morning cocher him here on behalf of the appellant and i'm sure the court has reviewed this thoroughly i want to pinpoint a few things here if we could today an interesting situation here with the district court held as a matter of law that apex as the consumer of this toilet supply line should have contemplated that there would be a leak that would occur even when it's its legal proof but on the other hand again holding as a matter of law clearly the jones stevens the seller of this who stands in the shoes of the manufacturer should not have foreseen this even though john stevens puts on leave all its only belong there saying that this is reliable and good all those sorts of thing but the civically saying that it had a leak proof seal puts a very quandary in the consumer who obviously here there's nothing in the record to say that the consumer knew anything about this product going in in terms of its effectiveness and unreasonably dangerousness aspect of it as especially when you know that it's in the record here over one hundred fifty claims against jones stevens for this defective been recently dangerous product that they put on the market are we talking about the same product the same toilet supply line that's the one they said in their answers in iraq the tories we were speaking about this supply line well that maybe different than what was in the one of the class action suits out there that's what the court referring to but in their own interests in iraq the tories which are in the record here they refer to and we've got one hundred fifty six others that occurred before this incident they don't say that they train thing like that in particular but with regard to saying well yeah here they are but again i want to if i could address the strict liability first here and then maybe the deceptive trade practices  our time to go through all of them but i think in particular i think the fulcrum here on the strict liability part is the issue of is this thing or could this thing be unreasonably dangerous i think that's what we kind of dispute here doesn't sound like it does it was a lot i'd hate for one to explode in my house or your house and and damage from the second floor and damage the whole house and all the contents yeah i think that's dangerous to the property tap salute tell us a law that two things in particular one is that the definition of recently dangerous i think that it brings it to us under arkansas law and the berkeley pump case they had this pump they said well it will pump your water stuff out of the river and that kind of stuff and the courts as well you know they they went out there they looked at it they saw was it working or not so it's kind of an open and obvious thing to begin with but they say look this thing may have not worked the way you like to ok but was did what did it damage i thought it killed the crops because they were not adequately watered that was something that they knew this was a sophisticated user of the product but it was that decided based on knowledge use it was decided based upon them being a sophisticated user and in the statute in the long arc and so it says you must take into consideration the knowledge that sophistication well the consumer here there's nothing in the record nothing to say that my client was the knowledgeable sophisticated user of this product nothing zero so how does a court find as a matter of law  now satisfies what i say of at least a two or three prong test there one has to be contemplated well how could it be contemplated by my client in the other case that you cite just button that get they went out there and looked at it plumber put it in the of the guy could have been idiot word said in the record that that completely void of the right well now let's try the williams case on what about the williams case just a regular old not malfunctioning they said that's not a dangerous condition said the arkansas turner of what the record is in this case no doubt no it's not a laughable thing here because this was decided as a matter of law based upon the record before and the record before it does not show that my client contemplated this in fact it shows the opposite it shows any any reasonable person would think the opposite and that well these cases don't seem to turn on what the specific buyer contemplated they talk about what a reasonable and ordinary consumer would try to play a little all right well you say absolutely but a minute ago you're saying there's nothing in the record that shows my client contemplated this which made it sound like you were arguing that it was  specific to the particular buyer oh no no no but so you're agreeing it's an ordinary reasonable buyer so how do we decide whether an ordinary reasonable buyer contemplate else that i think fixture might leak i think that's a question for a jury i mean how can you say as a matter of law but then the court's going to say well i can say don't you agree i don't agree there are some cases where every state supreme court's going to say that's beyond and we're not to let that go to a jury because it's so clear like shoes wearing out you know something like that well they can't think them of the ones they know this is and choose wearing out that this is a product the fact no question about that no question that's a product effect which been known in the industry since before this was bought manufactured installed and all that i mean that's in the record in the undisputed affidavit which is also very interesting here how they're only fact that they rely upon is that this thing was you know bought installed in two thousand and four two thousand and five that's the only fact they bring before the court the only fact well how did that determine a thing on that they didn't respond to any of our statement of facts or the affidavit in terms of countering them other than allegations and speculation you talking about the last sentence in the vander s breaking exactly word breaks you have if you take the standard here every reasonable inference in favor of my client under the circumstances here if we were here after a trial i don't think we'd be here after trial on these points ok the argument here is very simple this was saying as a matter of law i'm not going to believe this affidavit even though there's nothing to continue to go against it ok it you know it says their label on it what tells us that they knew or should have known about it you know whether they knew or not irrelevant here especially if it's wholly irrelevant in a strict liability context but even in the negligence or negligent failure of warm cont they're putting a label on it saying jones to even say this is reliable this is a leak proof seal this thing is great you know they're doing all of that and we're saying as a matter of law that the consumer has a greater knowledge of this and a greater understanding of this product than the person who is selling this day in the shoes of the manufacturer who puts its own label on it telling every consumer and the person installing it whether they