[00:00:08] Speaker 03:
Good morning and thank you.

[00:00:26] Speaker 03:
The reason for this appeal is because the Commission has departed from existing law and placed an improper and impossible burden on construction employers regarding the degree of supervision required under the Occupational Safety and Health Act.

[00:00:40] Speaker 03:
The primary issue presented by this appeal is whether, under OSHA, an employer is required to review the basic work tasks performed by craft persons, in this case, the reading of blueprints by an electrician.

[00:00:55] Speaker 03:
Under the commission's view, the failure to do so automatically imputes knowledge of a violation by that individual without requiring proof of foreseeability, which is the rule in five out of six circuits.

[00:01:11] Speaker 03:
The decision of the commission, if left undisturbed, would essentially require construction employers to review every task that a licensed or skilled craftsperson performs on a job site to make sure they've done their task correctly, which is not the burden under OSHA.

[00:01:31] Speaker 02:
What's wrong with the basic rule that knowledge of a supervisor

[00:01:39] Speaker 02:
can be imputed to the employer.

[00:01:43] Speaker 03:
There's nothing wrong with that as long as it requires a showing by the secretary of foreseeability.

[00:01:49] Speaker 03:
There has to be.

[00:01:50] Speaker 02:
No, no, no, I left out foreseeability.

[00:01:52] Speaker 02:
What's wrong with that rule?

[00:01:54] Speaker 02:
Yeah, a supervisory employee knows or should have known of the danger.

[00:02:00] Speaker 02:
There's two problems.

[00:02:00] Speaker 02:
Under the common law of agency, you would impute

[00:02:03] Speaker 02:
the knowledge of any employee, and here we're just talking about supervisory employees.

[00:02:09] Speaker 03:
There's two problems with that.

[00:02:11] Speaker 03:
First, the courts that have looked at that and rejected that idea has found that it's strict liability, which is impermissible under OSHA.

[00:02:20] Speaker 03:
The other policy reason.

[00:02:22] Speaker 02:
It's a negligent standard.

[00:02:24] Speaker 02:
It's whether a supervisor should have known of the danger or of the violation, such as violation it should have known.

[00:02:35] Speaker 03:
Yes, Judge Katz.

[00:02:36] Speaker 03:
It is a negligent standard, but it's not the appropriate standard because it imposes, well, it does impose strict liability and not negligence unless you show that there was some duty violated.

[00:02:50] Speaker 03:
And here, what you're talking about is a mistake on behalf of an electrician in performing the tenets of their trade.

[00:02:57] Speaker 03:
The policy issue behind not requiring automatic imputing of liability is it discourages employers from doing anything.

[00:03:07] Speaker 03:
If they know they're going to be liable, no matter what they do or how proactive they are or any diligence they take to prevent violations and prevent errors on work sites, it would discourage them from doing anything because they're going to be automatically liable.

[00:03:22] Speaker 02:
It makes supervisors take reasonable care.

[00:03:27] Speaker 02:
It makes them take, well... Which is the standard for constructive knowledge.

[00:03:33] Speaker 03:
But that's not the correct standard.

[00:03:35] Speaker 03:
And that's not what five out of six circuits have said.

[00:03:38] Speaker 01:
I don't know why you would say that it discourages employers from doing anything, because isn't that just basically what happens in all of tort law?

[00:03:45] Speaker 01:
And I don't think we generally think of tort law as discouraging employers from doing anything vis-a-vis their supervisors.

[00:03:52] Speaker 03:
This is not tort.

[00:03:53] Speaker 03:
This is statutory regulation of an employer

[00:03:58] Speaker 03:
through specific regulations.

[00:04:02] Speaker 01:
I take your point that this is not tort and therefore you could have a different regime here.

[00:04:09] Speaker 01:
I took the premise of the question being put to you that why don't we have the same regime?

[00:04:15] Speaker 01:
It just doesn't – I was puzzled by the answer that we don't have that regime because then no employer would have any incentive to do anything because that just seems like an indictment of all of tort law, unless I'm misunderstanding what you're saying.

[00:04:27] Speaker 03:
Well, this is very different from tort law in that OSHA promulgates thousands of regulations which employers go out and become familiar with and then train their employees.

[00:04:35] Speaker 03:
It has a whole scheme in place.

[00:04:37] Speaker 03:
It's different from the common law duty, breach of duty, causation type.

