good morning and thank you the reason for this appeal is because the commission has departed from existing law and placed an improper and impossible burden on the construction employers regarding the degree of supervision required  occupational safety and health act the primary issue presented by this appeal is whether under osha an employer is required to review the basic work passed before my crack persons in this case the reviewing the reading of blueprints  lecturers under the commission's view the failure to do so automatically imputes knowledge of a violation by that individual without requiring proof of foreseeability which is the rule in five six circuits the decision of the commission is left undisturbed was it would essentially require construction lawyers to review every task that a licensed were skilled craftsperson performs on the job site to make sure they've done their task correctly which is not a burden under osha but what's wrong with the basic rule that knowledge of a supervisor can be imputed to the employer there's nothing wrong with that as long as it requires a showing by the secretary of foreseeability there has to be one no i left out foresee about supervisory employees there's two problems with that first the course of look at that rejected that idea has found that it's strict liability which is in permissible under osha the other policy what you're talking about is a mistake on behalf of an electrician and performing that and it's of their trade the policy issue behind not requiring automatic imputing of liability is it discourages employers from doing they're going to be automatically liable it makes supervisors take reasonable care it makes them take it will which is which is the standard for constructive knowledge but that's not the correct standard and  regime i take your point that this is not torture and therefore you could have a different regime here i think the premise of the question being put to you that why don't we have the same regime and it just doesn't i was puzzled by the answer that we don't have energy because and no employer would whole scheme in place is different from the common law of duty breach of duty causation type of structure in the civil setting in the assessment of damages you actually have good or osha you have the potential for criminal violations you do agree just cases owner of the facility had designated a team to prepare work procedures to perform the work they failed to again a five one of the electrical feeds to that bar to that bus parcel it was life it would have been discovered had the foreman on contact the policy stated very clearly don't allow blueprints don't rely on anything else test not only the area you're going to touch but test the area that you become an accidental contact with and what happened to the  injured ploy is they raised up when they were trying to unbolt the cabinet and his face struck a cabinet that was energized that was in the zone where they could be working you're all familiar with the standard review of  it's arbitrary capricious of uses discretion as to legal issues substantial record evidence as factual issues and there was a factual finding of foreseeability the for the family even so even if we accept your promise that that is an element for imputing knowledge least you would have to show that that finding is not supported by substantial evidence that school seems like a heavy lift for him will and ordinarily would be but i think we clear that bar in this case because that finding is based on a nonexistent obligation for some for higher level supervisors to go back and read the blueprints to make sure that mr pachachi had rigged the blueprints correctly that's not the burden under ocean that would require an employer to go back and redo the work done by a licensed electrician he's licensed to state is eighteen years experience he had to know how to read blueprints to get a license the commission said he knows how to read blueprints in their decision they also said his error was obvious they used the word obvious so if you can't rely on an electrician to do his job correctly and you're automatically liable for any error they may when you didn't do something else like you were on notice that they didn't know what they were doing they had committed violations before you did something else wrong as an employer you can't use cichlid have to go behind your secure craft employees and redo all their work that you can't do that in business you can't do that's never been kind of ocean they've never posed that kind of burden on employers before in the cases that we rely upon the only time when they talk about supervising and supervising the activities of a lawyer they're not talking about their basic tenets of their trade not their performing their craft work they're talking about they're performing a safety function like i wear a fall protection there is a duty to supervise their to make sure they have the correct well i want why can't the decision be supported on the gale j it's much narrower theory which is that in the circumstances of this case it was foreseeable that there would be special issues arising from the circumstance that fidelity controlled the switch because it still comes down to i think that's where it still comes down to the way to identify the circuits regardless of who's your o the blueprints read i'm wrong here but this along with the person who drew the blueprints who work for the engineering company who was in the room the entire time they knew this that connection were let's assume we're responsible for that it's it's not c ability the narrow fighting that you it was forseeable because of this immokalee procedure it's no different from any other procedure where you read the blueprint you read you read them you read them to determine what connections need to be this and that actually it actually hurts his case here because it would be less likely for us to need to review mr fairchild work when we knew that we had all these experts this dream team of pease the project supervisor at griffin delegated this entire method of procedure process to mr pike he didn't give them instructions on how to create these methods procedure documents he oversaw his work exactly necessary