[00:00:04] Speaker 00:
May it please the court my name is Diane Westwood Wilson, and I'm here for the appellant plaintiff appellant ll if I may I'd like to reserve three minutes of rebuttal time if you're on the clock please thank you unless you have been out on a tarmac like this under a jumbo jet it's difficult to appreciate how reckless the conduct was in this instance and that the only reasonable inference to draw from the conduct

[00:00:33] Speaker 00:
that Swissport was acting recklessly with knowledge that damage would probably result.

[00:00:40] Speaker 04:
I understand and agree with what you're talking about with respect to these big plans, but I'd be interested in your thoughts about Swissport's waiver argument.

[00:00:49] Speaker 04:
They claim this is gone.

[00:00:51] Speaker 04:
What's your response to that?

[00:00:55] Speaker 00:
I'm mystified at the notion that we've waived any of our positions.

[00:00:59] Speaker 00:
The record is

[00:01:01] Speaker 00:
significant and replete with the circumstantial and direct evidence and Swissport's own admissions of what took place and what did not take place.

[00:01:11] Speaker 00:
We also have the photographs and I was going to request the court to specifically focus on the photographs not only that Swissport took but also the videos that were submitted in connection with the Clark County Department of Aviation's

[00:01:31] Speaker 03:
There's certainly materials in the record from which one could assemble an argument that a reasonable trier of fact could infer the requisite science.

[00:01:48] Speaker 03:
The waiver question is whether you assemble that argument in the district court.

[00:01:53] Speaker 03:
You have assembled it on appeal, but the district judge said, you didn't argue that to me, you argued

[00:02:01] Speaker 03:
you know, on the objective standard, and then the district court rejected that and said, you didn't argue anything further and I'm done, summary judgment.

[00:02:12] Speaker 03:
That's normally a forfeiture.

[00:02:14] Speaker 03:
If you fail to argue a particular issue as raising the triable issue in preventing summary judgment, you have to speak up and say, you didn't do that.

[00:02:26] Speaker 00:
Respectfully I believe we did and one of the problems is the specific reference to science or science or is not an element of the claim that LL had to make here because the Contract provided for two avenues to get damages without limit one was intentionally damning damaging the aircraft and the other

[00:02:45] Speaker 00:
was reckless disregard with knowledge that probably would result.

[00:02:48] Speaker 00:
And we invoked it.

[00:02:48] Speaker 03:
The knowledge is a science element.

[00:02:51] Speaker 03:
It's recklessly and with knowledge.

[00:02:53] Speaker 03:
So just showing recklessness is not enough.

[00:02:57] Speaker 03:
And you didn't argue that there was a triable issue as to knowledge.

[00:03:03] Speaker 03:
You argued for an objective, reckless standard.

[00:03:06] Speaker 03:
The district court rejected that interpretation of the language of the contract.

[00:03:12] Speaker 03:
and then said, I don't have any further argument on this point, so I'm done.

[00:03:21] Speaker 00:
Respectfully, I don't believe that is the position that LL put forth.

[00:03:25] Speaker 00:
The reliance on the restatement and that the reasonable man standard applies to determine whether he had that actual knowledge was before the court.

[00:03:33] Speaker 00:
And the court accepted the subjective belief.

[00:03:37] Speaker 03:
But what you said in your paper, LL's burden is not to prove that Swissport had actual knowledge that Swissport was going to damage the aircraft.

[00:03:47] Speaker 00:
that it would probably result in damage.

[00:03:49] Speaker 00:
It did not have to prove that it actually knew that it was going to damage the aircraft.

[00:03:54] Speaker 00:
That damage was probable is what the standard is under the contract.

[00:03:57] Speaker 03:
In accordance with Nevada law, the court is compelled to apply the objective standard, rejects with sports baseless argument for a subjective standard and hold at the evidence

[00:04:08] Speaker 03:
Much of it reflected in Swissport's own documents, representations, and accident investigation reports demonstrates that Swissport acted recklessly and with knowledge that the damage that did result would result.

