whether the plaintiff's testimony in his first deposition is sufficient to create a material issue as to whether any that would establish an issue as to whether these mats had rubber the second point i would have in answering that your honor is that if mats that have a rubber backing do not fall that this mat was not have had a rubber backing because dr caplan you said there was a a part in that whole but mentioning rather before and that raises i suppose a question whether that's generic enough to include the man and if it's simply generic what significance is there trip not that i slipped i didn't say i tripped on the mat he said i tripped and he was on the mat that would suggest that if you trip and you're on the mat you mean you tripped on the mat has to his admission just there are some cases that pull us in the for the hospital who was there read it that way because afterward they had that exchange it was and a witness said that's what my lawyer told me the lawyer said you have to answer the question just yet that was an objection have to answer the question and they didn't really read the question have retained his competence after the fall so that it was not that seems to have my ability all i am for purposes of summary judgment may be enough to preclude that or sation from borrowing from from being used as a as a going to be a difficult case but maybe not so difficult when we find out that the hospital is third should take this matter and refused to do it anyway because the interpretation of the of the comment that's what i were told me is certainly father has just discordance coll suggesting for trier of fact should case ever get to that stage which is what we're really here to to discuss and so i'm going to suggest we go back to do what evidence there is that would create an issue  emotion but a description of a sensory perception a physical manifestation of contact if you will and i know that the hospital does not have an answer for that in their brief yes to the question of of  but then i think backing up on the spoilage going back to the boy he didn't fire and the whole line of cases that followed will spoil ation issue into five o that had a different reading on it my answer to that is simple it was a serious accident past obviously a very serious action at the hospital investigated immediately he was on the mat when he fell i think anybody can see that why would you not be mad only because it's voluntary control it's melodrama control voluntary control voluntarily controlling it it's also they're mad when you have a situation like this where somebody fell my suggestion is of the court just under boy what a reasonable person think that that evidence might be relevant to at it and the record it was a way down the road we sued for not having a secure mat by the time i requested produced and that was honored where we were months and months years way down the road so i at that point the turn over if you read between the lines  preserve it whether that would suffice simply to keep your second counsel a life or whether that would create a presumption which would win the first pick at or i certainly go a long way description of the match in general well he says that the way this accident occurred creates i'll add the word strong inference that it was slid the man was it a rubber base and bottom and then fabric on top of the answer was yes and the plaintiff's experts all say well if you have a rubber base on it that's a non slip material that's the norm but there it is is well all i can say is with there was not one iota of a whisper if you will and then three and a half months that anything about a man there's nothing in the video that shows any thing about the man and the man was taken out and he and initial  my point you have a mac there and the fact that there wasn't a whisper in your of them acting the problem you knew where it was back before that before there's any obligation to consider preserving it if you compare to the case law that we're working with you know the exploding heat or the tire assembly that fell off i mean all of these are analysis so she never even got to the duty issue but so she decided on the basis that you just stated that there's no showing that if the met was here then to a reasonable probability you put a prove your case as you say that the only evidence is there wh n they give you anything because it's absolutely undisputed that after the incident there was not but nobody shall hold that but i don't think you get past judy i mean you've got two prongs but that also highlights the significance of the question of whether there was a rubber band again there i would respectfully submit that there's just no testimony in this record that would allow a fact finder or anyone to come to the conclusion based on any thing other than raw discussed work on and the fact that you know there's this other requirement that there be a contract remain a statue a voluntary undertaking or some special circumstances and it's pretty clear from the cases they don't just mean for c ability and that's involved  something else the only case that really addressed it i think was the was the miller case where the plaintiff's attorney at least made a phone call and said hey can we get a file a lawsuit that can you hold on to those x ray force that we get ourselves  i've let me let me just go to if i could to the it's this idea that the doctor his testimony was sufficient itself to discuss this with with mr record that's the question that's a good question because if you look i think it kind of ties into what i was going to say and that is that you know contemporaneously all he said was i slipped to try her law it know if it was a basis of choosing inconsistent testimony i would say yes if it's a i'm just i'm suggesting that you take the whole the his whole body taken that seriously in the brief as i see it because i don't think it lends itself to i think a loss you know try to get someplace with my lawyer told me to do this and th a jury yeah i'm not suggesting that he's lying at all what i'm suggesting is that if you just take his testimony where he said it in don't forget he'd already filed this complaint where he said he slipped and fell and he h my he'll all hit this fold it went flying backwards would that be enough well then we laugh with the distinction between i would look down and saw it and i felt it cross examination well i because you know you could certainly argue that it may be very persuasive sweet but it's also the circumstance where if someone had this horrendous horrific fall which none of us in this room dispute including you that maybe your first concern additionally will be oh my goodness i'm a quadriplegic and not to describe for purposes of  a what they call premises liability are not sure these are clean cut distinctions but that the defendant hit actual or constructive notice of the dangerous condition that caused the fall well they say premises liability stands here on the basis that the hospital is the one that in for deuce this hazard the you think that there's at the satisfied back requirement simply by saying they put the car therefore they're going to be liable without putting mats in there particularly single man rather than putting restrictions restricting the man to the elevator that was on the air what about that why wouldn't there be a claim of negligence based on foreseeability everything first of all it is we all know the expert cannot create the duty that that's an issue of law so what what i what i believe the fundamental issue is is that why  saying that during my work day over here on my side inside my barricade when i occasionally have to move these two thousand pound weights across the the rug to test the elevator i had a problem that's than there is a bed if you ask me wife in excel that's a good question and there's no evidence here that any work that was being done by phoenix had anything to do with this asserted full of a mishap this was a saturday morning nobody nobody killed any work the phoenix people there who work paid mr kraus said he didn't work that friday mr guido did work that friday and he said well i don't like rolling across the me i get there i never saw fall there the whole time i work here no one ever