as well and well presumably right and my question is trying to solicit whether you listen whether their court considered any police or contrary language in coming up with the decision  thing the plaintiff was an employee of perry who went to work for p g and p g said mr perry come here we'd like you to come do this special project for us and the court considered that fact when determined he was about servants y mean i think i think that's a reasonable argument views of the program and the other news but the question that i have is really should we feel all that compelled to be bound by this going to case if it did not involve a situation where the people show up with the cream have a lease agreement i think you should say i think that's the key distinction is the people showing it was the crane showing up as opposed to the employees showing i don't know let's let's start with this what they first of all had a contract i know you're going to say well but also to state expressly that what was going on was that this was to be a borrowed employee in the sense they're saying that if there were to be competent personnel required contract is about one factor that this court has to consider in determining whether or not about seven relationship exists but the contract itself does speak to the most most crucial issue in these pirate employee cases and that is the subject of control and you address that in page twenty one of your brief where you quote the agreement you say that jeffco quote agrees to provide capital and experience personnel to direct the operation of the equipment that's not an accurate reading of the agreement is language and the very issue the most important issue in these cases which is the right to control but again i would argue that the contract is just one factor is this court held one factor in determining whether or not their right to control exists and if you look at  under in policy behind the borrowed servant doctrine all policy according to the restatement third agency is step allocate risk and allocate the liability to the party best situated to evaluate its in this case it's just how was the party that hired when dale trained him provided him with equipments but if the purpose of as stated in the restatement is to allocate risk is that something that can't be changed by contract in parties will say well ok we understand that in the absence of an express agreement this is how restatement says we should allocate the risk and determine who bears it but we contract the parties to care if there is a first crack agree that for the purposes of this lease instead of what they were straight would do we're going to allocate risk this way and  when they have the right to do that perhaps they would although i believe the contract also has a vision about negligence where i believe it says that area will not be responsive for the negligent acts of a jeffco employee and that's you know exactly what we're arguing here that was the underlying all i mean once again i mean i as i've said before i think this helped me existence of agreements as this court has said you know whether or not there's a contract for hire is one factor for control and i think the most relevant factor in the epidemic analysis is the fourth one whether or not th loaning employer relinquished control of the equipment to the borrowing employer as i said before this is a case i believe is a case about a bar rented crane not a borrowed servant and the robinson who downall army case which i cited on page twenty four of my brief dropped the test set out in section two twenty seven there are statements and common c of that section says there's a four criteria are math an employee really remains in the general employment of his employer the first factor the straight they did switch and i believe one worked in the morning one works in the afternoon and that was how it worked for both days around the site second the time of new employment the shorts again the record shows that these two guys are on this site for two days and only several hours each day this isn't a case where there's a temp agency send somebody out for months at a time a third factor alone service is a skill of a specialist once again when bill testified in his deposition that he had literally thousands of hours behind the controls of one of these cranes and finally the fact the general employee rents out a machine of considerable value and a servant to operate it's again that's not here just go rented out a ninety time multimillion dollar truck cra and they send their own experience personnel to operate this crane how many ever going to run it if we were to hold the the agreement doesn't control whether or not they're a power to employ or i mean how many crane operators are going to be in business you know leasing of cranes to companies like area that can't afford their own crane presumably the ones that hire strange employees that are not negligence and that's you know getting back to the policy underlying this whole doctrine if jeffco hires experienced trained personnel you know they should have to worry about the guys going to the site pouncing loads up and down and injuring people and isn't one of the issues here whether or not he did  operator the crane missed when was actually accepting areas direction i mean the whole hand signal thing was an issue but also the chip could you please part of the crane was added to was added to the crane and the deposition iran or touched on one of the other factors is the issue of following instructions of the alleged borrowing employers group so here in the area he people instructed them when i want this gym and the crane operator overruled that i leave this complex in the test that really determine any of the legal rights or responsibilities i think it does around out because there's a provision in the contract that says that jeffco will still be liable for the negligent acts of when  we need to further pursue what it is to say the document called a lease is actually a contract i believe we do know as i mentioned earlier now the trial court when it money was exchanged counsel in their brief said quote area indirectly paid when deal salary there's not a shred of evidence in the record that there was any consideration one of the key elements of the formulated than try to show up with a crane isn't that consideration  is in the business of creating these contracts hiring employees buying these cranes and sending them out for nothing well is this not for profit organization that i have and if they don't know i presume not but so about but as to the validity of the vacuum if that we're talking about to the speculation and that's all that there is in the record that there must be some other back around out there that that they had some other agreement you know if that were the case why wouldn't your client have if there is some other green presumably they do i don't mean that perhaps it wasn't producing discovery i can't speculate as to why i think you're asking us to speculate a little more that i think you also have to look at the fact that just what happened here there's no evidence of any bargain anywhere in the record what