[00:04:23] Speaker 00:
The damage did result, and it was probable based on the conduct in the totality of the circumstances.

[00:04:29] Speaker 00:
And if the court looks at the photographs that were specifically at 498, 501, and 517 in the record,

[00:04:37] Speaker 00:
respectfully defies common sense that this tug driver who was blinded and could not see his wingtips did not know that damage would probably result by his decision to keep pushing back that aircraft knowing he couldn't see where he was and that the light poles were in his way.

[00:04:55] Speaker 02:
Counsel, going to Judge Collins's point, let's assume there is an argument that in your pleadings to the district court you did waive.

[00:05:08] Speaker 02:
the point that Judge Collins is talking about.

[00:05:11] Speaker 02:
What about the district court's specific finding that plaintiff, however, fails to present any facts pertaining to defendant's knowledge?

[00:05:20] Speaker 02:
So the district court seemed to reach the record as to whether you had presented any facts pertaining to defendant's knowledge.

[00:05:28] Speaker 02:
Does that district court statement there help you at all with this waiver question?

[00:05:37] Speaker 00:
I'm not quite sure I understand your honor's question, but the knowledge factor could only be circumstantial because we were not obviously inside Mr. Bacalbo's head.

[00:05:50] Speaker 00:
And we could only have the facts showing that it was not possible for him to not know that he was assuming that risk of probable damage in light of what he was doing.

[00:06:07] Speaker 02:
The district court made a finding that you had not presented any facts pertaining to defendant's knowledge and you obviously dispute that, right?

[00:06:15] Speaker 02:
That the district court reached the question of whether you had presented any facts pertaining to defendant's knowledge and your belief is the district court made that determination incorrectly.

[00:06:27] Speaker 00:
Yes, your honor.

[00:06:29] Speaker 00:
For example, well, everything that was in the LL motion for summary judgment was part of the record for the decision and

[00:06:36] Speaker 00:
In that record, there was the knowledge that Mr. Balcabos knew that he was required to use the wing lockers.

[00:06:45] Speaker 00:
He knew that he could not see his wing tips.

[00:06:48] Speaker 00:
He knew that he had pushed back the aircraft incorrectly.

[00:06:52] Speaker 00:
He knew he was off course, but he did it again.

[00:06:54] Speaker 00:
And he knew he was still off course, and he did it again.

[00:06:56] Speaker 00:
And he knew that these enormous light poles were in that area.

[00:07:01] Speaker 04:
Let me grapple with that, if I may.

[00:07:04] Speaker 04:
I read in the record the same things you're talking about, yet my colleague points out the district court concluded otherwise.

[00:07:10] Speaker 04:
So based on the standard of review, what do you have to show for us to ignore what the district court's finding was in this regard?

[00:07:23] Speaker 00:
I would say it's not so much that it's to ignore it, but that you have the right to know to rule that that is not correct in face of all the evidence.

[00:07:32] Speaker 04:
That's what I'm saying.

[00:07:33] Speaker 04:
I know what you're talking about in the record, because there are lots of things in there that you could gather that there was knowledge, certainly recklessness.

[00:07:41] Speaker 04:
But the district court concluded that you had not introduced evidence to the contrary.

[00:07:47] Speaker 04:
You say you did.

[00:07:49] Speaker 04:
So we're a court of appeal.

[00:07:51] Speaker 04:
we have to review based on a standard.

[00:07:53] Speaker 04:
What's the standard that we review the district court's finding in this regard?

[00:08:01] Speaker 00:
I said because it's a de novo review, it's clearly erroneous what she concluded.

[00:08:05] Speaker 04:
So you think it's de novo review?

[00:08:06] Speaker 00:
Yes, I do.

[00:08:07] Speaker 04:
As opposed to clear error or something like that.

[00:08:10] Speaker 00:
Right.

[00:08:11] Speaker 00:
And particularly because on this particular

[00:08:14] Speaker 00:
we have a decision in which the court denied plaintiff's motion is moved.

