an order from the district court granting the defendant's motion for summary judgment it is a negligence case it is a trip and fall case so the present standards that are are pretty pretty well established i think in and pretty well the three issues on the case of whether a dangerous condition existed whether that condition was the proximate cause of the seeders fall and subsequent injuries and whether or not the defendants had notice of these are these are issues that arise a lot in these cases  what i'd like to do st is just briefly walk through some of the evidence i think we need take a look at what happened that day which shows that missy here has checked the boxes on presenting evidence vision to overcome the motion for summary judgment misleader was traveling with two coworkers they were going to a launch for another coworker who's being deployed overseas she drove so they witnessed her driving there so he parked in what is the green garage which is just outside rest town center where they were going to eat she parked car she got out of the car she walked through the garage and she negotiated stairs with in the garage there's facts of relevance of the defendant's argument that leads argument that they may have another problem because witnesses both testified miss buchanan mr wrap and that that they didn't notice anything odd or unusual about her driving about or walking about or negotiating the stairs as she exited the garage they both testified that they were walking directly behind her that she was not distracted at all she was looking forward she was not talking with them they were talking between themselves she was not on her phone and there were many other things in the record showing that that she was simply stairs he saw that flying through the air immediately after that happened this just quote if i could stop you there and maybe was dubious about the evidence i have a question about do you have a stairwell you can see that in photographs that were taken immediately after the incident was not a graph not only show the defective and dangerous condition of the top of the stairs they show blood stains that line up at the bottom of the stairs they show a wall off to the right demonstrating that it was bad at their right hand as you're looking down addition your honor you have the testimony of ms buchanan who was walking directly behind her her testimony as i saw her disappear from view we would characterize that as she saw her fall now there is no question that she did not nor did mr rapid not actually see her foot on the bread but she saw her fall she said i looked down from where she had fallen and i saw the and condition that she described miss buchanan also says she went around that to go tend to miss cedar she got to the bottom of the stairs she tended to miss cedar emergency personnel showed up she went directly back  i recognize that everything's not necessarily neat and perfect but is when when mr rapid i just saying left is that the area that you just described or is that the other side and you're out of there was during depositions were took place well over two years after the incident there was some back and forth on which want to send in the end i think you'll find with the testimony as both of them confirmed that it was as you're looking down th stairwell but you need not and again any conflict in the evidence at this stage would have to be resolved in our favor and i think the evidence is very clear when you look at photographs that were taken immediately after the incident that everybody was in bottom you can later see the odds and they show the defective condition so i submit to your honor that that while there was some testimony that was corrected during depositions everybody agreed at the time where the incident happening on that having been sagging judge would appreciate bringing up the other problem because i wanted to get to that obviously proximate cause can be determined by circumstantial evidence we have very strong circumstantial evidence here from the photographs from postulate another problem because that may have happened if you'll note in the briefs you not cite to any any part of the record for any of those any of those causes they reference the fact that the son may have been in iraq it was a bright day but there is absolutely no evidence that the son was directly at them or that it was in their eyes basically we would submit to your honor's they were there you don't care for i mean pride rather have no evidence of it but even if there is evidence you would say that's for the jury t correct actually just problem goes beyond that what he says was based on on his opinion and experience it would have existed for at least several months he really captures it in two different ways so he captures the time frame there by saying at least several months and then he also pons that that given that it is a condition that should have been seen upon reasonable inspection i'd also like to point out that we argue on our brief regarding inspection they really didn't have any procedures in place for inspection which buys into that notice as well it's you know you can't stick your head in sand and then say i didn't notice anything and that is also brief but i submit to you on it that the expert testimony as presented in this case is exactly what you have to have in this case when you have this type and it is it takes it out of the cases where the great with the bottle or whatever was on the floor and there's no videotape at least several months is clearly something that a reasonable jury could find is sufficient to show that at a rest in town center should have noticed it had they conducted reason into this at the district court has not ruled out dawber motions that i could say is that right that's correct your honor they have not ordinary care and what is reasonable under the circumstances but invitee jury instructions state that it is for the purpose of the invitation i think that could be material on this point because one of the arguments that the defense of made is that she was carrying a poster a folder i think it's perfectly reasonable for for the owner and operator of a town center that has shops to to anticipate that somebody may be carrying