morning welcome to the most new orleans related argument that we have today none of the three of us are in new orleans much to our dismay maybe both of you are casino you rather have the cold or the hurricane headed toward i would prefer to call the q but we did have a lower than thirty two degrees yesterday so a lot of frost still you know flowers it's all it's all in the season some pure absolutely in this case plain just stipulated that alabama wildlife was an independent contractor that's key in this case also pla the work was to remove starr early birds in absurd numbers startling birds and twenty seven trees that were not on a public sidewalk and part of the jazz casino premises at the time of the accident they were on the public sidewalk this appeal is not about the weight of the evidence but about the sufficiency of the evidence the jury was instructed on three different theories of potential liability for jazz casino and we believe the evidence was insufficient for each of these theories in summary to give an overview where i was going in case you have an idea of word of it in some questions to the jury  in louisiana law there is generally no liability for the principle for the acts of the independent contractor the burden of the proof is on the plate if to show but an exception might apply there were two exceptions that plaintiff attempted and both to today's argument one exception involved is the plaintive needs to show that the principle gave either express implied authorization to an unsafe practice here the point of simply obtained evidence that there were better practices available but there is no evidence we believe that the what was being done violated industry standard another exception that was a political here is the plaintiffs needed to prove that just to see you know had the right to an actual exercise operational control over alabama wildlife it's a step by step control over the actions of alabama wildlife operational control you know in this matter just casino had no knowledge of how to remove birds from trees and none of the attempts by them in the previous years by either them or other contractors they hired had been successful they could not control the manner and methods  ella bama wildlife the rd theory that was presented to the jury was whether justice ino actually hired an irresponsible independent contractor necessarily for negligent hiring claim the a vetting had to have occurred prior to the hiring and if you remember we stipulated that plaintiff was hired in january two thousand and seventeen also at the time that the pla not he says he usually looks at the better business bureau he could remember he had in this case and in fact when he did his betting nothing negative came of his betting so there is no the negligent hiring also goes to safety and we're talking about the better business bureau that f rating relates to the fact that they did not it's a pay to play situation but they did not respond to two said well that's true too there is area that i wasn't going to get into but it goes to whether they actually had actual knowledge or should have known in here we don't think it really matters because in the grand scheme they should have known that the better bureau better business bureau had given it a meth that's what i understand the argument to be how could they possibly should have known that well i agree with it i don't have known what the rating was well and i agree with you i don't know how they should have known if in fact of they had checked the better business bureau the testimony is he he generally does but he did testify he didn't find anything negative so there wasn't enough parading he did not see it and did not know so he did it so he the testimony was that he may well have checked with the better business bureau but he has no  recollection that they had indicated that the company had an f rated correct that's correct but he had no recollection of what rating they had one where the correct he doesn't remember what he found if anything at the don't think it is fair to deduct that because i don't think it's clear that he actually did check the better business bureau base and his party said he said he always did he said he usually did yes it was something that he generally did but it was not a huge part of his job to have done this vetting that was also evidence in the case usually it was done by other people but he did this because he was put in charge of trying to figure out what to do with the bird problem before we leave that if you're missing central but make  is posted online yes check it online maybe you just didn't see if at all you have other issues i'm sure want to move on well let me just finish up with that issue the the better business bureau  witness actually testify that the better business bureau does not make judgments or determinations regarding the quality of product service or anything of that sort all they'd f rating was soley as a result of not responding to complaint it had nothing to do with safety david stewart didn't see that it didn't follow up so that is not something he knew correct then i think in the end it doesn't make a difference also what about tom what about a negligent hiring claim basically was the policies and procedures and the certificate of insurance which was all after the hiring occurred so it could not have affected or it cannot support a claim but i thought the record was that before the casino hard any better they would they would have had this sort of evidence of insurance d money that is what typically happens that is what typically happens because what happens is you get a vendor and you put their information into the software and one of the clicks you have to do is make sure you have a certificate of insurance in this situation and i understand this was a purchase order so was a little different but in this situation and i understand it happens at least once a month where a vendor comes in and doesn't have a certificate of insurance and they can override that much things going in the situation they showed up gave them a certificate of insurance from the policy period from the prior policy period that had been on file with the state of alabama for their licensure but when we saw when the computer money people were checking it they said hold it that's last year so they talked to alabama the evidence shows that they never did it get an updated certificate of insurance they did make a couple follow up requests for that but these certificate of insurance never once provided now error in my situation here i the evidence it's clear that it all happened after the hiring happened so it really is irrelevant because it was after the fact how is it irrelevant if they proceeded are the company without the evidence of insurance doesn't that go to the question or does it doesn't go to a safety question insurance has never gone to safety in fact the federal rules of evidence for love and says that you cannot the company did not have insurance i suppose could not afford insurance and apparently it didn't raise any red flags that maybe this is an irresponsible company if they don't have insurance  appreciate that but they hired