[00:04:41] Speaker 03:
structure in the civil setting and the assessment of damages, you actually have under OSHA, you have the potential for criminal violations due to egregious cases.

[00:04:50] Speaker 03:
So it's very different.

[00:04:52] Speaker 03:
The standards are very different than in the tort setting where you don't have exposure to criminal liability.

[00:05:00] Speaker 03:
This case arose out of an incident that happened on October 18, 2014, where Wayne Griffon, the employer in this case, one of their employees came in accidental conduct with an energized bus bar.

[00:05:14] Speaker 03:
The reason that occurred was twofold.

[00:05:17] Speaker 03:
During an MOP process where the owner of the facility had designated a team to prepare work procedures to perform the work, they failed to identify one of the electrical feeds to that bus bar, so it was live.

[00:05:32] Speaker 03:
It would have been discovered had the foreman on site, Keith Pachocki, had he used his tester and complied with Wayne Griffin's test before you touch policy and tested not only the equipment they were going to work on, but also the equipment with which they could come in accidental contact.

[00:05:51] Speaker 03:
The policy states very clearly, don't rely on blueprints, don't rely on anything else, test not only the area you're going to touch,

[00:06:00] Speaker 03:
but test the area that you could come in an accidental contact with.

[00:06:04] Speaker 03:
And what happened to the injured employee is they raised up when they were trying to unbolt the cabinet and his face struck a cabinet that was energized, that was in the zone where they could be working.

[00:06:17] Speaker 03:
You're all familiar with the standard review of an agency decision.

[00:06:20] Speaker 03:
It's arbitrary, capricious, abusive discretion as to legal issues, substantial record evidence as to factual issues.

[00:06:28] Speaker 02:
And there was a factual finding of foreseeability.

[00:06:33] Speaker 02:
So even if we accept your premise that that is an element for imputing knowledge, you would have to show that that finding is not supported by substantial evidence, which seems like a heavy lift for you.

[00:06:51] Speaker 03:
Well, ordinarily it would be, but I think we clear that bar in this case because that finding is based on a non-existent obligation for higher level supervisors to go back and read the blueprints to make sure that Mr. Pachocki had read the blueprints correctly.

[00:07:08] Speaker 03:
That's not the burden under OSHA.

[00:07:10] Speaker 03:
That would require an employer to go back and redo the work done by a licensed electrician.

[00:07:17] Speaker 03:
He's licensed in two states.

[00:07:18] Speaker 03:
He has 18 years experience.

[00:07:20] Speaker 03:
He had to know how to read blueprints to get a license.

[00:07:23] Speaker 03:
The commission said he knows how to read blueprints in their decision.

[00:07:27] Speaker 03:
They also said his error was obvious.

[00:07:30] Speaker 03:
They used the word obvious.

[00:07:32] Speaker 03:
So if you can't rely on an electrician to do his job correctly, and you're automatically liable for any error they make,

[00:07:40] Speaker 03:
When you didn't do something else, like you were on notice that they didn't know what they were doing, they had committed violations before, you did something else wrong as an employer, you essentially have to go behind your craft employees and redo all their work.

[00:07:56] Speaker 03:
You can't do that in business.

[00:07:58] Speaker 03:
That's never the intent of Ocean.

[00:08:00] Speaker 03:
They've never imposed that kind of burden.

[00:08:02] Speaker 03:
on employers before.

[00:08:03] Speaker 03:
In the cases that we rely upon, the only time when they talk about supervising and supervising the activities of an employee, they're not talking about their basic tenets of their trade, not their performing their craft work.

[00:08:17] Speaker 03:
They're talking about they're performing a safety function like

[00:08:22] Speaker 03:
eyewear, fall protection.

[00:08:25] Speaker 03:
There is a duty to supervise there, to make sure they have it correct.

[00:08:29] Speaker 02:
Why can't the decision be supported on the ALJ's much narrower theory, which is that in the circumstances of this case,

[00:08:43] Speaker 02:
it was foreseeable that there would be special issues arising from the circumstance that Fidelity controlled the switches.

[00:08:53] Speaker 03:
Because it still comes down to, I think that's a red area, it still comes down to the way you identify the circuits, regardless of who's responsible.

[00:09:02] Speaker 02:
You're the company and you're doing the work and it's some other folks who are controlling what's energized and what's not.

[00:09:11] Speaker 03:
But Judge Bomerick said we had the duty to read the blueprints, which we did.