[00:08:21] Speaker 04:
Do you have any case law to back up?

[00:08:23] Speaker 04:
I mean, usually, unless it's a matter of law, we don't review things de novo.

[00:08:29] Speaker 04:
Do you have any case law that says that we can review the factual determinations of the district court in this case on a de novo standard?

[00:08:41] Speaker 00:
I have to think about that, Your Honor, because I was approaching it from the opposite mindset that it was, as a matter of law, incorrect to conclude that there were no facts to refute his state of mind.

[00:08:54] Speaker 04:
The truth is, either there were or there weren't facts.

[00:08:57] Speaker 04:
You say there were, and there seemed to be.

[00:08:59] Speaker 04:
Correct.

[00:08:59] Speaker 04:
District Court said otherwise.

[00:09:01] Speaker 04:
How do we address that?

[00:09:04] Speaker 00:
by looking at all the facts in our motion as well, which wasn't, according to the reading of the court's decision, was not read by the court, and it was just summarily dismissed as moved.

[00:09:15] Speaker 03:
In summary judgment, it's whether there's a triumphal issue of fact.

[00:09:20] Speaker 03:
And so your position is we'd review that issue de novo.

[00:09:26] Speaker 03:
Correct.

[00:09:26] Speaker 03:
Even though it's a fact-intensive one.

[00:09:28] Speaker 00:
Yes.

[00:09:34] Speaker 00:
The LL's position is that this court, looking at the record in its entirety, including the evidence submitted by plaintiffs in their motion for summary judgment, has ample evidence to conclude that it was not credible to accept Mr. Balcavo's statement that he didn't intend to hit the light pole.

[00:10:02] Speaker 00:
Essentially was which is what he's saying or that the as he testified that the area was wide open because it was not and that the circumstance of the photographs and the videos and his decision to perceive without the wing walkers know he was offline and keep trying to jockey the aircraft until he hit the light pole is constitutes reckless conduct with damage that would probably result

[00:10:29] Speaker 00:
But even if this court were not going to make such a finding that the case should be remanded to the district court for a jury trial to make that determination, but the court shouldn't have accepted Mr. Balcaba's subjective view.

[00:10:46] Speaker 04:
We don't really have to worry about a standard of review here.

[00:10:48] Speaker 04:
This is a material issue.

[00:10:49] Speaker 04:
In fact, the district court decided it and got it wrong and needs to go back to a jury.

[00:10:53] Speaker 04:
Is that right?

[00:10:54] Speaker 00:
At a minimum, it needs to go back to a jury.

[00:10:56] Speaker 02:
Well, there's no maximum.

[00:10:59] Speaker 02:
You're certainly not suggesting we should grant you summary judgment, are you?

[00:11:04] Speaker 00:
Yes, Your Honor.

[00:11:05] Speaker 00:
I believe that the facts support a summary judgment in favor of 11.

[00:11:10] Speaker 02:
You don't think a reasonable jury could determine that the defendants didn't know that injury or loss would probably result that the facts here as a matter of law establish that every single person in that kind of a position or actually the people in that position

[00:11:33] Speaker 02:
were doing this even though they thought it was more likely than not that there was going to be huge damage to your plane?

[00:11:40] Speaker 00:
I definitely wouldn't say that any reasonable person, but I would say a reasonable person who had his sophistication and training.

[00:11:46] Speaker 02:
This man did it, in your view, even though he subject, that every trial or fact would be required to find that he had a 50% plus belief that he was about to damage your plane?

[00:12:02] Speaker 00:
I can see that that was probably something you're not willing to do.

[00:12:05] Speaker 00:
But I do believe that it's within the province of the court to look at all of the evidence and those videos and those tapes and say that for someone in his position, it's not credible that he didn't know that he was probably going to hit that light pole.

[00:12:18] Speaker 04:
Do you want to save the balance of your time, counsel?

[00:12:19] Speaker 00:
Yes, thank you.

[00:12:21] Speaker 04:
Very well.

