good morning i am writing a block i represent curtis pinson along with my colleague roxanne blake and we appreciate having the opportunity to present our case in the trial court's order granting summary judgment on page nineteen of the order the trial judge wrote in part that it could be argued that mr pence and my client was forced to access the overhead canopy in some way in order to complete the installation of the sun the court went on to write that the plaintiffs cannot claim that mr penton was required to access t unsafe manner he selected the reason why i started off by reading that particular quote is because i think it encapsulates the group very reason why this appeal was filed the plaintiffs believe and have argued that the overarching issue in this case is whether an exception to the open obvious rule as articulated in various cases out of arkansas should have been addressed by the trial court and the exception basically revolves around the issue of foreseeability of harm to the court at the trial level as you know ruled that there was no duty on the part of the app ellie's in this case towards mr penton because he was an independent contractor however we believe that the finding of that conclusion of law was dependent on factual conclusions that should have been made by a jury to key facts that we believe a jury should have determined rather than the court as a matter of law first and foremost revolve around whether it was foreseeable that my client mr pinson would have been injured when he encountered the canopy for floor for lack of a better term that was not weight bearing and of course the at pelleas have argued that due to mr pensions own the alleged negligence says that that was the clear c nonetheless the foreseeability issue we believe is the first thing the jury should have determined say that again whether it was foreseeable that the floor would give way yes or you're saying there's a dispute whether your man knew that no sir i think my client absolutely knew it in fact the record of what is the foreseeability foreseeable by home that after seeable by the owner that would be forty five development i  a person required to be in that canopy would be subject to the lack of a floor irrespective of other things such as the foreseeability that a person accessing that can workers that's a very good question your honor and thank you for asking that the answer to your question first of all is that the owners duty does not turn on the owner's actual knowledge and even in the trial court's order it recognizes that the owner knew or at least should have known the condition of the canopy and that's very clear from the record if you look at the lease agreement between the parties itself that required the owner to among other things see that the canopy was code compliant so perhaps the owners of forty five development didn't actually know but the law does not excuse them from should have no way with respect to mr pensions expertise it is true he was hired as a expert sine electrician but he was not hired to fix the floor that he had and specifically in the record it discusses the canopy at page forty four it discusses the scope of the landlord's work which includes the canopy at a zero six zero and the mention of co compliance is mentioned at page sixty two and so we believe that the least in and of itself conclusively establishes an argument that because of the contract between the parties that the owner should have should have known that injury could happen and that foreseeability is important also relied on by us isn't it to keep going no good isn't the case in almost all these open an obvious situations that the owner knows about the danger i don't believe so it a whole point of open obvious is that anybody use their would see it so if you so if you're saying the exception applies whenever the danger was reasonably  owner then what's left of the rule well that's a further good question which takes us into the next step for see ability is only the gateway to fully exploring why the exception should apply and why the facts that make it apply are disputed in this case and it has to do with whether or not the injured person is forced to encounter the dangerous situation in this case the non weight bearing floor of the canopy the fact is that mr could not do his job to electrify that sign and properly install it without one way or another encountering that canopies for just by the mere construction of it and again that's that to me is just a matter of common sense there was no way around it excuse me yes me for that is definitely an argument that the leaves have made and the answer is yes it could have and i suppose from my perspective whether he should have removed the floor and gone up say with a scissor lift from below or as he did by going down from above is a matter for a jury to decide whether that was reasonable or not that's a hotly disputed fact and if anything it would go to his degree of fault which which again is a jury issue and it goes to the heart of causation for that matter which is also a jury of shit so is it your position that this particular danger was not in trouble to his job to his job as an expert sign person judge kelly exactly we're arguing that it was not integral we're arguing perhaps at best it was incidental but he was not there to fix the floor he was there to hook up a son so this kind of situation is not common when someone has to put up a sign or repair a sign turn on a sign the record in terms of the commonality of the situation is silent as to that it is true that electrical workers like mr pence and are trained to work at elevation or use harnesses in say a bucket truck but the record is conspicuously silent about what he's trying to do inside of an enclosed area with no floor that's at elevation so we believe that it is not the same situation as say the i forgive the euphemism here but the jackson line of cases that's been cited i call in the  jackson cases involve people that were directly injured for example electricians getting electrocuted classic answerable mr penton was not a flooring man it was a sign and still so we don't believe it was integral and even if the argument can be made which i think