does have to be done on a generic basis the kinds of things that have been held to be ultra hazardous are  blasting with explosives piled dry the crop dusting that kind of thing and when you look at the case law the court analyzes that timothy's they did they don't like say the ends worst case as an example that was the case where the plaintiff was injured during on an offshore platform during drilling operations conducted at night without why it had the plaintiff contended that was an ultra had hazardous activity this court rejected that argument but in doing so it didn't analyze whether drilling at night without lights was all to hazardous and looked at whether drilling operations in general generically or alter hazardous law and i want to turn to the authorisation of an unsafe practice portion of this appeal which is covered in tab six and seven of the booklet and the first thing i want to stay about that that the entire argument seems to come based on a pulse promise and it seems to be contrary to the record according to plan to the basket transfer in which the accident happened was an unsafe practice authorized backed by dynamics but that's just not true the plaintiff affirmatively requested that basket transfer and it wouldn't have happened in the specification of what's down but that's what principals do they tell independent contractors what work they want done but what really happened here and in this is undisputed i know a summary judgement so you have to take the most  of but even under the plaintiff's version he was here brive to platform seventy nine c he was taken by boat to platform eighty six and a while he was still on the boat the first thing that happened was that a winch was lowered from the platform in a basket the next thing that happened with that gary dolly of the wood group was lowered from the platform in a personnel bass i thought this was an unmanned platform i don't believe that's correct your honor this was that in eighty six that i was a man's platform eighty six b was and manned so that he was getting equipment to go to eighty today and mr dolly said well we're going to go over to platform eighty six b and we're going to fix the crane we're going to replace the lunch and mr the plaintiff said no we're not  conditions are too windy i'm not going to do that he was going to exercise his stop work authority but she and which he had every right to do he testified that he had stopped work authority at all times and he was how i want to handle this situation i think it would be more professional if i went up to the platform where there's a telephone and talk to mr rocca privately so the basket at this point was already on its way back to the platform and miss to comply with mr the plaintiff's request mr dami call the basket back so that the plaintiff could get on the basket and go back  o call mr brock on the front which was there there was no reason why he needed to do that to exercise to stop work authority ordered he want to have a private conversation well the only thing on the record about that is he thought that it would be more professional and i think not everybody would hear a and he just felt like it was a more professional way to handle it but he's already decided to exercise a stop work authority and he's certainly could've done it from the bout and if he hadn't made the affirmative request for a basket transfer the accident would never have happened and in looking at his request that i think it's important to bear in mind that he himself was a crane operator he had by his own testimony participated in hundreds of basket transfers to he knew a lot about basket transfers he believed that the basket transfer would be stay even after the accident happened he thought it would have been s operator had swung the basket with the wind instead of into the wind so the argument that this was the basket transfer was an unsafe practice authorized  list twelve reasons why he thinks that this was a unsafe practice that the dynamic authorized the first five point zero zero really boil down to that dynamic specify the work to be done whether you call it a request or an order or whatever you call it they specify the work to be done and it just can't be that specification of work can be that authorization of work can be the same thing as authorisation of an unsafe practice because otherwise the principal could never tell the other depend a contractor what work he wanted done and so those first five both points don't really  advance the argument there is another aspect to the first point which is that it says that mr rocca had control over the whole field and even if in some sense because there's the owner i mean that seems to be what they're really saying but there's cases that have held that lot just because you have a company man present that's not authorization of an unsafe practice and that's not operational control and in this case mr rockall wasn't even present a platform eighty six say he was off at another platform seventy nine at the six point i think it's a particularly interesting line that one says rock as order was not something day this could simply ignore there's no record site for that and that is because that is simply wrong not only could the plaintiff disregard what he calls that order he did disregard  decided that he was not going to repair the will and the crane until the winds have died down now he had every right to do that he was an independent contractor and he had stopped work authority and he decided to do it he also could have done the same thing with the basket transfer himself there's testimony in the record summary judgment evidence that he admits he could have issued stock work authority and not done the basket transfer of course he wanted to do the basket transfer so he would done that that he he didn't have to take the basket transfer the last point the last six points on page twenty four all basically relate to weather conditions wind conditions things like that and  those don't change the analysis either because the whole point of the con principal independent contractor relationship is the principal as agreement to an independent contractor who takes responsibility for that work and once the warp is gone from the principal's plate to the independent contractors