[00:12:21] Speaker 04:
Mr. Albert, please.

[00:12:27] Speaker 01:
Good morning.

[00:12:28] Speaker 01:
I think it's still just barely morning, your honors.

[00:12:30] Speaker 01:
May it please the court, Garth Albert for the respondent, Swissport USA, Inc.

[00:12:35] Speaker 01:
I was going to offer the observation that we find ourselves in Las Vegas this morning.

[00:12:42] Speaker 01:
Las Vegas just recently hosted its first Formula One race.

[00:12:46] Speaker 01:
And like Formula One, it provides an apt analogy in the sense that

[00:12:51] Speaker 01:
In Formula One, when you get partway through the race and you don't like the way the race is going, you don't get to pull the driver out of the car and put somebody else in it.

[00:13:00] Speaker 01:
And in this case, LL attempts to do just that.

[00:13:04] Speaker 01:
LL took the position unequivocally in the district court that there was no dispute of material fact in this case and that the issues could be determined as a matter of law.

[00:13:15] Speaker 01:
LL said that in its own motion for summary judgment and LL said that in opposition

[00:13:21] Speaker 01:
to Swiss Port's motion for summary judgment.

[00:13:23] Speaker 03:
Sometimes we look at cross motions as district courts do and say you're both wrong.

[00:13:29] Speaker 03:
There's actually a tribal issue in the middle of this.

[00:13:32] Speaker 03:
You both think it's one way.

[00:13:35] Speaker 03:
So why isn't that this case?

[00:13:37] Speaker 01:
Your Honor, are you suggesting that we miss something?

[00:13:41] Speaker 01:
Respectfully, Your Honor, I'm sorry.

[00:13:44] Speaker 01:
Respectfully, the parties all agreed.

[00:13:47] Speaker 01:
I mean, there is no controverted

[00:13:50] Speaker 01:
evidence with respect to Mr. Bocalbos's knowledge.

[00:13:53] Speaker 03:
The underlying kind of historical facts, but if the ultimate issue is a mental state, whether this driver knew from his reckless conduct, whether he knew that it was probable that damage would occur.

[00:14:12] Speaker 03:
So damage is more likely than not.

[00:14:15] Speaker 03:
whether you could infer that from the fact that he's trying to jockey this plane with his very big pole.

[00:14:20] Speaker 03:
It isn't like the tip of the wing hits the pole.

[00:14:23] Speaker 03:
It's actually quite a bit down the wing where he hits it.

[00:14:27] Speaker 03:
So it wasn't like it was just he nicked it and was close.

[00:14:31] Speaker 03:
So why couldn't a trier of fact infer from these circumstances that he acted recklessly with knowledge that something bad could happen?

[00:14:43] Speaker 01:
because his testimony and the testimony of his supervisor who spoke to him moments after it occurred at the scene of the incident.

[00:14:53] Speaker 01:
is all absolutely consistent.

[00:14:55] Speaker 01:
He testified that he had done it before without a wing walker.

[00:14:59] Speaker 03:
And you have to understand that this is- You could disbelieve that and then look at the remaining circumstances and say that from everything else we know about what he was trying to do and the information he was processing while he's not wearing his prescription glasses is enough to say, you know,

[00:15:18] Speaker 03:
He's rolling dice with a very high percentage of damage.

[00:15:27] Speaker 01:
Except that then we're going to the spectrum of an objective standard and that's not the contract that the parties agree to.

[00:15:33] Speaker 02:
I don't think we're going to an objective standard.

[00:15:35] Speaker 02:
We're going to facts from which a reasonable trier of fact could conclude that in his mind he was taking a chance here even though he knew it was

[00:15:46] Speaker 02:
51 whereas if you if it went to trial and they found 30 then you would win I I mean I'm looking for example at Mr. Pogge's written statement where he said I noticed straight away They did overshot the marking in which the main gear had supposed to park by at least 20 feet I signaled to Vladimir to move back as he was too far forward I mean this strikes me is exactly the kind of evidence from which one juror might say

[00:16:14] Speaker 02:
Think he knew more likely than not but another juror could say no.

