three guys three by the clock is counting down to just keep your time here please the court my name is jim i represent one salazar as the court knows we claim three errors first what i'm going to address is the who could have been but was not named as a third party defendant now there are three possible entities who could have been responsible for the accident here one is a n j construction the defended one is the plaintiff one salazar who are both parties and the third one is cruz who is a nonparty the jury found a njt negligence but did not find that it was he was it caused salazar injuries  can i ask you just right on that point i'm just looking at the jury's verdict form here the finding of negligence that means that the jury found did breach it's not delicate will do so it didn't the effect of whatever here is that who caused the injury and when you bring in a non bailable party as the court did hear you then share that cause and twenty seven one seven zero three prohibits under the state of m think i think what happened here is that the court or the jury found that there was negligence then they go to causation who could have caused the accident who could have caused the accident here is either a construction or oscar cruz the two subcontractors and the court by asking by allowing the evidence and where and the question here are two to the eck our expert was to  at trial which look i'm i think you had a valid complaint was that a judge what they're trying to do is shift the duty away from the defendant on to this other party and that's you're going to prejudice my client's case if you do that right that's right right that makes perfect sense to me but all i'm saying is that i then look at the jury verdict right and they say they did find it we know they found that your claim that the defendant rather had a duty and that they grease it because they found negligence but they didn't find the responsibility to someone else particularly to subcontractors and when you do that so yeah and jay was negligent we don't know why the jury found they were naked so ok but on the causation fro right or maybe how do we know that we can't talk to the jurors if i stood up here and i said to you your honor i talked to juror five and here's what your five said you wouldn't accept that so we don't know that no but it's your burden on appeal to show that this evidentiary issue that seems to go to a violated twenty seven one zero seven zero three by sharing that duty did they ever argue to the jury that in fact they were sharing the duty or the merely using to show that they were a careful contractor and would instruct here is it's hard for the jury to separate out it's a stream of unusual verdicts when you have negligence and you know causation and so what could be the causation i submit there are two entities n g in cruise and it wasn't in don't think it's our burden to prove or more probably the not i think it's a there's a risk then that's the case but i think it is you know we know from the jury's verdict form the special verdict for there was no challenge zions or stand in the appeal here not challenging any of the court's jury instructions or we did we did challenge now know when i read your brief you they could have done that they could have brought him into the third party defendants that's what that's what she was supposed to do here if they're going to blame him if they're going to try to shift responsibility they have to sue cruz and they didn't do that that's what the law requires that counts under montana law as you as you understand it if the contractor had instructed the subcontractors we don't care about osha we don't care about any safety things we want you to go up there and drink on the job from some crazy national scenario like that wouldn't then the instructions given by the contractor to some contractor be relevant in a negligence case it's like because they're not sharing safety they're not sharing their duties so wouldn't the other not part of the duty but responsible iran or not according to all one word says the real danger in shipping responsibility to a subcontractor is particular son for some contractor is that the jury's going to get confused that you can't do that i don't think comes up when you say here's how you frame the building but it doesn't come up when it comes to safety because they can't do it but that's the whole point of this they can't shift out  harm isn't forseeable comparative negligence doesn't come in foreseeability is found in duty duty is a legal question if there's no foreseeability we shouldn't even be here we should be out at the summary judgment states but of course in j had a duty under the circumstances so the second criteria is that angie argued in its brief that salazar could have avoided the hazard but didn't argue the cells are could have wanted to hazard with out in danger in his employment but there were no anchor points set up there were there was no fall plan at all they did not comply with osha i think that's and disputed and even if you have an osha compliant flyin the hazard still exists according  for protection plan that all they can do is minimize the hazard you can't get rid of the hazard it exists so he can avoid the hazard without endangering his employment the hazard is going up there in the first place safety duty then you get to whether they can introduce it and if the if the duty is greets then the then clearly the hazard can't be avoided so there's an assumption there that the jury's going to find negligence and causation then you don't get to causation at all or comparative at all if the if the breech was there of the non d l google duty and it's reasonably foreseeable consequence of that non the subject harm was not a reason the foreseeable perspective with respect to the strategies that i used in this case to present this case to the jury and i hopefully will in light in the court as to how i marshal the evidence and try to get some of the evidence have successful most of the time unsuccessful some of the time the montana safety act requires that general contractors provide or require the use of safety precautions they require that the general contractor implement practices or processes in which safety equipment or c t devices will be used on the construction site and then they're given this broad duty to do whatever else is reasonably necessary to keep the site safe so looking at that statute and knowing that that statute was going to control the trial i began to think what is the jury going to want to know and the first thing that the jury needed to know was that fall protection was going to avoid the schematic injuries that the pla ff was claiming that was the safety device that was required under the statute the next thing i did was i wanted to get in evidence that we had put something in place so that fall protection would be used on the construction site and what we did was we entered