is rendered we generally give around fifteen minutes ten five for the appellant and fifteen for the aptly that piece with your approval we don't have anything afterwards so if we go a little bit long we go a little bit on verdict and plaintiffs favor for about three point two eight six million dollars the price of briefed a number of issues but today we need to focus on three first whether plaintiffs suit against our yes development was a time board or related back under to six one sixty second when there are us was entitle to judgment that was standing the verdict under section four fourteen of the statement second third where there are yes was entitled to a new trial as a result of trial  plaintiff action against all right as was time board and to naturally back under two six one the accident took place on august twenty eighth two thousand our a s was not named until february twenty eighth two thousand and seven nearly six and one half defendant and here are the important words quote knew or should have known best but for a mistake concerning the identity of the proper party the action would have been brought against him or her  limitation period that another party could have been sued is not a mistaken identity two six one six d is not a fallback provision for a plaintiff who does not discover the identity of a defendant within the limitation period here there is no mistaken identity the point of intended to sue the parties named in the original complaint including the property owner are a yes i'm certain the property owner will from towers and one of its partners in the project that may have been a mistake but that was not a mistake attributable to us they had separate counsel law stuck lawyer wise but in terms of the area yes these are yes related entities right yes answer of the complaint didn't they in fact specifically even though the complaint didn't say you're the general catterick or didn't they specifically answer that will from towers was the general correct but here's a here's here's the essential point just from towers plaintiff was not in the position of saying i mistakenly sued the world from entities instead of all right as developed because when they amended their complaint in two you believe might be liable to you and that is what we have here if the if the case law suggested that the focus was on what the plaintiff knew and whether the plaintiff was entirely diligence and acting and th knowledge i might be there with you but the case law seems to say quite the opposite well now you're talking about cups of tea and maybe this is a good point in the argument talk about privacy for a moment husky came down during briefing in this case it to sue so the plaintiffs no use in fact problems but it's relevant when it's wrapped into the question of what the defendant knew and whether what the defend a new amounts to a mistake cases as well make it clear that a plaintiff's lack of knowledge about the role that a party has in the litigation is not a mistaken identity a mistake you know i a very narrow exception to two six one six the how was the plaintiff and crossed in that mistaken about the identity of the proper cruise company was right question this year so we're talking we have a situation where there are two defendants both with similar sounding names related to each other in the plane of course essentially same i sued the cruise line a i think development because at one time all the morning case unlike crops keep where there was never a time when both of them won the case one was supposed to be a substitute for the other in our case we're simply another party which absolutely they were intending to sue the general contractor now what that doesn't mean though is that they have an open ended period of time in which to discover where the general contractor is they do have to comport with the requirements of two six one six if it's a mistaken identity then presumably they sued party eight when they intended to sue party b now i read their brief and i'm still trying to figure out who they were really intending to substitute ira's to poland for because they continued the suit against contractor was disclosed and then the later day when they finally got sued there was a an important document that had never been turned over i would i would next i would not agree to that because they had a count they had a number of important documents that identified areas development including the contract between rockford construction which was the plan of some ploy or in our yes which identified ah yes it's a contractor and they produced anti communist judge taylor had noted in his original decision in february of zero three they had everything they needed they sued everybody under the sun in the original complaint that everything they needed at that time permits yeah absolutely absolutely you know i don't think there's anything all that unusual go right about that i mean it happens from time to time and they have the time and if they thought it was really a case of mistaken identity they could have dropped those other parties instead of keeping them in the what i guess i'm trying to figure out those how would they be prejudiced if it turns out that you know they're just named the wrong one of our circle related and he's where is the where's the prejudice t insurance company the same work you're getting all these reports from insurance counsel it's true is it's true that they head it's true that will from towers and all right yes will form an ira yes that only had the same insurance company but that doesn't mean that will from towers an i a s well from its looking after the interests of r a s development at these depositions they have plenty to do defending themselves without having to defend someone else who is not yet been named in the case and by the time we were named in the case there on the way out no one's there representing our interests as i said at the fact and the expert discovery discussed in choice for system mastery which you can find on pages twenty nine and three of our opening brief and cochran in short to see among other cases discussed and pages fourteen and