[00:16:18] Speaker 02:
He was taking a chance It was a third of it was 30% so the fact that the parties take very extreme positions on what the evidence shows Doesn't mean that we should or the district court should have except that the relevant inquiry is mr. Bo Calbis's state of mind right and the question of what he knew and

[00:16:39] Speaker 01:
The contract requires that he acted recklessly and with the knowledge that Bloss would probably result.

[00:16:45] Speaker 01:
And the knowledge goes to what Mr. Bocalbos knew at the time.

[00:16:48] Speaker 02:
So assuming that's correct.

[00:16:50] Speaker 02:
Let's assume for the minute that that's correct and it's not other employees or his supervisor.

[00:17:00] Speaker 02:
that you're saying it's definitive for summary judgment purposes that he testified, that he testified, no, I didn't think damage was going to happen and that's the end of the inquiry?

[00:17:14] Speaker 02:
In the absence of contradictory evidence, it is.

[00:17:16] Speaker 02:
You mean in the absence of contradictory facts, which demonstrated that he was experienced, he was doing something extremely risky, Mr. Pogge was trying to deter him, that that's not enough to

[00:17:30] Speaker 02:
to counteract his statement, no, I didn't have the intent.

[00:17:35] Speaker 01:
Respectfully, Your Honor, there's no evidence that Mr. Pogge was trying to deter him.

[00:17:41] Speaker 01:
I signaled him to move back.

[00:17:43] Speaker 01:
Mr. Bocalbos didn't see that because Mr. Pogge was behind him.

[00:17:47] Speaker 02:
But you said there's no evidence that somebody was trying to deter him.

[00:17:52] Speaker 02:
Mr. Pogge, by signaling him, was saying,

[00:17:56] Speaker 02:
It sure looks like from the natural language that he was trying to get a message to the driver.

[00:18:03] Speaker 01:
He arrived, I stand corrected, your honor.

[00:18:06] Speaker 01:
He arrived and tried to signal Mr. Bo Cabos.

[00:18:09] Speaker 01:
Mr. Bo Cabos was looking in the opposite direction towards where he was moving the aircraft, where he was supposed to be looking.

[00:18:17] Speaker 04:
So counsel, what do we do?

[00:18:18] Speaker 04:
I, like my colleague, and

[00:18:24] Speaker 04:
I got to say that if I were a juror, I could find facts that would meet the requisite knowledge on the part of Mr. Bacavos.

[00:18:34] Speaker 04:
So what do we do with that?

[00:18:36] Speaker 04:
The district courts made certain findings.

[00:18:38] Speaker 04:
You claim there's waiver.

[00:18:40] Speaker 04:
What do we do with this?

[00:18:42] Speaker 01:
Well, Your Honor, again, I come to the contractual standard, which is admittedly a high standard.

[00:18:49] Speaker 01:
You know, Swissport conceded negligence here.

[00:18:51] Speaker 01:
This shouldn't have happened.

[00:18:53] Speaker 01:
And the contract says if we're negligent, we pay for certain damages to the aircraft and we did.

[00:18:59] Speaker 04:
You're missing my point.

[00:19:00] Speaker 04:
My point is, if I see in the transcript enough language that could meet the contractual level, what do we do with this?

[00:19:12] Speaker 01:
The problem is, again, we're substituting our own knowledge, our own judgment as to what he should have known or what he must have known.

[00:19:20] Speaker 04:
I'm looking at what he said and what, as my colleague pointed out, what others who saw it said.

[00:19:26] Speaker 04:
And it seems like there's at least an argument that the standard required to make consequential damages possible is conceivable.

[00:19:35] Speaker 04:
Now, the district court seemed to go in a different direction.

[00:19:39] Speaker 04:
What do we do as a panel here, if we find the kind of evidence that I just mentioned?

[00:19:47] Speaker 01:
You affirm summary judgment.

