until an exception applies the district court agreed that premises one hundred and eighty dollars degrees opposite from general tort liability law if you've done something wrong and you injure somebody thereby you're liable the defense relies on the prevent line of cases but prevent was the exception to the rule of general tort liability privette was a policy driven rule privette in its own language told everybody what the policy was the policy of privette and its decision was to avoid the anomalous result that a non negligent person's liability for an injury is greater than that of the person whose negligence actually caused the injury i won't bore this court with the explanation of the nuances of all the cases that followed privette suffice it to say the reason so many of them were published was because in the wake of professor at there were a bunch of brilliant plaintiff's lawyers far smarter  that were able to artfully craft pleadings which eloquently disguised nonfeasance vicarious liability derivative liability as direct negligence so each of those courts that published a ruling in the wake of privette did so to ensure that a non negligent hire responsible would not be held responsible for the negligence of its sub contractor these plaintiffs lawyers came up with theories like negligent supervision negligent hiring negligent exercise of retain control and some general workplace exception to prove it so just because i do not believe that prevent applies at all in this case then what do you tell us but ok i don't believe that prevent applies in this case because i was not required to artfully craft any type of disguising language what i played in was there affirmative malfeasance their active negligence in having disabled this parking brake safety feature they disabled it they concealed it and they failed to disclose this concealed defect to mr dobbs i pled and did not have to do so artfully or disguising anything else united rentals failed to repair the parking brake they were called out weeks before this accident to repair the boom on this same forklift and at the same time they were asked to inspect and repair a malfunctioning parking brake they did not do so and weeks later my client was injured by this disabled parking brake this accident could not have happened it would have been impossible for this accident to happen had that parking brake as designed been functioning on the date of this incident this was not a mechanical parking brake that if you parked on a hill too steep it might pop off this was actually an intern graded safety system whereby the hydraulic circuit was open when the parking brake was activated making it impossible for this unit to actually go into gear either forward or reverse while that parking brake was activated my client on the date of this incident was a thirty plus year mechanic he was intimately familiar with not only this style of forklift but many many many others he was relying on the safeguard of this fail safe parking brake system when he was asked to troubleshoot a completely different system the transmission all right following that  opposing counsel argues that united rentals did not a duty of care to dogs they do argue that and the district court at page six of seven of their ruling pointed out that i had failed to to cite to any sources that stood for the proposition that the united rentals or any repair company would owe a duty and that's actually not accurate at  uncontroverted material facts numbers thirty four dollars forty two cents pardon me thirty four and forty one i cited the district court to the case called c e o versus all makes overhead door ninety seven co may owe a duty to a rd party injured by the equipment repaired if one of the repair negligently performs the repair causing the rd parties injury or to the repair or negligently fails to make a requested repair causing the rd parties injury as c e o case was the plaintiff and insured worker under worker's compensation in the seal case the plaintiff was not that is a significant difference between your case and see who is it not because the whole purpose of preventing the policy reason the prove it was that if a worker is covered by workers compensation conduct was a proximate cause of the injury i'll give you an analogy if united rentals or t x i for that matter used company cars for their employees and they sent a car out to a brake shop and they said to that brake shop the this vehicles brakes are malfunctioning we need to fix it before we give it back to our employees and that brake shop did a repair negligently and the brakes didn't work the argument by the defendants in this case is that if i give that car back to my employee and he drives out of my plant and he smashes into a wall because the brakes aren't functioning he has my employee has no right to sue the brake shop that's not the state of california worker who receives a worker's compensation benefits to also sue if rd party if they approximately caused the accident so knowing my concern one of my biggest concerns about the court was that the defendants had rested their motion on a faulty legal premise that prevent and tolan conclusively absolve them of any possible liability precisely what the argument is in this case the appellant having assert honor and i did argue that in motion that this should be part of the kinsmen exception and but that's only if this court thinks that this case should be evaluated under the prevent line of cases my think labor code section three thousand eight hundred and fifty two and that language about workers compensation exclusivity not not being expanded to abrogate the workers right to sue a rd party negligent tortfeasor i think that language alone  brake to work i mean is that a question of fact i think it's a question of fact i mean i think in all favor in all favor to unite your rentals i doubt that i would find any evidence that united rentals used like the duct tape and chewing gum that was used to bypass this unit i mean the testimony that came before the district court was that what was what had been used to jerry rig the system and bypass the safety feature was like headlight assemblies from the one thousand nine hundred and sixty s and ford trucks precisely those type of things that would be found in a maintenance garage at a rock quarry that had been in business for one hundred years before the date of this incident so i think jury rigged contraption had to be looked out there were two were there was an internal work order to its own employees from january of two thousand and fifteen that said this brake system needs to be overhauled including a full disassembly now we know from the uncontroverted material facts that the only outside company that ever worked on this unit was united rentals there is no invoice from united rentals that would show that anybody outside of the t x i company did this disassembly or overhaul of the brakes in january of two thousand and fifteen again the reasonable inference to be drawn from that is that t x i did it in house the other invoice that we're talking about is the one that was weeks before the happening at this accident where united rentals was called out to repair and oil leak on the boom of this unit and asked part of that inspection and repair they were asked to inspect a malfunctioning parking brake on this unit they claim to have quote unquote inspected it and found that it was ok now when  two the the exhibits and are uncontroverted material facts they and we also put you know uncontroverted material facts the fact that the very person who did this inspection said it was done in a matter of seconds the compo nits were not looked at the defendants satisfied that two part test the court determined that the burden was shifted to plaintiff and they relied on the holding