whole giving meaning to each paragraph sentence clause and work nothing should be rendered meaningless nothing read into it that is not expressly articulate and there are seven words over looked dismissed and rendered meaningless in this case except as otherwise provided by this article three section one of two clearly states in those first seven words except as otherwise provided within article three as a result an analysis of miss ministerial versus discretionary acts is only warranted if the plane when which of that particular section and the entire act is this regard by one completely disregarding those first seven words or alternatively by reading in or adding the word ministerial article three section one zero two a the common law duty and then setting for the exceptions there too so we look first three gosh want to and if we look there first and note that there is a duty we then have to take into account that entire section in each word lea d and so there's two things in there the except is otherwise for vida by this article but also the fact that discretionary ministerial is not listed anywhere in that section and so it's sort of box against plain reading if we court should find contrary to the plain language there is in a need for a ministerial versus discretionary analysis i believe that summary judgment still unwarranted in this case because there's a question first of law as to whether an act or a mission related to the prepare a public property is ministerial as a matter of law and in that instance we have to look at the common law or definitions ministerial because ministerial does not duty to keep that improvement or public property in good repair and that court said that such a duty is not discretionary it is purely ministerial and that definition has followed since in the two hundred years since then  throughout the case law obviously when the legislature enacted for immunity acted they did not articulate the ministerial definition i think which articulate said they meant with respect to public property  versus even in a common law definition a lie  the rector opinion which the appellate or in trial court both relied on significantly and in that case there was a waiver and that's something that i've seen a lot throughout the appellate opinions where the parties on your versus ministerial and so that's the other sort of side of the point when there's there is the use of the public property there is often a waiver or an overlooking by the parties the actual language going back to the ministerial argument as a matter of law i want to just briefly mention that it and its interpretation in terms of how it can't be found to be a matter of law because that essentially would result in repair work that into their i don't believe so and i think that's one of the exceptions we have to get to obviously on is if the either under the clean reading the act which i obviously first articulated or if we get into a ministerial vs discretionary analysis and we find that as a matter of law ministerial acts are repairs and then we do have to talk about it in minimus condition necessarily and in this case although it wasn't we have a commercial district adjacent whitehall adjacent to street parking and a busy commercial street and then there's regular vehicular and pedestrian traffic and i think those are all aggravating circumstances that breed a question of fact with respect to the  and i think those are activating circumstances in and of themselves but nothing aside from that struck her view but there was cooling water as a result of recent rains from that it pulled in the be shaped oppression at issue in this case you i personally don't read it that way because it has the comma except as otherwise provided by this article and then there's the comma a local public entity has the duty and in that instance it would be an exception or immunity that would dissolve them of that duty in that instance because obviously the tort immunity act only creates new naji's and defenses and so except as otherwise provided has to refer to an immunity or defense to that particular beauty just by the playing purpose of the it like to briefly go back to the ministerial issue in this case i've talked briefly about the fact that i believe if we have to get into ministerial versus discretionary that it would be a matter of a that was made was unique to a particular public office and in this case there's really two people's testimony that was at issue mr arrington ms larson and i think both of them had sort of unequivocal stated that it was their responsibility to make the decisions with respect to the sidewalk in this instance and so when we're talking about a unique responsibility of someone's public office i think it sort of is contrary to the definition of unique when you have two separate people into separate public offices saying that there are ones that were responsible for it and i think that that in and of itself would not fall under the definition  further both of them indicated that the decisions that were made were made in collaboration with others and were some engineering department employees and cole and that it was an individual making a decision that they had a lab aeration with four separate people that they discussed the factors came to some decisions and that it was also met levy their ultimate decision depending on who you're talking to to determine whether or not to repair but there was no indication that they made a decision contrary to the recommendation additionally with respect to conscious decision there was no indication that they made a conscious decision with respect to this particular slab of concrete there was certainly  articulation that they were in there around the area there was construction project they came to different slabs of concrete but no one said that they had a specific recall of making a decision about this particular slab of concrete there was no people are no documentation no math nothing to substantiate it and with respect to that i think it is contrary to what a conscious decision would be there was nothing articulating that a conscious decision or a unique if we ignore the plain language of the staff you can read the term ministerial into this discussion then yes with respect to repairs of public property in the use of them by intended users if we go back in the case law once they improve the property meaning they create a sidewalk it is their duty and they cannot discretionary really get rid of that