[00:19:48] Speaker 01:
The district court got it right, Your Honor, because the district court determined that there was no evidence that Mr. Bocabos acted with the knowledge that loss would probably result.

[00:19:59] Speaker 04:
But if we read the transcript differently, and we think there was indeed evidence that he acted with such knowledge, then what do we do?

[00:20:09] Speaker 01:
If there was evidence that he acted with knowledge that loss would probably result, that would be a problem for us.

[00:20:17] Speaker 01:
I concede that, but there's no evidence of that.

[00:20:20] Speaker 03:
You seem to just concede that the district court actually said that there isn't a triable issue of knowledge on this record.

[00:20:30] Speaker 03:
I had read the district court is relying just on forfeiture.

[00:20:36] Speaker 03:
What it says is

[00:20:38] Speaker 03:
On defendant's motion, the burden then shifts to plaintiff to establish a general issue of material fact exists.

[00:20:44] Speaker 03:
This is after determining what the legal standard is.

[00:20:48] Speaker 03:
Plaintiff, however, fails to present any facts pertaining to defendant's knowledge.

[00:20:53] Speaker 03:
Instead, plaintiff relies solely on an objective standard of liability and offers no argument in the alternative.

[00:21:02] Speaker 03:
Accordingly, the court grants defendant's motion for summary judgment.

[00:21:06] Speaker 03:
So you view that as relying both on forfeiture and on the absence of a tribal issue?

[00:21:15] Speaker 01:
Yes, I believe so, Your Honor.

[00:21:16] Speaker 03:
Or just forfeiture?

[00:21:17] Speaker 01:
No, I think it's both, Your Honor, because both parties agreed and it was crystal clear in the pleadings that there was no dispute of material fact in the district court proceedings.

[00:21:32] Speaker 03:
The forfeiture argument seems a little bit, I mean, I understand the summary judgment papers are perhaps not a model of clarity because there is all this insistence on Al's part that it should have been an objective standard, but then it does contain the statement that the contract provides that Swissport

[00:21:58] Speaker 03:
must pay delay and consequential damages when Swissport acts recklessly with knowledge that damage probably will result.

[00:22:08] Speaker 03:
Swissport did and knew of the probable result.

[00:22:11] Speaker 03:
And then the next heading down the page, heading B, the undisputed evidence proves that Swissport acted recklessly knowing that damages delay or loss would probably result.

[00:22:25] Speaker 03:
That's the assertion and then goes on to explain.

[00:22:28] Speaker 03:
So it seems a forfeiture ruling then is wrong if those are the kind of statements made.

[00:22:34] Speaker 03:
I mean, maybe this could have been written more, you know, with more clarity, but it seems enough there to preserve the argument.

[00:22:41] Speaker 03:
And then the district court decided it anyway.

[00:22:43] Speaker 03:
So why would we treat that as a forfeiture?

[00:22:47] Speaker 01:
Again, Your Honor, our position is that it was both.

[00:22:52] Speaker 01:
The court observed that El Al had failed to prove its case based upon the undisputed facts that were presented.

[00:23:02] Speaker 01:
I would also add, with respect to the science element, that El Al relies upon three cases, two of which were cited for the first time in its reply papers on appeal.

[00:23:15] Speaker 01:
But one of them, Piamba Cortez versus American Airlines, the other two are Bremer

[00:23:20] Speaker 01:
versus British Commonwealth and Kerala versus Thai Airways, all three of those cases are distinguishable in a critical respect.

[00:23:29] Speaker 01:
And it's this, all three of those were air disasters of the type that they call controlled flight in a terrain.

[00:23:38] Speaker 01:
The pilots of those commercial airplanes flew the perfectly good functioning airplane into the side of a mountain and hundreds of passengers and the pilots themselves perished.

[00:23:49] Speaker 01:
And under the circumstances of all three of those cases, the court was forced to look, the courts were forced to look at circumstantial evidence because it had no direct evidence with respect to the pilot state of mind.

[00:24:02] Speaker 01:
We don't have that circumstance here.

