and please the court posing counsel your honor the your honor sir the primary focus of our appeal is the lack of focus of the trial court upon the contractual documents which created duty on behalf of the defendants toward donald jeffords who took a fall from seven feet one inches off a walking working surface on the b p site the trial court ignored the direct contractual provisions in the various contracts which obligate and create a non d violations and osha regulations which distinguish it from two of the cases that were cited by the trial court ryan versus t c i got architects and hung construction route versus garrett those did not involve osha violations and there were specific contractual provisions related to both floor and m c i which obligated them to make sure that they and the  subcontractors and other contractors on site complied with state and federal regulations which of course include osha osha regulations  contract between b p and floor where the language makes the obligation of upon floor to make sure all sub contractors and vendors comply with federal laws and regulations so what do you make of the language in that contract that all duties and responsibilities undertaken pursuant to this contract will be for the sole and exclusive benefit of company that is b p and contractor floor and not for the benefit of any other party while there's other contractual provisions that differ with that language so if they're in conflict with each other what conflicts with well when you have when you have contractual provisions that obligate fluor to make sure all subcontractors vendors come and vendors comply with all state federal laws and regulations that is a non delegate will do you know that doesn't doesn't that doesn't necessarily run for the benefit of anyone other than b p it when you have a contractual obligation and fluor assumes a duty to make sure that all subcontractors and managers toward everyone on site so but the only place of duty you specifically addressed it's for the sole and exclusive benefit of b p but that conflicts with the obligation under the contract for flu or to make sure that osha regulations are complied with all vendors and subcontractors you can't you can't get away from a duty toward subcontractors and vendors by simply saying well that's that's  that's only helping us b p made made it clear that floor it in their brief review made it clear that flora was hired to be a safety group on the site making sure that these types of regulations were complied with and they also made sure that floor would comply with their integrity project management plan as provided in section twelve point  eight of the contract between b p and floor and i mean there's a couple of different provisions that make it clear that the floor is supposed to follow all federal regulations conduct work in accordance with health safety security environmental for cedars that were set up by beef he make sure that they were to supposed to implement those plans and also provide construction management services of a rd party contractor you can't you can't contract away a duty to comply with osha regulations they apply to and they applied to mr jeffords were various parties that obviously would have to that would have to make sure that those regulations were complied with on site but b p m c i and floor were three of the parties who had to make sure that osha regulations were complied with michael right we cited his report and he goes into great deal at the tail of the osha regulations that are required that the parties are required to comply with i could not sit here and cite every singer raia lation that mr wright cited but there are  specific regulations related to fall from heights which include the general duty clause which include various specific regulations for requiring there to be  personal fall arrest systems harness systems things of that nature that should have been in place to prevent a fall from seven feet one inches the post fall investigation made it very clear that there was never any type of hazard assessment of risk assessment that was performed by anyone related to that particular task that mr jeffords was performing at the time of his fall so there are very specific or relations specific osha regulations relating to falls from height your honor and those are cited directly in mr mr wright's expert report and also he goes into great detail on how they apply to three apple lee's b p m c i and floor and certainly they also applied to mr jeffords employer who would be one of the parties if this case were going to trial who fall could be assessed too but for purposes of this appeal mr wright cited in great detail as i said osha regulations and how they applied to b p m c i and floor  and going further i mean b p retained overall control of this site and the contract between fluor and m c i there is provisions making sure that p also only ask you about that you said in your reply brief page eleven by acting as floors principal d p s liability extends to any negligent acts committed by floor censure what you just said that directly contradict to the general presumption in indiana the independent contractor is an independent contractor that the person who hires that contractor is not take on liability for their negligence well but you do it again going back to the contractor are let's ask about well i'm talking about the more you're arguing more general principle agent terms and the contract that i see says sole benefit  p and you seem to be trying to get around the general background role of the independent contractors well understand that in the contract between b p and central even though it states that central is an independent contractor the provisions also make it very clear under section four dollars that b p shall supervise central so you have conflicting contractual provisions and we are relying upon the contractual provisions to for our best argument related to how do the applies