CHIE F JUSTICE: GOOD MORNING.

GOOD MORNING.MAY IT PLEASE THE COURT I'M BARBARA GREEN. I R EP RE SENT M AR K B AK ER MA N . HE WAS INJURED WHEN H E FEL L FROM A LET TE R .

LET ME G ET T HE FACTS OUT FROM MY UNDERSTANDING OF THEM FROM READING THE R ECOR D AND THAT IS THAT THERE WAS NO INTEREST TO THIS ACCIDENT , CORRECT?

THAT'S CORRECT .

SO T HE S OLE T ESTIMONY A S TO HOW THIS ACCID EN T OCCURRED CAME FROM THE PLAINTIFF.

YES, YOUR HONOR.

JUSTICE: AND WHAT THE PLAINTIFF TESTIFIED TO WAS THAT HE WAS S TA NDIN G O N T HE VERY TOP OF T HIS LADDER TRYING TO G ET - - MOV E A B OX , REACH ING U P T O MOV E A ND O NE BOX SHI FT ED A ND THE N THE NEXT THING HE KNE W H E WAS O N T HE GROUN D A ND LAY IN G N EXT TO THE L ADDE R. IS THAT IT? > > THAT'S PRE TTY MUCH I T , YOUR HONOR.

JUSTICE: HE DOESN'T REALLY KNOW HOW THIS ACCIDENT, WHAT CAUSED HIM TO FALL, COR RECT?

WELL, HE KNO WS THA T H E WAS S TANDING ON TOP O F T HE LADDER THAT THE LADDE R ALWAYS SWAYED A ND SHO OK .

JUSTICE: BUT A S FAR AS THIS ACCIDEN T W AS C ON CERN ED , A LL HE K NE W F RO M M Y REA DI NG OF WHAT H E S AI D WAS T HA T H E WAS REACH ING F OR THE BOX A ND THE NEXT THING HE K NEW T HA T THE LADDER WAS LAY IN G N EXT TO HIM AND HE WAS O N T HE FLOOR AND W E D ON 'T HAV E A NY EVIDENCE IN THIS RECOR D A S T O THE L AD DER ITSEL F. THE LADDER WAS GONE. THAT WAS ONE OF THE ISSUE S I RECOGNIZED BELOW, B UT THE RE WASN'T ANY C ON TE NT IO N T HA T OTHER THAN THE FACT THAT THIS LADDER S WAYE D T HA T T HE LADDER BROKE O R T HE R UNG B ROKE OR THE TOP O F T HE LADDER BROKE O R ANYTHING OF THAT NAT URE .

THERE IS NO CONTE NTIO N THAT THE LADDER BROKE BUT THERE ARE CONTE NT IONS AND THERE IS ABU NDAN T EVI DE NC E THAT THE LAD DE R W AS U NS TA BL E AND THAT IT WAS T OO S HO RT FOR THI S J OB .

JUSTICE: NOW, ONE OTH ER THING FROM THE RECORD FROM MY READING OF IT I S T HA T PRIOR TO THE TIME , F RO M W HA T THE PLAINTIFF TES TI FIED T O THAT B EFORE H E FEL L F RO M THE TOP OF THE LADDE R O N THI S OCCASION THAT HE HAD STOOD ON THE TOP OF T HI S LAD DE R MORE THAN A D OZ EN T IM ES G ETTING S TO CK D OW N , C OR RE CT ?

MANY , MANY TIMES , YOUR HONOR. > > J USTICE: AND THAT HE HAD BEEN ON THI S P AR TI CU LAR LADDER HUNDREDS OF TIMES WAS HIS TES TIMONY.

YES, YOUR H ON OR . AND IT WAS ALS O T HE TESTI MONY F RO M A N E XP ER T WITNESS AND IT IS A LS O A FAIR INFERENCE FROM THE RECORD THAT BASED O N T HE DESCRIPTION OF THE C ON DITI ON OF THI S P AR TI CU LAR L ADDE R T HAT IT WAS C LE AR T HA T E VE RY TIME THE L AD DE R WAS USED I T WAS GOING T O GET WOR SE . BECAUSE THE WAY THE Y DESCRIBED THE M OVEMENT OF IT , THE EXPERT ENGIN EE R S AI D , WELL, THAT HAPPENS W HE N THINGS ARE COMING LOOSE AND THE MORE YOU USE A LAD DE R LIKE THAT, THE LOOSER T HINGS ARE GOING TO GET . > > JUSTICE: AND HE HAD U SE D THIS LADDER ON THIS PARTICULAR DAY A BUNCH OF TIMES.

YES, YOUR HONOR, A B UNCH OF TIMES ON THIS PARTICULAR DAY AND A BUNCH OF T IM ES BEFORE THAT. IT WAS USED EVERY DAY. IT WAS U SED EVERY T IM E A N EMPLOYEE OF B OM BA Y C OMPA NY HAD TO GET SOMETHING OFF O NE OF THE U PPER S HELV ES .

JUSTICE: LET ME ASK YOU A THRESHOLD QUESTION. I UNDERSTAND THAT YOU ARE BASING JURISDICTION O N CONFLICT WITH T URNE R AND T RAVELERS . BASED ON THE FAC T T HAT T HE 3RD DCA R EQ UIRE D C ON CEAL ME NT , LET 'S ASSUME FOR T HE MOMEN T THAT THERE IS CON FLICT ON THAT B ASIS . IN 200 3 , T HE L EGIS LATU RE AMENDED THE S TA TUTE T O IMPOSE A V IR TUAL C ER TA IN TY S TANDARD SO I'M N OT S UR E WHAT BENEFIT TO T HE L AW WE ARE GOING TO G IV E B Y TAK IN G THE CAS E A ND R ES OL VING T HE CONFLICTS SINCE THI S S UBSTANTIAL CERTAINTY STA ND ARRESTED DOESN'T EXIST ANY MORE AS O F 200 3.

THE BENEFIT TO THE L AW , YOUR HONOR, I S FOR THE CASES IN THE PIP EL INE BEFORE T HE AMENDMENT. IT HAS ALREADY B EE N R ULED THAT THE A ME NDME NT I S N OT R ETROACTIVE . > > JUSTICE: BUT THAT'S A LIMITED NUMBER OF C ASES ANDIT IS E VE N M ORE L IMITED IF YOU CONFINE IT TO THE T HIRD DISTRICT.

YES, BUT THERE IS N O REASON TO C ONFINE IT TO T HE THIRD DISTRICT. ALT HOUGH THERE WAS A C ASE THAT CAME OUT OF THE 3 RD D ISTRICT JUST A WEEK O R T WO AGO THAT MR. B IA SOTT I CIT ED AS S UPPLEMENTAL AUTHORITY AND IT COLLECTED A F AI RL Y SUBSTANTIAL NUMBER OF CAS ES FROM DIFFERENT DISTRICTS ALL HAVING THIS C ONCEAL ME NT REQUIREMENT . AND SO IT I S P RETT Y C LE AR THAT THERE ARE A S UBSTAN TI AL NUMBER OF C AS ES F RO M A LL O F THE DIFFERENT D ISTRIC TS THA T D O IMPOS E THI S R EQ UIRE ME NT THAT IS NOT A R EQ UIRE ME NT UNDER TURNER AND TRA VELERS . > > JUSTICE: W HAT DO YOU THINK FROM T UR NER I S THE I NTENTIONAL TOR T THA T T HI S COURT REFERRED TO I N TUR NER? YOU KNOW, M OS T T OR TS I N THI S E XPERIENCE HAVE NAMED , MISREPRESENTATION , F RA UD A ND CERTAINLY INTENTIONAL TORTS , DEC EIT. WHAT WOULD Y OU LAB EL THI S TORT?