to identify alive parts the problem is he didn't take action to find the bars and then as he was executing the method of procedure document he and his subordinate mr juice go usually fails to test parts of the work area that they could did me to be the conditions which gave rise to the injury from your perspective were both of those relevant to the analysis was one of them doing more of the driving work well i think it's both and i think that griffin's negligence in creating a safety program in providing instructions to mr pachachi so that he would know how to do his work so he understood the rules that apply to him at the work site that's griffin's failure and griffin delegated this is simon to mr pyne chalky and then it was his exposure to these life parts but he also has his knowledge of mr judge's goes exposure to life parts and that was a footnote that we added to distinguish from these cases that griffin has brought up where some circuits have said you need to make this foreseeability finding if you want to impute a supervisor's knowledge of his own misconduct to the employer it doesn't really come into play here both because he's working with mr juice go so you can impute mr truckies knowledge of mr juice goes exposure to lifeguards to the company and then we also have other independent grounds of knowledge here we have mr pieces constructive knowledge of the vile the condition and we also have constructive knowledge on the basis of inadequate safe so if if shock he should have now of the danger and if to take your opponent's position if a company can reasonably just leave this kind of shocking to a front level supervisor and say look you know piece pieces focused on much broader responsibilities so no not nothing wrong with leaving this cases they look at that language and they say this means in player there's a and in for incident where your safety program is inadequate where a supervisor is engaging in his conduct because you haven't communicated to him what he's supposed to be doing and or he doesn't fear reprisal from breaking the rules so here mr hyde chalky clearly didn't understand his responsibilities he didn't understand how to comply with the no lifework policy he was working at a work site that had unique conditions where he had never before worked at a project or another party was in control physically turning on and off the circuit breakers that increase the risk that someone could activate a substation that he thought would be off when fact it would be on and that's why it was so important for him to make inquiries there is that there weren't specific rules given to him to avoid the exact situation that happened here in the fifty first iteration the fact that didn't happen before is very fortunate however the issue is that and knowing that there were these atypical circumstances griffin could have foreseen that he would at some point during this process as he's now you know writing through these these procedure documents he might rely on an assumption as opposed to making the sort of inquiries that he should be making to verify that parts are either on or off your sounds like a good twenty twenty hindsight y well i think it relates to the reliance on his expertise and so this is griffin's argument is that while we're able to rely on the expertise of an of an expert foreman and there are several case in the record that says well no you're not allowed to fully shift responsibility as employer on to an even an expert employee because i'm going to get and work rules that are going to be able to educate them on what they need to do to keep himself and her safe and they also need to monitor their compliance with those ripples in some way to make sure they actually do understand what they're supposed to do and are following the rules so there are several cases that affect caterpillar from the seven circuit dana shot from the six american sterilizer and paul barry from the commission all of these say that you need to do so the test before you touch several things on that it's clear that it wasn't understood is the main issue mr pie chart he's testimony revealed that he didn't understand that he was supposed to touch parts of inadvertent contact we know that mr juice go get those are in fact the rules of a have said would have prevented those worlds that are laid out they were clear and yet they weren't understood so there was a problem in terms of crude communication i would say yes i would agree with you there wasn't clear communication i would i want to address the test before you touch policy because that goes two ways one is part of if they want to prove foreseeability by missed by a lack safety program they have to say more they have to show more then one individual may have it it's not clear from the record whether he misunderstood it or not and they have not comprehended that the policy applied to areas of incidental contact because the record is clear osha in the commission acknowledged that the policy says right on its face you not only test direct there is a contract but areas of potential it's a double contact and it also says why you do that because of the step so i'm a p fifty one over the tiebreaker no why not because when we finish forty one day that's my bus was not installed yet so it wasn't commission it doesn't matter if he thinks it's commission if he thinks it's alive if he thinks it's not life the whole purpose of test before you touch is because it could be somebody could a come back while the last time you worked on it and turned it on it's wrong that's the whole purpose of us test before you to and in light of everything that was positive about what was done here's one if it's a misunderstanding about that the policy was clear the training was done multiple times on the site where the policy misunderstanding i'm not seen you did it on purpose it was certainly an accident but that's the kind of thing that employer is not responsible for unless it's foreseeable well when he says i didn't test it because it hadn't been commission that isn't i'm sorry is something he did on purpose he had a reason he hadn't been commissioned that's true that's a conscious decision he made not to test it if he did if that was the reason he did it that's not forse