in this particular case on this part on these particular facts and you have to look at these contracts you different contracts your honor you have a contract between b p and floor you have a contract between b p and central you have a contract between b p and m c i and then you have a contract between fluor and m c i and that is different for example then the one construction versus garrett case where all you had was a contract between the construction manager and the owner so in other words it's like want having one of the four contracts and so these fluor specifically that's very there's very specific language on how they are required to comply with federal regulations and make sure all the vendors and subcontractors comply with federal regulations that's very clear in the contract but you have to read these conflicting provisions and i agree with you that the provisions conflict hower for ever if the provisions conflict i didn't say that the provisions conflict maybe i was interpret in that you thought the provisions conflicted if i misinterpreted that i apologize i certainly would agree that the language in the contracts do conflict but i think from that the conflicted language you look at the language obviously is most favorable to the appellant and when you have a direct contract between b p and central that requires b p to supervise the lift activities and then you also have the fact that outside of the contract b p has separate lift procedures that require anyone to obtain a permit that various witnesses testified to that are outside of the contract and then you specifically have provisions that require b p and you require central to be supervised by b p and then you have b p also making sure that on this entire project they have an integrated project management team and you have various provisions specifically related to that integrated project management team and the top person on that team is a b p person peak power from the testimony of witnesses he's the top person leading the overall site safety making sure these contracts make sure that they are required to comply with this these policies and procedures that b p already had in place which again require risk assessment task risk assessment and if you go to the very specific language these are these activities and the specific activity that mr jeffords was performing at the time there should have been some type of risk assessment performed by these parties and it was very clear in the post fall investigation which made it very clear that none of the parties complied with any type of task or risk assessment and you have contractual provisions that obligate floor obligate m c i and then a and then again or relying upon  the contractual provision with b p and central that requires b p to supervise central in their lift activities and other activities associated with list too you know which puts into words the degree that applies to b p and then you have a direct contract between b p and m c i that makes it clear and talks about the fact that they will be responsible and liable for the equipment and contractors materials facilities and the safety of personnel b p personnel and rd parties who may be impacted by contractors provisions of good goods and or services and then you have testimony from the witnesses who make it very clear that m c i in addition to floure was in charge of the particular site that we're talking about on the lake front area in the outside battery obligated them for the safety of personnel b p personnel and rd parties who may be impacted by their provisions of goods and services but then they also have a direct contract with floor acting as b p s agent and there are specific contractual provisions that require them again to make sure under section two thousand seven hundred and one appendix one hundred and eighty six contractor shall comply with and require ensure that all its sub contractors vendors and material none comply with all valid municipal ordinance states and federal laws and applicable orders regulations which of course include osha regulations and then further in that in that section of the contract in two thousand seven hundred and four dollars contractor shall include all entities and persons of the contractor group which is defined earlier in the contract between floor and i to basically include everyone if you go back and read the definition of contractor group on appendix one hundred and seventy four contractor group shall mean the following entities and persons individually and collectively contractor and its affiliates its sub contractors and vendors and their affiliates and the officers directors employees agents and representatives of all of those entities counter act that excuse me contractor group shall not include any person who  a member of the company group or owner group so that basically includes everyone on the site i think even include somebody who isn't doesn't have any of the particular country with him so yeah i just has a contract with that that's correct could you address the question of proximate cause raised by floor you didn't address it in your reply brief that i saw well plot the proximate clause wasn't addressed by the trial court no but it was brief to our court correct it was an alternative ground for a for a firm and is being argued by your opposing party well and obviously what how we address proximate cause specifically is i retained an expert michael right to address proximate cause who reviewed all of the materials dettori answers including all of the post fall investigation and clearly reached conclusions that would satisfy proximate cause would satisfy duty  breach specifically responsible cause proximate cause so i'm relying upon mr right to reach those conclusions related to proximate cause thank you thank you i'd like to reserve the remainder of my time  because b p did not actually exercise any control directly over the crane that with mr jeffords was on when he