is another hotly disputed fact was it in the pool or was it incidental or not that job before you arrived at the scene we believe that coming in the record it the record would disclose that he knew before he entered the canopy that it did not have access first of all which is a key also a key problem which forced him to go and inspect the canopy from above to see if its floor there was a site survey done so arguably the company he worked for and my client himself probably didn't know but again the record is i don't believe it's absolutely clear on that but he most certainly knew of its open and obvious nature before he entered the canopy because he looked but please the court judges my name is joel farthing i'm here with my partner bob still we represent the landowner forty five development in this case the heart of this case is about independent contracting in arkansas and in other places in the eight circuits my client forty five development was a developer they were an investment company that had a strip mall that they bought many years that was built  many years before they bought and they did not they were not building contractors they were not experts in building and in fact they didn't even hire mr penson or his company that that employed him what all we did as forty five development was to lease this space to ace another party who was involved in the lower case but is conspicuously not here in the appeal the less sore of the building is the one that hired mr pense and employer as an independent contractor to specifically work on the sign at the canopy which coach kelly pointed out they during the questioning that they had knowledge of they sent a survey team out to have a look at it admitted they clearly knew that there was no weight bearing floor in this in this particular canopy in fact the testimony in the record reflects that mr pencil himself testified that he looked down and saw there was no weight bearing surface upon which to perform his work inside this can be your honour's have pointed out the obvious danger rule which is certainly the law of arkansas and we have these cases quick and dull and vanderveer that present you just a microphone is at issue here we have a separate line of cases that deal specifically with independent contractors in arkansas the law of arkansas is that an owner landowner property owner or hire of an independent a duty to that contractor with respect to integral hazards that are contemplated by the work that he is hired to do and just a very quick example of that is something we might all be able to access mentally is that consider that a grocery store owner allows ice to accumulate in the parking lot and consider that a customer shows up and slips on the ice that the grocery store has allowed to accumulate in that situation we might all say that the grocery store owner should have cleared that ice out however that's not the case we have here what we have here is a situation where the grocery store owner hires a company to clear the  to clear the parking lot and make it safe now the independent contractor that the grocery store hires has brought employees to the scene and one of them slips and falls on the ice now where where you might be able to see that the grocery store could be liable to the customer for the case when the grocery store hires an independent contractor to clear out the ice in the parking lot they're hiring them to confront that hazard and if the employee of the independent contractor then slips the grocery stores not liable to that independent contractor i think your opposing counsel though is making on another distinction that the expertise he's bringing is to do the sign work absolutely and that he was forced to go to get to this sign he had to get through a dangerous avenue so and what are you saying that those are the same that that's part of the sign right there or worked on these sorts of things before he had as mr niblack admitted just a few months ago he had safety training and harnesses to work at height he had a bucket truck and he and his partner both admitted that they had many times worked on signs much higher than this particular saw and what about in this particular type of canopy this particular particular type of access to this on your own i don't think that the record reflects whether mr pinson had had encountered this like like what mr was talking about a moment ago in fact what we contend it would have been the most safe option is to call the owner which they which they did not do and tell the owner we've encountered a situation where we don't have a weight bearing for inside the canopy and mr benson himself could have for example charged forty five development or more more pro privily forty five developments tenant who was who was  the hire of this company to build a floor in there or to bring in another company to build the floor in there instead mr pence and he was his own supervisor at the sight he didn't have a boss there he was he called himself crew leader in testimony he's the one that made this the decision to take the bucket lift up to the roof create its own access there was no access door he pried the the metal backing off the top of the  and dropped an a frame ladder down into the admittedly non weight bearing floor so that he recognized were not on weight bearing and proceeded to climb down into the canopy on this la want to go on just for a moment about the the the commonsense of this scheme of law i was reading through the other jurisdictions within the eighth circuit and i found one court that put the policy really well and i'm not going to just read pages and pages from it but a couple of sentences that were very well put the policy of this law that allows owners to hire expert independent contractors to confront hazards such as th canopy is it justifies the rule placing the primary responsibility on the contractor for assuring proper precautions will be taken to manage risks arising in the course of the performance of the work in other words the contractor himself is the one who can who is the expert who can best appreciate the risks that are involved in his own work the same court went on to say that if liability were not limited in this fashion