something as they go through their out also knows that the case cited by thank you it's my pleasure to be arguing on behalf of preston town center property l l c and boston property of limited partnership the apple e's if i cannot like to cut right to the  a very simple trip or slip and fall case very simple the case law is not that complicated and so really it comes down to analyzing the facts to determine whether or not there are missing elements from the plaintiff claim or not there were only two individuals who were with the cedar at the time that she was you know leaving the green garage and on her way to the luncheon with her work colleagues and that's to wrap a nut and miss buchanan and if you read the deposition testimony of mr you can and she was a little confused about whether or not the path of travel was on the right hand side or whether it was in the middle she was very clear in her testimony that it was in the middle in the middle in the middle of them we took a break at her deposition and she came back and changed her testimony but she didn't see  cedar may have tripped over if she tripped at all she had no idea she just said that she was walking behind her on their way out of the garage and then she the next thing she knows  misener is on the ground at the foot of the stairs so she's not very much help in trying to determine what happened and whether or not this was a trip that fall or something else happened on the other hand wasn't on the landing at the top of the stairs and of course it's on the landing where all the bricks are and mortar and that and the caulking everything else that the plaintiff has tried to focus on to support their case i could read you up got the the transcript right here it begins that the record join appendix at two hundred and forty eight and in in several instances he makes it very clear that he was walking behind this seat or she was taller than him so normally he is kind of looking up but there came a point in the last thing he remembers was he was looking at the top of her head and then she disappeared from view and he shifted his vision and she had fallen to the bottom of the steps and so went on and on with them and ask them i go was that mean to you that she was on the steps and he agreed and i can't stress enough that that that testimony is fatal to the plaintiff's claims because it takes out of play every single one of the defects that they've tried to focus on and there's not much consistency there that there's some we could get into that a little bit later  wants me to but there was no defect a den a fight on those stairs they're made out of concrete and there's a railing for the use of of him by cheats and so if there's no defect your argument that that means she had moved from the landing into the steps you can certainly make that argument but but i don't think he ever said a saul that she had moved from the landing down there that that s flight your argument about his description of those events which may be a very good one by the way but it seems like you might be attributing a little more certainty to his testimony then i page to seventy seven of the joint appendix i'm going to quote it as a five we were coming up from the lower level up the stairs divvied up was next to me kamil was ahead of me and she was going down the stairs camille was ahead of me and she was going down the stairs i can only rip recollect my field of vision but i mentioned to them that she was going down the stairs and then she ended up on the sidewalk face dump now when she disappeared from your field of vision was she on the stairs and he says presumably and that goes on in there other consistent with that testimony on on joint appendix a to seventy eight and now let me talk about the bricks for a while if you even even if you know it could be argued that that that cheap trick tripped on something on the landing as opposed to the stairs then we got to focus on what it was in and then the only testimony is is probably the videotape that he wanted the district court to review and i think he's provided it for your honour's to review a call of a jiggly brick and it's a brick that moves that i've cited in my my brief there's a whole host of them that talk about you know defects in sidewalks and walkways and a lot they're all a lot worse than that  testimony but he makes it clear cedar was on those steps not on the landing and i think it's in if you try to make a case out of her tripping on something on the landing the best you get is a possibility and the cases make it very clear that that's not good enough when you're relying on circumstantial evidence and certainly it's not good enough where there is another explanation  responsible as to a cause for which he was responsible the plaintiff cannot recover we can ignore the testimony of her tripping on the stairs people fall d the time with their trip over their own feet take their shoes cause a problem or what have you but or she missed a step but that can't be ignored and if and if that's as reasonable an explanation as the one the plaintiff is is proposing than the a a dispute here or there just is not enough on the plain of side to create a triable issue and that's what judge that the sum total of this evidence is is is  not sufficient to create a tribal issue and so i would respectfully say no judge this is not a case of halakhah to to a jury this is a case of you know this testimony comes ruling in favor on summary judgment in favor of my clients be sustained if the court has any questions about the facts i'd be happy to to answer you know the the expert  it appeared to me that mr sense in a was trying to fill in some gaps in his evidence with expert testimony and create disputed facts with the use of expert testimony never oh never  heard of anybody doing that but certainly any testimony by the expert has to be based upon reliable facts that was the subject of our motion to exclude mr hollins testimony and presented mr holland's gas money has not been excluded or rolling on after there was no ruling your honor of now we can take that into account you certainly can and you can review what i believe that you can look at the at the motion and it describes it was supposed to be included as part of the