[00:00:00] Speaker 03:
Our final case this morning for argument is a Gronaweg versus Jaldwin.

[00:00:19] Speaker 02:
I am a little torn about rebuttal.

[00:00:24] Speaker 02:
I think I'll only need three minutes.

[00:00:25] Speaker 03:
I'm sorry.

[00:00:26] Speaker 03:
I'm having a hard time hearing you.

[00:00:27] Speaker 03:
Say that again.

[00:00:29] Speaker 02:
Sorry.

[00:00:39] Speaker 02:
As far as rebuttal goes, I guess I'll just do three minutes.

[00:00:44] Speaker 03:
All right.

[00:00:49] Speaker 02:
Good morning, Your Honors.

[00:00:51] Speaker 02:
I'm Lisa Hunt, here representing plaintiff Mr. Gary Grenowick.

[00:00:56] Speaker 02:
We are here today seeking a ruling from this court reversing the district court's grant of summary judgment in favor of defendant Jeldwin.

[00:01:07] Speaker 02:
The claims dismissed are the negligence claim under Oregon's common law and statutory claims under Oregon's employer liability law, which I'll be referring to as the ELL, and Oregon's Safe Employment Act, the OC.

[00:01:24] Speaker 02:
While unloading windows that were loaded by defendant into his trailer after delivering them to a customer,

[00:01:36] Speaker 02:
Mr. Granowig suffered severe and permanently disabling injuries caused by, as alleged, the loading of a structure in the trailer that made the structure fall.

[00:01:54] Speaker 02:
Under that,

[00:01:56] Speaker 02:
conception of the case the relevant facts are there's a two thousand and twelve transportation agreement between jailed when the defendant and the plaintiff's employer creek in that agreement

[00:02:10] Speaker 02:
The defendant names itself as the manufacturer, and Crete is the shipper.

[00:02:18] Speaker 02:
So there's a manufacturer-shipper relationship under that agreement.

[00:02:22] Speaker 02:
The purpose, of course, was to secure regular transportation of the defendant's products to its customers, including the customer rate issue in the events here, PB Supply.

[00:02:36] Speaker 02:
Another relevant fact is this is not a touch load, which I had to look up because I saw it for the first time in defendant's briefing.

[00:02:44] Speaker 02:
A touch load is a full loading and unloading by the trucker.

[00:02:52] Speaker 02:
This was a tailgating load.

[00:02:54] Speaker 02:
It doesn't require loading the product.

[00:02:58] Speaker 02:
It only requires help from the trailer to the tailgate.

[00:03:04] Speaker 02:
and in those situations there's no need to hire an assistant so that's an irrelevant fact argued by defendant

[00:03:13] Speaker 02:
Also, what's relevant here is Mr. Grenowick's prior experience and knowledge regarding windows and unloading windows from Geldwin.

[00:03:24] Speaker 02:
Yes?

[00:03:26] Speaker 03:
Because time is short.

[00:03:27] Speaker 03:
15 minutes goes by very fast.

[00:03:30] Speaker 03:
Can you tackle the district court's findings in this case and explain where you think the district court went awry?

[00:03:40] Speaker 02:
That's going to be hard, because I'm doing that from memory.

[00:03:42] Speaker 02:
I wrote my notes not on that.

[00:03:44] Speaker 02:
But I did brief it, the district court.

[00:03:47] Speaker 02:
So the district court, under the negligence claim, concluded that this doctrine called the Yowell Doctrine precluded Oregon's common law negligence principles, which focuses on foreseeability instead of a duty breach analysis.

[00:04:06] Speaker 02:
That's in error because the Yale doctrine expressly, by our courts, it only applies to a landowner and to a contractor in control of a work site.

[00:04:21] Speaker 02:
the the uh... and it's a premises liability-based claim so in yowl it was a premises liability claim and it uh... it involved defendant landowner uh... and uh...

[00:04:41] Speaker 02:
I'm sorry.

[00:04:41] Speaker 03:
Let me try to circle back to the facts of the case again because it'll be helpful to hear from you from a factual matter where you think the district court went awry because the district court went through, well, did Gelwan have any control over the unloading process?

[00:04:59] Speaker 03:
The district court's answer was no.