[00:24:04] Speaker 01:
We have Mr. Moe Kalbos' testimony.

[00:24:07] Speaker 01:
And he was unequivocal.

[00:24:09] Speaker 01:
And his credibility has not been impeached.

[00:24:15] Speaker 01:
LL offers one single example again at the end of their reply brief on appeal regarding the credibility of Mr. Bo Cablos.

[00:24:22] Speaker 01:
And they say, well, he wasn't wearing the corrective lenses.

[00:24:24] Speaker 01:
He couldn't even see what he was doing, except that the evidence in the record does not support that.

[00:24:31] Speaker 01:
LL claims that he was cited for not wearing corrective lenses.

[00:24:34] Speaker 01:
But if the court looks to the record evidence at ER 71, he was not in fact cited for that.

[00:24:42] Speaker 01:
The court looks at his driver's license at ER 73.

[00:24:46] Speaker 01:
The driver's license contains no restriction.

[00:24:50] Speaker 01:
And Mr. Bocabos testified under oath during his deposition that he had no restriction on his driver's license.

[00:24:56] Speaker 01:
That's the only thing they do in an effort to assail his credibility.

[00:25:01] Speaker 01:
Piamba-Cortez and the other cases were also distinguishable because they were looking at the question of willful misconduct in the context of the Warsaw Convention.

[00:25:09] Speaker 01:
and the $75,000 limitations that applied unless willful misconduct was proven by the plaintiffs to overcome that limitation.

[00:25:19] Speaker 01:
Ultimately, the parties here, two commercial sophisticated entities, agreed to what is admittedly a high contractual standard.

[00:25:28] Speaker 01:
El Al has to prove that Mr. Bocaubos

[00:25:32] Speaker 01:
the only person who was involved in this was him.

[00:25:33] Speaker 01:
The sole actor that was involved in this acted with the knowledge recklessly and with the knowledge that loss would probably result from his actions and his testimony defies that.

[00:25:43] Speaker 01:
And it's uncontroverted.

[00:25:44] Speaker 01:
He testified that he was quote, too focused.

[00:25:48] Speaker 01:
Close quote at the time.

[00:25:51] Speaker 01:
He thought he had it.

[00:25:53] Speaker 01:
He thought he was okay.

[00:25:55] Speaker 01:
He thought he was good.

[00:25:56] Speaker 01:
He was

[00:26:02] Speaker 01:
He had done so before without wing walkers out there at the remote hard stand.

[00:26:06] Speaker 01:
This isn't towing an aircraft into the terminal with airplanes on either side and a building and all the equipment surrounding it.

[00:26:14] Speaker 01:
This is towing an aircraft into like an empty parking lot out in a remote part of the airfield.

[00:26:21] Speaker 01:
His testimony is uncontradicted and it warrants summary judgment in this case.

[00:26:26] Speaker 01:
We request that the court affirm the district court's decision.

[00:26:31] Speaker 01:
Thank you.

[00:26:32] Speaker 04:
Thank you, Mr. Howard.

[00:26:34] Speaker 04:
Ms.

[00:26:34] Speaker 04:
Wilson, you have a little rebuttal time.

[00:26:39] Speaker 00:
Thank you, Your Honor.

[00:26:45] Speaker 00:
The facts are in the record, and even accepting that they could have been more articulate, better articulated in the motions, the evidence was submitted by LL to contradict

[00:27:00] Speaker 00:
and to call into question whether the court should have just accepted at face value, Mr. Bacalbos alleged state of mind that he didn't think he was going to harm the aircraft, that he was good.

[00:27:14] Speaker 04:
Siding the record, what are the

[00:27:18] Speaker 04:
statements made by Mr. Balkavos that you believe in the aggregate satisfy the standard necessary for us to reverse and send this back for a jury determination.

[00:27:35] Speaker 00:
I believe that it has to go back for a jury determination.

[00:27:40] Speaker 04:
I want specific language.

[00:27:42] Speaker 04:
What are you referring us to?