allegedly fell that's what governs this case is that b p was a promise  owner plaintiff and briefing in the district court as the district court's opinion noted did not brief that issue did not oppose b p on that issue and waived the issue for purposes in the district court as well as on appeal and that doesn't construction manager or a general contractor and even at some points in his brief he's actually says b p was a construction manager that's laughable and the contracts make that clear as well as the depositions b p entered into a contract with floor as a construction manager to actually manage the construction did seem odd to me that b p was the and to do that hired central current seemed to me that one of the other entities that subcontractor such as m c i where central to actually perform work but then they entrust the management and coordination to a construction manager like floor and then entrust to central and m c i and the other subcontractors some case from the an indiana supreme court makes clear that even if you could characterize b p as a construction manager it can only zero a duty of care if it actually directly agreed in a contract that b p was going to be responsible for the safety of worse is there some place in the record where this custom and practice of the industry or b p s decision to hire the kind create operator itself would be explain to us given really background information in the record that helpful to us i'm not aware of any i can say that in the supreme court's discussion in the hunt case it does give a little bit of background on that record it's clear that central in its contract agreed that it would be responsible for the safety of its employees which includes the plaintiff mr jeffords they also agreed to be responsible for the means and methods of the work which that central had the obligation to make sure that however mr jeffords was going to inspect his crane or do his work it had to be safe b p did not undertake any such responsibility nor did b p undertake gratuitously in terms of its practices at the site any responsibility over safety there is no evidence that there were any b p personnel that were out and about telling central how to do its crane operations or actually telling the workers how to do their means and method floor to approach and they would approach floor to inform central as a subcontractor that they need to change their work practices centrals another subcontractor central is a subcontractor directly with b p that's mix if it goes into so at many points in the appellant's brief they claim that m c i was a general contractor i don't think there's any basis and the record on appeal whatsoever on the contracts to make such a claim it's clear from the contract language between b p and m c i that they're actually going to perform construction work at the project and there's no contract that anyone's produced in this case i was another subcontractor and that central ran a crane was doing crane lifts for all of the subcontractors in that area of the refinery including m c i i heard plaintiff's counsel claim that somehow m i don't know specifically why b p made the decision to enter into those some context tracks that's not in the record on appeal i'd say that if we go back to the hunter says and the binding precedent in this case that's not part of the hunt court's analysis it's only whether a party a defendant actually took on a role for safety at a project and b p did the opposite it said to its subcontractors both central mainly central and said you're responsible for your employees safety end of the hunt means b p has no duty of care even if b p instituted as it did a safety program it wanted the subcontractors to use in the one decision the court also said that's not enough to impose a duty of care unless the  defendant goes outside the scope of the contracts which there's no evidence b p did here i would say i think we addressed it adequately in the briefs but i think it's clear when counsel argued the applies i think it's clear that it does not apply to m c i here in the perry case the defender was a construction manager that was agreeing to ensure its subcontractors were complying with federal law in this case central wasn't a sub at civil contractor so they'll actually do that the concrete pours and that kind of that kind of work is what they were doing at the project and that's the sole focus of the way we should look at m c i i believe so and i think the contract spare out that they were only responsible for construction work there's nothing in m c i s contract that's that's it's a construction manager if you look at floors contract it's a much larger one and it says its construction management agreement where is the get a contract with m  does not say that i would like to just very briefly something the council said in oral argument it seems to me that counsel for appellant is now arguing that b p owed a duty of care under a tort theory based on osha regulations i never saw that developed in appellant's brief we had trast the fact in a footnote on the last page of b p an m c i is brief that they haven't cited any authority from anywhere in whether or not osha wants to enforce its regulations at a construction site is completely separate from whether indiana's substantive law would create a tort duty of care to address that is quickly is that if i could  pretty common if not universal in the construction industry that upstream parties contract with downstream parties and ask for commitments to obey the law yes correct not without necessarily creating enforceable duties in favor of rd parties or the rest of the world that's gets correct and i think i do take exception to the concept that b p wasn't allowed to walk on the site if i hire a contractor at my house i have the i have the right to walk around and make sure they're doing what i ask them to do so the fact that b p had personnel that are you know responsibility for their potential