of ruiz v herman for that proposition ruiz v herman is a nother case that examined the and undisputed facts thirty four and forty one as the basis for a duty of care oing from united rentals to the point of what i'd like you do to address is is that if i could read any of the record and if so why is that insufficient allegation of the duty of care i do not believe it is an accurate reading of the record your honor because i do recall that united reynolds addressed that argument on page five yard ninety six for that argument being c e o and as united rolls explained ms law did not address all four factors under seo and nor do i think seo is a prevent case so that case does not have a quick ability to the case at hand dobbs about this your honor the evidence shows that he acts i was not aware in deposition donna pippen to excite employee was asked whether he was aware of any issues with the parking brake around the time of the switch and he said as explained on page seven of our brief that after the incident he replaced the switches and the tele handler worked fine that's what i contacted mr dobbs to do to inspect the machine look for what was causing it not to drive and let them know and repair it mr mann said the switches are what was causing the machine not to drive either one of the two switches or combination thereof and this is why the california supreme court's discussion in kinsmen is relevant to this action there the court said quote an employee of a roofing contractor sent to repair a defective roof would generally not be liable to sue the higher if the in if the injured  injured when he fell through the same roof due to a structural defect in as much as the inspection for defects could reason reasonably be implied to be within the scope of the contribution but mr dobbs who sent to engage the transmission would deposition at two e r seven for line twenty two dollars through two e r seventy five line ten he was told a symptom of whatever was ailing the tele handler was that it wouldn't move that he couldn't get it to move they couldn't get the transmission to engage no one runnels told mr dobbs to inspect only the transmission there was no evidence in the record to support that proposition there are also like to splaying that the evidence in the record here shows that the parking brake wasn't disabled during appellants inspection as discussed on pages four to six of our brief the parking brake worked fine  mr dobbs out to a sprawling property because sprawl an area of a sprawling property because the telling him there broke in the middle of nowhere mr dobbs had to drive his work truck out to it because it was stuck there he then proceeded to do his inspection inspection as he see it as he saw fit he said that he put the tele hammer in drive and that he began doing various checks around the tele hammer and he says the parking brake was engaged he had the machine in drive parking moved there's no evidence of a parking brake failure here the evidence shows that the machine only moved when mr dobbs plugged the pins into the transmission that's when the machine moved and that's why he was injured because mr dobbs left his legs in front of the rear tire while he was while he was inserting the pins into the transmission and mr dobbs also testified that he put a set of chocks in front of the tires mr dobbs brought the chocks he put the chalks in front of the tires because he thought the chalks would stop the tele handler in the event it moved on fortunately those chalks did not stop the tiller hammer but ti ixion united reynolds did not tell him to use those chalks that was his own decision it was also his own decision to place his legs in while he was doing that sort of testing with a live engine and also like to comment on the work orders and the in voices that were referenced during my colleague's argument those as discussed in our brief on pages fifty to fifty five we have serious concerns with the presentation of that evidence the discussion of those invoices lack any foundation whatsoever there is no test there's no testimony from a witness to to lay a foundation for what those work orders may have said instead plaintiff's counsel is providing their own interpretation of what supposedly is associated with those work orders that is improper evidence there is no evidence in the record verifying that any of those work orders that the work corresponding with those workers had anything to do with the parking brake the work order about a brake system repair does not necessarily mean it had anything to do with the parking brake and finally honor in the brief amount of time i have left i'd like to address the two thousand and five opinion in brown v turner construction that my colleague submitted as supplemental authority authority on wednesday afternoon because that case helps demonstrate why this course is a firm summary judgment the brown case just an example of how a plaintiff may rebut the presumption of non liability under prevent thus brown is an example of where a plaintive raise sufficient evidence to invoke an exception i e raise sufficient evidence of direct means and methods of work including safety systems and devices to the defendants then withdrew the safety systems and devices before the work was completed three the defendants left plaintiff with no safe means of completing the work for the defendants abruptly removed hydraulic lift the day before the injuries and five the defendants demanded that the work be finished without delay this case was distinguishable unlike the defendants and brown the respondents here is not undertake a duty to manage safety during and help during m was would not move that's why it was stuck in the middle of nowhere three he used his professional judgment and experience to troubleshoot the tele handler by himself and was using the quote unquote process of elimination to figure out what was wrong for he use chocks as i mentioned that he built brought to the site himself which he thought were sufficient five the machine only moved after thirty minutes when he stuck a trent pin into the transmission and then the machine drove through the parking brake i the thought that this was not a bypassed parking brake this accident had nothing to do with mr dobbs putting pins and as the court knows from the reading of jerry mans to testimony jerry mann inspected the unit there after he knew it had hurt somebody he was doing absolutely nothing other than checking the parking brake from the driver's seat in the yard of his repair shop and the parking brake failed there as well and it went up and over chalk as well so this idea that it was no problem with the parking brake or that mr dobbs did something to cause it to move is absolutely untrue and totally belied by cherry man's testimony this unit was not stuck in the middle of nowhere it was right in the middle of where all of the t x i am ploys were working around it and the work orders that were produced and used as evidence in this case were accompanied by the demands for production of documents sent by my office for proof of all work that had been ordered or done on the unit they were authenticated and the thought that mr dobbs should have done his work more safely how could he do his work more safely if he didn't know that the parking brake had been bypassed the parking brake was it in and of itself a small compartment underneath the driver's seat away from the transmission away from  that isn't jerry man's testimony it's our additional material fact number thirty seven dollars jerry man is the specialist that was hired by osha to inspect this unit to determine why it failed and his testimony there's about fifteen pages of testimony where he said dia relays and bypasses that swore to the safety feature that was intended to have been on this unit