the court my name is mark humphrey from des moines i have the privilege of representing jeffrey opened on this family together and read my co counsel from the morning at the outset i'd like to just give you the benefit of a few facts to put this case in perspective a tragic injury occurred to jeffrey opened on january sixteenth of two thousand and thirteen no one knows exactly what happened jeffrey was working on a operator's platform that was eighteen inches from an unguarded rotating arguer he was wearing a safety vest  because they found remnants of the safety best intertwined in the aga after the fact it was presumed that his safety vest got caught in the rotating arguer pulled him into the arguer where it  dramatically broke his neck and rendered him quadriplegic there had been three prior significant injuries before mr open all in according to his testimony there had been many close calls on this  rotation of the og or there is a lever to do that if he took his hands off that lever the rotating auger would continue to operate rather than killing the power to the rotating  drill and the og or were sold to the iowa department of transportation mr open dollars employer by mobil drill we had significant discovery trying to determine the manufacture of the og or but i think as the record shows in our brief and even counsel for mobile drill i think concedes on the record that was developed it was more likely than not that mobil dro was auditors as well as the drill the drill have been sold in one nine hundred ninety to the i would apartment transportation and as such when this injury occurred twenty three years later it was more than fifteen years after was the corporate reprimand representative designated by mobil drill pursuant to our most r thirty b six motion to gather some additional information and we learned some interesting facts from a store's esky and that is a conference in europe and saw that in europe they manufacture these were safety guards what mobile drug calls rotational guards because they didn't want to confront the name safety with it he comes back from that and commission mobile drill to develop their own rotational guard for these rotating arguers interesting only they have never sold one to a united states purchaser of a mobile drill mechanism they have only sold it to europe indonesia several countries outside the united states from a store as ascii says the regulatory program in effect was more onerous than what existed in the united states there's only about three hundred of these drills in operation he conceded that they clearly will last more than twenty years and it's not unusual to see them refurbished  we brought suit against mobile drill an initially we in our complaint we had both products liability and negligence theories of recovery  there was a motion to dismiss filed early on based upon the iowa statute of repose and judge rose in the southern district of iowa dismissed the claims against mobile drill based upon the sale of the drill mechanism  through through the course of the case and amended petitions we asserted a claim based upon negligent entrustment based upon the sale of the og or hers to the i would apartment of transportation in two thousand and twelve and our argument was based on section one thousand of the restatement third torts which has been adopted by the i was supreme court which says the conduct of a defendant can lack reasonable care in so far as it foreseeable combines with or permits the improper conduct of the plaintiff or a third party now there was a prior version of negligent entrustment in the restatement second of toward section three ninety importantly iowa the i was supreme court had never adopted restatement second section three ninety it has adopted section nineteen of the restatement third of towards in a case in title broke which is included in our brief and if you look at the tube the two restatement sections side by side  was our argument to judge bremmer below that section one thousand is clearly broader than the provisions set forth in the resale and second of torts section three ninety eight and it was further argument that that this court has to to struggle with is whether or not judge bremmer went beyond her commission as a trial judge as you well know credibility determinations weighing of the evidence and drawing of legitimate inferences from the facts our jury functions not those of a judge you know that that's a reversal sanderson plumbing case cited on page thirty seven of our original brief and it's our position that really judge judge bremmer became a finder of fact in her ruling because she comes out and says that we had not shown that no mobile drill knew or had any reason to know that the i would apartment of transportation through its employees was using the obvious that it purchased for a mobile drill in a way that exposed the operators to an unreasonable risk of harm that was in page twelve of document one forty nine her ruling it is our position based upon the testimony of mr orr's esky that there was ample evidence in this record that a jury could reasonably find that mobil drill did have knowledge of the likelihood that the supplying of these augers would expose the ultimate user to a risk an unreasonable risk of harm i say that because the n o i in premise of this case is this mobile drill drilling mechanism is is worthless without some tooling usually an arguer doesn't have to be in the context of this case it is for the o t used it to take soil samples and the drill was mounted to the back of a truck it really is worthless until you connect the og or to the  likewise the og or itself is worthless and tell it's connected to the drilling mechanism otherwise it's just going to sit there and do nothing we are not asserting and never have asserted under this negligent entrustment theory that there's anything wrong with the og or we're not saying that the og or was manufactured as it was designed and there's no manufacturing defect there's nothing wrong with the og or it's the combination of the two and so our focus is not or and not on the drilling mechanism that mobil drill sold to the i o d of the o t our focus is on the conduct of mobile drill in making the decision to continue to augers that makes these drilling machines