negligence yeah exactly since i don't much time left on the proximate cause issue i know that in appellants reply they argued we waive the issue because we didn't appeal it obviously that's not the case the court can consider any grounds that would justify affirm it's in this case on proximate cau the plaintiff opponent has never supplied any evidence as to how or why mr jeffords fell from this crane the only evidence they've supplied is that he lost his balance and we don't know why unfortunately for the plaintiff indiana law is clear that if you don't have evidence as to how or why an accident occurs the mere fact that an accident occurs is not enough to show proximate cause because mr jeffords passed away unfortunately before his deposition was able to go and because the  story answers are inadmissible in can't be considered and don't even describe even if they're considered don't even describe how or why he fell they can't show proximate cause that's another basis that justifies and i'd say that in terms of the breach of duty arguments councils making the federal regulations are clear at nine hundred and twenty six point five eight one that are pre work inspection is not even governed by osha regulations and mark richardson from central ran a crane the boss of the plaintiff justified in his deposition that they were doing a pre work inspection at the time mr jeffords fell social regularly regulations don't even apply contractor construction manager does not have responsibility for injuries injuries that happen as as the result of a workplace accident to employees of an independent contractor and the basis for that or the rationale as is that the construction manager has little or no control over the actions of the subcontractor and there's two very limited exceptions to that general rule and that's if the construction manager of voluntarily assumes that obligation either by contract or by its conduct and in the case of hanta plays out indiana's which is that is the primary provision title construction management it indicates that floor is the responsibility is essential the coordination and monitoring of the work being performed on this project and making sure that it's proceeding in accordance with the contract ackermann some specifications in particular and very important to this case it indicates that the contractor still not be responsible for construction means methods techniques or safety precautions of construction contractors and this is directly square with the with the reasoning and rationale and haunt in han there was also a construction management contract the result other contracts with specific contractors and hunt the key determining factor that the court utilized in determining that construction manager did not have a responsibility for job site safety was the fact that it did not maintain control over the work activities on the jobsite there was no intent to control and that was different than the limited ruling and ryan and some of the other preceding cases where the general contractor the construction manager head in the contractual language indicated an intent to meet maintain control d over the methods and details of the work mr hauck let me ask you to address if you would share the language i think it's power twelve point zero six in your contract with b p the contractor floor shall take all reasonable precautions including those related to sanitation and health for the safety of its personnel and the personnel of others to protect all work done and all materials furnished under the contractor was for damage would duties were you taking on their the obligation there is intended for a floor to ensure that its work would not injure others or other contractors on the project and i think another thing that way that it's work involves supervision of everybody though that's true but you manager that's true but in order for the construction manager to be responsible for others work there has to be an intent to take on that responsibility including safety precautions well i've had so we explain to me what you think twelve  please well my my read of it is that means that floor is to ensure that any work that it's performing does not cause injury to others or others on the on the work project that same provision is also contained in i contract that same exact provision and i think going to ryan one of the things that's stressed in ryan is that i'm sorry the hunt case is that the contract has to be read as a whole and not only as a whole but in connection with the other cat tracks on the job yeah i understand that but let's start from this piece and work out from there why isn't it reasonable to read that as saying the construction manager is taking on responsibility for health and safety of all personnel on the site and all work done on the site well i think i think the answer is is that i don't think that's the intention when you read and can only please don't tell me about the intention tell me about the language and point to other language that you think somehow modifies it ok or maybe i'm just misreading it so well that the language that applies to loss or damages by the process of construction by action action of elements or by other cause or causes my read of this means that lauren its own activities has a duty to make sure anything that it does on the jobsite as part of its monitoring does not injure others or damage work that's being done and on the premises i think other language that shows what the responsibilities of the parties are with respect to safety are contained in one hundred and forty thousand three hundred and one dollars it indicates contractor shall not be responsible for construction means methods techniques or safety precautions there are no rd party but beneficiaries and that this contract between b p and floor is only intended to benefit b p not other contractors on the site there is no contract between b and central crane jeffords was an employee of in