that your strongest points anytime you judgment one on behalf of the fifth avenue defendants which are the property owners and i'll refer to them as such in the rice defendants the snow removal contractors and i will refer to them as the right stuff and it's for convenience purposes your honor for the record reveal that snow was plowed into an unusual corner of an unusually shaped building shaped in the form of an elf that snow melted when the chicago temperatures moderated and then when the temperatures got below freezing again that snow and water that had formed melted formed ice in a parking lot my client on january twenty fifth two thousand and seven miss jennifer horne a sect was walking in that parking lot after leaving work when she slipped and fell she sustained injuries we filed suit on her behalf in order to pursue a negligence cause of action against several defendants two groups of those defendants remain in the case yes on this appeal the owner and the snow removal contractor the evidence all of this nothing heard after the snow is to do the duty of reasonable care for that snow removal contractor in in fact mr rice himself testified in his deposition and that's contained in the record that he was not to plow snow into that corner he was aware of that and the other witnesses of course mr rice denied that he did that but a number of other witnesses have testified that in fact they saw the snow plowed into that corner and because that snow was in that corner they also saw it melting and causing the ice to form i would define crisis to straight  that the duty itself obviously because we have the testimony of several witnesses saying that there was snow piled into that corner we believe that that's sufficient to sustain a burden for summary judgment purposes with regard to the breach that snow removal was an unnatural accumulation in the corner and that was testified to with regard to three witnesses bonnie hampton who was the franchisee of the business that mrs for sex work and david hampton and wayne rawl are those three witnesses each separately testify and they can provide the page cites if the court would like it as to the snow that had been piled in that corner with regard to david hampton david hampton specifically testified regarding january twenty fifth the day of this fall that there was snow that had been plowed into that corner and it had formed ice ph twenty four fifty six of the record and so we know that the snow have been piled into the corner had melted informed ice and it was something that jennifer horn a second counter that day certainly there was some discussion mr rice's deposition on my questioning about that very topic one of the places he could have plowed the snow was to the west end of the property away from the building the property is divided from a gas station that has an aluminum railing there it was also on the other side of the property on the north side there's a grassy area that divides that properties parking lot the fourteen o two property from a public roadway the snow could be piled there and in fact there's a drain in that area there are certainly options mr rice to place the snow there and importantly he testified he knew he wasn't supposed to put the snow where we have the witnesses that say that it was there and so then the next question that the court has to consider is even if there's a natural accumulation that snow removal that caused that forming of the snow in the corner by mr rice in an unnatural way caused the ice to form and again that was testified by bonnie hampton and david hampton and then that ice was there that particular day and david hampton's testimony is particularly important this regard because david hampton comes to mrs well in a sexual rescue she's the first witness that we know came to her rescue there's an unknown witness we don't know who that is but david hampton is the first deposed and he says on that day at the time that he gets there jennifer horn a sec is in this big ice floe as he describes it and if you read the context of the questioning it's about the ice fall it's flowing from that corner so the plowing the unnatural that originally we had the this parking lot had been repaved in two thousand and six and we had a theory a cause of action against the paving contractor because all of this ice flow was testified to by wayne waller in particular this ice floe started after that it certainly could be judge i think you're what you're highlighting on your honor is the exact reason why we have juries in this country we need a jury to sift through this evidence i'm certain that opposing counsel will point out the places in the depositions where witnesses vacillated gave different answers but that's precisely why a fact question exists here because i think the the evidence shows that there's at least something that a jury should be considering and those issues that the court is highlighting namely was this ice actually coming from that snow pile i'm sure there will be opposing evidence but all it does is prove why we need to have a jury consider this case and not to a summary disposition in this particular matter i think of particular importance here is what mr waller says when lawlor when lollar testified as the court just highlighted about the fact that there had been ice in the parking lot before two thousand and six but that the ice flow consistently existed after the puck repaving in the snow probably contractor after the repaving started plowing into this particular inside corner this his testimony specifically highlights how this all happened page twenty five sixty four the record at the end of his answer he says and during the day when the sun was out i believe the snow was dash would melt a little bit and drip on of the pavement and at night it would freeze up that's my belief his opinion based on a lay observation of what was going on is precisely what we test of what we suggest should have been decided by a jury in this case that's our theory that's what we believe happened i think to move snow and put it into a not natural condition which is a mountain i would i agree and disagree with the court i agree that all snowfall companies by moving snow are creating an unnatural accumulation by definition that's their job however what they are bound to do according to their duty and indeed mr rice's testimony is to plow into a place that it won't become a hazard if they have plowed it into the street and somebody drives into it i think we'd all agree that that's inappropriate in this particular