have a half brain installing it or not i'm not calling anybody out here but again there's nothing in the record to say what the person knew or didn't know but what a reasonable person would know i'd say is a reasonable person they say john stevens boom they put their label on this they represented that this is the how it's going to be and then this thing turns out not to be that way i mean the burden here shifts to them ya know we presented the case we recently dangerous we have affidavit supporting this we have a catastrophe you say is this a bad thing this is not choose where and out go get another parachute this is a whole home destroyed there this building ok that their us ok what if what if it had been discovered earlier so there was less damage with then when it welded to the dollar amounts would be less would that be different on strict liability you say oh if it's like dri it exploded but you found it within a half hour and stopped if it exploded out still it's still a catastrophe because you're looking at the whole picture here as to what this i've done is and he said to be relying on the fact that a whole building less destroyed because i am relying that what you said i'm relying on the facts and what the jury would decide as to one where the other as opposed to saying look this is not under easily dangerous that don't really dangerous i mean the one hundred fifty six they have the thousands that are in the other class action suits but you know wait a minute you know there's something there's something bad with this thing now is done recently dangerous that goes to the contemplation and the sophisticated user test and both of those fail here any minimum they are factual issues for a jury to decide to have the opportunity to decide those if i could shift gears just for a minute to them the how would you want on evidence of what an ordinary and reasonable buyer would know how do you put on evidence would put the evidence of what my client knew or didn't know for one that would be one and the other people i i go and you know the jones stevens who i have their stuff if they're selling such a product and they're they're representing that this thing doesn't leak and then it explodes and cause a catastrophe and damage to property you know what happens the next time when one of these breaks and there's a baby down there and it drowns does that does that shift things a good jury question but this is make every electrical fire the end i mean that's pretty bad deal if there's a mismatch marring of a house i'm going on the facts here and this is the catastrophe to my clients property and of the arkansas by law we're entitled to go in front of a jury and prove that to a jury you know otherwise we just draw the line and say forget it a product you buy it if it messes up you know you're off the hook well yeah but i'm giving you the opposite situation you and i are talking past each other so i'm trying to give you cases where everybody would say that's not a that's not going to let you know that if i have to go up here to get her if i have to walk to my bathroom every day the sense of both your questions here and check and see if that thing is leaking why would i do that to begin with because the things as it doesn't leak and number two i'm supposed to check that every day now i might have to check my shoes now and then to see if the threads worn out ok but do i go into the bathroom and go under there and wherever the gadget is underneath and go look at this thing is that or for a reasonable consumer to do no because they don't contemplate it different than the other case where he's out there looking at the product of the things flowing water and flows good or doesn't flow that's a sophisticated buyer that understands whole pump works and doesn't work totally distinguishable from the facts in this case all we're asking for is a trial on the merits of the case i'll just take one moment so i can face on perhaps on reply we found sorry on the deceptive trade practices act which proves our case and  hear from you good good morning it's still morning barely been too long for me on my commercial and it's an honor to be here very interesting case i know this court takes very seriously its obligation to  supervise the district courts to make sure their discharging their duties under the erie doctrine and to make sure that they are faithfully apply the same state substantive law all the judge baker was obligated to apply and did in fact apply here i don't want to argue a case that didn't happen i'm going to try to speak to the facts of this case and let let me start out  of what is defective and what is unreasonably dangerous that's not necessary for this decision that's the motorcyclist that can have no expectation that a motorcycle going to provide rollover protection on a spot impact case ok so and i agree it is an objective test but it's not necessary to this decision we've we've got our clothes on and i thought that's what judge baker was doing well with the berkeley pump case she did but if you don't think product liability practitioner we get caught up in well was it defective in two did it hurt anybody or did it breaking things and the first part of that is more foot we usually consider to be defect i think it was there a malfunction i mean every every warty we've ever seen was a defect in material workmanship arkansas defines defect defective word malfunction is not in there so defective it's got to be unsafe for reasonably forseeable he that is then our product liability act passed in one nine hundred seventy nine so the other aspect is the hell that way i don't know where you're going because this was unsafe it we heard there's a lot of other cases well it messed up and did a lot of damage all later stuff that can't come into play as to what joe stevens knew or should have known at the relevant time frame i submit we don't know we have two thousand and four two thousand and five we don't know when it was main factor in china we don't know when john stevens placed it in stream of commerce because once it did anything after that post sale all we know is that these plumbers one of these plumbers in the star console bought it somewhere and he stark and so  put it in a duck club in humphrey sometime in two thousand and four two thousand and five let's go back to the legal issue i want to make sure i understand your position i thought on the strict liability claim judge baker said this leak or stream is something that could have or should have been contemplated by a panic ok you say that's not necessary she said it i don't know you defending that or now i know it's not necessary to her decision or to this any didn't give an alternative reason produce missing the strict liability claims what is your she did she did and i'm getting there judge the other aspect of this is that it's got to be unreasonably dangerous and the core holding of judge baker was that the nut did not present a distinct danger in this case that was her who are ruling and and that is unimpeachable we we've got one