THE CLOSEST YOU C OULD COME TO THI S I S A N UNCONSENTED TOUCHING. IT WOULD BE A BATTERY. I THINK , B EC AUSE T HE Y ARE BASICALLY W ITHO UT T OU CHIN G HIM, THEY ARE B AS IC AL LY PUSHING HIM TO THE FLOOR FROM THIS LADDER .

JUSTICE: WOULD THAT B E A N INTENTIONAL TORT? YOU ARE ALLEGING IT WOULD BE AN INTENTIONAL TORT?

YES, YOUR HONOR, THE COMPLAINT ALLEGED IT WOULDBE AN INTENTI ONAL TOR T .

J USTICE: THE N WHY WOULDN'T THE C OM PA RATI VE FAU LT NOT A PP LY I N INTENTIONAL TORT CASES?

IT SHOULD HAVE , YO UR HONOR, IT S HO ULD N OT H AV E APPLIED, AND T HA T Q UITE HONESTLY SHO ULD H AV E B EE N T O THE C OM PARA TIVE N EG LIGE NCE INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BUT IT WASN'T OBJECTED TO. IT W AS -S IM PL Y A N E RROR T HA T HAS BEEN W AI VED.

JUSTICE: IN THIS AREA O F WORKERS' COMP W HICH W AS D ESIGNED TO R ES OL VE C ASES A T THE A DMIN IS TRATIVE LEVEL N O FAULT THAT KIND OF THING IT SEEMS L IK E I F N OT A B RIGH T LINE AT LEA ST A N A RE A W HE RE PEOPLE KNO W I S T HI S NEGLIGENCE OR N OT T HE N BASICALLY WE ARE G OING T O DES TROY T HE WOR KERS ' COM PENSATION SCHEME BECAUSE ANY PLAINTIFF CAN N OW S AY EVEN T HOUG H T HI S L OO KS L IK E NEGLIGENCE IT REALLY W AS N' T BECAUSE THE E MP LO YE R K NE W O R SHO ULD HAV E K NOWN , I T I S ALMOST AS IF WE ARE S AY ING IT IS VERY N EG LIGENT T HE N YOU CAN GO INTO C OU RT B UT I F IT IS ONL Y S OMEW HA T NEGLIGENCE THEN Y OU DON'T GET TO GO I NT O C OURT S O NEITHER PLAINTIFF S N OR DEFENDANTS OR JUDGE S HAVE ANY KIND O F IDE A W HA T F ALLS I NTO WHICH PLACE.

WELL, I THINK T HE OTH ER COURTS IN OTHER STATES T HAT HAVE APPLIED T HE S UB ST ANTIAL CERTAINTY TEST HAVE U SED A T HREE-PART TEST, AND A PPLI ED IT TO J UST A LIMITED N UMBER OF CAS ES . THEY HAVE HAD ACT UA L KNOWLEDGE BY THE E MPLO YE R O F THE DANGEROUS CONDITION. WE CERTAINLY HAD THAT HERE. THE STORE M ANAGER KNEW , THE DISTRICT MANAGER KNEW. THE STORE M ANAGER SAID TO THE DISTRICT MANAGER ON A NUMBER OF OCCASIONS, T HI S LADDER IS UNSAFE , I T DOE SN 'T FIT THE S PACE. YOU CAN'T O PEN IT UP. IT IS R IC KE TY , I T S WAYS , I T IS NOT TAL L E NOUGH. SOMEBODY IS GOING TO GET HURT.

JUSTICE: AND THE EMPLOYEES DID?

PARDON ME?

JUSTICE: AND THE E MPLOYE E KNEW. THIS WAS NOT A H ID DE N D EF EC T OR PROBLEM?

YES .

JUS TICE : E VERY BO DY K NE W THAT THIS LADDER WAS A PROBLEM ?

E VERYBO DY K NE W AN D H E W AS AFRAID AND HE T ESTIFIED THAT IF HE R EFUSED TO GET UP O N THAT LADDER HE WOULD L OS E HIS J OB .

CHIEF JUSTICE: WHAT ARE THE OTHER TWO PRONGS?

KNOWLEDGE THAT INJURY T O THE E MPLOYEE WAS SUBSTANTIALLY CERTAIN TO OCCUR. YOU'VE GOT THAT HERE. THE JURY FOUND THAT HER E AND THE JURY FOUND THAT B AS ED O N NOT JUST ADDING UP A NUM BER OF SMALL RIS KS O VE R A L ON G PERIOD OF TIME A S H AP PE NS I N S OME OF THE C ASES .

JU STICE: IT SEE MS T O M E THAT IS JUST A C IRCULA R TES T BECAUSE THE TES TS WE ARE PROVING SUBSTANTIALLY CERTAIN TO OCCUR IS WHETHERIT IS SUBSTANTIALLY CER TA IN TO O OCCUR.

I AGREE THAT T HE C HO ICE OF LANGUAGE IS U NFOR TUNATE BUT WHAT YOU HAVE SPECIFICALLY I N THI S R ECOR D I S E XPECT TES TI MONY THA T THIS LADDER IS GOI NG T O G ET WORSE AND WORSE A ND WORSE AND C ON NE CTIONS G ET L OOSE R AND LOOSER AND IT G ET S L ES S AND LESS STABLE.

JUSTICE: BUT THE CONNECTIONS HAD NOTHING TO DO WITH THIS CASE , RIGHT , THAT WE KNOW ABOUT. THE RECORD D OE SN 'T D IS CLOS E THAT THE CONNECTIONS HAD ANYTHING TO DO WITH THIS CASE?

I THINK IT IS A FAIR INFERENCE FROM THE RECORD , YOUR HONOR. I THINK IT IS A F AI R INF ERENCE T HAT T HE EMP LO YE E , MR. BAKERMAN AND HIS SUPERVISOR BOTH TESTIFIED THAT ANY TIME YOU STOOD O N THE TOP OF THAT L AD DE R Y OU HAD TO HOLD O N O R I T WOU LD WOBBLE AND SWA Y B ECAUSE I T WAS SO RICKETY .

JUSTICE: IN THE NAME OF COMMON SENSE ANYBODY K NO WS WHEN YOU STAND ON THE TOP OF THE LETTER YOU'VE GOT TO HOLD O N T O SOMET HI NG .

TO K EEP YOUR BALANCE , BUT IN ADDITION W HAT THE Y S AID NOT JUST THAT THEY WOULD SWAY BUT THAT THE LADDER WOULD SWAY. THE L ADDER WOULD SHAKE.

LET ME ASK Y OU T HIS. IN T HE CASES T HA T W E T AL KE D ABOUT IN TURNER , WOULD YOU AGREE IN TURNER W E A T LEA ST SAID THAT T HI S W HA TE VE R SUBSTANTIAL THAT WHA TE VE R CONDUCT WAS THE FOC US O F I T H AD TO BE G RE ATER THA N G RO SS NEGLIGENCE. > > YES , YOUR HONOR, Y OU D ID SAY THAT .

JUSTICE: AND THERE IS N O ALLEGATION HERE IN THIS COMPLAINT THAT O F GRO SS NEGLIGENCE, WAS THERE, O F R ECKLESSNESS?

THE COMPL AI NT A LL EGED INTENT IF I MAY , YO UR HON OR.

JUSTICE: IT ALLEG ED , I 'V E GOT IT RIGHT HERE. YOU DON'T HAVE TO GET IT. B UT I N CONNE LLY , WHI CH TURNER WAS R ES TING O N , T HA T WAS A FAILU RE TO WAR N C AS E , RIGHT?

NO, NOT ENTIR ELY , YO UR HONOR.

JUSTICE: BUT IT WAS BASICALLY A FAILURE T O W AR N BECAUSE CONNE LLY MAD E A BIG DEAL OUT OF THE F AC T T HA T THE EMPLO YE E D ID NOT K NO W .