case on the north side of the building north of the north parking lot there is this grassy area and in that very area if the court examines the photograph carefully you'll see that there's a drain there on the very north end that's because the entire parking lot is pitched that way and some of the witnesses testified about this so because of that the water would run away from the areas that the people are in other words it wouldn't ever get to the locations where pedestrians would be walking albion occasionally it is difficult for a snow removal contractor to figure out where they do where they are supposed to plow the snow but that's why you hire professionals that's why eric rice testify to his many years of snow removal experience it's not something you just get into a truck and start driving and indeed at the very beginning of his deposition i establishments that this is an expert who is doing what he's supposed to be doing and in this case he did it wrong and by doing it wrong he creates an unnatural accumulation by definition but that unnatural accumulation then melts informs ice in a place where he knows or certainly should have contractor of her body here already i would rather i would suggest that i agree with the court's interpretation i would suggest that opposing counsel would disagree with the court's interpretation certainly i think what the evidence clearly shows is bonnie hampton answered in in the case where she reported to the landlord that this was consistently a problem that they consistently had this problem and bonnie hampton testified that it was it had been there for a long time for i think the the exact testimony was a very long time something along those lines it was i don't think that anybody can would argue with any credibility that ice was not a problem in this parking lot it clearly was but after the parking lot was repaved in two thousand and six the snow removal contractor changed the way he plowed because the trash cans get moved certain other things and the testimony is clear that that flower was falling into the corner because it's plowed into the corner it's allowing water to create in make ice and causing my client but the i and i don't necessarily disagree with the supreme court's interpretation of that fact however the head of the bar by we're done with it whether i agree or disagree i understand that but the distinction in this case is while they may have created an unnatural accumulation here and that can exist the entire winter what's not existing the entire winter in this particular case is the ice that's president cheney or twenty fifth two thousand and seven to the court is correct in that there is no evidence precisely that tells us when this ice started but we know when mr rice last cloud and we know the testimony is this was a consistent problem which all makes sense if you believe that he's probably into this corner consistently ice is going to consistently form in the parking lot but i'm not troubled by the fact that if somebody does something wrong creates an unnatural accumulation in an area that it shouldn't be violating the his own testimony what his duty and responsibility is i'm not troubled by the fact that his viability continues for the entire winter if i build a building or wrong i certainly should continue to be responsible at least to the end of the statute of limitations if that building later fails that's part that's part of the concept of negligence he set in motion a chain of events that allowed bonnie hampton the franchise or lease the space her son david hampton who was kind of the office manager as well as a realtor and then when rollo who himself had slipped on ice albeit in a different location before then in those three were obviously wherever from personal experience jennifer hornacek was never aware of ice forming in this parking lot and didn't testify as such but even if she had she was specific question about did you see this ice before hand and she said no in fact she was asked did you know what caused yourself to fall before you fell no she didn't realize it until she's on the ground in her hands or on this invisible ice and mr hampton david hampton testified that it was difficult to see and he was slipping all over it as he came to jennifer's rescue so i think that getting back to the court's point there are certain circumstances in which the snow removal contractor is responsible but i don't think there are a guarantor i think that the plaintiff bears a duty and responsibility as well but making somebody it responsible for their conduct is what negligence is all about here i think a jury should be entitled to consider whether they have that mr rice has violated his duty and let's not forget the landlord as well who at least according to mrs hampton was told that there was repeatedly ice problems in this parking lot so  management company which is two of the witnesses you just mentioned are probably liable i mean that theoretically anyway for trying to keep the immediate area clear from the door well but what the defense have done have is named to the third party defense as a third party hampton the prudential that there was an argument that they had a responsibility to clear the sidewalk while not before the court i don't think their contract requires that in this particular circumstance i don't think that's the case but i can certainly envision cases in which yes they are the landlord a management company a snow removal contractor all would be responsible if they knew about a condition for a long enough period of time they have a responsibility to fix it and it's not too dissimilar in many ways from a sidewalk where there's a crack and there's a deviation of two or three inches at some point in time a city or a municipality or even a private landowner knows about that defect they have a responsibility to fix it up played it always has that responsibility to maintain proper look out into their do the the law should never state that of snow removal contractor should never plow their snow so it won't form ice that's impossible that's the nature of chicago illinois but that's not the burden we're seeking to impose here the burden we're seeking to impose is for mr rice to follow his own instructions with regard to duty and responsibility not plow it into a place where you know it is going to melt foreign ice in a parking lot and in this case all mr rice had to do is do what he says he did and that is the plough to the west or follow it to the north he didn't do that in this case and so he should be