[00:05:01] Speaker 03:
Once the load arrives in North Carolina, Gelwan didn't have any

[00:05:05] Speaker 03:
any role in unloading it.

[00:05:08] Speaker 02:
I understand what you're asking.

[00:05:09] Speaker 03:
Was the risk obvious?

[00:05:10] Speaker 03:
Well, here's somebody who's experienced and he'd been injured before.

[00:05:14] Speaker 03:
So the Discord made certain findings derived from the evidence that you presented in the record to reach its conclusion.

[00:05:21] Speaker 03:
Yes.

[00:05:23] Speaker 02:
What it did though.

[00:05:24] Speaker 03:
If we were to reverse, what's the basis for that?

[00:05:27] Speaker 03:
What's the analysis that would lead us there?

[00:05:30] Speaker 02:
The facts that you were just stating come from the application of the Yale Doctrine.

[00:05:37] Speaker 02:
And that's an error because the only way that the Yale Doctrine applies and the only way it has been implied in our cases is if the defendant was a landowner or a contractor in charge of a work site on which the plaintiff was injured.

[00:05:58] Speaker 02:
So the first error is applying the doctrine.

[00:06:02] Speaker 02:
You can't find a special relationship between these two parties

[00:06:07] Speaker 02:
under the Yale doctrine, unless the defendant was a landowner.

[00:06:11] Speaker 03:
So assuming we disagree with that, does that mean you lose, or do we go further?

[00:06:19] Speaker 01:
Were there any of the Yale factors that you argue there's a genuine dispute, a material fact, that the district court should not have resolved?

[00:06:27] Speaker 02:
Well, first off,

[00:06:32] Speaker 02:
The application of the Yale Doctrine really requires that there be some kind of obviousness of the risk.

[00:06:40] Speaker 02:
So the fact that is against that is Mr. Grunewig, it's not obvious to Mr. Grunewig how those windows were loaded.

[00:06:48] Speaker 02:
He was excluded from the loading process.

[00:06:53] Speaker 02:
that jailed when loaded the dropped off trailer and then had its own precise loading which included several rows and two windows balanced on top of the window below

[00:07:08] Speaker 02:
when that was all sealed and bound up with plywood in between each of those windows, there's no way that just stepping up into the truck as he was supposed to do and doing an inspection, which is checking the security, there's no way that that

[00:07:27] Speaker 02:
well, the expert called it a hazard.

[00:07:31] Speaker 02:
So I'm going to say that that potential hazard behind approximately 12 rows of windows existed.

[00:07:39] Speaker 02:
Mr. Grenoick's job was only, and he's never experienced this before, and the customer also testified that, well, this happens frequently, but it doesn't matter what the customer knows, it's what Mr. Grenoick knows.

[00:07:55] Speaker 02:
He delivered one

[00:07:57] Speaker 02:
one window load, and it didn't have this situation.

[00:08:02] Speaker 02:
He slipped because there was snow on his boots.

[00:08:05] Speaker 02:
So the obviousness of this hazard is not present.

[00:08:13] Speaker 01:
The second factor, which is that the defendant here gelled when lacks expertise regarding and control over the specialized task, which

[00:08:22] Speaker 01:
The defendant argues the specialized task is just the unloading of the windows.

[00:08:31] Speaker 01:
Do you think there's evidence that shows the defendant did have expertise or control over the unloading?

[00:08:43] Speaker 02:
Well, given that the driver is supposed to do a tailgate assist, and he's only worked with Windows once that never had this configuration, he did not have any expertise over... Is there any evidence that Gelwin had control over the unloading or expertise over the unloading?

[00:09:10] Speaker 02:
No.

[00:09:12] Speaker 02:
I mean, they had nothing to do with the unloading in terms of what happened.

[00:09:19] Speaker 02:
However, when looking at the entirety

[00:09:23] Speaker 02:
of this project, and now I'm getting fuzzy about whether we're going to be talking about the application of the Yale Doctrine or we're talking about ELL and the OC.

[00:09:34] Speaker 02:
The project itself is shaped by the party's agreement.

[00:09:41] Speaker 02:
And the project itself, it includes the loading and unloading.

[00:09:46] Speaker 02:
The whole thing is the project.

[00:09:49] Speaker 02:
And Oregon's cases say so.