CON NELLY M ADE A BIG DEA L OUT OF THAT BUT C ON NELLY ALSO MADE A BIG DEA L O UT OF ONE OF THE FLIGHT ATT EN DA NTS WHO CALLED H ER F IA NC E BEF OR E THE T RA GIC FLI GHT TOOK OFF AND S AID I'M SCARE D T O DEATH. WE'RE HAVING THIS SAM E PROBLEM WITH THE E NG IN E. IT IS NOT SAF E , AND H E T OLD HER Q UIT NOW. DON'T COME HOME ON THA T PLANE, A ND SHE DID N' T A ND SHE DIED ON THE PLANE, A ND THEY LET HER C AS E P RO CEED .

JUS TICE: CUNNI NG HA M WAS ALSO A FAILURE T O WAR N C AS E , WAS I T NOT ?

I N W HAT ONE ?

JUSTICE: CUNNI NG HA M T HAT WE RELIED ON.

YES, YOUR HONOR.

JUSTICE: WHAT BOTHERS M E I GUESS AS MUCH A S A NY THING ELSE IS I C ANNO T C ON CE IV E O F HOW A S IN GL E R OO FER IN T HE STATE OF FLORIDA WOULD NOT HAVE A CASE T HAT W OU LD G O T O THE J UR Y I F S TA NDIN G O N A LAD DER A ND FAL LING OFF O F I T I S T HE T YP E O F CON DU CT W E WERE TALKING ABOUT IN TURNER THAT WOULD REMOVE C OM P IMMUNITY. HOW COULD THAT BE?

IT IS NOT STA ND IN G O N A N ORDINARY LADDER. WHAT YOU'VE GOT HERE I S YOU'VE GOT A LADDE R THA T IS SUPPOSED TO BE A N A FRAME THAT HAS TO BE USED IN T HE CLOSED POSITION SO INSTEAD OF THE L EG S F IT TING FLA T O N THE F LOOR THE Y A RE J US T THE T IPPY C ORNER O F ONE SIDE OF THE L EGS I S O N T HE FLO OR . YOU 'VE G OT N O RUB BE R FEE T O N THE BOTTOM OF THE LAD DE R. YOU'VE GOT A LADDER THAT I S COM ING APART THA T I S S HA KE Y AND RICKETY AND YOU 'VE GOT A LADDER THAT IS TOO S HO RT F OR ITS JOB AND YOU'VE GOT A LADDER THAT EVERY TIME I T I S USED IS GETTING WOR SE. N OW, I T HINK I C ERTA INLY HOPE THAT THO SE C AS ES ARE R ARE. SO I DON'T THINK IT IS G OINGTO BE EVE RY R OOFE R AND I T I S CERTAINLY NOT G OING TO B E ANY ROOFE R , EVE RY R OO FE R AFTER 2 00 3.

CHIEF JUSTICE: I JUST WANT TO MAK E SURE , YOU G AV E TWO OF THE THREE. IS THERE A THIRD?

I'M SORRY, YO UR H ONOR. AND WE HAVE THAT HERE. THE EMPLOYE E W AS R EQ UI RE D T O CONTINUE TO PERFO RM T HE DANGEROUS TASK . THE RECORD IS C LE AR THA T T HE DISTRICT MANAGER REFUSED T O AUTHORIZE REP LA CE MENT OF T HE LADDER. THE EMPLO YEES H AD TO USE T HE LADDER AND M R. B AK ERMA N W AS CONVINCED THAT HE W OU LD B E FIRED IF HE DIDN'T GET THE LADDER, BEC AUSE THAT'S WHAT THEIR JOB WAS. THIS WAS ONE OF THOSE S TO RES WHERE THE ITEMS ONE O F E ACH I TEM IS JUS T O N D ISPL AY OUT IN THE MAIN PART OF THE STORE AND IF YOU WANT THA T ITEM YOU H AV E T O ASK T HE S ALESPERSON AND THE SALESPERSON GOES BACK S O EVERY TIME SOMEBODY WAN TE D TO BUY SOMETHING THEY HAD TO GO BACK IN THE S TORE ROOM.

N OW , I N T HE C AS E T HA T HAS JUST COME OUT OF T HE 3RD , T HAT TO ME DO ES N OT S EEM LIKE A S UB ST AN TIAL CER TA INTY CASE. THERE IS NO EVIDENCE IN T HAT CASE THAT THE E MPLO YE R K NE W OF THE MISSING B ARRI ER AND THAT IT M AY E VE N B E THA T T HE PLAINTIFF THEMSELVES HAD TAKEN O FF AND BAS ICAL LY - - SO DO YOU WANT T O COM PA RE O R CONTRAST THAT C ASE WITH THIS CASE?

I THINK I T DEP ENDS O N WHETHER YOU REA D THE MAJ ORITY OPINION OR THE D ISSENT . BECAUSE THE D ISSE NT F OC US ES ON CON ST RU ING T HE F AC TS MOR E FAVORABLY TO T HE P LA IN TIFF , AND POINTS OUT THAT T HERE WAS EVIDENCE T HA T T HE C OURT OVERLOOKED . THE DIS SE NT S AY S , Y OU K NO W , T HEY HAVE T HI S GOO D P OL ICY ON PAPER ABOUT NOT R EM OV IN G SAFETY DEVICES AND STUFF B UT , IN FACT, THE S AF ET Y D EV IC E WAS REMOVED , H AD B EEN REMOVED AND T HERE WAS SOME EVIDENCE I B ELIEVE F ROM WHICH IT COULD BE INF ER ED THAT THE E MPLOYE R K NE W T HA T IT HAD BEEN R EMOV ED . CAFFUS, IF YOU ACC EP T THE MAJORITY OPINIONS , C HARACTERIZATION OF IT, THEN I THINK THAT THIS C ASE I S MORE A GG REGIOU S T HA N THA T .

CHIEF JUSTICE: DID Y OU FILE A SUP PLEM EN TAL AUTHORITY?

YES, MR. BIA SO TT I FIL ED A SUPPLEMENTAL AUTHORITY. HE BEAT ME TO THE PUN CH .

JUSTICE: SO THI S ISN'T A CASE OF C ON CE AL ME NT O R DECEIT OR MISREPR ES ENTA TION . IT IS S IMPLY A C AS E W HERE THERE WAS AN UNS AFE WORK CONDITION WHERE THE EMP LOYEE HAD T O C HO OSE T O EIT HE R NOT GET UP ON THE LAD DE R O R Q UIT.

BUT IT IS A N U NS AF E WOR K CONDITION THAT GOT WORSE EVE RY TIME. IT IS NOT JUST THE S AM E UNSAFE THING B EI NG R EPEA TED.

JUSTICE: BUT A GAIN THERE IS NO M IS REPR ESENTA TI ON , CONCEALMENT?

NO, N O MIS RE PRES EN TATI ON OR CON CE ALME NT O R TRU LY A N I NTENTIONAL TORT? AND THE ONLY THING THA T T HE EMPLOYEE KNEW ABOUT THE DANGEROUS CONDITION THE EMPLOYEE HAD TO M AKE THE DECISION DO I WANT TO CONTINUE CLI MBIN G U P THIS LADDER I KNOW IS D ANGE ROUS AND MAY C AUSE ME INJUR Y , AND WE ARE JUS T G OING T O L ET THE JURY DECIDE THE NEGLIGENCE ISSUE THERE SO IT IS REALL Y NOT TRULY A N I NT EN TI ON AL TORT IN THE TRUE SENSE OF THE WORD.

UNDER T HE O BJ EC TIVE SUBSTANTIAL CERTAINTY TES T WHERE THE T ES T I S W HE TH ER THE EMPLOYE R K NE W O R S HO UL D HAVE KNO WN T HA T I NJUR Y T O THE EMPLO YEE WAS SUBSTANTIALLY C ERTAIN T O OCCUR AND THAT'S T HE T ES T F OR AN I NT ENTION AL TORT THA T THIS COURT SET OUT I N T URNE R AND IN TRAVELERS VER SU S PCR . IF THAT'S THE T ES T T HI S I S AN I NTEN TI ONAL TOR T .