them before they showed up and they told them to bring the certificate of insurance from the way the record is with them when they came so it was a sale on a loan how hard they already heard him and before they start the work inherent well if you look at the guillory case the principal had knowledge that even in that case the independent contractor was in violation of safety regulations but the case was very specific that it all occurred insurance happened after before they started the work when they started the work they showed up on february th and started the work they didn't have insurance and you knew that in have insurance when they started work we don't know they have insurance there's no evidence in this and safety and there is nothing about competence or safety related to an insurance policy and again the stipulated hiring is in january th teen and everything regarding the survey certificate of or closing statement here is what the use of a man lift with one flagmen is exactly what the standards of cure required that see undisputed evidence in this case that was being done it was done poorly by alabama wildlife but that doesn't put a duty on just casino because because there wasn't a huge failure it doesn't go to control or if the court will indulge me by talking about another argument i have before this court about the opportunity to argue before the test are good this is now my th time but i want to go back over twenty years when i was a young lawyer and i learned a valuable lesson with the farm i didn't get those cases i got the cases of the lawyers following cabinets they want to get rid of and give to the new guy and one of those cases happened to be a case pending in the western district of louisiana lara smith versus wal mart it was a slip and fall and i was trying to prove that wal mart was negligent and as a young lawyer i had a lot of fire may i hope i still do but a lot of our mates i went work up the case and we go to court and we tried the case to a jury and i thought it was a brilliant jury after the answer of the st two questions was walmart negligent and did that negligence cause the plane the plane of centuries yes and you know so this is a great you're but then my jury went off the rails a little bit and that's questions where were the plane it was a plane the negative negligent yes and then how much fall to us on the plane if it was a lot more than they saw in the walmart and on top of that award in the case for back surgery was seventy five thousand dollars and as a white i did such a great job on this examination of the position i'm understanding i know there were some preexisting conditions there but i should give me more money so you know what i'm going to do i'm going to appeal to the fist circuit and i'm going to get this travesty of justice overturn it and so i learned a valuable lesson you're pretty deep into your time i bet you have a situation that juries have a lot of deference and for good reason and in that case when you consider all the evidence the court of appeal did exactly what it's supposed to do and that was a farm the verdict and so neutral and secondly it does seem to me the points that your colleagues are also on the screen here was making about negligent hiring  not a general verdict then the court has a vast description now that haven't been as of the board court has passed a core discretion to a farm ok a general verdict in my view is you know if you watch movies like the r you are supported by evidence then there's no issue of the general verdict but if it's clear from the from the from the judges and struction accompanied by the verdict form what the jury is supposed to do then that's sufficient you don't just look at the general reform you have to consider that in connection with the jury instructions given by the judge and in this case i believe the jury instructions given by judge fallon when considering a conjecture in conjunction with the questions asked of the jury was more than sufficient to support what the jury did and also there is a sort of a harmless error type gloss rule that even if one of the theories isn't supported if it's if the evidence is clear that or the records clear that the the basis of th that i certainly would not want that to happen but that may well be correct if you conclude that the jury instructions in connection with the verdict form were insufficient let's do this then if you can tell me counsel with regard to each of those theories tell us that evidence that was sufficient for example with that was in hiring tell d us the evidence that you've entered is before the jury of the casinos decision to hire a tip you are prior to the decision being made in other words trying to get people to hire them to do work and i can tell you i would no more live one of those contractors without a stiff could have insurance or bond get on mom roof in the mantle moon and that's in like charles louisiana at my house how much more of a duty thomas harris has at one of the busiest intersections in the wall use to make sure that his contractors are insured evidence of insufficient insured them so no insurance determines or for the hiring decision well your honor it's worth it i know it's a little bit up in the air but looks like the courts have all ultimately come down the side of when they're doing the analysis whether they knew or should have known if you should before hiring it knew or should have known before howard about the better business bureau f rating because that's something that mr stewart testified that he would have done ordinarily anything any set up probably didn't hear so that was before the hiring your honor now that's on the negligent hiring client and certainly independent negligence and other issues you know what they continue to do let them do after they got got to the property i understand that maybe separate from the night was a hiring cla obl leave your honor that where when the policy says you cannot let a contractor step foot on property and you cannot issue a purchase order without st verif david stewart was out on the project is that paris employee and supervisor up there supervising was actually out on the project when it happened not just out there observing but actually helping with the work and setting it up and he was in a harris principle on sides allowing the contractor to move a man a lift out rush hour with no barricade no cones no warnings whatsoever that man were to porn safety on the project and one of and he was the one who was telling them what they needed to do it was out there directing traffic and he was saying here's our warning signs maybe in that sort of thing he knew when this was going on that none of those safety precautions were room lights he knew it so i would argue roger that whether he ordered them to continue because when i heard the figure through to finish the product or it was implied he was allowing them as the principal in charge of the theory that you asserted in its run up what you thought i would agree with you about was were all he did if all he did was was go out to the project at one time and let him do it i would agree with that but the but but them tar history of a project