[00:09:54] Speaker 02:
And I will, I just want to point out, because I hear that there's a temptation to apply the Yale Doctrine, it's only been applied in six cases.

[00:10:05] Speaker 02:
And each one, the defendant was a landowner or a general contractor in charge of the site.

[00:10:12] Speaker 02:
And it involves premises liability.

[00:10:14] Speaker 02:
And I think

[00:10:17] Speaker 02:
that's best explained in George V. Myers, where it says, YAL's rule is that the relationship between a possessor of land or contractor and a specialized subcontractor embodies a special status or relationship.

[00:10:32] Speaker 02:
And it's only been applied in six cases and all of those.

[00:10:35] Speaker 02:
The defendant, you don't apply the YAL rule until the defendant is a landowner or in charge of the premises where the injury occurred.

[00:10:46] Speaker 02:
And then, do you want to hear any more on why the Yale Doctrine doesn't apply or should I move on to ELL?

[00:10:54] Speaker 03:
You can use your time however you wish, but I know you wanted to save a few minutes.

[00:10:58] Speaker 02:
No, I'm happy you asked questions, because I do want to address concerns of the court.

[00:11:05] Speaker 02:
So the defendant has argued that the EOL doesn't apply, because it says that the... Well, so here's what the district court got right, since that was a question.

[00:11:17] Speaker 02:
the district court concluded that there was a common enterprise both parties under the contract agreed to participate in the transportation of goods to customers so the district court correctly concluded that and defendant has disputed that but for the common enterprise under the law under oregon law for the common enterprise test to apply to employers participate in a project

[00:11:47] Speaker 02:
The Court of Appeals, no I'm sorry I'm getting ahead of myself, the common enterprise analysis, one way to prove it and the other is the right to control or actual control.

[00:12:01] Speaker 02:
And this is where

[00:12:03] Speaker 02:
the interpretations of our courts of what that means within the statute.

[00:12:08] Speaker 02:
So the statute uses such broad terms, effectively all persons having charge of or responsible for any work involving a risk or danger to employees must take every precaution, etc.

[00:12:22] Speaker 02:
So, under the common enterprise test, as it's been construed within that statute, a defendant employer has charge of work when the component part of the undertaking for which it is responsible creates a risk.

[00:12:38] Speaker 02:
So this applies directly to the defendant here.

[00:12:41] Speaker 02:
The component part was the loading, and the unloading was the other part where the risk occurred.

[00:12:51] Speaker 02:
And it was created under plaintiff's theory by the loading itself.

[00:12:57] Speaker 03:
I just want to remind you that you're down to under three minutes.

[00:13:00] Speaker 03:
Do you want to save that time?

[00:13:03] Speaker 02:
No, I'll keep going.

[00:13:04] Speaker 02:
I mean, I'm going to erase my rebuttal.

[00:13:07] Speaker 02:
Is that what I'm doing?

[00:13:08] Speaker 02:
Okay.

[00:13:08] Speaker 02:
Yes.

[00:13:10] Speaker 02:
And the right to control and actual control.

[00:13:13] Speaker 02:
it's again how you frame that issue and in spain the court was looking at prior cases and it noted that supreme court said you've been framing the scope of the work that causes the risk uh... too narrowly it's broader and and uh... that was in woodbury and george where the court of appeals made that mistake

[00:13:35] Speaker 02:
So the conclusion was, the work involving a risk or danger does not remain limited to the work performed by the plaintiff, but it includes conditions created by, agreed to, or over which the defendant had some participation.

[00:13:51] Speaker 02:
So once you broaden that and look to the defendant's actions, ELL liability is incurred.

[00:14:02] Speaker 02:
Lastly, with the OC, the defendant argues that plaintiff's arguments were limited to liability as a purported owner, not as an indirect employer, and that there are no facts showing an OC violation related to ownership of the trailer.

[00:14:20] Speaker 02:
That's not how ownership is defined.

[00:14:23] Speaker 02:
Owner is defined as, among other things, every person having control or custody of any place of employment.

[00:14:32] Speaker 02:
And any place of employment under the two definitions there include the trailer.

[00:14:41] Speaker 02:
Specifically, every place.

[00:14:44] Speaker 02:
where those carried on any activity related either directly or indirectly to an employer's industry, trade, business or occupation.