JUSTICE: BUT IF WE A CCEP T YOUR ARGUMENT BAS ICALLY A NY GROSS N EG LI GENT C ASE WHERE AN EMPLOYEE I S SUB JECT T O A N U NSAFE W OR K C ON DITI ON T HE Y ARE GOING TO BE ABL E T O UNDER YOUR T HEOR Y BRI NG A N INDEPENDENT CAUSE OF ACTION OUTSIDE OF W ORKMAN'S C OM P IF IT IS AN U NSAF E W OR K CONDITION.

NO, YOUR HONOR , GRO SS NEGLIGENCE IS NOT ENOUGH AND I HATE TO G ET I NT O SEMANTICS.

I THINK S EMAN TI CS ARE IMPORTANT.WHAT IS T HE DIFFERENCE BETWEEN THIS B EING A G ROSS N EGLIGENT C ASE , DIS RE GARD FOR THE SAFETY OF THE EMPLOYEE, AS OPP OSED T O A N I NTENTIONAL TOR T?

THE DIFFERENCE I THINK, YOUR HONOR, C OMES DOW N T O I THINK M OST S IGNI FICANTLY THAT THE C ON DITI ON GET S WORSE AND WORSE AND WOR SE EACH TIME THAT T HE L AD DER I S USED.

JUSTICE: AND IT D OE SN 'T MATTER WHETHER OR NOT THE EMPLOYEE IS AWARE O F IT?

I DON'T THINK IT D OE S MATTER WHETHER THE EMPLOYEE IS AWARE OF I T , BEC AUSE T HI S IS NOT A FAI LURE T O WAR N CASE. THERE ARE TWO DUT IES , YOU KNOW? IN YOU R O RD IN ARY N EGLI GENCE CASE, FOR E XAMPLE, THERE IS A DUTY TO WAR N O F THE DANGEROUS CONDITION BUT THERE IS ALSO A DUTY NOT T O HAVE THE D ANGE ROUS CONDITION. AND EVEN I F YOU W ARN O F T HE DANGEROUS CONDITION THERE IS STILL A QUE ST IO N O F W HE THER THE C ONDI TION WAS S O D ANGEROUS THAT IT SHOUL DN'T HAVE BEEN THERE AT A LL . > > JUSTICE: SO IF W E T AKE JUSTICE --.

CHIEF JUSTICE: SHE IS SO INTO HER REBUT TAL.

JUSTICE: REAL Q UICK SO I F WE TAKE JUSTICE WEL LS ' EXAMPLE YOU HAVE A SAFE LADDER B UT E MP LO YE ES REGULARLY STANDS O N TOP OF THE LADDER WHICH EVERY BODY KNOWS IS DANGEROUS AND THE LADDERS HAVE A WARNING ON THEM, DON'T STA ND O N T HE T OP , BUT T HE EMPLO YE R A LL OW S THE EMPLOYEE TO DO THAT ON A REGULAR BASIS AND THE EMPLOYEE FALLS O FF U NDER YOUR THEORY THA T WOULD ALSO BE O UT SI DE WOR KMAN'S C OM P ?

NO , B ECAU SE T HAT' S N OT A DANGEROUS CONDITION CREATED BY THE EMPLOYER A ND T HAT'S NOT A CONDITION THAT GET S MORE D ANGEROUS E ACH T IME I T HAPPENS. THE OTHER C ON CE ALME NT I SSUE AND THEN I'LL S IT DOW N BECAUSE I WOULD LIKE A MINUTE FOR REBUTTAL , B UT THE OTHER THING IS THA T I F Y OU SAY YOU CAN NEVER HAVE IT WHEN THE EMP LOYE E K NOWS , Y OU ARE READOPTIN G C ON TRIB UTOR Y NEGLIGENCE AS A N A BS OL UTE DEFENSE AND THAT'S SOMETHING NOT EVEN THE F LO RIDA LEGISLATURE HAS DONE. THANK YOU .

MAY IT PLEASE THE C OURT , ROBERT BIASOTTI REPRESENTING THE BOMBA Y C OMPANY. WITH M E A T C OU NS EL TAB LE I S CHRISTINE DAVIS.

JUSTICE: WAS THE JURY INSTRUCTED IN THIS CASE THAT IT HAD TO F IND MORE THA N GROSS NEGLIGENCE?

THEY WERE INSTRUCTED THA T IT HAD TO BE SUBST AN TI AL LY CERTAIN TO CAUSE DEATH O R INJURY WHICH IS R IGHT OUT O F THE TURNER C ASE AND THE Y WERE ALSO I D ON'T REMEM BE R THE EXACT WORDS BUT IT HAD TO BE M OR E THA N - - SOM ET HING MORE. I DON'T REMEMBER THE EXACT WORDS BUT THERE WAS A S EC OND SENTENCE TO THE JURY INSTRUCTION.

JUSTICE: I ASKED M IS S GRE EN S EV ER AL Q UE STIO NS . MY QUESTION FOR YOU AND THIS IS WHY I THINK IT IS A DIFFICULT CASE FOR US IS : THIS DID GO TO T HE JUR Y. THE JURY WAS G IVEN T HE S TANDARD AS WE A DOPT ED T HEM IN TURNER , AND T HE J UR Y CAM E BACK A ND R ULED I N FAV OR O F THE PLAINTI FF . WHY DOESN'T INQUIRY E ND THERE?

I THINK FOR THE SAM E REASON I GUESS THE SAME REASON THAT YOU HAVE A DIRECTED VERDICT IN ANY CASE. I M EA N , THE TURNE R S TAND AR D IS MORE T HA N J US T SUBSTANTIALLY CERTAIN TO CAUSE DEATH OR INJURY. AS J USTICE WELLS POI NT ED OUT. IT SAYS IN T HE O PI NI ON I T H AS GOT TO BE MORE T HA N GROSS NEGLIGENCE. IT HAS TO RISE TO THE LEVEL OF C UL PABLE N EG LIGE NC E A ND IT A NALO GI ZE S T HE SUBSTANTIALLY CERTAIN TOCAUSE DEATH OR INJ UR Y T O CULPABLE NEGLIGENCE WHI CH I S A CRIME. A ND THE W HOLE P OI NT O F NOT JUST T HI S CAS E B UT W E CIT E A HALF DOZEN CAS ES S IN CE TURNE R OUT OF M OS T OF THE DISTRICTS , THE MOS T R EC EN T BEING THE C AS SU S CAS E. T HE OLD S TATE F IREP RO OF ING C ASE, THE L AS T V ERSION O F THE J ULIA NO CAS E W HI CH W AS THE BUMP IN THE FLOOR C AS E. THE BOTTOM LINE I N T HE SE CASES IS IN ORDER TO E VE N GET TO T HE JURY YOU H AVE TO SHOW SOMETHING MORE T HA N GROSS NEGLIGENCE.

JUSTICE: WOULD YOU ANSWER THE -- I M EA N R EALL Y T HE F UNDAMENTAL QUESTION WE ARE HERE ABOUT IS WHETH ER CONCEALMENT IS PART OF THE TEST AND CAN YOU GO BACK T O TURNER AND POINT TO THE LANGUAGE THAT YOU THI NK CON CEALMENT IS A C RITI CA L ELEMENT?

I WOULD SAY TWO T HI NGS. FIRST OF ALL, I DON 'T T HI NK CONCEALMENT IS AUTOM AT IC ALLY A PART OF THE TEST. > > THAT I S WHE RE THE 3 RD DISTRICT HAS APPLI ED H ERE , A COVER UP AND C ON CE ALME NT S O ALL I AM ASK IN G I S CAN Y OU SHOW ME IN TURNER WHERE T HA T WAS AN ELEMENT O F T HE ANALYSIS?

