the minutes to be shared by the plaintiffs fifteen minutes for the defendant mr fowler for the they please the court my name is will speller and together with billy ryan i represent damian tracey moore who are the plaintiffs in this matter mr moore drove a rohloff truck for waste management hauling those big waste containers we've all seen this was a thirty yard waste container they can all various types of debris  on this day he was sent to a location you never been to before was not his normal route not his normal customer and he was there to pick up a different waste container at the request of general electric manager when he picked up the waste container that design fair grossly overfilled evidence is undisputed around twenty times ten to twenty times more than it ever filled in one before and in the course of trying to make it safe to haul at the request of mr gansey this container was so heavy it snapped an inch or the contagion that it should have been about looking at it or what but i think there are lots of influential evidence first of all it was there concrete there they asked these people come out and change this driveway and it set there for four months which g every day any more comes out there knows nothing about it other than it was deceptively heavy as mr pittman the guy that was the expert that was hired to come eventually download this after this horrible injury and wait it said it had been sitting in the weather for months slightly before this litigation started we talked to him informally but that's evidence is not in the record of the discussion about who's going to take it why don't you take it i need to do something that was all between design fab and waste management and that's not accurate he was involved in those and there's evidence the record that they were they were trying to get this move the one person who didn't know anything about this container was down more so it sounds like g e did i mean if you have g e was saying why is this thing still here they knew there was a problem with it correct i just don't point trying to make is they certainly didn't know as much as design fan who loaded every ounce of that seventy eight thousand nine thousand pounds and there's some evidence added to the law and that's another point yes there is some evidence now how much that is mr anderson will point out it may not have been a lot i'm not sure but they certainly know a lot more than mr moore did in tennessee that's one of the primary will use to compare relative fault levels of knowledge of the risk in terms reversal you are of course a standard views de novo here with no presumption of correctness  contention is that the trial court misapplied tennessee look we're all in for very important ways and possibly fit that mr anderson is going to discuss and then also in addition to that the court misapplied federal and to the extent it's a mixed question of state and federal law because of the way tennessee substantive law works misapplied summary judgment standards in both federal and state courts the sub's there's a secondary issue on schedule where i'm going to rest on our briefs on that because i think it's much less important than primary fault the design for him and on his sword course the court speaks through its orders only the order never discussed the fact that assume the court's correct that design fab didn't know for a fact it overloaded that container at first as of  thing is so heavy we can't move it come fix it we submit it is patently a reasonable for a person who creates a dangerous condition to refuse to come fix it unless they get paid for their own creation of the dangerous condition and that's what went on for four months in this arguably substantial thought it could have been easily bend the jury determine thirty nine percent today any more thirty one percent designed for having ten percent to g e we don't know because that was never even considered or discussed by the trial court finally finally but the next one is the court is going to assume the role of the jury which we continue is highly inappropriate but you going to do that you must do it consistent with tennessee law to control and law requires both eaten versus mclean and the city of savannah that the court a lot of things to say but let me cut to the chase right that in your view it would be enough to reverse a loan that the judge only made the statement that your client was more at fault than design fab without considering g e yes absolutely because the situation could easily be or potentially be as you just said forty nine percent to you forty one percent the design phase absolute the court would have been right in statement ten percent to g e and you would have been less than fifty percent of fault and under tennessee law you would not be excluded the answer is yes and i think mcintyre vs ballantine mcnabb was incorporated makes that obvious reversible error actually your point of view that alone all the rest of the stuff you're throwing at us isn't necessary to get a reversal at least corrected you would have been on this verdict form and respect st thomas reversing a summary judgment just like this where the court said well you're more fault then the defendant or defendant so summary judge and i got reversed the court said that's not the law in the state proximate cause has to be determined first finally are the next big categories misapplication summary judgment principles of equipment some of findings that just don't jibe at all with virtually any of the evidence so either way the evidence or did not take the evidence in light most  requirements under the rule i'm sure some examples could did find mr murray knew the container was overweight which is true the problem is with the overweight mean there are two two to two heavy meanings here both in the policies never were else and bostock and do what we do sometimes don't some of it help to try to make it say short answer here mr moore was the one person trying to make this safe he was didn't have enough information to know that it created a danger and he testified specifically to that both mr moore and kevin shopper good morning ma'am please please court my name is johnny anderson of the national tennessee bar and i'm here on half of the intervening petition or waste management i have very few minutes very little time so i'm going to just touch on a few points we have a worker compensation lien in this case the worker's compensation case is still going on mr moore still trading and before the case clue can clear we may have a very significant interest in this case we believe we've been greatly prejudiced by the fowler has explained in detail there are significant factual issues in most every fact of this case i've never seen a case where almost everything is disputed if you look at the district court memorand opinion footnotes three thirteen acknowledge that all these facts are disputed are things in dispute the judge we believe did not draw all the emphasis