has a ministerial duty that they have to keep those sidewalks in good repair and that comes from the common then something that they just see because it was de minimus it's possible but we do have the photos in this case and they say it's hard because they said they made a decision and they obviously were looking at the sidewalks in this particular they said that they must have and they made a decision about it but they couldn't articulate anything that indicated that for that had happened so there's questions of fact there but with respect to the photos that are in this i think many cases over the years have indicated that when you can look at the photos and intel that that condition did not arise overnight that obviously happened over a period of time you can infer constructive notice and i think even if we didn't sort of ignore their testimony that they obviously had looked at this is a slap at some point i just couldn't recall there is some constructive notice elements in this case in that you've got those photos you've got a sla over a period of time you've got people doing snow removal in this particular area that was testified to in a regular basis they were doing it beautification project that required dozens of employees in this particular area and then you've got the construction workers in this be i don't think it makes a difference based upon the plan we wish but he was making decisions in conjunction with three others who had already are articulated and it wasn't necessarily where and when in this particular instance they had determined they were going to do a sidewalk project so it was just determining the specific pieces of concrete at issue and he made that decision in collaboration with three others that said he was the final arbiter but miss torsen also said she was so there's a question of fact as to whether or not that is actually the case produces the outcome the plaintiff desires and i'm going to address each of these arguments in turn this morning under the strict c action henri construction analysis plaintiff contends that a comparison of the preparatory losses where there won't be a duty it doesn't have anything to do with her being a munity or saying that the immunities from section or article two to a case involving a three one to be of care now  we submit it's not this the strictest statutory construction argument actually presents an instance of deja vu for the court because this isn't the first time the court's been presented with the sergeant the this this language has been in the act for quite some time if it were getting there was as a matter of strict statutory construction and that's been happening for some time now this is not new language the same argument was submitted in conjunction with the briefs to th it is a look at this i wonder whether there is a merger of the two arguments both the statutory and the minister of vs discretionary three one zero two sets forth the specifics that apply to property maintenance that go in they go into it goes into a lot of detail about the exceptions to the duty based on but of constructive notice cost benefit of the inspection process ministerial you heard it today stems from he saw it's been interpreted as there are pieces from this court including this or that say that whenever you're adopting that as well as a line if he says that talks about it the cautions against casting everything is discretionary but inherent in any public act is always going to be some element of discretion so and and exceptions i know it's not a mutiny but it's exceptions to where a duty will be there wouldn't wouldn't looking at the language of that statue what would when you look at it and say the exceptions to the duty would not make you think that but for these of exceptions you have a ministerial duty if we get into the ministerial she has a second way of going that is discretionary versus minister and the fact that the duty has delineated exceptions why wouldn't the whole maintenance property maintenance issue be a ministerial situation i think we're talking about apples and oranges to some extent because it's i call three one two a duty provision and yes there are exceptions and those are so that can't ever be an immunity versus to throw a line it's a different question whether or not whether or not a duty there is a duty is something separate and apart from whether or not an immunity applies that's right command but to t through to a one to apply immunity every minute there has to be exercise of discretion who cracked and i think i would disagree with the notion that it repair and maintenance is always ministerial it's not in fact a policy decision that's made not to fix it one could ever be a liability i think this goes into their argument that if we continue to interpret to a one the way we're doing we're going to have this surgery duty i think that's what we're talking about now can you give me an example where there would be liability well there have been were there where there would not know where they were but what can giving him an example where there could be liability to play if and when if there's actual constructive notice of the dangerous condition on the land and the city's chose not to fix it when will there be liability when the decision when there isn't a conscious decision made as to the particular the fact when you can't satisfy the qualifications for discretionary acts or a policy decision that's the standard that's been put up and our position is it's those are real certain how those are real obstacles to getting to to a want to unity it's not the it's not a cakewalk for me to say allergies just come into court up there and there was no deposition of the person who allegedly made made the discretionary policy determination the court's on the backs of we don't have the evidence here to show who made this decision what factored into the decision it got sent back i mean that it you know there snyder there's the granite city case there have been cases where we're going to see how these do not get to to a want to unity and i think the notion that i think some of what's driving the some of the policy arguments on the other side here is this notion that courts are just rubber stamping approval any time a municipality invokes to one of unity they're going to get it and that's just simply not true i haven't seen or her and you won't see it in the briefs any wind if he saw that's been cited for this notion that courts are very weak perception if you will