inefficiencies would result as employers would be required to develop knowledge and expertise in their own contractors fields so as to be prepared to understand even the ordinary risks involved in the work and assure that the their own independent contractors take the proper precautions when they undertake their expert work and that language was well put by the supreme court of iowa so it's not a scenario where arkansas has some unique law there are in fact most jurisdictions in the circuit have a have either the very same wall or something very similar to your honor's just judge ho was the judge in this case and we would submit to the court that he did not even need to interpret the law of arkansas he merely had to apply it we have three decades of case law that is uncontroverted on this issue so i what has it right arkansas has that right arkansas a land owner should be able to lease property to tenants who hire experts to come in and do work on that property without feeling without risking liability to their employees with respect to the intrinsic parts of the work that they're hard to perform when in the record shows  honor the testimony was that he he has a license in texas as a master sign an electrician and as i mentioned before the the further testimony stated that he he and his partner both testified that they had worked on high signs before including i think bill boards where you would have to be well you know way above where where this thirteen foot drop was in our specific situation your honor so i need to point out that the argument about whether mr pence and was forced to encounter this hazard his counsel believes that that issue  it is an issue for the jury to try but i would point out to the court that this is not an issue of fact for the jury it's it goes to duty and duty is always an issue for the for the judge to decide for judge holme the exception to the obvious danger rule that mr new book has brought up applies also goes to duty all of these things are not jury questions they are questions for the judge blog stated that he was not hired to fix the floor however the and we're calling it a floor but there really was no floor there in this case there were aluminum grid that were themselves up into the canopy to do their work and mr pence and for whatever reason decided no we're not going to do that he decided we're going to go up to the roof create our own access and drop a ladder inside to rest on these aluminum grids that were merely designed to hold up vinyl and not human beings and he admitted that when he arrived and saw it that he knew that that was not a weight bearing surface your honour's i believe that i have covered the points that i want to make and would ask if you all have any questions for me i had one more i thought of one more thing about this the lease argument first of all the contract the lease contract that mr block was talking about was not between the contract itself was not the tween forty five developments and mr pence it was between forty five development and the tenant who hired the company that employed mr benson and i wanted to just review the senate so that i believe mr novak was talking about it says this is from the record page sixty two construction by the landlord which is forty five development and landlords subcontractors shall comply with existing municipal state and for real codes so if forty five development decided to do to pick up a hammer and do its own construction it would have to comply with codes just as everyone has to comply with codes and if forty five development hired a subcontractor th landlords subcontractor would be required to add here to codes but that's not the situation we have here we have the tenant so contractor that the landlord did not even know about who was on site installing th sign so this contract has essentially no bearing on the relationship or the lack of relationship between my client the owner forty five development and mr principle and unless there are thank you again i'll try to address some of the things that need to get done here first of all it is true everyone in this case must adhere to safety co including forty five development the appellee it is also true that the contract was not between my client it or his company that hired him in forty five development but that is absolutely immaterial the contract exist to prove the source of knowledge of foreseeability of harm in this contract we really clearly places responsibility on the owner and it contemplates the the design and the layout of the camp to rule the way the app ollie's have argued regarding the jackson line of cases and what iowa has done or other jurisdictions have done ignores arkansas law based on the restatement second one thousand nine hundred sixty five articulating an exception to the open and obvious group it also ignores arkansas model instruction eleven do some work at a i think it was a landscaping company or something but he had to descend a set of stairs which was not his the way that he would normally go but let's assume if my memory is in accurate that he was just an employee those cases none of them cite that there is an exception that only applies if you are not an independent contractor the law of arkansas doesn't say th and none of the jackson case a say that either so at best there might be a conflict in the way arkansas supreme court has articulated these rules but that's a conflict that arkansas supreme court has set up sort out and regarding nine fifty three thousand nine hundred twenty seven arkansas supreme court handle the case where a boss instructed a foreman to cross in only being slipped and fell and sued  that the job was rushed and he was a bangerz boss orders that court ruled that whether one was forced or not to encounter the dangerous situation was one for a jury and so i think that that also comes to bear directly on i think mr at the end of the day mr pence and training lack of it whether it was trained inside a canopy or from a bucket truck truck is something that a jury could argue about but it's as far as we are concerned immaterial for these purposes those are belong to the jury my time is up and i thank you very much for hearing us today and people