play it the principal doesn't really have very much involvement anymore and doesn't have responsibility in any more so all things these things about the weather conditions that really fell into the the place to play it was for the playing to the independent contractor to decide whether the weather conditions were too bad to go forward with the repair of the prank or not and if he thought they were the conditions were too dangerous it was up to him not to do it to stop issue stop work authority and in fact that's exactly what he did in terms of the repair of the crane he said not doing it and he could have done the same thing with the basket transfer and in fact again he wouldn't have needed to do it with the basket transfer because that only happened because he requested it another point i'd like to make is that if anybody else was responsible for  the accident or the situation besides the plaintiff and besides the crane operator it would have been the wood group which provided the lead operator and that's kind of addressed in tab seven of the handout reflects that no other dynamic personnel were present at the platform and the plane just said that he was not aware of any other dynamic personnel being present at the platform and at the pla minute if there are no dynamic people at a platform then the lead operator is the one in charge he's in charge of safety isn't charge of operations so the fact that if in fact this was an unsafe practice it would have been up to the wood group to stop the basket transfer if that was in fact and say it and so we believe th ok mr fenley rebuttal is sort of first first i want to address report earlier if i misspoke earlier talking about hurricane type points i don't believe that thirty five miles or thirty mile an hour winds are hurricanes what we do believe is that they are excessive winds and if you look at the record as a whole even checked the crane operator in this case testified when he was deposed that you should not be doing personnel braz skits and thirty mile an hour winds and it's page seventeen you as an operator would not want to be doing personnel transfers and correct if you have thirty mile an hour wind no you wouldn't want to do it and it's exhibit a to that which is it's a deposition and i think that's important here because at the time we talk about implicit authorization at the time that mr davis is on the boat he does not know the wind speed what he knows is there is one and when the implicit order comes from the fact that the boat was sent specifically this platform for the purposes of using the basket the basket was being used at the time of this incident meaning they were transferring personnel already they were transferring equipment already and they were doing all of this at the order of dynamic troy rock now plane of did get in the personnel basket and travel back up to the platform for the purposes of making the call and the reason for that was the fact that the brad goes all over the to every single rig and he testified in his deposition that he didn't want to alert everyone all over the whole different all over everywhere he wanted to have it want to one conversation with troy rock about the conditions that he was seeing there was no wind gauge at this platform there was a wind sock only and so those are the things that he was he was going to talk about but it's important if you look at i know it was thirty to thirty five miles of the wind sock if it's straight out it's a thirty mile an hour wind saw and it was straight out testimony says it was straight out on the day of the incident but not only that the weather buoy was a short distance away and it was in the root cause analysis that had a not speed on it that translated at thirty miles an hour and there was testimony that because the reg is a hundred feet higher in the air that it was even faster than thirty miles an hour did your client say that when he saw it as he was going in while he was in the basket going to the top he said he saw it at that point and was is it correct that he was a crane operator before it was correct he was a he had to crane operation license i think his duty was a actual repair me and that's why he was being sent out you can see the white caps i mean thirty there would be white caps and someone they need additional workers in this case it was about repairing a foghorn ok he tells the principal i need additional workers the principal believes he doesn't give in to them the gentleman mr bowden goes and does the work anyway himself and he's injured at that point in the court ruled that that is an implicit authorization when you he there's no other way to do the work you requested more people the person leaves and you decide to do even if you decide to do it anyway you're doing it under the implicit authorization and so i think that's an important distinction that needs to be made is a pledge that authorization or express authorization are both standards that have been met in this case that we feel of whether or not what he did was reasonable should be determined by a jury the other case i wanted to point out is a case judge jones you were on the callahan case and what that case i think what's important about that case when dealing with him in golf logistics is he was asked the question did you think that you could safely perform the personal basket transfer in the conditions yes sir i felt i was obligated to do it so yes i was safe enough to do it now you eventually made the personnel basket transfer safely correct correct and the court correctly pointed out that his subjective believe concerning the safety of a personal basket transfer may be probative but it's not  of whether or not golf logistics breached their duty of care by authorized or by setting up the transfer will end this case mean that those statements on his part would go to comparative below and they would go to a hazardous activity well yes but they don't go to whether the company authorized it right yes and i completely agree with that your honor it's the statements of whether or not he thought it was safe all go to comparative fault they don't go into the fact of whether or not dynamic implicitly or explicitly authorizes worked in whether or not it was proper to do so ok jim thank you for your good afternoon thank