of municipal employees in general that they're just going to sit around and say oh well we don't have to fix this because we can always find somebody we can put up for a deposition who will see the magic language in the cases and  to unity i mean i don't think that's a realistic picture of all of what's going on here i don't think the gloom and doom scenario that you've heard about this for swallowing up the beauty is in fact accurate it but the other side let's let's consider the are the exact types of lawsuits that they frequently face we're going to take discretionary munity completely off the table how will that be and keeping with the act at all and its purpose was let's put flesh on this if if the public employ we spent a lot of time looking at the language of three one or two but to a one says that in the exercise of discretion is not liable for an injury resulting from his act or omission and term policy when acting in the exercise of such discretion even though abuse right when you're talking about whether or not a man and he would be rubber stamped i mean it's not a real tough standard when somebody make this employee makes a decision he even if he abuses you those exceptions did you read the exceptions and one or two yeah i looked at the exceptions do the exceptions apply no they don't apply what happened well i decided i was going to do it it's my call i'm an employer i saw it i decided i'm not going to do it even if you look at all bad and he abused his discretion you're still in trouble to a new community under it under your e mails so right that's right that is right because have a duty under three one or two and still under the right circumstances there can be an immunity that applies and i mean and backing up a little bit i mean again i didn't hear the argument today but it certainly in the briefs and what i thought it would be a complete departure and reversal of course if we were to say oh well now we're going to look at the slaying wigan again in all those cases it ended up being dick as as we pointed out or it wasn't central to holding or some other immunity provision came into play such as important for three one zero five human to play but you know i again i think the notion that that two to one is slowing up the three one on t v isn't a realistic picture that's being painted for the that public officials make that are separate and apart from what's occurring and three want to go to where it would make sense with respect to the official supply and discretion and maybe that discretion and get them getting them out and they'd be immune three one zero two does have you know some exceptions that they're not called immunity but under those are exceptions the municipality would be out you know not having constructive notice doing to an inspection a reasonable inspection of the property they have ways under three one zero two it's not just like a you have his duty do it i mean there are some ways in those exceptions when we talk about two to a one being thrown off the books i mean it would only be with respect at least as this case goes with respect to three one zero two there's other instances where two to one is used outside of the absolutely and here we have pictures on the record unlike most of your cases somebody actually thought what a ruler up against this thing see you got pictures on the record with those who were up against it to show what it measures which is again not what we usually find in the cases so yes that is correct thank you very much for your time and attention t something that i actually do agree with us on we've been getting with respect to this particular section and she argued that we needed to reverse course if we are to agree with my proposition and my argument many of the cases in this particular case that's not what has happened over the years and we do really need to get back to these things the defense argument would have us ignore the plain language of three separate sections of the  the second section she would have a signal or an read out is actually the beginning of to have to one she mentioned that herself or says except as otherwise provided by statute which means that discretionary manatee was not ever intended to apply in all situations there are certainly exceptions and then finally the last section which i've articulated over and over again in my argument is section three dash one two i want to go back to a question  immunity there is no word immunity in either of those sections but if we go back to the title of article two in the title of article three title of article two says general provisions relating to immunity and then article three has immunity from liability for injury or during the use of public property and i would implore you that based upon the title of those two acts or articles and then the plain language of both that they actually are immunity because they talk about exceptions and exceptions if you look at the definition of that it means essentially there's there's an immunity it's a reason that this does not apply and so we can't ignore the fact that this is an immunity provision  one of the other things that came up was i believe the testimony in a deposition that someone might be able to just walk in and say i just didn't want to and feel like it just didn't want to and counsel indicated that that's not the case but i would i made a decision and there wasn't a lot to back up that there wasn't a specific recollection there wasn't a conscious decision that wasn't anything other than it's my job and i made a decision we decided that wasn't required to public property it is the duty of the municipality to conduct those repairs and any act through mission in the course is that when someone is using the property in his intended use user and they have notice they are liable for and that's part of the reason why it's sort of a secondary argument there is that repairs are mysterious they don't get out of it by having a decision it's something they have to do they have to keep people safe and they are not accepted from that based upon the plain language quite simply close off a section of sidewalk if they deem it to be in need of repair and they can't get to it right away same as a building same as any other public property and closing our public property and closing off this particular small section of sidewalk was completely free so on its face that public policy argument fails and unless there are any further questions i would just wrap up and implore you