operational when it knows in the united states everybody is using these things without safety guards interest in lee back in one thousand nine hundred ninety osha investigated to protect the workers that are using these machines from the risk of an unguarded rotate the nodder twenty three years later they're still not doing it how far is what we're really talking lots of duty here right well yes in a sense so i guess the question becomes how far does this duty extend you have more who say they have a website or a catalog required to do some investigation to see if there is a cage to see if there is a dead man switch because that you've already indicated that's another alternative safety device what is their orders their duty to investigate to determine that there is no safety device on a machine i mean they know they didn't sell what about how do they know they didn't fabricate their own by somebody else so they have a duty to investigate well i think that's a great question and i would answer it  in with two components to my answer first of all the i was supreme court adopted other provisions in the restatement third of torts in the thompson versus cushions he case in we have we have detailed the absence of that case in our brief and that thompson versus kaczynski case says that as a general premise now the duty analysis is gone in iowa after the adoption of that so back when we had to hospital we talked about the first the ability under the duty and now is this and under the proximate cause analysis in iowa now that duty that foreseeability duty analysis is gone we believe after thompson versus kosinski but we also believe that there are two components to their knowledge bank that satisfy our burden and get us to the jury in this case and that is number one their objective knowledge that in this industry in the united states because  lack of of a enforceable regulatory system which compels the use of safety guards and or dead man switches or remote control of the platform which is only eighteen inches away they knew in fact hours esky testified it's been hard to get users of these devices in the united states to buy into the concept that they need guards so they have this objective knowledge that it's an industry wide custom to not use these guards in the united states they also know that that the i have a department transportation has not purchased their available guard now so that's another objective component to their knowledge bank they also know that the i would apartment transportation excuse me did not request a dead man's switch when they purchased the the drill from the mobil drill back in one nine hundred ninety eight and it would have been provided at no charge had it been purchased we know that because of gary beer the ocean vesta gator testified that in his inspection of this device it had no dead man switch in other words it would continue to operate even if the the operator took his hands off the switch so we believe number one there really is no duty analysis now left in iowa and that we kick right in to section six which details what is negligence coupled with section one thousand but we also believe that there is both objective and subjective evidence in this record that makes it a jury to supply our viewers to a purchaser of its drilling mechanism knowing that it it more likely than not is being operated without a guard and i would also state that if you if you look at section three ninety of the restatement second side by side with section one thousand of the restatement third and we have included that in both in our brief for the court's benefit clearly the scope is broader now under section one thousand of the third tours when you compared to three ninety they've expanded it and in fact the case that the iowa supreme court adopted section one thousand nine the brokaw case that involved a case where there was a vicious attack during a basketball game by a player from the other team and section nineteen was adopted by the iowa supreme court for that context now we will concede in that case they found that the coach who was also sued together with the school district did not have enough knowledge of this this other players vicious propensities to hold the coach responsible for putting him on the floor but in our case we believe we do and we believe judge bremmer substituted the role of the jury in overrule erinn granting the motion for summary judg it's just getting to that kind of a roundabout way i understand your view but i would respectfully argue to the contrary and and i believe our argument is ok have you going to make the decision to sell these devices without the safety incorporated into it then you can't complain when you continue to provide the tooling that makes it functional and it catastrophic lee injure somebody if jeffrey  thing and in europe he still can walk in the united states he can't that does not seem right to me and we are simply trying to urge this court to give us our day in court under a negligent trust with theory recognized by the was supreme court i would like to reserve final two minutes of my time on clip please the court my name is joe happy i represent mobile drill i'm here to argue that the lower court should be sustained that the motion to dismiss and the motion for summary judgment should be found rig mechanism that sat on the truck and the auger and other there were other auger manufacturers and through a very extensive amount of discovery we deemed to know a lot more about the various manufacturers but before all that happened there was a motion to dismiss the motion to dismiss was based on the statute of repose the statutory pose had nothing to do or says nothing about refurbishment of the drill mechanism this is something that the appellant has argued in their their brief that the refurbishment of the drill rig that sits on the back of the truck by the i would partner transportation somehow  the fifteen year statute of repose precluded any further allegations concerning the drill rig and here's the problem of the appellant hass in that case so it there's no such thing as an auger with a dead man switch and there's no such thing as an an auger with any sort of a cage attached to it and that's why this is the appellant is attempting to take this case from a product