WHAT T HE T UR NE R C AS E S AYS I S A S I T S TE PS T HROU GH T HE FOUR CASES THAT ARE C ITED . I DON'T H AVE THEM IN F RO NT OF ME HERE , B UT , ANY WA Y , I T TALKS ABOUT A COMMON THR EAD OF CON CE ALMENT T HAT E XIST ED IN THE FOUR EXA MP LE S T HAT ARE IN TUR NER .

JUSTICE: THAT'S WHAT THE THIRD DISTRICT SAID. DID WE SAY THAT I N T UR NER?

YOU SAID THAT IN T URNER.

JUST ICE: SO T HAT'S THE LANGUAGE YOU ARE RELYING ON.

AND I WILL SAY THAT THE COURT DIDN'T COME OUT AND SAY YOU M UST HAVE CONCE ALMENT OR YOU CAN'T HAVE A C AS E. WHAT THE COURT SAID, T HOUGH , THERE HAS TO BE SOM ETHI NG GREATER THAN G RO SS NEGLIGENCE. CONCEALMENT WOULD MEET T HAT TEST. AND THAT'S WHY A LOT O F THESE CASES TALK ABOUT CONCEALMENT.

JUSTICE: BUT THE PRO BL EM IS D O YOU H AV E T O H AV E T HA T IN ORDER T O HAV E S OM ET HI NG MORE THAN G RO SS N EG LIGENC E? AND THAT'S WHAT THE THIRD DISTRICT SEEMS TO BE SAYING THAT YOU HAVE TO H AV E CONCEALMENT BY THE EMPLOYER IN ORD ER T O D EM ON STRA TE THA T THIS IS A S UB STANTI AL CERTAINTY CASE.

AND I WOU LD S UG GEST T HA T IF T HEY H AVE RESPE CT FULL Y I READ IT DIFFERENTLY A ND THAT'S HOW I SAI D I T I N M Y BRIEF.I THINK THAT WHAT THEY A RE DOING IS LOOKING AT THIS O N A C AS E- BY-CAS E B ASIS A ND TRYING TO S EE WHAT T HE C ONCEALMENT - -.

CHIEF JUSTICE: LET'S JUST GO THROUGH EXACTLY WHAT T HEY SAY, BECAUSE THE LAST T WO PARAG RAPHS COULDN'T BE ANY CLEARER TO M E. THEY FIRST CITE FROM T UR NE R THAT WE S AID THAT THERE W AS A THREAD, A C OM MO N THR EA D O F EVIDENCE THAT THE EMPLOYER TRY TO COVER UP T HE D AN GE R AND T HEN T HE Y G O O N AND SAY THAT ELE MENT IS M ISSI NG HERE. HERE AS I N E MERG EN CY ONE THE D ANGEROUS CONDITION WAS EVIDENT AND THERE W AS N O CONCEALMENT OF THE D AN GER. FOR THAT REASON , W E CONCLUD E THAT THE EVIDENCE WAS LEGALLY IN SUFF IC IENT T O SUPPORT LIABILITY UNDER T HE INTENTIONAL TORT E XCEP TION. FOR THAT REASON. THAT IS THA T THE D ANGE R W AS EVIDENT TO THE EMP LOYE E A ND THERE WAS N O CON CE AL MENT .

I W OULD S UG GEST THA T IS TWO DIFFERENT THINGS. THEY SORT OF GO H AND I N H AND BUT THEY ARE REALLY QUITE DIFFERENT.YOU CAN HAVE CONCEALMENT WHERE IT IS NOT A N O BVIO US DANGER. YOU CAN HAVE A N O BVIO US DANGER WITHOUT CONCE AL ME NT. IN THIS CASE WHERE YOU A RE TALKING ABOUT A WOBBLEY L ADDER WHICH I HAVE IN M Y HOUSE AND PROBABLY HALF OF THE PEOPLE IN THIS ROO M HAVE , M OST PEOPLE KNOW YOU ARE N OT SUPPOSED TO C LI MB U P A WOBBLEY L ADDER.

JUSTICE: WE S EEM TO B E GOING A WR Y H ER E , BUT R EALL Y WHAT WE ARE LOOKING T O I S D O WE HAVE A P RI NC IP LE O F L AW THAT HAS BEEN M IS ST AT ED B Y THE 3RD D IS TRIC T? AS THE CHIEF J USTI CE JUS T QUOTED FOR THAT REA SON T HE ABSENCE OF WHAT I S MISSING, MISSING ELEMENT SO THAT'S WHAT WE ARE TAL KING ABOUT AND YOU MAY STILL W IN WITHOUT THAT. SO THAT'S WHAT WE WANT T O TALK ABOUT.

I WOULD NOT BE O PP OSED TO A CLA RIFICATION OF THAT. I THINK THAT THE TURNER STANDARD IS AND HAS BEE N SINCE 2 000 THAT I T HAS T O RISE TO A L EVEL WORSE T HA N GROSS NEGLIGENCE. THAT'S THE SAME STA ND AR D THAT COURTS LOOK AT ALL O F THE TIME TO DETERMINE WHETHER THERE SHOULD OR SHOULDN'T BE PUN ITIV E DAMAGES GOING TO A JUR Y .

CH IEF JUSTICE: WOULD YOU AGREE THEN IF WE CLA RI FI ED THAT THAT YOU W OULD ARGUE O N AN ALT ER NA TIVE GROUN D T HAT THE FACTS IN T HIS C AS E , REGARDLESS OF IF THERE WAS NO CON CEAL MENT OR T HAT I T WAS EVIDENT TO THE EMPLOYEE S DO NOT RISE TO T HE L EV EL O F THE SUBSTAN TIAL CERTAINTY?

THAT'S EXA CTLY C ORRE CT .

CHIEF JUSTICE: BUT NOW THIS IS WHERE THE H ARD T HI NG IS AND GOES BACK T O WHA T J USTICE C ANTERO S AY S W HERE IS THAT LINE WHERE IT BECOMES A S A MATTER O F LAW AS OPPOSED TO A F ACTU AL DISPUTE?I MEAN, HOW MANY T IMES WAS THE E MPLOYER TOL D IN THI S CASE THAT THIS WAS A N EXTREMELY DANGEROUS SIT UATION, THIS LADDE R W AS UNSAFE, I T C OU LD N OT B E USE D AND THE E MPLOYE R THR OUGH ITS MANAGER J UST S AID T OO B AD ESSENTIALLY ?

I THINK THE A NS WE R I S THAT YOU ARE NOT GOING TO COME UP WITH A B RI GH T-LINE ANSWER TO T HIS. THERE IS NOT GOI NG T O B E A STRAIGHT LINE YOU ARE GOING TO DRAW. IT IS T HE SAME C ONCEPT T HAT IS USED IN PUN TIF D AM AG ES . IT IS NOT A DIFFICULT CONCEPT TO SAY IT HAS G OT T O RISE TO THE LEVEL OF C ULPABLE NEGLIGENCE. IT HAS GOT TO B E MORE T HA N GROSS NEGLIGENCE. THAT'S WHAT TURNER SAY S. > > JUSTICE: T HAT IS NOT WHAT THE THIRD D IS TRICT D ID H ER E. THE THIRD DISTRICT IN THE LANGUAGE JUST READ TO YOU SAID THERE IS THI S ELEMENT IS MISSING AND THE N F OR THAT REASON TO HOLD THA T. SO IT MAY BE THAT T HIS I S JUST A R EMAN D T O C ON SI DER THIS CASE W IT HO UT THA T A S A PRINCIPLE OF LAW . THAT'S WHAT WE ARE STRUGGLING WITH.

AND I WOULD POINT THE COURT TO S OM E O TH ER C AS ES A S WELL TO L OOK FOR. TRYING TO CLE AN T HIS U P , BECAUSE THIS IS NOT UNIQUE TO THE THI RD D IS TRICT. THE FOU RTH DISTRICT IN T HE ALL STAT ES F IR EP RO OFIN G C ASE WHICH INV OL VE D A N EMPLO YE E THAT WAS KILLED IN THE S CAFFOLDING F EL L.

