that i think if one of the problems in this case is it's been difficult for both parties as even acknowledged by n q why to understand what exactly the court your argument is that there are material questions in fact that couldn't be resolved in summary truth i think that there were material questions of fact that the court didn't even address and we have no idea i'm looking at that were what it was by the court in the churner case which was that which was the decision that was handed down by the montana supreme court which in essence that this is the new definition of actual malice that we are going to use from this point for those are the kinds of things that the court looked at and said well if if those allegations were in fact true that they set aside the safety concerns of their workers for the sole purpose of saving money by avoiding the shutdown that's indications of m face the consequences of what's called a demurrage charge of fifty dollars a car in this instance it would have been over twenty six hundred dollars for those cars to be spent on those tracks longer than the forty eight hours if you remember really under the gun today we've got to get going on so they sent mr perry out as a vote in a breeze with no training no safety training no protective equipment in a rented van with no tools or anything you're going to have your help two to one and under the sure case that's not a requirement what it has to show is there was an indifference were deliberately asking failing to do the act itself in other words failing to train him because taking the time to train him and give him the appropriate protective and safety equipment would have been too expensive and that's what the court talked about insuring that you think the problem th inherently dangerous if this was an inherently dangerous work activity as a matter of law working under these conditions without safety training without the proper equipment was something that had a high probability of injury in this instance basically if your workers into a job site twenty below zero degree weather when i see on top of the rail car without any take the training and just like ensure somebody was injured as a given that it it's not an armed dangerous task to get up on top of a railroad i certainly agree with that your pm in this instance there was two or three inches of snow on the ground it was well below zero below freezing had something to do well con agra manager manager of the elevator testified that these moves on these cars can stick for any reason they stick in the summertime they stick in the wintertime they stick in the summer cory allen who was the logistics coordinator for the for national quality has decided that part of the reason that he decided to send scott curry out there that day was based upon his vast experience with friends  and i don't know that the record is all that clear other than the fact that he he was born and raised on a farm and he worked on farms his entire life for forty five years and that's it doesn't really come down to them knowing that was his orientation i don't know that there's a problem in other words with strain if the policy ranges for ten months the statutory matchings twenty four months i don't think there's a problem find for a nice time but i don't think there's a problem with coming somewhere in words and i might even be willing to admit that but i think what i'm here today on and what i do want to stress in my remaining time is this now this issue through the courts where the thirty five eighty three has undergone argument so if that's the case don't see any more thanks very much for coming in the thing for your argument is troubling argument here and it's hard for me to revive it especially because of the stiff sounds to me like we have an argument here that he has made for the first time and quite frankly it's somewhat part of his argument here i'm not sure if that's really enough however you know guideline provisions to the original guidelines sentenced to the statutory provisions and thirty five fifty three and thirty five eighty three and craft the sounds that he believed would be appropriate for each sentence for each