liability case and apply general negligence standards because it's the last last hope simply put  iowa does not have any refurbishment extension of its statute of repose so that brings the discussion in this case  to the motion for summary judgment which is of course based on negligent entrustment and to jump right in and to follow up on what mr humphrey was was arguing we have to we have to look at what this would mean if we did apply thompson to a products liability case and of course i've cited the hoc case from the i was supreme court on page forty of our applebee's brief that i think is the basis of this court rejecting that argument but what what would be the consequence of saying that mobile drill negligently entrusted an auger to the i would department of transportation and what would that do to products liability case i have i have to think about that milwaukee brand circular s evolve in the garage why would why would any car manufacturer want to entrust a dangerous device to someone they don't know what their skills are when v when it it on trucks with the i would part with transportation or any of their customers in the north american market and to find out what their skill sets are for their operators what their safety programs  are what devices they specified when they purchased these these items oh and if they had refurbished it and this is this is something that's in the record that would be part of a transportation in its in its shops we cite in our brief stands for the proposition that a commercial seller is not charged with that duty and a commercial seller has never been charged with a duty when they're providing a component that goes into a system and and we think that this is very conclusive of this case judge moore you asked a question about duty and i have to think that the duty to job require a manufacturer to have that level of duty to essentially change the north american market  as it was discussed in mr orr's eskies deposition transcript which is in the record is putting is essentially saying that the manufacturer would have to refuse to sell augers to anyone in the north american market which is the market of mobile dro and and mr he does talk about the efficacy of these these caging devices but that's a fact that we don't need to get into because this is this is purely a legal argument here the stature of repos precludes attack on the designer manufacture of the drill rig the auger there's no design error there's no manufacturing error there's no failure of the duty to warn alleged that's been conceded by the appellant and so here we set looking at  as an argument that somehow a manufacturer has to have their their their purchasers fill out forms in and provide all sorts of information you know in a in a in an age where this isn't in the record but when in an age where people are specifying what they want to purchase online this is just this is just impossible to do and it's impossible it's an impossible duty to ask a manufacturer to you know refrain from selling a component on this basis what what  as i understand what we have here is a salary who sold a product a drill mechanism at a time where no one thought about the safety aspect of the cagers government work paid should be done and there we loitered were that there is a danger to using that and there is a way to mitigate that danger using the cage now i would assume there are other situations where and then to continue to use the mechanism you have to provide an essential component the are  are there any cases that deal with that type of situation where whether there is a duty to continue to sell or not continue to sell the essential component of all of a product that you now operated i'm very concerned that we're getting so far afield when we're talking about negligent entrustment from products liability case and i want to go back to this this the language that the huck court used in discussing the thompson case in the the supreme court in the hut case pointed out that that thompson was not a product liability case and i quote we have not applied section seven of the restatement third of two words in products liability actions rather in products liability actions we turn to the products received and the restatement is clearly something that you know should be applied in a products liability case this is this is a backdoor way to you know get to a jury with a quadriplegic a tragic i'll conclude my remarks and thank you for your time that that negligent entrustment is still a theory that is available and i want to again emphasize we are not focusing on the condition of the product we are focusing on the decision to continue to knowing that it was the combination of the two and more likely than not unguarded that expose the ultimate user to a risk of severe injury i have tremendous respect for joe happy he and i have been litigating cases for and how almost forty years i guess and i have tremendous respect but we've always seen this case differently and i will agree with joe that if i had my druthers i wish we had a product's theory available we have briefed in our brief the refurbishment argument and i will stand by what we said in the brief but that doesn't eliminate the duty that exists because the duty is presumed now under thompson versus commission skinner iowa law and and when you presume the duty and you couple that with their objective knowledge as i discussed earlier and their subjective knowledge it is our argument to this court that's a jury decision based upon that evidence jeffrey open ought to have his day in court and see if the jury believes that that is sufficient knowledge on the part of mobile drill they are a big player in this market in the united states they are continuing to make drills they know the market they know these guards are being used they know these things in the united states it's less safe to operate these equipment than it is in europe and indonesia and we want the opportunity to present this case to a jury this is not a throwaway theory that we've come up with this is a theory that is available under the restatement third of torts adopted by the i was supreme court and we believe the record demonstrates sufficient knowledge that judge roemer was in error to grant the motion for summary judgment thank you