JUSTICE: I REC OGNIZE THAT THE 3RD, 2ND AND T HE 5 TH , I MEAN E VE RY BODY IS S TR UGGL IN G WITH HOW I N THE W ORLD T O APPLY TUR NER TO T HE PRE -200 3 CASES , B UT W HA T I R EA D A ND I TAKE I T WHAT YOU A RE S AY ING IS THAT IN T HE P RE CE DI NG PARAGRAPH TO W HA T J US TI CE PARIENTE WRO TE T HE T HI RD D ISTRICT SAYS O F PAR TI CULAR INTEREST HERE, AND THAT IS FOCUSING O N THI S P ARTI CU LA R CASE I S THA T THE PAR TI CULA R INTEREST HERE IS THE LACK O F CON CEALMENT.

I AGREE. I MEAN, T HAT'S THE P OINT AND IT IS THE T WO T HI NGS. IT IS THE LACK OF CONCEALMENT AND THE FAC T THAT IT IS A N O BVIO US DANGER. AND --.

CHIEF JUSTICE: THE PROBLEM I H AVE WITH IT T HE N WE ARE REALLY SAYING OR ARE WE THAT T HE MORE AGGRE GI OU S THE CONDITI ON THE LES S LIABILITY AND THE MOR E I N !!!! INFREQUENT WARNINGS OF THE D ANGEROUS C ONDITION T HE L ES S LIABILITY, AND, Y OU K NO W , W E HAVE SO MANY C AS ES WHE RE T HE EMPLOYER, YOU KNOW , DOE SN'T KNOW, KNEW OR SHOUL D H AV E KNOWN AND THAT'S A NEGLIGENCE CASE, BUT, Y OU KNOW, T O M E A ND I G UESS I T IS ALL H OW T HE E VIDE NCE IS PRESENTED WHICH I WOULD ASSUME HAS TO BE IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFF IS T HA T T HI S - - BOT H THE STORE M ANAGER A ND THIS BAKERMA N H AD C OMPLAI NE D NOT ONLY THAT THE LADDER W AS TOO S HO RT. IT WAS TOO SHO RT FOR T HE JOB OF REACHING U P TO ONE OF T HE HIGHER S HE LVES BUT I T W AS DANGEROUS, AND IT W AS I N B AD CONDITION AND IT SWAYED , AND IT SAID D ESPITE THE R EP EATE D COMPLAINTS AND R EQUE ST S T O BUY A N EW L AD DE R T HA T A REA SUPERVISORS DID NOT AUTHORIZE THE EXPEN DI TURE O F FUNDS TO REPLACE IT. THOSE ARE THE FACTS THE J URY HEARD.

THOSE ARE THE FACTS I N THE LIGHT MOST FAVORABLE T O THE PLAINTIFF.

CHIEF JUSTICE: SO WHAT IS IT THAT DOESN'T MAK E THI S A SUBSTANTIALLY CER TAIN ACCIDENT TO HAPPEN?

IT MAKES I T A T B ES T G RO SS NEGLIGENCE. WHAT THE Q UESTION THAT W AS ASKED AT THE THIRD D IS TRICT IN THIS CASE, I THINK IT W AS BY JUDGE S WA RT Z W AS C OULD THE STORE MANAGER H AVE BEE N CHARGED WITH A CRIME F OR WHAT HE DID. AND IN MY V IEW T HE ANS WER I S PLAINLY NO. T HIS IS NOT A CRIME. IT IS NEG LI GENCE. MAYBE EVEN GROSS NEGLIGENCE.

JUSTICE: WAS THE JURY I N THIS CASE INSTRUCTED T HA T SUBSTANTIAL CERTAINTY HAD TO BE G RE ATER T HAN G RO SS NEGLIGENCE ? > > I D ON 'T B ELIE VE I T WAS. I'M SORRY, I DON'T HAV E T HE -- THERE WERE TWO PARTS TO THE JURY INSTRUCTION. IT READ THAT IT HAD TO B E SUBSTANTIALLY CERTAIN TO CAUSE DEATH OR INJURY AND I THINK THEY SAI D I T HAD T O B E MORE THAN - -.

JUSTICE: THE MER E POSSIBILITY?

MORE THAN A MERE P OSSIBILITY.

JUSTICE: B UT G ROSS NEGLIGENCE WAS NEVER DEFINED?

CHIEF JUSTICE: WAS THAT JURY INSTRUCTION ASKED FOR AND D ECLINED?

I DON'T B ELIEVE I T W AS.

CHIEF JUSTICE: M ISS GREEN WAS H ONEST ENOUGH TO SAY THAT THE ISSUE OF COMPARATIVE NEGLIGENCE WASNOT R AISED. IT S EE MS LIK E T HERE IS A N ISSUE OF DEFECTIVE JUR Y INSTRUCTIONS THAT ISSOMETHING THAT SHOULD HAVE BEEN RAISED AND A RGUE D I N THE 3RD DISTRICT AND THEN TO US .

WELL , WE ARE N OT QUIBBLING. WE DIDN'T COMPLAIN ABOUT THE JURY INSTRUCTIONS OR THEY DIDN'T. WE ARE S UG GE ST ING THA T I N L INE WITH ALL OF THE C AS ES FRANKLY THAT WE CITE IN O UR BRIEF THAT HAVE BEEN CITED IN THE LAST FIVE YEARS I THINK FROM ALL OF THE VARIOUS DISTRICTS THAT INVOLVE DEATHS , THA T I NVOL VE , Y OU KNOW , T HERE W AS A PLASTER I N THE P IC - - PACHECO, A PLAST ER ER WHO WAS ELECTROCUTED IN THE W AREHOUSE THE DEFEN DA NT S FORGOT TO TELL HIM THA T THE P OWER WAS STILL ON. HE GET S E LECT RO CU TE D . THE COURT SAID THA T' S N OT MORE THAN GROSS NEGLIGENCE. THE B YE RS C AS E W AS T HE DEBRIS LEANING C ASE A FTER ANDREW WHERE A M AN S TEAL S A BACKHOE AND RUNS I NTO A TREE AND KILLS ONE OF HIS COWORKERS. NOT MORE THAN G RO SS NEGLIGENCE.

CHIEF JUSTICE: BECAUSE IFYOU FORGET TO TELL S OM EB ODY , THAT'S N EGLI GENC E. IF Y OU KNO W O F THE D ANGE R AND YOU I GN OR E I T , THE N THERE IS AN INT EN TION AL C ONDUCT. IN OTHER WORDS, THIS EMPLOYER, I MEAN T HAT'S H OW I ASSUME IT WAS ARGUED TO THE JURY. HAD A CHOICE. THEY WERE CONFRONTE D W IT H BEING TOLD THAT THIS WAS A N EXTREMELY DAN GE RO US CONDITION THAT SOMEBODY WAS GOING T O G ET H UR T , A ND KNOWING THAT, K NO WING I T THEY IGNORED I T . N OW , Y OU KNO W , WHE TH ER T HA T I S C RI MINALLY LIABLE, I 'M NOT S URE THAT I S W HETH ER THA T COU LD BE A CRI ME IS T HE STANDARD F OR T HE S UB ST AN TIAL CERTAINTY, BUT IT SEEMS T O ME THAT THE Q UA LI TY , T HAT' S WHY I H AVE P ROBL EMS W IT H T HAT CAS E BEC AU SE I T HINK THAT IS DIFFE RENT I N T IM E FROM THE FACTS HERE B EC AU SE IF THE FACTS ARE A S W E H AV E BEEN TALKING WHICH IS NUMEROUS COMPLAINTS AND A N ACT UAL R EF US AL T O B UY A LADDER KNOWI NG T HA T THI S LADDER COU LD N OT P ERFORM ITS T ASK WIT H SOMEB ODY IN A S AF E MANNER, THAT SOO NE R O R L ATER , THIS ACCIDENT HAD T O H AVE OCCURRED.

