morning hours may please the court my name is daniel mooney arguing today on behalf of petitioner aminu as inc and i'd like to reserve for three minutes for about the news was cited for multiple violations osha's cranes and derricks and construction standard after a boom truck operated by maneuvers crane contractor which are called apex today made contact with a live power line tragically killing three of m and for years now we don't dispute that the accident on january th two thousand and seventeen way down and the territory of americans involved multiple ocean violations and they all stem from the operation of a boom truck near an electrical hazard but we asked the court to carefully review today whether the newest was chargeable for failing to address that electrical hazard particularly on summary judgment where a lack the expertise to anticipate that hazard and instead relied on its specialty contractor to anticipate and sasser manufacturing an electric company the commission squarely addressed quote the extent of an employer duty under the act when an employer with no expertise in the subject matter of the work hires a specialty contractor who has such expertise in the commission held that where that disparity and expertise exists the employer is that at that time none of the you know how many working on the ground zero certainly are that the record was ambiguous in that regard in terms of how many apex employees showed up for the work but we do know that there was a crane operator there was a supervisor which had worked with menounos on prior projects and there were at least depending on who you believe it that the deposition testimony up to six other a passion of the majority judgment standards of whether new is reliance on e x was unreadable as a matter of law instead of the commission's attention was diverted by a case is imposing a heightened duty on a general contractor employer an affirmatively answered and says a paid and insurer that it's sub contractor will address the hazards that issue and that makes sense because a general contractor rather than a retailer has the necessary skills to generally know what hazards exist on a construction project or at least to know what questions to ask of it's to ensure that those hazards are address the commission didn't specify that it simply use the service simply cited the cases regarding general contractors for the propositions that that maneuver should have taken reasonable steps to address and ensure that the contractor addressed the hazards but that that's a meaningless inquiry because because manures as a retailer certainly didn't know what questions to ask get a good  certainly your honor but the distinction there is that that wire was it was a completely different electrical hazard than the wanted issue so so when when we knew it was asked that question and got that information it bolstered maneuvers that the reliance on that contractor that they were aware of and were anticipating generally electrical hazard didn't put them on notice of the wire that actually caused the accident and it didn't so it certainly didn't give them a new as any yes you're out of it but where is that better that the commission didn't specify anything that many of us could have done that would have actually meaningful entitled to look at the commission's decision and do it in the term and whether those factual conclusions as a matter of a while are supported by substantial evidence in the record there is substantial evidence in the record the petitioner wanted to show that how he had relied in the past on the contractor but didn't indicate in what way the contract was working and in what way the  electrical work and they included work with heavy equipment such as an excavator from the perspective of a lay person one is is reasonable in believing that someone who is usually evident in the record absolutely  i don't see that there's a big issue on the weather summary judgment was appropriate well your honor that the problem is in addition to the in other words the agency may be right or wrong but i don't see the procedur a general contractor and cases like well the out you do is distinction arbitrary distinction which is what sasser was about and i'm reading from sasser there is no evidence that anyone realized that the operator might swing the boom too close to the power lines because what happened there was it was kind of this momentary thing the the boom got swung nobody thought that he could get within two thousand and ten feet but then for some reason the operator swung it in the way that it got within ten feet on the spur of the moment correct but that that's a spur of the moment type of thing that this case part of what the commission  there's a different kind of concern that was issued and sasser that was a spur of the moment swing of the bone that nobody could have foreseen whereas here the failure to demarcate the zone is something that everybody can foresee certainly i that the work was performed only gave him a new as reason to believe that the work was performed safely it was profound safely over an entire day of operation the previous day when nothing happened and there were no say patients from from o how that extra you can ask the question of whether it was even done i mean that it doesn't it seems quite different to have a demarcating boundaries issue which is something that doesn't occur on the spur of the moment and something that occurs on the spur of the moment as to which there ca reasonable foreseeability because nobody foresaw certainly anybody can four see whether there's i'm about to read among the other similarity i would drive between this case and sasser that i think the commission completely ignored is that it was a spur of the moment accident even the ocean spectra found just like in sas or when the crane was swinging one way and unexpectedly swung the other way and made contact the ocean's vector found that the entire duration of the work on the day of the accident involved the radius of the crane right but it doesn't it's not like something that fluctuates every it's not like it works on at the rio to seventy five feet and the works on because of the way the crane swings at the rio two and thirty seconds is forty seven feet and my wrong about the no  it might be indisputable but that doesn't matter as a legal matter but it seems to me to be indisputable that there's a distinction between coming within ten zone ten feet on the spur of the moment and demarcating all works out in that demarcating a work zone is something that can be done in advance fair isn't what i've described as a national distinction or you might think as a matter of law that distinction shouldn't matter but it just seems to me it's a physical fact about the world that what i just described is a real distinction