happened  know on the day of the accident when bill showed up with this crane so out with these documents and the only the first time they ever work with each other you know the record doesn't indicate one way or the other if they'd work together in the past three months is the first day he was on know known to negotiate leases for multimillion dollar pieces of equipment now but they're probably authorized to sign them all the only thing the price and off down what were the hours worked so it was really sort of a time sheet yes absolutely e was the one to provide competent and experienced personnel to direct the operation of equipment that the lessee was the one who's supposed to be in charge of for lack of a better term using the rigging properly and all of the chokers and you know the other whitman that's i'm going lessee right on the last or but the less or was the one responsible sending somebody to actually operate the crane and if you look at now the deposition test testimony of irizarry it's the information that would suggest that there may have been negligence that caused the to fall down and injure the plaintiffs no question about that the question is legally it's a question of law whose employee was the operator of the crane who allegedly was hillbilly and say oh i think you know if you look at the flaws in this document and you look at the other factors presidents and pro dan eggen a j johnson taking all these other cases it's too early to say as a matter of law that you as a jet that he was an employee of area  on the area job right yes so the question was whether was affectively done and should be recognized as such under the law and not whether his acts were negligent and caused it or not because that's an issue for a different day ok put that but those questions to not only on ball what's in the lease they also and include the activities in the behavior of the parties involved and if the operator of the crane was not following the hand signals was not paying attention when they said we don't need the job rights not accepting areas direction then he was acting independently of arius cooperation but once again wouldn't that be a situation of whether he was or the employee or one entity or the other whether he was doing that which he presumably should not have done and that's really what we're here to decide absolutely and you know again you're i know this is a case on summary judgment we've talked about multiple conflicts in the facts ready i think that this is a question for a jury to decide that the conflicts about whether or not the operator was negligent those are questions of material fact about whether or not he wasn't signed i would say again there is no consideration present here and the fact that the livery of the of the crane with two human beings operated not be considered consideration mr health or there's no looking at the deposition testimony it appears that there is a significant difference of opinion about whether or not the this crane operator was wholly controlled by the area employees and you talk about that from the way of that's i in the cases did not discuss the specific terms of that with those leases now there's now another factor in the courts and prank cited was whether or not the bombing employer of the right to discharge another fact this is another happened on the day whether someone was given a signal and ignored the signal but a fact about that would determine these factors ok also there's the right to discharge job versus a case like this where they're just simply telling him what to do well what again we're crossing that line that i'm at least i find trouble between what the contractual right that says you have a right to control and indeed you really believe it's a conflict agreed to control and then what happens out there i met day which could have been be negligence or it could have been somebody just acting in a contrary fashion whether he accepted the direction or not i don't see how  issue is a material issue of fact over who had the right to control right and what i'm saying here is that under god mitch under these cases area did not have the right to control the how the how not the what the how when deal did his job and what facts out there that are in controversy about whether they have the right to control that's the question i'm trying to get answered or there's the testimon and a few weeks ago i told them where to put boxes i didn't tell them how to pick them up i didn't tell them how to wrap my furniture and to equate one with the other i think is nonsensical did you review your grammont that you signed with the movers to whether or not you're the sign there is an agreement that said you're responsible for how you use the equipment that is provided by the rigging and how you're tying up the load you're the one the supposed to bring in the iron workers or helpers or whoever to put the steel connect  to the crane via all these things that's all on the last seat i mean that's that's right in the contract and that's what happened here the ironworkers the crane guy shows up with the crane and his partner the euler and the iron workers show up that it was he ultimately had the responsibility so it's long as he was connected so inextricably to making this decision and did not have to take the direction of the of the you know this is the exact situation that the drafters of the statement revision when they and when they drafted section two twenty seven you have a crane operator in the course of his employer's regular business who operates a crane that belongs to that employer in this case area holi took control over the crane operator and jeffco holy relinquished its control over him they had control over him their right to control him they had the right to discharge him and the right to control was also provided by the contract to let me just start with the right discharge then sort of crane comes with two guys attached to it and those two guys are the ones who are going to be operating and the good operator and isn't it really only go fiction that area could have done anything to change the people using this crane without telling them to get that crazy out there and having to rent a crane from somebody if mr wynn bill did something that was unsafe in that area as foreman didn't like him what he was doing he definitely had the authority and the right to say get out of the crane you're assign people because they're the ones who assign these two people to the to the job when they're packed up their brain walked away written away in the green no i think that the test you know what the cases look at is whether the fire only employer call up jeff cohen say he's gone replace him if they have the right to do that replace him that equals and that's to the fact that they have exclusive jurisdiction and control over the operator but i also with cite the testimony by brian price who says if he's doing something wrong we're not using  ok but that gets to the same thing i was having a cold we with mr elster about which is what they would have tried to do is one thing but in reality what they have the do they didn't have the right i was i would think to put