TWO THI NGS.

CHIEF JUSTICE: BUT ISN'T THAT HOW IT WAS A RGUED TO THE JURY? > > I T WAS , AND T HE J URY , THAT'S HOW IN PART WHY THE JURY FOUND COMPARATIVE NEGLIGENCE AT THE END OF THIS. IN FACT , I W OU LD WEL CO ME Y OU TO GO B ACK AND READ T HE TRANSCRIPT WHERE MR. BAKERMAN SAYS, HE COMPLAINED. HE, I N FACT , TESTI FIES T HA T HE NEVER ACTUALLY FILED THE FORMAL COMPLAINT AND HE NEVER COMPL AINED T O T HE STORE MANAGER WHAT H E S AI D WAS, GEE, THI S L ADDER I S WOBBLEY, AND HE S AI D H E S AID THAT ENOUGH T IMES HE F IG UR ED S HE K NEW BU T H E NEV ER ACTUALLY COMPLAINED THAT THE LADDER WAS W OB BLEY .

JUSTICE: I T HOUGHT I T W AS WAS TAKEN AS A FAC T T HA T SOMEONE AT LEAST HAD REPORTED TO THE MANAGER A ND DISTRICT, I MEAN , W HA T T HI S INDIVIDUAL HAD DONE IS NOT NECESSARILY THE SCOPE OF T HE KNOWLEDGE OF AN E MP LO YE R , CORRECT?

I UNDERST AN D.

JUSTICE: THAT THE C AS E O R NOT?

I SHOULDN'T BE H ER E ARGUING THE F ACTS AND I 'M NOT H ER E A RG UING THE F AC TS .

CHIEF JUSTICE: I'M TAKIN G THIS FROM THE 3RD D IS TR IC T' S OPINION, BAK ERMA N AND THE STORE MANAGER H AD COMPLAINED TO THE AREA SUPERVISOR THAT THE LADDER WAS T OO S HO RT AND DANGEROUS SO THE Y O BVIO USLY EVEN THOUGH T HE Y FOU ND AGAINST - - FOR YOU T O DETERMINE THAT WAS A FAC T . > > I'M NOT C HALLEN GING THE FACTS. THEY ARE WHAT THEY ARE. I GUESS WHAT YOU TALKE D ABOUT , J US TI CE P ARIE NT E , ABOUT THE C ASSU S CAS E , I WOULD REFER YOU T O T HE DISSENT B Y J UD GE KRU L P AND HE D IS SE NT S AND SAYS I T HINK THERE ARE FACT ISSUES H ERE AND THA T A T THE END O F THI S LAST PARAGRAPH HE SAYS BUT THIS IS NOTHING L IK E BOM BAY VERSUS BAKERMAN. THAT WAS JUST A COMMON , EVERY DAY LAD DE R AND THE DAN GER WAS OBV IO US. SO HE DISTINGUI SHES IT , E VE N THOUGH THE MAJORITY RELIE S ON IT. HE ALSO RELIES ON I T A ND SAYS THIS CASE ISN 'T T HAT. AND I THINK THAT IS T HE POINT.

JUSTICE: IS THAT MAYBE THOUGH A VALID L EG AL ANALYSIS, BECAUSE IN T UR NE R AND YOU ARE DEALING W IT H CHEMICALS THAT MAY HAVE S OM E KIND OF UNUSU AL C OM BINA TION TO PRODUCE A N E XP LOSI ON , I S A L ADDER , I S A C OM MO N PAR T , ARE THOSE THINGS MAYBE I N A DIFFERENT LEGAL CATEGOR Y?

ABSOLUTELY , AND I HESITATED TO SAY THA T T HE RE SHOULD BE SOME SORT OF DANGEROUS I NS TR UM EN TA L IT Y O R S OMETHING LIKE THAT BUT THESE CASES INV OL VE CHEMICALS AND P OISONS AND AIRPLANES THAT AREN'T BEING MAINTAINED REALLY BAD, DANGEROUS THINGS THAT EMPLOYERS ARE C ONCE ALIN G KNOWN DANGERS FROM THESE EMPLOYEES. THAT'S CUL PA BLE NEG LIGENCE OR AT LEAST C UL PA BL E NEGLIGENCE THAT CAN G O TO A JURY.

CHIEF JUSTICE: THERE IS IN PRODUCT LIABILITY L AW A THEORY OF HAZAR D R ISK ANALYSIS, AND T HE GREATER THE HAZARD IS THE L ES S THA T Y OU SORT OF LOOK A T PROBABILITIES SO THAT IF SOMEBODY, YOU KNOW , IF SOMETHING BLOWS UP E AC H AND EVERY TIME SOMEONE WILL D IE THEN, YOU K NO W , T HAT' S A GREAT HAZARD AND IT M AY NOT BE THAT THE RISK OF IT HAPPENING IS THAT G REAT. I DON'T KNOW , A ND T HA T MAY BE I D ON 'T K NO W I F T HAT'S THE WAY YOU ARGUED IT , BUT H ERE THAT I S LAD DE R , T HE WORST THAT IS GOING TO HAPPEN IS LIKE THIS GUY GOT , I AM N OT D EM EA NING H IS INJURIES BUT A FRA CT URED PIECE, YOU KNOW , A ND H E MIGHT HAVE ESCAP ED W ITHOUT ANY INJURY BUT DO YO U T HINK THAT'S A THA T WE HAV E T O LOOK AT WHETHER THE HAZARD IS ONE T HA T I S SUB ST ANTI AL LY C ERTAIN T O P RO DUCE D EATH O R SERIOUS INJ URY BEFORE I T GETS TO THE TUR NER STA ND AR D?

I WOULD SUGGEST THAT AS THE HAZARD B EC OMES M OR E DANGEROUS THAT THE EMPLOYER HAS AN ADDED R ES PONS IB ILIT Y TO TAKE CAR E , T O G IVE N OTIC E , TO LET PEOPL E K NO W ABO UT SAFETY PRECAUTIONS .

CHIEF JUSTICE: THE MORE O UTRAGES T HE CON DUCT.

T HE M OR E THE B UR DE N I S O N T HE E MP LOYE R B UT T HE W OBBLEY LADDER OR RIPPING A CAR PET. I TYPE ON MY COM PUTE R A LL DAY D OES MY E MPLOYE R , A RE THEY SUBSTANTIALLY CERTAIN I MIGHT G ET C ARPA L T UN NE L SYNDROME? DOES THAT GO TO THE J URY EVERY TIME? THAT E RODE S WO RK ER S' COM P I MMUNITY.

CHIEF JUSTICE: BY FOCUSING ON THE INSTRUMENTALITY WHICH I DIDN'T READ THIS CASE A S BEING A FOCUS ON THA T AND MAY ASK M ISS GREEN T O ADDRESS IT, I A M S OR T O F INTER ESTED IN THA T POS SIBL E APPROACH.

THERE IS C ERTAINLY A THREAD, A NO THER THR EAD.

CHIEF JUSTICE: THERE IS ANOTHER THREAD?

YES, ANOTHER THREAD.

CHIEF JUSTICE: WE ARE GOING TO SEW T HI S A LL UP.