[00:14:52] Speaker 02:
So the place of employment includes the trailer and OC liability can attach because the defendant had control and custody of that trailer during loading.

[00:15:07] Speaker 01:
even though the accident occurred during unloading, the custody or control during the loading you think is sufficient to establish OCI ability?

[00:15:16] Speaker 01:
Yes.

[00:15:16] Speaker 01:
Yes, it's that broad.

[00:15:18] Speaker 01:
Do you have any case that shows that temporal disconnect doesn't matter here?

[00:15:23] Speaker 02:
I think if you look at Miller versus Georgia Pacific, that was cited in my brief.

[00:15:29] Speaker 02:
OC is not, there's not as many cases on it.

[00:15:33] Speaker 02:
But certainly look to the statute and what the definitions are, because they're very broad and they have to be applied strictly in a remedial statute.

[00:15:46] Speaker 02:
I have five seconds.

[00:15:48] Speaker 02:
Any questions?

[00:15:49] Speaker 03:
Judge Tashima?

[00:15:51] Speaker 02:
No, thank you.

[00:15:52] Speaker 03:
All right.

[00:15:53] Speaker 03:
Thank you, counsel.

[00:15:53] Speaker 02:
Thank you.

[00:16:06] Speaker 00:
Good morning.

[00:16:08] Speaker 00:
May it please the court.

[00:16:09] Speaker 00:
My name is Richard Sieving.

[00:16:11] Speaker 00:
I represent the defendant below appellee here in Jeldwen, Inc.

[00:16:20] Speaker 00:
the district court correctly held that the contractual relationship between my client, Jeldwin, and the plaintiff's employer cut off any duty under the common law negligence claim that Jeldwin may have otherwise owed to the plaintiff.

[00:16:40] Speaker 00:
That's the Yale doctrine.

[00:16:42] Speaker 00:
That's Spain.

[00:16:45] Speaker 03:
I'll tell you counsel what my struggle is with this case.

[00:16:50] Speaker 03:
I wonder whether the district court really viewed the factual record

[00:16:58] Speaker 03:
construing it in one's favor rather than the other way around, because here we are in summary judgment.

[00:17:04] Speaker 03:
Every reasonable inference has to be viewed in the plaintiff's favor.

[00:17:10] Speaker 03:
So I want to focus on that.

[00:17:12] Speaker 03:
I don't know what areas my colleagues want to cover, so we'll give you some time for that.

[00:17:16] Speaker 03:
But I really want to focus on the factual record and to determine whether the district court

[00:17:22] Speaker 03:
really determined the factual disputed questions as a matter of law rather than letting it go to the jury.

[00:17:30] Speaker 03:
So I'll give you an example.

[00:17:32] Speaker 03:
The district court said that Zhao Wen has no expertise.

[00:17:35] Speaker 03:
Really, it's only a manufacturer of windows.

[00:17:37] Speaker 03:
It had no control over the unloading process.

[00:17:41] Speaker 03:
But the record does show that Zhao Wen did reach out to exercise some control over the unloading process.

[00:17:49] Speaker 03:
a checklist for the drivers.

[00:17:51] Speaker 03:
It has guidance on, you know, wearing safety glasses, make sure you don't wear tank tops.

[00:17:57] Speaker 03:
It did say that the drivers represent Jiao Duan as well as its own employer.

[00:18:04] Speaker 03:
So that indicates some sort of control, right?

[00:18:07] Speaker 03:
And it also on the obviousness of the risk said that, well, the plaintiff inspected the windows and so therefore the risk is obvious.

[00:18:15] Speaker 03:
But by the time he showed up,

[00:18:17] Speaker 03:
the windows had all been loaded, he couldn't see the unsecured windows in the back.

[00:18:24] Speaker 03:
How do we address those issues?

[00:18:26] Speaker 00:
Judge Nguyen, I think that's a fair inquiry.

[00:18:28] Speaker 00:
Let me just kind of give you the overview of how the court reviewed the evidence that was presented.

[00:18:35] Speaker 00:
And on April 28, 2018, the plaintiff shows up at my client's window manufacturing facility in Bend, Oregon.

[00:18:45] Speaker 03:
He switches on- Can I stop you for a minute?

[00:18:48] Speaker 03:
Sure.