[00:09:16] Speaker 03:
We did read the blueprints.

[00:09:17] Speaker 03:
We read them wrong.

[00:09:19] Speaker 03:
Keith Pachocki missed, along with the person who drew the blueprints, who worked for the engineering company, who was in the room the entire time, they missed that connection.

[00:09:28] Speaker 03:
Let's assume we're responsible for that.

[00:09:31] Speaker 03:
It's not foreseeability.

[00:09:33] Speaker 03:
The narrow finding that it was foreseeable because of this MOP procedure, it's no different from any other procedure.

[00:09:41] Speaker 03:
where you read the blueprints, you read them.

[00:09:44] Speaker 03:
You read them to determine what connections need to be disconnected.

[00:09:49] Speaker 03:
Actually, it actually hurts Osha's case here because it would be less likely for us to need to review Mr. Pachaki's work when we knew that we had all these experts, this dream team of electricians in the room, with them to help find this error, this connection, including the person who actually drew the blueprints, who doesn't work for us.

[00:10:10] Speaker 03:
I'm out of time unless you have any more questions.

[00:10:14] Speaker 03:
Thank you.

[00:10:15] Speaker 00:
Good morning.

[00:10:24] Speaker 00:
Hey, police, the court.

[00:10:25] Speaker 00:
Brian Broecker, secretary of labor.

[00:10:28] Speaker 00:
Today, because a Griffin employee, Mr. Brian Jusko, suffered a severe electrocution injury when his face came into contact with an energized bus bar in a compartment that he was working on in an electrical substation.

[00:10:40] Speaker 00:
This accident occurred because Griffin clearly violated two OSHA standards.

[00:10:44] Speaker 00:
It permitted its employees, Mr. Pichaki, the foreman at the work site, and Mr. Dusko, to work within reach of an energized and unguarded bus bar.

[00:10:55] Speaker 00:
And that exposure occurred because Griffin failed to take a reasonably diligent effort to assess the workplace and to identify that there were live parts before allowing them to work there.

[00:11:04] Speaker 00:
This happened because Mr. Pichaki relied on an assumption rather than making inquiries.

[00:11:09] Speaker 00:
Mr. Peace, the project supervisor at Griffin, delegated this entire method of procedure process to Mr. Pichocki.

[00:11:19] Speaker 00:
He didn't give him any instructions on how to create these method of procedure documents.

[00:11:23] Speaker 00:
He oversaw his work exactly zero in his words.

[00:11:26] Speaker 00:
He did not monitor his compliance with Griffin's rules.

[00:11:29] Speaker 00:
And he also didn't assign anyone, including himself or other educated foreman, the responsibility to check those method of procedure documents to make sure that he had actually made the inquiries necessary to identify live parts.

[00:11:41] Speaker 00:
The problem is he didn't take action to find the bars.

[00:11:45] Speaker 00:
And then, as he was executing that method of procedure document, he and his subordinate, Mr. Jusko, mutually failed to test parts of the work area that they could inadvertently contact.

[00:11:55] Speaker 01:
So what you've just been describing is what Pachacki didn't do, right?

[00:12:00] Speaker 00:
That's correct.

[00:12:01] Speaker 00:
Mr. Pachacki relied on an assumption.

[00:12:02] Speaker 00:
His testimony was when he created the method of procedure document.

[00:12:07] Speaker 00:
He didn't testify that he looked at blueprints and read them wrong.

[00:12:10] Speaker 00:
What he said was,

[00:12:13] Speaker 00:
He relied on an assumption that the bus duct that connected the work station to another substation could not be energized.

[00:12:20] Speaker 01:
Unless it was commissioned.

[00:12:20] Speaker 00:
Because he believed that non-commissioned equipment wouldn't be energized.

[00:12:24] Speaker 01:
So the ALJ's opinion has a good measure of that kind of rationale in it, which is that Pachocki made some

[00:12:32] Speaker 01:
mistakes, but then it also has a good measure of material in it about Griffin's actions vis-a-vis Pachacki.

[00:12:44] Speaker 01:
And so there is, there's kind of a mishmash of things that seem to me between what Griffin, the company did vis-a-vis Pachacki, who's a supervisor, and what Pachacki did vis-a-vis the condition, which gave rise to the injury.

[00:12:58] Speaker 01:
From your perspective, were both of those relevant to the analysis?

[00:13:02] Speaker 01:
Was one of them doing more of the driving work?