fifteen if i reply brief under the contracts plaintiff's employer rockford was to take recently take all reasonable safety precautions are yes was prohibited from giving directions or orders directly to rockford employees rochefort was to provide all labor materials and equipment to complete the work and rock which was responsible to keep the promises free of debris moreover the record shows that our a t s to not actually exercise supervisory control of the means and methods iraq for its masonry work that is the buzzword the magic word the supervision must affect the means and methods of the work or there is no for fourteen liability all right yes to not effect the means and methods of the work the record shows beyond dispute rochefort supplied all of the tools equipment and material r a s never instructed rockford or plaintiff and how to do the work rock for determines the means and methods of performing the work for itself rockford health safety meetings already yes to not have a safety manual are yes relied on the some contractors to initiate their own safety in the work areas rochefort never guessed already yes to get involved in safety who was their safety superintendent it would be well the person who was the construction manager w shaughnessy and cochran make very clear just because there is an ai a provision that says you're supposed to have a construction superintendent on the site doesn't automatically impose for fourteen liability if you have to architect and i did have safety meeting you know just i never went to their floor where they were working and so i think you have some questions of fact here that the jury heard about you know who was in charge of safety and it is  was there anybody on this job for the general contractor who was really fulfilling the shells the shells he is there to monitor the work to make sure that the work is done in accordance with the specifications and to certainly just see the progress of the work he and we cited them shaughnessy and cochran among them the talk about a general right to of safety oversight and general right to stop the work which is a normal contractual right but that does next equally with the means and methods of controlling the means and methods of the work under four fourteen but aside from that and you have to bear in mind that if something else going on here in this effect that the third floor where the work was taking place is a controlled access floor it is a floor that is off limits to the other trains it's off limits to the general when the work is being done because of the hazardous nature of the work and this goes into the second question under four fourteen and that is whether r a s would have had notice of a hazardous hazardous method of performing the work now here i think the evidence is undisputed first notice is a pre condition point of conceits that they have shown those the record shows that it was a controlled access  quickly is recognized in the construction industry and osha as an appropriate method of laying the brits shall see the construction manager never observed rockford doing the work in an unsafe manner only rockwood employees were on the third floor at the time of exit and even places for taint opinion witness philip tolerant and minute that arias should not have been on the floor while rockford was working and our us had no way of knowing where the plaintiff was working near the edge of the open floor when he a partially under construction window opening my right and there were similar window openings on the lower floors throughout this project with my right about there and once i can say that certainly at one time in sequence i'm not too sure the day of the accident they were true but certainly one time the question that i have and i think it came up mr shaw is his testimony where he believed that there were cross braces or some kind of guard rails in these window openings while the project was going on but he wasn't one hundred percent sure that they were up as of the the date of the accident if you recall their testimony well i do recall there was testimony that there was cross bracing on i don't remember that test my do remember that f through the accident the city of chicago did order certain guarding to be put into the openings and don't that's that's what we're here for third and finally i want to go to the trial or concerning you mean testimony because it does time into the second issue concerning the four fourteen liability we submit we put that testimony in our brief page was forty two through forty four and here although i know it is bad form to read from a brief for the most part  if i could just read a couple of these questions and ask whether or not these are really proper questions and of the contract documents give instructions concerning methods or means or techniques you're still responsible for you've got a waiting job that this that the very question in the world i mean the questions that you read the first one doesn't make any sense and the second one he doesn't really answer it well do you have a duty to protect jerry bag and i answer i can only tell you what the contrary says how c responsibilities that we know about in the sub contract relief work exclude women and the responsibilities from the general r a s with respect to those safety issues and accident prevention that again is calling for contract interpretation year could only be prejudicial here why because the plane it was relying on tolerance testimony about the contractual duties to justify the verdict now as far as i can submit plaintiff can't have it both ways they can't say you know what beck question didn't make any sense there really wasn't a very well for phrase question there or how it was just giving opinions he wasn't really interpret all arguments is a privilege not a right we are grateful for the opportunity to address the court today and for all the reasons in our brief we ask you to dismiss you know just no setting the verdict for remand for a new trial thank you very we go with them the major change the major issue that they raised the two six sixteen the relation back issue obviously