sure it's it's not a screw of the moment thing but it did have to happen if there's a disparity in expertise then the employer just gets to siphon off everything to the contractor if that's the way to read sasser then right i mean your argument has more force of the weight of its ass or is what the commission was concerned with was unforeseeable spur of the moment dangers that come about then there then what the commission did this time wouldn't be out of source but sasser because it would be in keeping with sasser and drawing that very distinction yet and we're not even arguing that because of that  disparity expertise you can just siphon up everything you still have to be reasonable you still have to not have evidence that would have given the lay employer notice of that of that particular hazard we're arguing that that this may not be your argument but i almost immediately say that if sasser were to come before the commission today it wouldn't come out the way it did at least the majority of it would go with the dissent with which describes a very different picture of the factual situation that the majority will live so here is it clear from the record that while the contract was crane operator would move the bar anywhere near twenty feet of this dangerous wire and that the inspector the ocean's that you couldn't figure out how this and thinking about this case i thought i wonder how it did happen the operator lose control or was he trying do think that the record does make clear that they did that it's unclear why this this accident happened the way it did there's nothing in the record that would support that the reason that boom extended at the last moment and touched the power line was because of where menu was directed it has to put the beams in the apex right by all the testimony in the record was simply just putting them the way that that they could you know for convenience or whatever right but that the question about putting the beams closer to the construction site was the day before a priority of unloading and that and as soon as a tech said no we can't do that safely because of this other power  maneuvers back up they said ok you're the boss you're the expert we won't do that because that's unsafe you told us so so that's not the reason why these beams are being placed closer to to the to the power what do you think the commission is requiring and i think this court need not reach the issue of what would have been reasonable here under these circumstances because here many of us didn't do anything at all in order and well  carrying out the contract yes to the extent that apex arrived and asked for a construction and told them that they had been getting out of here in summary judgment on the law and moving party gets the benefit of and therefore summary judgment when appropriate i disagree in summary judgment is an appropriate age has arrived and told me it was that it needed a construction crew and at that point there was agreed to send its o untrained unqualified employees to do construction work well they were to do what exactly they were to run low the bar that they case i believe so yes well i mean to be clear i mean that not rocket science no but it's it's still dangerous construction work and they were you know they were still employed retail love when the crane pull them bars out and put them on the ground they contractor at all it didn't it didn't tell the contractor that the contractor would be responsible for those employees safety didn't ask about safety issues at all i'm merely telling our boys to be careful when they go into a dangerous construction site it's working on the job i think that that would have made it more reasonable your  question really contractor as to what he would do to protect them and certainly simply signing a contract whereby  the contractor would have all of sponsibility would not i if i understood your commission's determination would not have excused petition now but i to delegate on track responsibility to the other party alone without doing anything else i don't think would be enough now you have to issue the other as i understand your position is that the petitioner should have asked questions judgment purposes what matters if there is a genuine issue of material fact what you're saying is the things that man who was appointed to our material fact are material given the way the commission assessed the case and the way you're defending the commission's assessment of the  experience with impacts should have that the judge ignored it and should have been considered but that that information in the record in the judge actually mentions that in the decision they merely disagree with the judge's legal conclusion that the relevant prior experience happened until the moment that there was as the booms point yes reza here there are all kinds of things that happened way before that and there was no effort made by the new was to raise any inquiries about any of that and it could have been reasonably expected to have done all on i guess it was incorrectly argues that the secretary's position in this case would require it for any employer to become an expert in the specialty work that a specialty contractor does but it's not the secretary's position an employer can rely on specialty contractors to perform work with a crew of specialty workers for the contractors on workers that where they've lent their own employees to this operation to  different employers specialty contractor or otherwise they would they need to take adequate steps to ensure those worker safety which as we said were involved at least in theory and delegating object responsibility i see that i'm very close to being over time thank you thank you  in our briefing that show menounos did took take reasonable steps as a retailer in this limited experience as a retailer and your honor pointed out some of them to make sure that th because they are they omitted complete and very important key facts that we did put in the record they said that we knew as best by no specific facts to rebut the secretary's position that's just not the case that the assessment that you knew as witnessed apex make which put it on notice only that it packs and wires looking out for the employees was looking out for hazards was taking responsibility and control over the safety of the ro prior administrative determinations it's not a substantial evidence question it's an arbitrary and capricious i think i think both standards are applicable here but in terms of application of standard sastre standard or not to this case this court is the commission's dissimilar certainly our fundamental argument is that sasser controls and should have been fairly applied to this case because they are all the material facts fall under sasser and any any distinctions that the commission made