[00:13:05] Speaker 00:
Well, I think it's both.

[00:13:06] Speaker 00:
I think that Griffin's negligence in creating a safety program and providing instructions to Mr. Pichocki so that he would know how to do his work, so that he understood the rules that applied to him at the work site, that's Griffin's failure.

[00:13:19] Speaker 00:
And Griffin delegated this assignment to Mr. Pichocki, and then it was his

[00:13:22] Speaker 00:
mistakes, that he wasn't prepared to do this work, but then he made these mistakes that led to the actual exposure at issue.

[00:13:30] Speaker 01:
So Pichocchi's mistakes alone wouldn't be automatically imputed to Griffin for purposes of giving rise to a citation for violation of the... Well, it's not Mr. Pichocchi's mistakes that are imputed, it's Mr. Pichocchi's knowledge.

[00:13:43] Speaker 00:
And it's his knowledge of the electrical connection between the work area and the substation that he knowingly didn't turn off.

[00:13:50] Speaker 00:
So he has not only his knowledge of his own exposure to these live parts, but he also has his knowledge of Mr. Jusko's exposure to live parts.

[00:13:58] Speaker 00:
And that was a footnote that we added to distinguish from these cases that Griffin has brought up, where some circuits have said you need to make this foreseeability finding if you want to impute a supervisor's knowledge of his own misconduct to the employer.

[00:14:11] Speaker 00:
It doesn't really come into play here, both because he's working with Mr. Jusko, so you can impute Mr. Pichocki's knowledge of Mr. Jusko's

[00:14:19] Speaker 00:
exposure to live parts to the company.

[00:14:22] Speaker 00:
And then we also have other independent grounds of knowledge here.

[00:14:25] Speaker 00:
We have Mr. Peace's constructive knowledge of the violative condition, and we also have constructive knowledge on the basis of an adequate safety program.

[00:14:35] Speaker 02:
if Pachocki should have known of the danger and if, to take your opponent's position, if a company can reasonably just leave this kind of checking to a front-level supervisor and say, look, you know, P's

[00:15:00] Speaker 02:
Pease is focused on much broader responsibilities, so no, nothing wrong with leaving this to Pachaki, but Pachaki should have known of the danger.

[00:15:13] Speaker 02:
Do you win or lose on those assumptions?

[00:15:17] Speaker 00:
I think if I remember, if I got those assumptions correctly, I think, well, we win because in that case, we would have had this.

[00:15:23] Speaker 00:
And there's another way of getting that.

[00:15:24] Speaker 02:
Right.

[00:15:24] Speaker 02:
If you're saying- Judge Srinivasan's question of whether Chalky's knowledge by itself is sufficient or imputation.

[00:15:33] Speaker 00:
It is, yes.

[00:15:34] Speaker 00:
And that's the commission's test.

[00:15:36] Speaker 00:
That's the test that the Seventh Circuit took recently in the Dana container case that has been cited in our brief.

[00:15:43] Speaker 00:
In those cases, this court's had a national realty that a supervisor has, if anything, a heightened responsibility to ensure that his supervisors don't engage in misconduct.

[00:15:52] Speaker 00:
And in those cases, they look at that language and they say, this means an employer, there's an inference that employer safety program is inadequate where a supervisor is engaging in misconduct because you haven't communicated to him what he's supposed to be doing and or he doesn't fear reprisal from breaking the rules.

[00:16:09] Speaker 00:
So here, Mr. Pichock clearly didn't understand his responsibilities.

[00:16:14] Speaker 00:
He didn't understand how to comply with the no live work policy.

[00:16:18] Speaker 00:
He was working at a work site that had unique conditions where he had never before worked at a project where another party was in control of physically turning on and off the circuit breakers.

[00:16:28] Speaker 00:
That increased the risk.

[00:16:29] Speaker 00:
that someone could activate a substation that he thought would be off when, in fact, it would be on.

[00:16:34] Speaker 00:
And that's why it was so important for him to make inquiries before working to make sure that his assumptions were correct, which is what he failed to do.

[00:16:46] Speaker 04:
unusual circumstances of divided responsibility.

[00:16:52] Speaker 04:
But this was the 51st MOP.

[00:16:55] Speaker 04:
So 50 times this had been done without difficulty, without incident.

[00:17:00] Speaker 04:
So isn't that – at some point, isn't it no longer new and unusual circumstances that have been doing this for a while?

