for the appellant i was going to reserve if it's ok three minutes from i really you'll just have to watch the clock thank you thank you most of my time i thought i would spend talking about the law but if it's ok thought i'd spend just a moment talking about the facts on may twelfth two thousand and two a company called hell of risk least a tool drilling tool it's called him w d measurement while drilling tool and they leased it to force a boil in lanner drilling the two defendants in the case because in the all patch they're now doing a lot of directional drilling sideways and things like that they need to know where the tool is so you have to have a power source to be able to run this thing this tool has a lady in battery and it's a valid yard wall it's very soon about like that in thickness and it is in case it's in tune designed to take all that abuse and this tool isn't a living battery as i said lydia miss safe until you have water touches once water touches it it becomes a bomb it will blow up so they use this tool nobody reported any problems the defendants were the operator in the oil patch they own that well they have to guard against actually submitted to the trop were there is a picture of some bolts that ended up down hole they're not supposed to be there ever there's a very common drill screen that goes up top with the drill screen there it's virtually everything he's the only one who they are the only ones that can control it dropping down there we've got a copy of all the equipment used on the will side by the operator and they don't even list the drill screen there they charge for it wasn't there that's the only way this thing could have gotten down there but what's fascinating you know there's just cancel related question is there any evidence that forrester lantern knew that a bolt had fallen into the tool into the drill  no i can't say that anybody ever testified that they knew that fell down but i think our expert would have said and actually we test a report in the court below but it's prime station i just can't let it go down there whether they knew or they didn't that's the problem they're there negligent somehow for letting the bolts or any just really going downhill yes ron and it's not even that item that we have to get to some type of ny evidence that the drilling company and the drillers knew that this was a possible consequence i think so  you mean think what were in the records but it was i think it's in our expert's report i think it's in the depositions we had cash i took depositions of a corporate representative this company took bankruptcy and all the employees the corporate representative deposition of the defendant that i took i asked him about this very thing and he testified they had a duty to prevent things from falling down the hole testified a million things can go wrong it can cause the equipment to break it can cause equipment to get damaged and indeed it can cause the the welder easter explode when the in repair yes i think everybody including the defendant knew if you get lydia when it's going to blow up it's well known in the industry they knew all that well where where in mr paul's testimony did he talk about the lithium battery i think i asked him about it i can't tell you the page but i think it's in the record you think it i have much my recollection and in fact i asked him about do you have a duty to keep things from falling down in the hole and they said yes that is in there that i thought i was going to read  that and will read that and i think your question was good also because it brings up the foreseeability question that's really the heart of the thing i think this came down to two cases it's primarily the braille case from the from the o'connor supreme court which is a case we rely on that the trial court talks about also with all due respect to the court i think the court took one word of that case which i would contend respectfully w grill was that we hold as a matter of law that one who is paid to repair a car owes a duty of care to both the owner of the car and to the general public to focus just on paid and interest in the words and for the general public it's i think it's pretty clear the general public didn't pay for anything so i think that case actually supports our point and i think with all due respect trucks were incorrectly relied too much on that word payment we respectfully submit the payment is not what governs whether there is a duty it's it's whether it's forseeable harm to the general public and our expert witness consumes the drop in the boat down end then they have to go you have to go further and you have to say that you have to say that they either knew or or could or see that when the instrument went in for repair that guys would use  doing so good damage a copper tube that contained a battery yes and then they had to know or proceed yes bob barton the bomb would explode in the works indeed i  furniture fell off the truck yes your honor that's correct and in that case they actually gave credit to the same thing that happened in our case in that case the court considered the testimony of sunshines corporate representative which we did exactly the same thing we took a corporate rep sunshines president acknowledged such activity may present a risk of injury so that his employees exercise judgment as to how to accomplish the loading task or whether to refuse and i'm sorry i'm not on a blank on that name your islets if it's right there in the report but in any of them it says that he indicated the bolts are small enough to fit through the debris cat catcher and that the hole in the head made him unique so that even if a debris catcher had been used the bolts could have gotten into the drill hole that's that's what that's the deposition testimony it's in your expert's report yes your honor i think i think that maybe that's still they're not supposed to drop down the drain catcher maybe they're not supposed to drop them but things get in there right and when these tools get returned telegraphed isn't the reason that they take them apart and put them back together is to clean him out and get ready to go again isn't that the way all this is supposed to work that is true ron so if even if it's real if the tool is returned to telegraphed and maybe there is debris and maybe that that presents a risk of harm and may i may i say this your honor this is this may be protracted as a crowbar and it may be perpetrators someone doing something wrong and beating on it but that is a hotly contested issue that would be like arguing that when you take tool can damage the tool then it can never be used down whole so this is being mr trite i do want to make sure that's out there but that's not the issue here that would be a fact question maybe for a jury as to whether there was you know some kind of contributory negligence but the question here really is the operator that's his will he or she whoever the operator is has maintained nothing falls down in the hope our red lights go on the us in a just in and blew blown everybody out there it just happened to blow up that the office and that's what happened the time was up thank you what are pretty much back to things that were said in the record and i wanted to just clarify briefly  first of all there was some significant discussion about the corporate reps testimony and that was by mr b j poorest who was testifying and well he did indicate that in general there was a responsibility on everyone's part to try to keep things out of the hole i wanted to point out that the quote deposition questions about that were extremely vague and it seemed