responsible the magnitude of the burden is actually miniscule and far smaller than a sidewalk it's simply a decision that all us to do as he has to that he's going to turn his car in this caters truck in this case to the right and go to the to the west further west in the parking lot or push the snow backwards in hours either one of those would have been sufficient and that's what mr r it's terrible human he ponders now well the reason why i don't think that's the case in this particular set of facts is because if he'd done it where he said he should have done it there's no way ice could ever get in a parking lot because it ends up out in the grass next to a drain right next to a drain and so there's no way the ice would ever get out in the parking lot second this particular parking lot is as it's configured there's not parking out there that's not where people park it's more of a through area and so i think the magnitude of the burden is incredibly small one of the smallest we could ever conceive because only has to do is just drive his truck a different place and that's what he says he's supposed to do and in this case the evidence shows that he didn't that's why i don't think that it's appropriate ice forms in chicago that's a known fact but when somebody causes  form someplace where he knows or should have known the pedestrians are going to be walking he's responsible for that and that's why we have these rules and regulations in regard to negligence we allow a jury to determine whether in this particular set of facts this is appropriate  conclusion the the appropriate ruling here we're just seeking to have a jury get to that point to allow a jury to determine whether mr rice is responsible for jennifer horn or sex they admitted lee severe injuries and whether the landlord as the owner of the property who at least according to testimony knew about the ice formation in the parking lot and did nothing about it should also be responsible for this parking lot ice formation of eventually at least allow the jury to determine a mrs fargus sex injuries if they're responsible for those who have any no i'm i'm i'm i'm finished i was just going to wrap up if it please the court we respectfully request of the court reversed the lower court's summary judgment and allow us to have a jury determine the the responsibility of these parks thank you you granting of summary judgment has not been appealed from by the plaintiff the record also shows that my client's contracted with eric rice for snow removal and for salting of the lot in fact of the record about i think only my bills are are are not with ok based on my notice he writes that evidence was plowed into the corner that there is evidence that the snow was plowed into the corner and that ice was forming it first of all we have to look at the deposition testimony of the plaintiff she made admissions during her deposition testimony she specifically testified that she wasn't talking about a river of ice she basically testif that she felt invisible ice she said there was nothing was shiny you couldn't see anything she slit the civically testified this was free of slush or snow she said it was clear she didn't know how long the will be referring to i would bet he would read it but i don't think that creates a question of fact you had three employees of american homes who testified in this case you had by any hampton mrs hampton specifically testified that she doesn't recall if there was any snow plowed into their corner on the day of this incident she has no idea where the ice came from which by which point to fell and mrs hampton was there immediately after the incident along with her son she is the mother of david hampton she testified she never testified biting ice floes she said at times there might have been a reveal but but she was specifically said to where the plaintiff was located was beyond that portion of the review much and she was specifically asked during her deposition if it's her understanding that snow melted from a snow pile and cost ice to form and she answered no hampton's the only one who talked about snow piles and he specifically testified and this is set the record here is that you kill our i don't know whether mr did testify that at times he thought there was no plowed into their corner but when i asked myself doesn't that raise the question no it does not he testified that it being the winter you know i would say it's reasonable to say that there were snow piles there to meet that's a big difference from say i physically saw snow piles there and this is what she felt why because of her a cause of her fall at one point she did testify she's near the ice well at another point in his deposition testimony he says he saw her east of that area so i would say that the deposition testimony of mr hampton is internally inconsistent contradicts the plaintiff and everyone else in this case is speculative and can't is not sufficient to form a question of fact in this case so with respect to my clients we have two issues here whether she fell o accumulation of ice and snow and secondly whether there was any type of notice to my client the testimony of the plaintiff's counsel rough arrest was that of bonnie hampton and in her type position testimony she specifically stated that she is not aware of anyone making any client plates to the management with respect to this area where the plaintiff her complaints were with respect to the area next to the door and she talked at length how the band board then replace the door and a lot was repaved so there is no testimony in the record than anyone specifically complained about this so called ice flow at this part of the parking lot to my client and to my client mr bran was aware since purchasing the property of only one of their fall on ice that included it in a different parking lot at the front of the building he came to the scene immediately at that time it was just after a snow fall that was in the clerk counsel look i'd like to just jump into some of those questions to ask the earlier and i think it's important to differentiate the testimony that plaintiff's counsel has referred to that bring this to a wall or bonnie hampton inn david that did she ever tell you she fell in ice she told me she fell i don't know i don't think she did i don't remember we don't know what if any type of she could have tripped on her surely so i don't know you don't know what she fell and true sir that's right recall any ice you don't recall any ice in the parking lot in general that day my correct i don't