case that i have found in arkansas law and it's a good case it's the form bureau case corporation of the new tractor the cat that caught on fire now they spend most of the if we don't take issue with that case we agree that a tractor that catches fire is under reasonably dangerous ok the only water case we have in arkansas is the o'meara versus and that was the case where the we know in arkansas house is a product that's black versus fred and it did not address whether formaldehyde and carpet is on the recently dangerous he just said house of the product so the affirmed summary judgment for the defense that involved water intrusion an entry into a home that call for property damage which is the same core facts of this case and judge thornton speaking for the say what you will about it it's not unreasonably dangerous and the appellant says well that was just a failure of pleading no it was they evaluated i'm sorry so is it the water you're saying can never make it dangerous or owned the facts of this case this is not an unreasonably dangerous product this is a u c c warranty case that unfortunately the clock ran out five years before this failure happened and so we're having to stretch strict liability far out of proportion to what any arkansas court has ever applied it and passed the breaking point but this is not in your view dangerous to prop this is not dangerous this does not present actual physical dangers they they would that route tom marsh went that route in the omar case he couldn't do it if  he can't do it it can't be done and the court said whatever if you if you say a water intrusion that called his property damage it's not dangerous and that is the core holding of judge baker it is under the standards set forth by the court it was a thorough analysis that she did it with has a very very reasonable and rational basis it's not saying that she was wrong unfortunately she relies on berkeley pop and you say berkeley pop and apply here well no i didn't say i think burglars well into the williams case with a personal injury case i we don't that's a little bit just for clarification yeah the that was a personal injury case and i'll agree that a product that causes personal injury fits squarely within four o two a in our in our product edgy no dispute about that berkeley pu the she quoted it at length it obviously requires actual danger say what you will about this it it's not a dangerous situation nobody failed them that didn't happen that's the next lawsuit that's malfunction of a product cost property damage when the product is not defective and under reasonably dangerous and why you know mara well the the there was not an unreasonably dangerous condition unsafe is not defined by statute we go to webster's danger is not apex did not purchase this they have not submitted any claim that said that in this context that a non purchaser can reasonably rely or have resulting damages from an alleged deceptive  the case they have is the let me raise real fast i'm sorry it is the the electro craft case the electric craft plaintiff was the purchaser so that's a non issue we agree that non consumers can file lawsuits under the a t p a you can be an aggrieved commercial entity and be a a t p a plane if it's not limited just to consumer transactions that's all that  s but the fact is these plumbers this is based not only ape not based on a tag this is boilerplate on a tag and these plumbers are around presumably it's not our burden we don't have to prove anything they've got federal pork subpoena power and can put that record before judge baker they didn't let me ask a simple question of the arkansas deceptive trade practices act does the person suing have to show they relied on the representation the deception the way that that is the case of all the the precise statutory language has damage resulting from the act and the courts have have they described that as a reliance requirement there still got to be calls in fact damages from that and again i'm not familiar with what the letter is going to be apparently the last word has not been spoken about that but there's absolutely no idea of what these plumbers knew or did or relied on at all and so there's a way to bring that before  get in the record and the absence of evidence is the problem with the party that has the burden of proof not us again in this case we don't have to prove anything but the if i can speak briefly about the negligent failure to warn there's no evidence there's been no discovery about what joan stevens knew or should have known back in two thousand and four he says this expert said it was a well it would in the industry right that very could be voids from the manufacturing process there's nothing that says that it's known that these products fail interestingly this you mention the two thousand three plants action that's not in this record the two thousand and twelve class action is what was the allegation and that was that these folks have a reasonable x expectancy that this product should have an average useful life of ten fifteen years this one had nine years and and probably more and  anything about how much sheet rock they had to replace or if there were you know shotguns that rusted or oriental rugs that that was not developed but certainly under the the damages allegations that they have and the evidence that they have come forward with the so far they have not met their burden of proving actual physical danger my time is up i think the court thank you for your argument and you'll feel we'll hear from mr cochran briefly briefly very quickly on page twenty five of our brief it has the black case arkansas all supreme court quote can find no valid reason for holding that strict liability should not apply to property damage and also just other well the case in arkansas about it well here's the supreme court's name specifically it does apply the property damage i mean that's one thing you don't expect your your water tank to get of the pipe to blow up there the couple are here to blow up and to destroy the home you know as something close in or something against something drips or something that's a d i mean here you've got something that's going to represented by them to be leak proof it's just a different story again the bottom line to us is this is a factual matter for a jury to decide let them decide what it is one w other here in you are right your honor if i could just take one more second here on page eight which is also it then the eight of the district court's opinion it says the possibility  of the toilet lined with something or should have been something that apex contemplating that's the ruling here that's the whole hawke there is not of the stink danger ploys by this toilet supply line well it is a danger admitted before the court today it was a danger to others unsafe the supreme court says that's the property damage and we would ask for a day in court and have a trial on the matter at a minimum not so sure it's not summary judgment for us but i think it is as a minimum this is a matter for the