the key thing there is the court is there is recognized is that the rule is changed and it's changed dramatically and it's changed to be inline with the federal rule which is the position that oh yes the government has taken and we know what the federal roomies because we've got the guys from just the sort of my hair who said when you have the scenario we don't work anymore but the plaintiff knows we look to see what the defendant knows and in this case the defendant in this case because of the interlocking relationship and more than at the same people own to each of these companies so that whatever you did when we sued will from towers mr levin and his two partners had to know mr levin was very frank about the relationship i suspect these people were not hiding anything they were people building buildings and some lawyer said here's what you do set these businesses up as mr levin admitted almost immediately basically we hired ourselves and that wasn't that's that's like the best admission i've heard from anyone i was very frank about it at if your colleague is correct though and we are to look at the plaintiff's knowledge in the play this activity or lack of activity there would be some issues here because it looked like there was some w the plaintiff has to rely upon the old version of today's six sixteen rather than the current version i have a much more difficult case to make but we have a circumstance here where then the court would then i think look to see whether what the plaintiffs counsel did was excusable and in this case we've got a situation where the documents produced don't show that our yes development i'm trying to make sure i get the names right was the general contractor and that's who they needed to sue here they had some of these documents but the documents were very inconclusive as to who was who and then when they did file suit within the statute of limitations they get somebody who comes in and says i am they didn't say we sued the general contractor they said in the complaint we're suing whoever is in charge of the work here and we're from towers came in and said i'm the general contractor that that specific acceptance by we're from towers whose tied into the ultimate defend i am a general contractor i suspect what happens why would they look further if they had started working at that point but somebody said i'm the that it refers to are yes the development as a contractor but we don't want to contractor the plaintiff wanted the general contractor and we did the prime contract that's apparently the only place that they actually use the word general contractor for it's clear and we didn't get that until we got the letter long after the statues to said by the way we've made a couple of mistakes here ironically and i think that's what the court was suggesting they're saying it was improper for the plaintiff to make a mistake but it wasn't a mistake when towers came in and said we are the general contractor there by really misleading us anybody who's in who's been in the situation what somebody says that's who that's the person i am the one you want your focus turns to how do i prove that person not what their answer that was an amended that was revoked that said we're from thomas was the general contractor at once it became clear that it was our yes development they were voluntarily dismissed this is not a case and council i think was intending to refer pruitt case where the the plaintiff sued the building manager and said i always intended to sort of building manager there are always going to be in the case or here's somebody else it turns out i didn't so that's a different faction area the the in the background there their clients the actual people on the extraction site these two then these defendants are these parties are all the same that really matter to them who was who was going to be there they all had the same assurance company we know that and for that reason we believe c crops if nothing else puts the final blow to everything because a federal so closely matches the estates that you want to start your colleagues suggestion that some of the cases after cross gate would place more emphasis than you do and the plaintiff's knowledge and activity a twofold one if they did they would be filing the supreme court case and those are just record cases that it has because judges can do what they want to get but they can't over rule supreme court and i looked at some of those cases and then they they don't involve a scenario like this the more typical scenario is a prude scenario where where the viewpoint of deliberately sues a general always wanted and then learns that somebody else in addition should be on the case today when one of the cases i believe it was  a police officer date but they did they had no idea what was going on they just didn't have the proper names in the case at all but the supreme court case seems clear and i would suggest th if he if he pointed out the safety phylicia we would fix it and it's not a safety violations it was hidden that's why we put the pictures in the back you can see the scaffold from down below you know that the bricks have to get through the floor mr shall see according to the argument this morning mr was touring the site anyway because he was watching what was going on that this is the third or fourth of four buildings they've been doing the same thing according to the record on all of the buildings what they did wrong was they put the scaffolding prematurely they don't need it  his cart over to the scales now he's got to take them off the cart and start dragging them over to the edge let me make sure i have a correct so i thought i understood this you've got a scaffold let's say that the edge of the building is here and the scaffold is back here three feet there across traces of the back but yes to bring the bricks around the front where in order to get them into the area under the scaffold he would have to walk the bricks and the dolly or whatever he has in this mesas area where the he's unable to get the dolly in there so he's got to basically unload the valley and then come around to the site pull