that contract essential crank contract under four for a one it says the contractor still control the performance of the details of the work shall be responsible for ensuring appropriate safety in the presence of company representatives b p or its representatives which would include floor shall not relieve the contractor from its obligations and i mean obviously there is language that is helpful to your position in the contract but why is it unreasonable to say look we've done floors construction manager and in one paragraph saying we're not responsible for safety precautions in the other we are too crude an interpretation well i go back to the to the language in the direction of houghton saying that we have to we have to read that contract as a whole and we also have to  consistent with fourteen o three in that it gives the obligation for safety for current central crane employees directly to central crane and i think if we look at that contract in connection with the b p floor contract there is consistency there and that this language which is more laws boilerplate language that's contained in all of the b p contracts means that when you're out on the site and you're performing your jobs you have a responsibility not to injure others and not to damage the work of others and that it's not inconsistent with these other with the other language within the b p contract and that contract sells also consistent with the contract between b p and central and those are consistent in that the intent is not for floor to take control over the methods and means of essential cranes work but just to monitor the progress to make sure that it's generally within the specifications of the project are two points from counsel that i would like to directly address i believe it was judge ripple that had a question about inspection in the contract between b p and central zero one appendix one hundred and seventeen of contractors providing labor with equipment accompanying all work performed by contractor here under shall be subject to inspection testing and approval by companies representative eleven  wo contractor shall not proceed with work until it has been inspected and approved by company's representative so while obligating central to comply with regulations and do  company to fix my roof and gutters dangerous heights and i and and they bring in some folks and maybe there's negligence and there's an injury on their part in my responsible for that because i have the authority to look at the work that they're doing in approve of it talking as a homeowner yes i think the obligations of a homeowner are completely different from my obligations well you have climb up and take a look how's a different from what b p is doing here different because of the contractual obligations that if you retains and also because of the construction industry law in the state of indiana  construction industry law in the state of indiana when you're talking specifically osha regulations you're talking about employer duties that apply to b p m c i and floor those don't apply to a homeowner at all they are not an employer of this roofer that you hire nor does your not nor has he nor his b p an employer of central crane right they can't they can be defined as an employer under the general duty clause of osha yes they can they are why am i not an employer if i contract with the roofing company it's not a work site specifically and it's not well i mean what's the difference well again construction industry laws different than a private homeowner lie i think that's what i would rely upon specifically and again you have contractual obligations if you have if you have you know you have specific contractual p retains by contract in each of these contracts that they have along with their agent fluor and so when you have control contractual obligations that have been in in indiana as rich as being as b p accepting responsibility as a supervisor and as a manager and they have to enforce osha regulations  i think that i think that is the difference i would also let me ask you about a provision in the contract between b p and central contra to central in providing their employees to an appropriate functional safety equipment that had safety responsibilities toward mr jeffords that's true but that doesn't mean that the other parties don't have similar responsibilities under osha regulations and under indiana construction law i also want to correct something that that council stated regarding the hunt case in the hunt case there was only one contract between her and construction group and the stadium authority to act as construction manager there was not an o violation alleged in the hunt case there is an osha violation alleged obviously numerous osha violations alleged in this case specifically and so you have a difference because there are different contractual obligations with the one construction group versus garrett case versus the case of far  so i want to correct something that counsel said the majority of these arguments directly relate to contractual provisions please keep in mind that these these are osha violations specifically  regulations that require b p m c i and floor to enforce ochre regulations in the contracts based upon the contractual duty the contract language is the basis for the duty toward mr jeffords primarily so i think he's trying to mischaracterize our we haven't been switching our arguments he made that made that term i think arguments have been consistent from from the trial court is let me just ask you this is your position in ocean requires fall protection for work performed on construction vehicles regardless of height yes well but above honor it's about four feet there are certain regulations about four feet certain regulations above six feet yeah this is defined as a walking working surface and those those regulations apply directly to this case and these facts thank you thank you our thanks to all counsel cases taken under