is he did much more than that from the beginning of the project all of them was in charge of safety and so he was the one who's authorizing this safety practices on the job your honor and i'm not think i think it's expressed i think according to richard taler expressively was the one charge of safety and you know again i agree with you one hundred percent your honor if this were a one time thing and he just happened to be out there and he happened to see them doing something unsafe and he didn't stop a mom of the group you want to present because there are so many more facts than that and i think that's issue with this whole argument that harris has made if you look at the if you look at what paris was arguing to judge fallon in the jury blew it and this should have never gotten to this point i'm wondering why if things were so clear with the facts that no rule fifty six motion for summary judgment was ever filed and why they didn't argue that there were genuine issues of material fact that there is no evidence at all support these claims and the other thing that harris is doing with all due respect is harris is asking this court to examine every fact in a vacuum and if fact if you look at that how their brief is is organized the facts are examined one of the tom as if they're in a vacuum well lack of insurance  business bureau isn't enough david stuart being on the site is not enough them decided not to use barricades and whatever instead of a flag when there's not enough and it goes on and on and on verdict and the injury that was issued in this case if i may your honor i thought about that a good bit and i think the jury was very deliberate in what they awarded in damages and you have to consider what they were for future was in connection with the past i feel like the past was was too low i feel like the the last one's own life was a low i think they considered each damage element separately let me tell you why i think they awarded a one million dollars for future damage know and we have this opioid crisis so we certainly don't want to take him pain pills every day and she's got to go to work and i think she should be credited not not discouraged from working i think she'd credited and praised for that but she goes to work every day despite her pain spotter suffering doctors earlier on or testified without dispute that she has a life expectancy from the date a trial of fifty two point two years and that every single day she's  but what i do say is the opportunity for her to change our lifestyle to job to do things that she would like may have decided to do as a young woman and her life had been taken away from them and so that's my response that you're on  let me ask what is your best evidence that david stewart on the actual event that occurred could be trolled the movement of the man lifted and whatever other precautions were made as part of that movement you have some evidence from another worker that he did an awful lot of directing out there yes or what is your best evidence is it that he sometimes did or did somebody testified that on that movement that bent over  ankle and leg that he was d directly involved and how that work was done and well that it was he was directly involved in fact your own of the testimony was undisputed that he was out on the job site not just sit not just watching a barricade in the new location or moving them from the over d as story is what do you have on him directing what the person up on amanda was doing or otherwise d that led to this injury you know what i don't have any direct evidence that thank you i'd like to just pick up on that i think i would challenge the court to look at the evidence of richard tyler when he did say at one point that david stewart was there but he clarified in his testimony and it was clear throughout his testimony that in fact the employees of alabama wildlife to their supervision from phil padgett who is the owner of alabama wildlife this is kind of like in the boat his case where you know mr stewart said less than padgett and mr tyler told him that the barricades were placed where ela bama wildlife wanted them placed so in fact david stewart was just assisting in fact after the  accident david richard tyler the driver said he couldn't tell those guys were all the way up the block a block away and in fact he had to continuing wave his arms to get their attention so there's no information that david stewart had any in for any knowledge of what was going on but i want to go but let me ask you about the wall on this let's say there is some evidence but often usually whatever it is mr stewart company man gave on how things were done and you can tell me that's not so but i'm hearing that from mr hanson but there's no evidence that that day and actually some evidence that he wasn't doing it that day what was the important evidence here from which juries can draw the inference is they want to draw i mean if if your company man actually told them to move the man if they do in this way without having more precautions that day  for their actions and in fact there's case law that says i'm not up to the wall we've already talked about that but i'm talking about if the company man out there is actually giving directions on locke the case law that says he's given guidance and he's got the right to make recommendations whatever but the evidence is he's actually given directions and i thought there was evidence that sometimes he did that on his asking must there be evidence that he was doing and that day when this injury occurred i don't know if the law is clear on that and i would say in the principle independent contractors situation that no no there would not be and in fact the only undisputed evidence in this case is moving the man lift with one flagman is completely standard  assuming in your situation where that is happening that wasn't an unsafe practice when i was asked about what is all the evidence supporting the authorization exception to  military the evidence that you've heard was simply that there were better practices no law has ever said that better practices are what you base your claim on it has to be industry standard in a breach of that standard of care that did not happen here is sufficient for any of the claims i would go back to the negligent hiring we talk about the policies and procedures along the louisiana is that policies internal policies do not give rise to a forcible cause of action and i look at the insurance if you there is no law in louisiana then one must have insurance in fact that is a public policy that should be best left to the louisiana legislature in this situation and we have richard tyler who said he took his supervision from his boss so padgett richard taylor is driving the man lift with one placement richard tyler brought planes with him he was a certified man lift operator david stewart was not the fact that david stewart the law is clear that we have a lot of situations where you see where a principle says you have to follow our policies and  have to follow our safety measures seen that did not make the principal responsible under any theory exception to no liability for independent contractors unfortunate