the joint appendix and somehow it didn't make its way there but it's in the record at forty eight dollars forty nine cents and it's the defendant's motion to exclude expert testimony and it sets forth the reasons why mr the motion or the part but the motion or not what we take into account we're going t you know look at the reliability of any experts relied upon by one side or the other in motion would be a good way to review the you know the facts on that scoop but you know there's a lot and that sort of gives an idea of how far afield mr holland was willing to go with is unsupported testimony i don't believe that this court would find him to be a reliable expert in  least but again it's all moot if the fault was you know after misleader was already on the concrete stairwell where there are no were no defects and it's all moot that this i think you all get the gist of how i feel about this case and his enjoyed working with mr since day and i wish that he had a better case in this instance but it's just not there i thank you gentlemen for your time and if there are any questions i'll be happy to say thank you very much holland st of all the structural engineer dischord not rule on it if you look at the bases for his opinions the bases of photographs taken immediately after the accident again as i stated in my opening you can actually see the person there the walkie talkie you can see the person standing in the seat or you can see the blood stains this is contemporaneous evidence i don't i don't know what else you have an expert a lot on other than photographs and video taken at that point is even better than surveillance video that you see because surveillance video is grainy always up and half the time you can even tell what's on them if an expert can rely on contemporaneous photographs taken at video of them then i don't know what any kind of expert could f and i go back to miss buchanan's testimony and we have cited that specifically in the record it was questions that were posed by mr hutchings and he asked her about the bread and his question you know trying to get to some kind of open an obvious argument that was not made his question was where the obvious to you that there was an issue there her answer was they were more obvious to me because that was the area that she had just fallen from she was behind she looked down the stairs well if there's somebody following me and i'm at the top of the stairs they're going to say they're going downstairs where i'm headed i'm going down the stairs that doesn't mean that they've actually started down the stairs and you could consider that top landing is part of the stairs i think it is part of the stairs where the defect actually occurred so i think it's a bit of a stretch even though he can make that argument to the jury and it's you know i commend him for it but it's it's absolutely a jury issue as to whether jury wants to interpret mr rap and us testimony that she was going down the stairs meaning she had already gone off that top landing which is part of the stairs and it going down and when you match that up with  er was discharged from the hospital she had been there for a while and they gave for back her personal belongings her testimony was that she really noticed that there was a scuffle an issue or there had been one before  and so that is further evidence of the cause that she caught it on live again if they want to argue that to the jury some other things they can certainly do that but it's a case that they go to the jury as far as ravenous testimony and going down the stairs i'd also like to direct the court to the video and we walked mr wrapping up through the video because he was talking or at least in part while the video was taking was was being taken he was very much supporting during that discussion that is on the video that you're hours can view that that area that they were showing with the loose bricks in the lip in the deteriorated car was the area from which she fell that's why they took the video of that area that's why he was directing it as he was right there further supporting the fact that in his mind at and she hadn't crossed that threshold down to where you could call the st ever the there if i could just one second please around to take a look at him and and the same is true for the path there was discussion about the path and i did and did hit on this a lot and hopefully a lot in response just quite a moment i would ask the court to focus on what was happening at the time memories to change a bit over two years and there was during that testimony in particular was with w mr rapp a nut some back and forth but once they looked at the pictures in the end they are came down to the same conclusion mr hudgens mentioned the fact that miss buchanan after she came back from a break change testimony as to which wayne it was and mr how does very specifically i want to point out to the core very specifically asked for appropriately and and in a good way but he said i need to ask you whether you consulted why you changed your opinion did you talk to your lawyers during the break in her testimony was very clear she said i did not speak with the lawyers if you read through the record with what cost her to during the deposition to clarify her testimony later on when she looked at the pictures that were taken that refresh your recollection and and again it's it's just hammers home the point that it's very clear where she fell because you can see the blood stains of the at the bottom of the the bottom of that stairwell and you can see blood stains lining up with the dangerous effects i submit to you that any any argument as to which tara went down is just noise and meant to distract and again mr hudson's can try that with jerry but it should not be compelling on a motion for summary judgment or own p r for motion some just the time is almost up again you have really appreciate your time and attention in this matter and for allowing us to have oral argument on this and present this to you thank you very much thank you very much sir we appreciate the arguments of counsel we're sorry we can't come down to the well the court great here maybe we'll do that next time madam clerk we will take this case under advisement th