somebody else at the controls somebody of their choice at the controls of jet hose crane the contract is written clearly is written with the goal of trying to transfer all liability from any henschel accident or  wrongful act to the two eric but if we're looking at the reality of whether they could have said ok you wouldn't be able to get out of there  because again we get to the issue of whether they actually hired this guy in the first place it seems to me only this charge somebody who you hired at some point and as i was saying in the preamble made to have the same rate of pay and that's of record and that's in our brief so absolutely and again i think you're adding to if you're asking whether area can now say i want you know joe smith to sit in green i don't think that's a task that's equals the right to just charge i think it's whether they can call up and say you know what i don't like when built i want jeff olson i want i want the guy who made up the company i want him in the crate i do believe they have the right to do that and that's genotypic not an area the choice would still be just to replace correct from the general employer correct to run the ninety ten crane and there's talk about this contract i mean why should we have all the trial ok the terms and conditions are quite extensive and they're written out and it's a one page document it's hands down based on the landmark case the cause of the conduct shows that these two parties i had a mutual intent to form pursuant to the contract and then on the other side even though it looks skimpy what we have is we have the location we have the dates we have the hours written  we have who is there from jeffco we have ryan price who is the foreman who is an agent of area boy area so it's entirely consistent with what actually happened it's entirely consistent it's it identifies the equipment they then if i  operators and then there's also the affirmation by area regarding the hours and the times so absolutely and what's all this chatter about whether or not there are some other agreement out there of the risks rougher made to it in the that that would be much the first thing i'd look at there's no other evidence of any oral agreement or any other type of contract or bid of record and again these people have a course of dealing if they've had the crane twenty times at least with  just one safety record there so i think it's just outside of the record that there is none and what about going there which i think counsel is relying on heavily the illinois supreme court case that talks about the s supreme court case might well go and take is interesting because it seems like the only only evidence in favor of the alleged loaning employer was th only hand signals and on the other hand they had that in favor of the borrowing employer that only only the loan employer have the right to discharge and hire and fire and that was undisputed so that the control remained with the bearing employer and they looked at the test of whether they wholly relinquished it and that the having a hand signal doesn't wholly relinquish control are isn't per se enough  to take over the control by the of our employer and in this case also we have the addition of hand signals it wasn't just so you know come on the site and go over there you know i'll help you i'll tell you if you're going to hit something it was he couldn't see the you have to look at it in the context of this case and that i think i'll add to that because there are plenty of crane operator cases or heavy machinery operator cases where the crane operator say he  he had to the fact that he said i can do whatever i want and follow hanson as i don't think that's part of the record label but he says all right where the earth is so ok so then just because the crane operator has the right to say i'm not going to do something  verdict involves a crane operator again having not having to do anything unsafe wilfong summary judgment crane operator heavy equipment operator so again they say i'm not going to do something again go to take away from the right to control the manner of their work the right to discharge and the contract terms and i do want to add in one other thing about the agency i just wanted to point out  that same inference that general employment continues based on certain factors that it's removed that it's actually criticized the second statement for being inconsistent in its application and so i do believe that the third restatement does favor our position as well and that area had he had the control and they also were able to prevent against reskin if he was doing something that's unsafe they replaced herb he didn't even have to call him up they could have kicked him out and there was another one there already whole radio on the job as cited approvingly the second to save annette's four part test if you want to look at the third or statement that it says quote liability should be allocated to the employer in the better position to take measures to prevent the injury suffered by the third party let me notice it's important to note that the fourth factor in the pro danica whether or not the lending employer surrender control of its equipment no question that that factor was met there facts show that the owner of the equipment lent it the opposite is true when bill and also are the only people to touch this crane no every employee had any say in how it was operated they simply did the hand signal say i want this steel brush from this points to this point now counsel touched on the right to discharge and i'd like to quote praises testimony he said i don't know that we could tell them off the job site we would call somebody else and lease a different crane and this is what this case is all about they leased a crane under such done before they didn't go to jeff go and say you know we want back out we want that guy they said we need a specific piece of equipment for a specific job he had no expectation at all that somebody would show up to operate it off course they did so was the crane i mean everything's fungible here somewhere the iron workers you know bring the five more guys from the hall i mean everybody's function absolutely but under the restatement that's you know one of the key factors for whether or not a general point relationship continues the first act or whether the general lawyer can substitute another servant at any time i think counsel has admitted this what is the restatement say about contractual relationships can the areas of the world agree to a contract with the jeff because of the world to figure out who's going to be responsible for the whether they did i think is a question for the jury as is all of this and you have all these different factors for control whether or not they're really pushing shoulder equipment whether or not the bar employee follow the employer's instructions whether or not there was a right to discharge may very well prevail in from the jury but i think in this case there are significant questions of fact questions of law unanswered that should preclude the entry of summary judgment this is a case for a jury or honors thank you thank you thanks for the grace of the