[00:18:48] Speaker 03:
Do you mind sitting down, counsel?

[00:18:52] Speaker 03:
Oh, OK.

[00:18:53] Speaker 03:
Thank you.

[00:18:55] Speaker 00:
At that time, on April 28, he switches a unloaded trailer for a trailer that had been loaded by the folks at Geldwin.

[00:19:07] Speaker 00:
He looks at the trailer, opens it, inspects how the windows have been secured in the trailer, and approves those.

[00:19:16] Speaker 00:
He then closes the trailer, puts his enforcer lock on it, and seals the trailer.

[00:19:20] Speaker 03:
But could he see the unsecured windows

[00:19:22] Speaker 00:
There's like the evidence is there's a pathway down the middle of the at least on one side.

[00:19:27] Speaker 01:
It's a little discrepancy, but there's a dispute about that, right?

[00:19:31] Speaker 01:
Because he testifies that he couldn't see past the front.

[00:19:36] Speaker 01:
So if we're going, we can't resolve that factual dispute at summary judgment in the defendant's favor.

[00:19:43] Speaker 00:
Well, skipping ahead to how the accident actually occurred and what the plaintiff testified to in his deposition as to how it occurred, the issue is that the stacking of the windows that the folks that now the plaintiff takes issue with, that didn't cause the accident.

[00:20:08] Speaker 00:
That was not a cause of the accident.

[00:20:12] Speaker 00:
The argument from counsel we just heard was that there was evidence that the loading of the window somehow caused the accident.

[00:20:18] Speaker 00:
There isn't any evidence of that.

[00:20:20] Speaker 00:
Their own expert, the plaintiff's own expert, conceded that Jeldwin properly loaded and secured the windows because they made it 2,600 miles from Bend to Charlotte.

[00:20:32] Speaker 00:
And also, the plaintiff was the only one in the trailer who actually knows how the accident occurred.

[00:20:39] Speaker 00:
So we only have his testimony to look to to determine what happened here.

[00:20:44] Speaker 00:
And Mr. Groenweg specifically said he took the security, took the straps off, the ratchet straps.

[00:20:51] Speaker 00:
They were about a foot apart and there were two of them holding the windows.

[00:20:54] Speaker 00:
He then...

[00:20:54] Speaker 01:
Are you saying that there's expert testimony that concedes that the way in which the windows were loaded had absolutely nothing to do with the accident?

[00:21:04] Speaker 01:
No, my argument is there was no- They were loaded properly for the purposes of transport, but the factual dispute is whether the way they were loaded contributed to the windows falling on the plaintiff.

[00:21:17] Speaker 00:
But I think what the district court found, and I think what the evidence discloses, is there is no evidence that how they were loaded led to the accident.

[00:21:26] Speaker 00:
Mr. Groenweg testified pretty clearly in his deposition, and again, he's the only one who was there who knows.

[00:21:33] Speaker 00:
He said he took the securement strap off the windows.

[00:21:36] Speaker 00:
He was holding the windows tilted against the wall of the trailer.

[00:21:42] Speaker 00:
Something the windows either shifted or he moved but that caused the windows to fall.

[00:21:48] Speaker 00:
It wasn't how they were loaded.

[00:21:50] Speaker 01:
It was my understanding of the expert testimony is that if they had been loaded differently on pallets or other things that accident could not have happened.

[00:21:58] Speaker 01:
So why isn't this a factual dispute a genuine factual dispute for the jury?

[00:22:02] Speaker 00:
Well, because the evidence of how the accident occurred doesn't touch upon how they were loaded, it touched upon how they were unloaded.

[00:22:16] Speaker 03:
I guess what I'm focusing on in asking you these questions is that we have to go right to the test as to whether the risk was obvious and inextricably intertwined with his work as a national driver.

[00:22:32] Speaker 03:
So as to whether the risk was obvious, the district court made certain findings.

[00:22:38] Speaker 03:
which in the district court's view made it obvious.

[00:22:42] Speaker 03:
And so one of those findings was, well, he inspected the windows, so therefore the risk was obvious.

[00:22:48] Speaker 03:
Well, when the actual record shows that there's a dispute over whether he could see the unsecured windows or not, so that then

[00:22:56] Speaker 03:
knocks down the district court's finding with regard to obviousness.