WE ARE W EAVI NG A WHO LE F AB IK - - F ABRI C H ER E. > > OF THA T KIND OF HEIGHTENED D ANGERS . P EOPLE ON H IG H SCA FF OLDS , WINDOW WAS HERS O N ROP ES . I THINK THERE IS A CASE PERHAPS MISS GREEN CITED WHERE A M AN IS HAN GI NG OUT THE WINDOW AND THE EMPLO YE R WON'T LET HIS COWORKE R H OL D ON TO HIM AND HE FALLS O UT THE WINDOW. THAT'S DAN GEROUS S TU FF . I WOULD POINT THE COURT B ACK TO THE G ENES IS O F T HI S W HOLE SUBSTANTIALLY C ER TAIN WHI CH CAME FROM THE S PIVE Y V ERSUS B ATTAGLIA CASE 3 0 Y EARS AGO OUT O F THIS COU RT A ND REFERRED TO AGAIN IN T HE D 'AMARIO CAS E. THE D ESTA TE ME NT O F T OR TS WHICH COM ES UP WITH T HIS SUBSTANTIALLY CERTAIN TOCAUSE INJURY GIVES ONE EXAMPLE OF WHAT IS S UBSTANTIALLY CERTAIN TO CAUSE I NJURY. THAT EXAMPLE THAT THE Y G IV E I S THERE IS A MAN I N THE OFFICE. ANOTHER MAN WANTS T O KILL HIM. HE THROWS A BOMB IN T HE OFFICE. THE MAN 'S SECRETARY IS IN THE OFFICE AS WELL. HE DOESN'T INTEND TO H URT THE SECRETARY B UT S HE G ET S KILLED. THEY ARE GOING T O I MP UT E THAT BECAUSE IT IS S UBSTANTIALLY CERTAIN TO CAUSE INJURY. THAT'S THE GENESIS OF WHE RE THIS CAME FROM IN T HE RESTATEMENT OF TORTS IN 1965. SOMETHING THAT IS REALLY BAD , SOMETHING THAT IS SUBSTANTIALLY CERTAIN TOCAUSE INJURY AND I DON'T THINK IT WAS MEANT T O INCLUDE A WOBBLEY LADDE R O R A R IPPED C ARPE T O R , Y OU K NO W , A STUBBED T OE O R SO ME TH IN G LIKE THAT. SOMETHING THAT IS OPEN A ND OBVIOUS TO THE E MP LO YE E . HAD THIS EMP LO YEE WEN T T O H IS SUPERVISOR AND SAID , LOOK, THIS LADDER I S DANGEROUS. I'M NOT GOING UP IT , A ND T HE EMPLOYER SAID GO UP I T O R YOU ARE FIRED , AND H E WEN T UP IT AND THEN F EL L O FF IT , I THINK YOU WOU LD HAVE A SLIGHTLY DIFFERENT C ASE. > > JUSTICE: ESS EN TIALLY THAT'S WHAT IS HERE. THAT IS REALLY WHAT I S H ER E.

BUT THAT DIDN'T HAPPEN , THOUGH. THERE ARE NO FACTS THAT S AY THAT. WHAT WE KNOW AND WHAT JUSTICE WELLS I S A BSOLUT EL Y CORRECT WE DON'T KNOW EXACTLY HOW HE FELL OFF THE LADDER. HE WASN'T T OLD G O U P AND O R YOU ARE FIRED. THERE IS NO TESTIMONY LIKE THAT IN THIS R ECORD. THIS IS A C OMMO N W OB BL EY LADDER WHICH THE T ESTI MO NY IS THIS GEN TL EMAN W EN T U P 4 0 TIMES A YEAR.

JUSTICE: WE WOULD BE REALLY GOING FAR A FIEL D T O SAY YOU MUST BE T HR EA TENE D BY YOUR EMPLOYER BEFORE THI S APPLIES.I CAN G O WITH Y OU R O THER DISCUSSION ON THE H AZ ARDS , BUT I JUST I FAI L S O S EE THE IMPORTANCE OF THE THR EAT T O FIRE.

THIS IS A STO RE T HAT PEOPLE USE THIS LADDER 4 0 TIMES A DAY SEV EN D AY S A WEEK FOR YEARS AND HE W ASN'T THE ONLY ONE. HE WAS AN A SSISTANT MANAG ER BY THE WAY. HE HAD PEOPLE WORKING FOR HIM THAT WERE U SING T HE S AM E LADDER.

CHIEF JUSTICE: AND THAT'S A DIFFERENT BASIS Y OU U SE D THAN THE 3 RD D IS TRICT USED. JUSTICE CANTERO?

WHAT I F T HIS LADDE R STI LL E XISTED A ND NOW S OMEBODY ELSE HAS BEEN INJURED ON I T . DOES T HA T N OW SAT ISFY SUBSTANTIALLY CERTAIN?

I THINK THAT G OES T O CULPABILITY IF YOU HAVE REPEATED INJURIES. THERE ARE THE CASES T HA T TALK ABOUT THAT WHEN YOU A RE ON NOT IC E T HA T THERE A RE A NUMBER OF CASES THAT SAY Y OU DON'T HAVE TO HAV E M ULTIPL E ACCIDENTS BUT IF YOU D O E VE N A BOB BL E Y - - W OB BL EY LAD DE R I THINK THAT MIGHT G O T O CULPABILITY.

JUSTICE: W HAT ABOUT O NE PERSON?

AT ONE T IM E? THE FACTS IN THIS C ASE A FTER THE ONE PERSON WAS HUR T A ND THEY GOT RID OF THE L AD DER AND GOT A NEW O NE .

CHIEF JUSTICE: THEY SHOULD REALLY WHEN THEY ARE TOLD OF A HAZ RD YOU WOU LD HOPE THAT THEY DO T HE R IGHT THING WHICH IS TO MAKE T HE WOR KPLACE SAFE FOR T HEIR WORKERS. RIGHT?

YES, YOUR HONOR.

CHIEF JUSTICE: W HETHERTHEY ARE LIABLE IN C OURT O R WORKERS' COMP , W E HOP E T HA T EMPLOYERS ARE E NC OU RAGE D B Y REGULATIONS TO HAVE A SAFE WORKPLA CE.

I AGREE B UT I DON 'T W ANT TO AND I SEE MY T IM E IS U P BUT JUST M Y O NE LAS T SENTENCE IS I DON'T WANT TO LOSE SIGHT OF THE FACT THAT THIS IS WO RKERS' COMP IMMUNITY. THIS ISN'T A STRAIGHT NEGLIGENCE CASE.THERE ARE R ECIP ROCA L R IGHT S THAT ARE BEING TRA DE D IN HERE AND THAT SHOULDN'T B E LOST SIGHT OF A ND THAT'S THE TURNER STANDARD.

CHIEF JUSTICE: THA NK YOU. MISS GREEN?

JUSTICE: MIS S GREEN , LET ME ASK YOU THIS. THERE WAS SOME D IS CUSSION WHEN MR. BIA SO TT I WAS UP HERE ABOUT THE FACT THAT THE EMPLOYER KNEW ABOUT THIS WOBBLEY LADDER. DIDN'T DO A NYTHING ABOUT I T. IT SEEMS LIKE IF W E M AD E  THAT THE STANDARD THAT IS NOW EVEN MORE THAN G ROSS NEGLIGENCE THAT YOU KNEWABOUT IT AND Y OU D IDN' T D O A NYTHING ABOUT I T AND N OW EVERY N EGLIGENCE CASE IS GOING TO TURN INTO AN INTENTIONAL TORT CASE WHEN THE EMPLOYER KNEW ABOUT A DANGEROUS CONDITION B UT DID NOT R EPAIR T HE DAN GERO US CONDITION, A SLIP AND F AL L CASE, A NY KIND OF D ANGE ROUS CONDITION O N PROPERTY , IF THE EMPLOYER KNEW ABOUT IT, IT IS NOW AN I NTEN TI ONAL TORT CASE .

NO , YOUR HONOR, BEC AUSE H ERE THERE IS TESTIMONY THA T NOT ONLY THAT HE KNEW ABOUT THE DANGEROUS CONDITION BUT THAT THERE IS T ESTI MONY T HAT HE SAW THE LADDE R , A ND T HERE IS COMMON SENSE NOT I N ADDITION TO THE EXPERT TESTIMONY IS THE LONGER T HE LADDER IS U SED THE WOR ST T HE LADDER IS GOING TO GET .

JUSTICE: BUT THERE IS ALSO EVIDENCE IN T HI S R EC OR D BY MIS S GOT S CHA LK