[00:27:44] Speaker 00:
He just said he thought he was good.

[00:27:45] Speaker 00:
That he thought he was good wasn't sufficient.

[00:27:48] Speaker 00:
That's what he said.

[00:27:49] Speaker 00:
He said, I thought I was good.

[00:27:50] Speaker 04:
OK.

[00:27:51] Speaker 04:
If that's all there is, isn't counsel right then?

[00:27:54] Speaker 04:
I mean, he doesn't say basically, well, I was in a hurry.

[00:27:58] Speaker 04:
I had a lunch, and I really had to go, and I was being careless, and so on and so on.

[00:28:03] Speaker 04:
He doesn't say that.

[00:28:04] Speaker 04:
Is that all it is?

[00:28:05] Speaker 04:
That he was good?

[00:28:06] Speaker 00:
Yes, he said, I thought I was good.

[00:28:08] Speaker 00:
But all of the evidence that we put in to show that it's not credible to believe that he thought he was good because he knew he was not good.

[00:28:17] Speaker 00:
He knew he was offline.

[00:28:19] Speaker 00:
He knew he was repeatedly offline.

[00:28:21] Speaker 00:
He knew that he couldn't see his wingtips.

[00:28:24] Speaker 00:
He had no idea where his wingtips were in relationship to that light pole.

[00:28:28] Speaker 00:
So that credibility determination was affirmatively challenged.

[00:28:36] Speaker 04:
But you can't give us any citation in the record to anything other than the fact that he was good.

[00:28:43] Speaker 04:
Is that right?

[00:28:44] Speaker 00:
We definitely have no admission by Mr. Bacavos that he ever said he wasn't good.

[00:28:48] Speaker 04:
But that's the closest that it comes, right?

[00:28:50] Speaker 00:
The closest it comes to saying that he believed he was fine as he said he was good.

[00:28:54] Speaker 02:
He thought he was good.

[00:28:54] Speaker 02:
But your argument, as you just said, is that we can look at the facts in the record

[00:29:00] Speaker 02:
to demonstrate why a reasonable jury would find that he didn't believe he was good, like the lack of wing walkers, he couldn't see the wings, the other facts that you pointed to to the district court.

[00:29:11] Speaker 00:
Yes, Your Honor, that it's not possible to believe.

[00:29:14] Speaker 00:
that he actually believed he was good.

[00:29:17] Speaker 00:
He didn't think about whether he was good.

[00:29:18] Speaker 00:
He just proceeded.

[00:29:19] Speaker 00:
I'm sorry.

[00:29:20] Speaker 03:
How is it helpful to say that he had no idea where his wingtips were relative to the light pole?

[00:29:27] Speaker 03:
How is that helpful when the standard is that he knows from the facts that damage is probable?

[00:29:35] Speaker 03:
If he has no idea, that would seem to suggest that there isn't a basis to say that he knew he was going to hit the light pole.

[00:29:43] Speaker 00:
I would say

[00:29:45] Speaker 00:
The way to understand that is that he knew that he did not know where his wingtips were.

[00:29:53] Speaker 00:
So he knew that he was making an affirmative decision to go ahead and keep pushing the aircraft back incorrectly until he actually struck that light pole.

[00:30:04] Speaker 00:
So he made affirmative choices to not use the wing walkers, to keep pushing back, staying out of line, out of alignment with where he was supposed to be.

[00:30:14] Speaker 00:
And he knew he was out of alignment.

[00:30:16] Speaker 00:
That's why he kept on trying to get it right.

[00:30:18] Speaker 04:
OK, your time's up.

[00:30:19] Speaker 04:
Let me ask my colleagues.

[00:30:20] Speaker 04:
Do either of you have additional questions?

[00:30:22] Speaker 04:
I think thanks to all counsel, the case just argued is submitted, and the court stands adjourned for the day.

[00:30:28] Speaker 00:
Thank you, Your Honor.

[00:30:48] Speaker 04:
Discord for this session.