[00:23:01] Speaker 03:
And the district court said, well, it's also obvious because he was an experienced driver.

[00:23:07] Speaker 03:
He had personally been injured previously, but the prior injury was really because he slipped on the snow.

[00:23:13] Speaker 03:
So I'm trying to figure it out.

[00:23:15] Speaker 03:
Well, given the record that we have, did this district court get it right?

[00:23:21] Speaker 03:
in analyzing the facts, or did the district court really take the disputed issues that we're now discussing with you and draw it in the defendant's favor rather than letting it go to the jury, rather than draw it in the plaintiff's jury?

[00:23:36] Speaker 03:
Now, the jury can figure it out.

[00:23:38] Speaker 03:
You may still very well win.

[00:23:40] Speaker 03:
But then you argue, well, the risk is obvious, relying on some of the factors that the district court did.

[00:23:45] Speaker 03:
And they get to argue the opposite.

[00:23:49] Speaker 00:
Judge Nguyen, I think that you have to look at what the injury being claimed was.

[00:23:54] Speaker 00:
And in this instance, the risk was that a heavy piece of glass, a window with a frame around it, could potentially fall on you if it wasn't balanced and held against the wall of the trailer.

[00:24:10] Speaker 00:
That's the risk.

[00:24:12] Speaker 00:
The risk was that a large, very heavy window could potentially fall.

[00:24:18] Speaker 00:
And the plaintiff certainly had knowledge and experience with a heavy window falling on him because that's what occurred in Colorado six months prior to this incident.

[00:24:31] Speaker 00:
incident the the risk that we're talking about here is that during the unloading process if you're not careful a window can fall on you well part of the problem there is that that also seems to be the subject of a factual dispute because his testimony is not that a window fell on him but that he slipped because of

[00:24:55] Speaker 01:
snowmelt on the floor.

[00:24:58] Speaker 01:
There's also the second factor, which is whether Geldwinn had any expertise or control over the specialized task, which you argue is just the discrete task of unloading.

[00:25:12] Speaker 01:
Plaintiff argues that we should look at it more holistically with the loading.

[00:25:16] Speaker 01:
Even if we look at only the unloading though, the record seems to show that Geldwin exercised some control over the unloading by requiring drivers to dress a certain way, to wear safety goggles, and even gave the receiving customer, you know, asked the receiving customer to grade the driver's performance and said that the driver is representing Geldwin to that receiving customer.

[00:25:42] Speaker 01:
So why isn't that, as a matter of law, sufficient control?

[00:25:46] Speaker 01:
Or why isn't there at least a genuine dispute of material fact as to whether Jeldwyn exercised enough control over the unloading process?

[00:25:55] Speaker 00:
I think you have to look at the entire

[00:26:01] Speaker 00:
project from the time that the windows were loaded in bend to when Mr. Groenberg came in, took possession and custody of the trailer, inspected it, and then sealed the trailer.

[00:26:17] Speaker 00:
There's a clear demarcation there in responsibility and oversight and the ability to control.

[00:26:25] Speaker 00:
The document they're referring to

[00:26:28] Speaker 00:
doesn't it's it's an internal Jeldwin document that's contained in the packet of Information that a driver picks up keep in mind.

[00:26:37] Speaker 00:
Mr. Groenbeck had no contact with anyone at Jeldwin when he picked up these windows He didn't talk to anybody.

[00:26:44] Speaker 01:
He says he went into you're asking us to ignore a document that is in the record I mean you're not saying that it doesn't exist and they get there if we draw all factual inferences in favor of the plaintiff because it's your motion for summary and judgment and

[00:26:58] Speaker 01:
Why wouldn't that document create an inference that Geldwin exercised some control over the unloading process?

[00:27:04] Speaker 00:
That document doesn't refer to, for lack of a better term, it's a customer service type document.

[00:27:12] Speaker 00:
What it says is if you're going to deliver Geldwin Windows, you should

[00:27:17] Speaker 00:
you should make sure you're presentable, you wear proper clothes, you do that kind of thing, but they didn't exercise control, nor could they conceivably exercise any control upon how the windows are unloaded at any particular

[00:27:35] Speaker 00:
customers' facility.