to tell  were intentionally that way well that he said what he said and he said we don't want things to go down the hole we try to guard against that we don't want things to go down the whole right i mean this is people on the well at that well and draw site try to do their best to keep things from falling down the hole however as was indicated in that testimony safety does come first in fact that mr p said if something happened for two or something is going to fall down the whole you know we can get it out later even if we have to stop the production process but don't put yourself at risk safety comes first then the general proposition you know desire to keep things are the whole comes comes next what do you say in response to the appellant challenge of the district soley on payment and in fact that i have trouble finding where hines council is a drawing that conclusion from the district judge's opinion was thorough and it appl the general correct oklahoma standard the issue being it was it which which is could you could you just articulate a standard what is it under oklahoma law that creates a duty it must be reasonably foreseeable that the defendant's conduct is going to create a writ is going to create the risk of the harm to the point if it has to be connected that that was the that was a situation where the french a company doctor mentioned shares on track the shares fall off and harm the person driving behind the truck who would know that would be that person is a business holding itself out offering services it's offering to as part of a service fasten a heavy furniture to a moving vehicle and to where it's quite obvious that if they failed to use reasonable care to fasten the furniture to the vehicle that the obvious result of that is on the road it could fall off an injury or other drivers so they didn't know of course i'm not saying that the defendant has to forsee in the future the specific individual or everything specific about how the event occurred but it does have to be  quite obvious that as a result of what they're doing the natural in the natural course of why there's a risk to a certain class of people but in our case it is not at all clear that that is what they are being faulted for how could i just break it down this way would you agree that the failure to prevent the bolts from falling into the failed to ban bolts from falling into the tool that that alone create a risk of harm if if how could it not have created a relative our i would agree that that's the easy question ok did it create a foreseeable risk of harm most certainly not now but why not it depends on what the harm we're talking about is if it's possible that it could go down and damage some acquit man or something like that then damage to equipment is one thing and that i would think that's probably about as much as far as  foreseeability of the operator could go what's different about our case is that this was far removed and it was the result of a whole string of other things that not only did force and leonard not know about out for have held out for service and i can i just ask your position on oklahoma law relating to do the base for sea ability and that is does the foreseeability of the risk of harm have to involve a harm that is unreasonably dangerous for the words there's harm and then there's harm does it have to because of have to be an unreasonably dangerous risk for miles i think that's correction yes and do you think it's correct because you have a case well i'm it may have been that in the case that the court cited and because i've noticed that there is actually so a little bit of overlap and a little lack of clarity in the law in terms of the requirement that the conduct be unreasonably dangerous and the legal duty the initial legal question of is there a legal duty but yes the overall concept is there has to conduct has to be there be creating a risk of harm that is unreasonably unreasonably dangerous and it has to be reasonably perceivable it's unreasonably dangerous and because of the relationship between the parties the far superior knowledge of the manufacturers who put this thing together and offered it out for the services for for being used in these extreme harsh conditions with somehow got in there unbeknown to the operators what does does the discovery record show that it was common for these tools when they were after they were used and then returned to sell  words small hard abrasive debris like a rock or something else those were his his words and in fact on the day in question the tool in question in the early process of them trying team leader for telegenic there that it was probably a rock or something like that that was hung up because of the way this tool was designed which you can force and land would have no way of knowing well i wanted to ask you about that that that he continued with attempts to disassemble and my question is how does that go to the issue of duty i mean it almost seems like it was on it's on the surface  contributory negligence argument but how how does it go to the duty of the of the defendants how is it relevant to that a simple question i can and understand and i've thought about that myself but with the legal question that we're facing here this isn't if we don't bring that up to race and sort of contributory negligence argument it goes to the heart of the issue of what was it reasonably for renting a tool to yours know as much or more as the manufacturer well it did the did the descendants here your clients did they know about how the tool repaired and put that can service after it was returned no no they did not know and there's no evidence in the record that they had any understanding of the the disassembly process the teller just created for their product common sense but how they did that they certainly did did not know and they certainly had no reason to know that or both had even gotten in there or that i could call what case would you rely on factor that because in that key the descendants actions did not make the work setting that caused the injury more dangerous here arguably your clients did in that the balls went down the hole causing the damage caused an explosion that isn't there a distinction there i think you're correct in pointing that out but with our first case we facilitated this to occur in purely a a but for augustine sense which is not enough in other words perhaps the bold that perhaps came from our drilling sites cause the store to be hung up there were other many other factors that cause the actual explosion that we could not know about and that is the real question and i think about with the the railroad case that you were discussing what makes that case what made the district court assessment of that case correct i think is the recognition that the in the plaintiff in that case was an employee of another company and their and defendant company was a separate company did not have any control of the training which would parallel here the yes that's the parallel and i think that's what what the primarily what the district court and the three individuals harmed there  plaintiffs here in both cases those individuals were doing their usual work correction and i think that's why the court relied on that but again that was not the sole catcher's catch trash is big things like sale water bottle the drill catcher is a fire screen it would catch balls and they're two different things and it's talked about in page three the last paragraph of my expert report where he talks about it's inexcusable not thank you thank you thank you both for your arguments this morning the case is submitted