into a contract and i say we enjoy so is using we entered into a contract with the subcontractors and said you need to follow osha you need to work safe you need to train your men on the use of full protection you need to use full protection and if you don't if you are not responsible under the contract the safety of the employees we are going to discipline you that contract right there the fact that we have the authority to discipline if the subcontractors did not  safety on the job site put us in a non delegate will duty we took control of safety by having that that sounds to me like you're trying to shift the duty to someone else or not that's why i don't think it was right for the judge to let in the contract between your client and the sub contractor i mean i hear your technical argument but the way a jury's going to hear that is just the exact opposite of what you just said a second ago but but  we did not put your posts on the trusses because they were not necessary mr salazar had a construction expert out of new york who i cross examined and in cross examine and he admitted that an anchor point was sufficient by using you the top cord or the or the bottom cord of the truss itself other evidence came in that those workers use the same type of anchor point there was no need for any sophisticated screw in bolts or anything like that if essentially just they happen or is there any evidence that this is how you yes yes we we not before work and we did that we tried to do that once a week and went over fall protection stressing that you needed the subcontractors themselves had the men go to classes and learn about for protection so th were there were a lot of different levels of implementation of the process to ensure that paul protection was used on the site but just going back to your question the context in which i wanted this evidence to come in was used exclusively for that purpose the scope of that and under one o five federal rule one o five i am permitted to do that if it can come in under the proper scope and at that point it was up to mr hans to ask for limiting instruction and he didn't do it well i mean you know i i think that he made the right objection and it just the judge disagreed but listen i'm not saying that you weren't entitled to put on evidence of what your client was doing at the work site to make sure that in fact a safe work environment was being maintained of course that's how else are you going to prove that you comply with a non delegate duty i'm just saying that the testimony i read i guess it was questions i think that you posed about the contractual nature of this duty that the subcontract contractor took on to me that was just certain extent but it's also probative and this probative evidence outweighs the prejudicial effect that it's going to have plus i'm going to dispute diffuse any of that prejudice by using instruction seven and using instruction thirteen and allowing mr hyde to get up there at closing and explain instructions seven and it destruction thirteen without my objection and when i went to closing i did not mention sub contractors or anything else i went straight for the throat and said he didn't wear his fall protection and he chose not to when he knew we should if we look at the whole record and everything that went on to defuse any types of prejudice including the overwhelming evidence the jury verdicts not is unchanged it i mean the the evidence was overwhelming that mr salazar knew when where how do you small protection and he admitted that he chose not to that day he admitted he wouldn't hit the ground if he would have been work so i guess your honors i guess if you look at five questions in isolation i can see your point your honor when you look at the whole record and you had an instruction on duty and mr hinds telling the jury mr stubbs arrange a cannot point the finger at anybody else instruction thirteen mr stepien a j cannot point the finger at anybody else jurors aren't stupid well and i think the jury verdict apparently bears that out right because they did find that your client breached it's not delegate will duty and i guess that seems to me that's maybe your strongest point in terms of no harm no foul or whatever that  this is the interesting part of the statute sub two says with the exception of footwear perks of the general contractor must purchase furnish and require the use of fall safety tip or health and safety devices provide protective clothing for guide safe guards one of the things that njt did not do that they were negligent and was not i mean the fact that you don't keep safety records didn't argued that well first of all we have enough evidence that it mr salazar would have been wearing his his fall protection he when they hit the ground the ground was a hazard mr hart wants to argue that the fall is a hazard it's not it's the ground it's like it's like you've got a fire here out camping you've got a fire as the hand goes in motion it's not in trouble till it hits the fire and it's the same thing with the those kinds of things sure but he would not have had the traumatic injuries that he was claiming in this case i had been wearing them for protection so i felt like we i felt like we had convinced a jury on that first prong the other prague and i argue it in the in my brief is that let's see we don't have safety records well is it reason we forseeable that not having safety records will cause a man to fall off of a top plate when he knows he should have his fall protection and it's kind of a silly question but that's how the canals this works but it's interesting it's interesting issue with comparative negligence if you look at the special verdict the main jail was found negligen actually wasn't negligent i mean in the sense of causing cells are to fall and so you have to in order to in order for you to actually be able to extend the comparative negligence analysis well a j has to be negligent first place and certainly we could have been negligent in not keeping safety records and not giving him a harness when you already had one and all other sorts of things that the jury could have found negligent which is nine twenty seven pacific second ten eleven and it's it explains why it's unconstitutional in montana to have to try the empty chair defense i should have it in i had the empty chair in the brief but it explains why it's so important not to share this responsibility to have to try this empty chair situation so your honor if we will never know whether it was cruz or salazar who the jury found responsible for the acts that here but we know it was one of the two and i commend the court's really you know also to nelson versus brunswick a ninth circuit case centers and it's in the brief that the standard is that it may may be prejudicial or it may have affected the verdict and i don't know how you can see it didn't affect causation here because really what we're focused on