[00:27:37] Speaker 00:
These windows are manufactured in Bend.

[00:27:39] Speaker 00:
They're shipped nationwide.

[00:27:42] Speaker 00:
Different customers have different facilities.

[00:27:45] Speaker 00:
For example, the people at Professional Building Supply in Charlotte, I think they said they had three or four people who assisted.

[00:27:53] Speaker 00:
Some customers have far more than that because these windows are big and heavy.

[00:27:57] Speaker 00:
Some have one or two customers, one or two representatives who help unload the windows.

[00:28:03] Speaker 00:
Some use

[00:28:04] Speaker 00:
different dollies, some use forklifts, some use, there's, Jeldwin would have no ability to control how that's done in the field when it no longer owns the windows, it doesn't own the trailer, Mr. Groenweg's not at their employee.

[00:28:20] Speaker 03:
I guess what's difficult about this argument that you're raising is that how the windows are loaded or whether it's properly loaded

[00:28:30] Speaker 03:
affects the risk in unloading as well.

[00:28:35] Speaker 03:
Is it correct that on this record, Jo-Win's policy says that you can't stack windows past the half endpoint of the trailer and here it was packed all the way to the back?

[00:28:48] Speaker 00:
I think that refers to so that you can go down and there's supposed to be a pathway through which I believe the evidence was

[00:28:57] Speaker 00:
That distinction was whether or not the pathway was through the middle and the windows were tilted on both sides of the trailer versus whether they were on one side.

[00:29:06] Speaker 03:
I don't know if that has to do with your ability to do the inspection or not, but here we've got a driver testifying to the fact that he showed up and it was already loaded and he couldn't see the back because of, he couldn't see the unsecured windows because of the size of the windows blocking his view in front of that.

[00:29:27] Speaker 00:
He could walk through the trailer and look at the windows, because there was a pathway.

[00:29:31] Speaker 00:
His testimony was there was a pathway.

[00:29:33] Speaker 00:
The question was whether there were two sets of windows, one on each side of the path, or whether they were on one side of the wall only.

[00:29:40] Speaker 00:
But he could walk through and inspect the windows.

[00:29:43] Speaker 00:
And he testified that he looked in.

[00:29:46] Speaker 00:
They were secure.

[00:29:47] Speaker 00:
And then he closed and sealed up the trailer.

[00:29:48] Speaker 01:
I mean, on the plaintiff's argument that the loading necessarily impacts the unloading.

[00:29:56] Speaker 01:
I mean, if Geldwin had not loaded the heavy windows on top of the stack, this accident could not have happened.

[00:30:03] Speaker 01:
Is that correct?

[00:30:06] Speaker 01:
If Geldwin had not loaded the heavy windows on top of the stack, this accident could not have happened.

[00:30:12] Speaker 01:
Is that correct?

[00:30:13] Speaker 00:
No, that's not Craig.

[00:30:15] Speaker 00:
It wasn't because there was one on top of the other.

[00:30:18] Speaker 00:
It was because the straps had been removed.

[00:30:22] Speaker 00:
The testimony was both windows fell on him because they somehow shifted or he moved them or

[00:30:28] Speaker 00:
Note, more importantly, no one was there to help him hold the windows up against the wall of the trailer.

[00:30:35] Speaker 00:
No one from PV Supply was in the trailer at the time because they had already removed some of the windows from the back of the trailer and were in the warehouse when they heard the windows fall and Mr. Gorenweg scream.

[00:30:47] Speaker 00:
So, no, I don't believe the record supports that.

[00:30:52] Speaker 00:
In fact, Mr. Corbin, the expert for the plaintiff, specifically said he didn't have any problem with how the windows were loaded, how they were secured, because of course, they made it all the way across the country.

[00:31:05] Speaker 00:
Again, two different scopes of work here, the loading process on one hand and the unloading process on the other hand.

[00:31:15] Speaker 03:
Judge Sashima, did you have questions?

[00:31:17] Speaker 00:
No.

[00:31:19] Speaker 03:
All right, thank you very much to both sides for your argument.

[00:31:21] Speaker 03:
The matter is submitted and that concludes our argument calendar this morning.

[00:31:25] Speaker 03:
So we'll be in recess until tomorrow morning.

[00:31:30] Speaker 03:
Thank you.