[00:17:06] Speaker 00:
I think the issue there is that there weren't specific rules given to him to avoid the exact situation that happened here on the 51st iteration.

[00:17:14] Speaker 00:
The fact that it didn't happen before is very fortunate.

[00:17:16] Speaker 00:
However, the issue is that knowing that there were these atypical circumstances, Griffin could have foreseen that he would at some point during this process, as he's

[00:17:25] Speaker 00:
you know, writing through these procedure documents, he might rely on an assumption as opposed to making the sort of inquiries that he should be making to verify that parts were either on or off.

[00:17:34] Speaker 04:
I'm not sure it sounds like 2020 hindsight.

[00:17:38] Speaker 04:
Griffin should have anticipated that this precise problem would arise.

[00:17:42] Speaker 00:
Well, it's not so much this precise problem as knowing that this is an atypical circumstance.

[00:17:47] Speaker 00:
And there are some cases in the record that – where the commission is recognized.

[00:17:50] Speaker 04:
I was going to say it's no longer atypical after 50 successful iterations.

[00:17:53] Speaker 00:
Well, I think it relates to the reliance on his expertise.

[00:17:56] Speaker 00:
And so this is Griffin's argument, is that, well, we're able to rely on the expertise of an expert foreman.

[00:18:02] Speaker 00:
And there are several cases in the record that says, well, no, you're not allowed to fully shift your responsibility as an employer onto even an expert employee, because that employee needs to be given work rules that are going to be able to educate them on what they need to do to keep themselves and their crews safe.

[00:18:17] Speaker 00:
And they also need to monitor their compliance with those work rules in some way to make sure they actually do understand what they're supposed to do and are following the rules.

[00:18:26] Speaker 00:
So there are several cases to that effect, Caterpillar from the Seventh Circuit, Dana Schupp from the Sixth, American Sterilizer, and Paul Betty from the Commission.

[00:18:35] Speaker 00:
All of these say that you need to provide some sort of specific work rules that are going to allow this individual to know how to operate in this

[00:18:43] Speaker 00:
work environment.

[00:18:44] Speaker 04:
If he was the next... Why isn't this, why can't this all be boiled down to the specific work rule of a test before you touch and he didn't?

[00:18:53] Speaker 00:
So the test before you touch, several things on that.

[00:18:57] Speaker 00:
It's clear that it wasn't understood is the main issue.

[00:19:00] Speaker 00:
Mr. Pichocki's testimony revealed that he didn't understand that he was supposed to touch parts of inadvertent contact.

[00:19:05] Speaker 00:
We know that Mr. Jusko didn't understand it either because he also didn't test parts of inadvertent contact.

[00:19:11] Speaker 00:
Why isn't that sufficient for your case here?

[00:19:13] Speaker 00:
I think it is, but I think we're also responding to the arguments that Griffin has made with regard to why it doesn't need to oversee Mr. Pichocki.

[00:19:22] Speaker 00:
Those are, in fact, the rules that they have said would have prevented this from happening.

[00:19:25] Speaker 04:
Those are the rules.

[00:19:26] Speaker 04:
They were laid out, they were clear, and yet they weren't understood, so there was a problem.

[00:19:30] Speaker 04:
in terms of clear communication?

[00:19:33] Speaker 00:
I would – yes, I would agree with you that there wasn't clear communication.

[00:19:36] Speaker 00:
I would disagree that they were clear on their face if you actually look at it.

[00:19:39] Speaker 00:
Test before you touch?

[00:19:41] Speaker 00:
Is that clear?

[00:19:42] Speaker 00:
Well, it doesn't anywhere say specifically test areas that you could inadvertently contact, but that's beside them.

[00:19:48] Speaker 04:
Well, it does say in the reg that you could be in contact with, right?

[00:19:51] Speaker 00:
It says one of the risks you will mitigate by testing the equipment is touching inadvertent areas of contact.

[00:19:56] Speaker 00:
This is getting a rather – it's a little granular point.

[00:19:59] Speaker 04:
It deals with an electric power circuit exposed or concealed so located that the performance of the work may bring any person into contact.

[00:20:08] Speaker 04:
Oh, that's the standard, yes.

[00:20:10] Speaker 04:
That's right, yes.

[00:20:11] Speaker 04:
Yeah, I agree with you, sir.

[00:20:12] Speaker 04:
I mean, he's – in this space, it's right – this wouldn't have happened if it weren't something that could have – That's right, yes.