recall any ice in that area that i walked because i wouldn't go in the back after he didn't recall any ice that's mr lawlor didn't testify anything about snow having been plowed into that corner that we've been talking about the southwest corner which forms the l that we discussed mrs hampton who is the second person out there assisting after her son came out testified that she does not know where the ice came from that point of fell on the santa does not know what caused point of to fall then miss hampton was asked a very direct question the question is at page two twenty seven thirty of the record is it your understanding that on the day of the accident snow melted from the snow pile and caused by ice the former answer was no then we move on to david hampton's testimony thank you and before i get to his for a moment the only testimony as to the conditions in that corner that came about in the record is my quite dirk rice who wasn't sure if he was called there the day of the accident or the day after after received a call from the management company mr wright said there was a little bit of ice and a little bit snow in that corner it had not  plowed to the corner it was just what was left over when you couldn't get the blade up to the building he testified even in that area that he got about a foot up to the building but that's as far as he could without damaging the building itself that's the only testimony about this mr hampton was asked these questions and the ice would occur when the snow that had been removed in the lot with thaw and then we freeze is that correct to the best of my guess i mean i guess i really never figured out what it was you really didn't know what the source of the ice was true answer well true i mean i don't you know i'm not right you know i don't really i can't say to know for sure that's a specific testimony and you can tell by the way that i read it but it is pacific as  hampton what i'd like this court to focus in on is a very important factor that hasn't been addressed yet which is the conditions or the temperature the record is to bring any evidence that the temperature ever in order for it to melt and refreeze would have to go up to a certain level at least thirty two degrees or higher and then the weather temperature would fair and then after it melted it would refreeze there's absolutely no evidence of testimony that in this january time period the weather ever got to a that that melted apparently streamed off a distance of ten or fifteen feet and then when the temperature rose it repros as absolutely no evidence known even speculation to that effect in the record miss hampton testified there was snow and ice in the lot and she got out of her car and that she was avoiding it on the way in snow and ice cover so yes there was snow and ice now a lot actually a chilling snow and ice no evidence of the natural accumulation of ice in each of these cases in fact the russell case which  warm and the nights were below freezing the wells case that was also cited here in the briefs the appellate court found that there was no periods alternate point in freezing for a week preceding the accident as a result this is the first district the plaintiff failed to show that the ice in question was an unnatural accumulation i would state to that that if there was it affects about race if we brought out the mccarthy case they had an expert a licensed architect who testified the temperature fluctuated above and below the freezing point until it remain below the freezing point on the day of her frail plan of expert architect concluded that this weather pattern would have a voided and bake means to  the testimony was on this occasion when they came out to view the scene directly after the fall but every opportunity to say jeez we saw that same condition existing there not a single witness testified that there was a bank but two foot three foot pattern and it rolls into one of the ruts in the parking lot and tell the court said that that wasn't enough and in this case what the testimony we have here falls far short of what the facts that have been decided in many of these other what i call analogous cases i think the most analogous case is the crane case so i believe that in fact that was the crane case that i was just citing to i don't believe the question of fact has been created based on a testimony of those people that were present directly  the plaintiff who testified i do not know what the source of the ice was i do not know how long that ice was present i do not know how that patch of ice was caused to form especially in light of the fact that she's testifying to other ice and snow in the par reply with the luxury of time i did find the ninety eight percent sure citation that was d j hampton that the quote was inquiring about in which he was asked on page twenty four fifty six of the record whether ice had actually caused jennifer to fall and because it's been such an issue i thought it important to read that portion of the testimony he described that there is a big ice flow that kind of went from the ice pile describing the the pile in the corner that bisected the parking lot and so that you know that is what i'm ninety eight percent and then dash well in fact i know that's what jennifer slipped on so that was the big obstacle and jennifer testified that the only thing that caused her to fall was invisible eyes d j hamp is the only other witness who testified about coming to her aid that particular day mr mccullough get speaks of the fact that there's no evidence about the quantity of snow in this particular parking lot in piled into this lawlor testified again page twenty six a one of the record that he saw six to seven feet of snow piled in that corner and in fact mr hampton talked about how it was consistently there mrs hampton said specifically that she observed the snowplow contractor plowing into that corner she saw it first hand knowledge that snow did cause ice because mr hampton twenty four seventy nine of the record said that he saw ice moving from this spot referring to that corner and waterline moving down into the grass and justice when it asked about the pilot the location the poly that's where the water is all moving towards the grass where we suggest the jury should determine whether that following was appropriate  waller referred to the fact that ice would form after the temperatures had moderated the disputed testimony discourse highlighted is precisely why summary judgment is inappropriate in this particular case the duty is well established