them and the problem is and that's and what he's doing they have is he in the area between the scaffold and the building edge he's he's ready at the margin at that point  his bricks were found underneath the scaffolding the for the one the back but if he's pulling those bricks if if your eyes look at the picture you can see that he must be in that area it's not a great work and as mr connor said once you get into that area if anything goes to be the head it seems like but the danger should be evident to anybody who's there so you're going to work over there and your job is going to involve pulling the shoes piles of bricks if anything goes wrong wrong in this case the snap when you can just anybody who's done work knows what's going to happen next y contracts and and the depositions and his own background as an expert in this area i would submit to court i think we explained to her if she really did not interpret the contract documents but if there was but the cases that that of the choice cases that are the christer case is that if there is a dispute then the expert is welcome to take a look and say that in my experience and in the cases counsel cites the expert wasn't an expert in that area here we have a contract a construction expert who would be familiar with what contracts mean i construction sites and how people like construction sites look at those contracts and honor them and his total opinion was the contract gave him control and mr levin it pretty much admitted that we've got mr shells a who who had control but didn't understand anything about safety and we don't have a safety superintendent i would submit to the court in light of all of that that the professor presented a question for the jury i list you ok going to the two six one six issue amendment doesn't relate back simply because our a yes may have known of this it the statute requires knowledge or constructive notice of a from instead of arias development he sued all three he continued his suit against these entities even after he knew of i re s and its role in the project plaintiff's alleged lack of does not preclude her from making a mistake with respect to their party's identity i agree that ok but i think that's hard that's her waters for you to navigate here no i mislead judge i don't think it is because if you look across he again what you have there is you have two possible defendants they sued the one by mistake when they should have sued the other and what the plan it was saying was i sued day by mistake instead of being now what we have here here we have first suit against live from and i asked will from and then after they know about our a o s which they did and by the way they knew all of this in two thousand and three and didn't act on it till two thousand and six they continued a lawsuit against all three it's a different situation because they're not trying to substitute the party they sue by mistake with the right  proper role in the suit and a real mistaken identity simply saying i realize now i should assume somebody else that i didn't sue before within the statute is not a mistake in identity for fourteen cases every case a site they're talking about has much more extensive oversight than we have here in the cases cited by the planet counsel's referring to the fenice require the employer to follow the defendant's safety directions or procedures provide a copy of safety manuals attend safety meetings summit site specific plans and minutes of safety meetings for approval that make it very clear that simply saying there's an ai a provision out there that says we're supposed to do something doesn't mean there were a liable under us we affected the means and methods of the pla performance of the work now i want to talk just a little bit about notice for a second because we talk a little bit about how the accident happens first of all the third floor is a restricted zone it's controlled access because of the nature of the work and the fact that it's hazardous even caught cohen says shows he's not supposed to be there while the work is in progress they  rock through but he's doing a walk through only to observe the progress of the work after meetings he is not there when the work is being done there was no evidence of a hazardous method of work existing long enough to charge already yes with notice and it could not be a liable i must have had notice file in response to incompetent testimony i'm a little bit surprised that plaintiff's position seems to be i can hire an substance from the way your expert went about testifying in this case in their expert look at the contrary was the relying on those mr was in ascii or whatever his name was he well first of all he's giving testimony as to most of his testimony really dealt with whether or not there was a hazardous method of doing the work first of all i mean he's there first and foremost to has made that argument he seems to be saying well it really was a kind of tech interpretation and if it was a contract interpretation the question didn't make a whole lot of sense and what he was basing it on his experience the jury decides who is in charge of the work with the judge finds there's a question of fact for the jury to decide but it's not for any witness who is hired by either party to give testimony about those issues issues concerning for fourteen liability as far as who's meaning of various catterick provisions and i mean he may he may have tested he would email he may have testified to the fact that the that the way the ai contracts operate it's in stages firstly of the owner contracting with the general and then the general but then they're using they hate to justify having the wrong experts testify so i mean if that isn't bootstrapping i don't know what is again we are thankful for the opportunity to address the court on a case that is important and i think those raise issues that are important and for all of the reasons we ask you to either enter an order of dismissal judgment will be or award new trial ok thank you very much thanks very much counsel good arguments on both sides will take it under advisement and you'll hear from us directly