[00:20:20] Speaker 00:
Right, right.

[00:20:21] Speaker 00:
And as to the policy, I'm out of time.

[00:20:22] Speaker 00:
I'd just like to clarify that Griffin's arguments are inconsistent about whether Mr. Jusko engaged in his conduct.

[00:20:31] Speaker 00:
They haven't given a clear explanation as to whether Mr. Jusko was supposed to test anything on the day of the accident.

[00:20:38] Speaker 00:
This is outlined in the record in our brief.

[00:20:40] Speaker 00:
It just goes to prove that this instruction that they gave was not well understood by the employees.

[00:20:45] Speaker 00:
They didn't know how to comply.

[00:20:56] Speaker 01:
Thank you.

[00:21:02] Speaker 03:
I want to address the test before you touch policy, because that goes two ways.

[00:21:07] Speaker 03:
One, it's part of, if they want to prove foreseeability by a lack safety program, they have to say more, they have to show more than one individual

[00:21:19] Speaker 03:
may have, and it's not clear from the record whether he misunderstood it or not, may have not comprehended that the policy applied to areas of incidental contact because the record is clear and OSHA and the Commission acknowledged

[00:21:34] Speaker 03:
that the policy says right on its face, you not only test direct areas of contact, but areas of potential incidental contact, and it also says why you do that, because of the risk of the blueprints being wrong or accidentally contacting those areas.

[00:21:52] Speaker 04:
But Mr. Kohler, he didn't say that I failed to test it because I didn't think I would come into contact with it.

[00:21:58] Speaker 04:
No.

[00:21:58] Speaker 04:
He said because it had not been commissioned.

[00:22:01] Speaker 04:
He said he thought it couldn't be energized because it wasn't I Don't believe no.

[00:22:07] Speaker 03:
He wasn't anticipating being in that on that area.

[00:22:09] Speaker 04:
I don't believe here's his testimony Did you ever discuss any party whether you should add a step to MOP 51 to open the tiebreaker?

[00:22:19] Speaker 04:
No, why not?

[00:22:20] Speaker 04:
Because when we finished 41 a the tie bus was not installed yet.

[00:22:24] Speaker 04:
So it wasn't commissioned.

[00:22:25] Speaker 03:
That's why I

[00:22:26] Speaker 03:
It doesn't matter if he thinks it's commissioned, if he thinks it's live, if he thinks it's not live.

[00:22:33] Speaker 03:
The whole purpose of Test Before You Touch is because it could be.

[00:22:37] Speaker 03:
Somebody could have come back while last time you worked on it and turned it on.

[00:22:42] Speaker 03:
That's the whole purpose of Test Before You Touch.

[00:22:47] Speaker 03:
In light of everything that was positive about what was done, his one, if it's a misunderstanding about that, the policy was clear.

[00:22:57] Speaker 03:
The training was done multiple times on the site where the policy was gone over in detail about this is what it covers.

[00:23:04] Speaker 03:
It was done in employees' annual reviews.

[00:23:07] Speaker 03:
It was done on on-site training.

[00:23:09] Speaker 04:
Well, you're trying to portray him as something of a rogue employee because of that, but it seems that he was more of a misunderstanding employee.

[00:23:17] Speaker 03:
I'm not saying he did it on purpose.

[00:23:18] Speaker 03:
It was certainly an accident, but that's the kind of thing that the employer's not responsible for unless it's foreseeable.

[00:23:24] Speaker 04:
Well, when he says, I didn't test it because it hadn't been commissioned, that is on purpose.

[00:23:31] Speaker 04:
I'm sorry?

[00:23:32] Speaker 04:
That is something he did on purpose.

[00:23:34] Speaker 04:
He had a reason.

[00:23:35] Speaker 04:
It hadn't been commissioned.

[00:23:37] Speaker 03:
That's true.

[00:23:37] Speaker 03:
That's a conscious decision he made not to test it if that was the reason he did it.

[00:23:43] Speaker 03:
That's not foreseeable.

[00:23:44] Speaker 03:
An electrician is supposed to follow our test before you touch and test everything, whether you think it's commissioned, whether you think it's ever been turned on or not been turned on.

[00:23:55] Speaker 03:
Thank you.

[00:23:57] Speaker 01:
Thank you.

[00:23:57] Speaker 01:
Thank you, Counsel.

[00:23:59] Speaker 01:
The case is submitted.