in favor of the judge and i have tried comparative but not that many in the federal court and so this is a question which may reflect my stupidity i understand that you know mr mower doesn't have a claim against you but if your client was negligent apart and i understand nobody's arguing with you if your client was negligent apart from mr moore's alleged negligence would that be inappropriate for the jury to after the element of duty has been established does the court get to compare fault issues in this case the court never resolve that issue but we're straight to the compared i'm sorry expired thank you say that you can then presume that both parties have negligence on them and then go and look at the conduct and if plaintiff is determined to be no more than fifty percent fall for his injuries these other parties it was sufficient for him to make the finding that he did that mr moore would be more fifty percent let me answer that because you sort of raise something that me and i think is important in the in the flow of the the opinion at page twenty three is kind of the end of the discussion and he says that's why i was quoting earlier the court holds as a matter of law more was more at fault in design fab and as such grants the motion for summary judgment that would seem to be kind of you know the end of the law and now you're right that on page twenty five and twenty six under conclusion he then says more is at least fifty percent responsible  injuries but there's no connection between those two that explains why he went from statement one to statement two and i would also remind the court of the statement he has a page twenty where he first makes you know look you've seen the briefing this this motion for summary judgment had a lots of time please related to it there was a substantive response and then there was the fifty six day and then there's a lot going on with that but bottom line in the record what you just noted he makes that clear finally then interesting lee in the immediate following line quotes a case so long as a plaintiff negligence remains less then the defendant's negligence the plaintiff may recover and he says but in this case it's the other way around so that certainly sounds like he's only talking about the two people in front of him and and of course if he's only talking about the two people in front of him them yes more is more than fifty percent responsible visa vu what is there any indication there that he's looking at everybody that might be responsible once again just all i can manning has his his conclusion that you know that on page twenty five we're you know his concluding statement on the point and you know let's if i can back up a moment  obtained a rather unusual result in this case you don't often see these kinds of cases i often see summary judgment awarded in these kinds of cases what is it about that record that  think it's appropriate as a matter of law conclude that mr moore was more than fifty percent well this is this job you property began in june of two thousand and ten it was completed over the over july fourth weekend of two thousand and ten when july ninth two thousand and ten is when my client contact the waste management said we have filled the container here any indication that mr moore knew about any of the well there is some testimony before the court overweight it's known it met a fact it's known by mr miller we do know it was more no no it was overweight because he went to the when he went to the g e property oh november nineteenth he had a discussion with a g e supervisor you know it is too heavy for me to take on the rope you know if indeed mr moore to the container to dump the materials on the side it is clearly established in the record the mr moore knew th container was overweight when he arrived on the scene that day that effect is in his in his deposition under questioning from his own attorney mr mr fowler noted to him you have told us over one hundred times today you knew it was overweight you knew it was overweight by sight in feel mr morris says he's been driving for the exits two thousand and two he says you know i couldn't i can tell that the man was overweight and when asked well how would you describe it would you say it makes summary judgment appropriate if we get a combine that with his training the training in the documentation the waste management rules books and procedures a director brothers do not waste or do not lift an overweight container that in fact they have a slogan it's called hauler call if you're not able to hold the container you are directed to call dispatch and that is apparently what happened in july when the first container up it was determined it was too heavy it said they're in didn't hurt anyone from july through november waste management design fab we're having this discussion amongst themselves as to who was going to be responsible for this that th i'm not going to say it's pretty common i think ms judge given as it was correct to note that i mean this is this is not your ordinary case however it's it's not it's not so rare that it's unheard of i mean you know  that what he focused on was the conduct of mr moore in what we presented to him because once again you know he shows up that day that container his or her the one he was in direct it now isn't that in itself problematic because when you're he rules that mr moore is going to be at least fifty percent at fault you know i was i was making the point that you know the training you know says don't do this activity he's tested on that track almost like you can it turns it almost into our old contributory negligence is a matter of law if you only look at the you know at the pool whether the plaintiff is more than fifty percent at fault i mean it because you're not evidence is that look this this presume is true in all reasonable minds when the jury could not differ that under these these facts that plaintiff would be at least fifty percent at fault and he once again you know a go back to that day  mr moore did it to the g e property to service regular containers he was a pro either he was approached or he approached this do you represent him they had this discussion mr moore was not directed by waste management to go solo mr moore knew it was overweight he described it is significantly overweight and i can observe this he hooks his cable up gets in the cab of his truck and gauges the lever which he has to hold just positively hold that position for this all is not the right quote ok did you know whether the cable could break like it did whether it was a possibility at the time yes or no he's never seen anything like that before the policy would issue first of all tom pitman's affidavit is very telling mr pittman  violation of internal policies is only evidence of negligence it's not some gaps of fact or summary judgment if you look at the actual policy what it actually says is that the only way to know if it's too heavy to hoist it in the front of the truck when you