think there is that like a chip in the stairs and then a lump in the stairs what's this sort of issue that we're talking about it was a black anti fatigue mat that is used for the question is that final judgment it is up to me you to demonstrate that this fact constituted negligence the question is because of the circumstances slip and fall and you show credibly that that was for cause and then in new york the burden of showing that this was here does not mean the same thing as a defect in a product liability case all the plaintiffs as far as i can tell in new york as to show an accident happened and  hutchinson is it not the case that there was some form of irregularity yes and the rich irregularity yeah and hutchinson actually cites a case involving a day of temporary dance floor that had a difference a differen there's pros were taken after the fact and demonstrate the black man on the black for now those don't match every yellow borders which was a change they made obviously because it and the used in your in your response you opposition to the summary judgment a string of cases prior them were small defect condition is actionable because locations such as a parking lot or premises entrance exit have traveled walkway a place where pedestrians are naturally distracted so here that's that's so we have we have a situation where she's not there checkpoint she has only one way to go she has to go off that conveyor and go into the into the where the gates are and  was an obstacle in her in her path that should not have been there because it was there was no you know t s a agent service that could have been performed standing there he actually blocking the path and that she's helping with the luggage which which was not which is described in some of these cases of you go through the checkpoint you put your roller bag on and you start you start to wheel it away and there was something basically or you say that having this here that is enough by itself to put the burden on the defendant to show that it was trivial well i'm going to i'm reading rich hutchinson to say  was what caused the fall yes what happened was the way she testified was that she felt something get caught she didn't know what it was she fell on her face and she was bleeding she saw them out there then pursuant to an inspection of the scene we took photographs and then she identified a later date well those those look like the match that that were there maybe maybe it's another point about how we are to use this testimony but she says i did not personally inspect that area right because she was already on the bench towards the the boarding gate we had a videotape of the of the incident which they said they were taken don't worry misc while we've got it on videotape then we wouldn't be here and if they had an insurer port we might have named some witnesses but it's really her story her companion didn't actually see the actual fall she saw on the floor and she saw the luggage there she figured she tripped on the luggage but she was not very helpful if you get a judgment that  burden comes to you to show that this thing was negligent that is at trial the burden is yours to show that leaving this that there is negligence and if you do not show it adequately nuff the court may direct a verdict against you that that's a trial as against at the initial stage what both a promise facia case showing the condition was not only physically and significant but that the characteristics of the condition or the surrounding circumstances do not increase the risks only then does the person ship to the the defendant dimensions it's an issue for for the trier of fact and we don't have anybody that knows exactly how thick that was matt is there guessing it was a little bit less than an inch we don't have photographs of the actual scene which we thought we did because they didn't intern reported they had a video and and that's why i believe this is just a fact and legally intensive and we should have a trial on the marriage thank you properly granted summary judgment in the united states favor fails to demonstrate that government negligence caused her injuries look let me be quite blunt do you have can you find me  single new york case in which when somebody has a slip and fall and said vittie slipped and file because of a particular reason judgment was given at that stage four of a defendant because what the plaintiffs showed was not sufficiently something wrong as i read the new york cases and i've been reading i'm a long time what they say is when somebody says and that's a question that the slipped and fell because of a condition well the cases use were defect the moment we save that the burden shifts to the defendant to show that the condition was trivial at the time and then very often judgement is given for the defendant because showing trivialities are relatively simple thing the problem for me in vickery's is vitor is no showing of triviality at the time the defense only came in with things five years later if they don't show triviality at the time as i read the new york cases it vend goes to trial but then the burden is on the plaintive to show negligence and if they don't show that the wrong was serious enough you get summary you get directed verdict but at this initial stage the new york law is they show that they fell you have to show it's trivial and can you cite me a single case where the defendant wins because what the plaintiffs showed was not enough that they are staged and that's you know i t's not that i particularly think that sensible laws are not up but just that if this case were in new york as i read it it comes out to get by this for years and there is a distinction between a single case in which on vat ground the defense wins you know you'd think you'd have hundreds of them in new york where somebody falls because what vague there was not sufficiently wrong but all the cases in new york i pleased i haven't found the case that we're somebody slips and falls there is a a judgment that what they showed was not enough there are mentions of cases which show in fact i've written several summary cases where when the defense comes in and says it's trivial that's enough to be trivial but there are cases your honor and there are cited in the united states brief fourteen dollars fifteen  his burden of trial they have been granted at the summary judgment steed your honor and here the distinction is we have a format on the floor in point of points to nothing about that format other than its  involves three consolidated cases each one of the plaintiffs articulated a defect that's exactly correct your honor so in hutchinson you have a piece of metal that's protruding from a sidewalk you have a nose that's missing from the front of a stairwell where a person might not be looking down or you have an unspecified bump in the middle of a stairwell there's no he's at least in the context of such and similar it's predecessor cases where all the plates  one of those cases the panel the appellate division of the new heels never had to grapple with this issue i think that's correct your honor what was the defect so called defect in it i'm sorry your honor that's the dance floor case somebody slipped but here it's not it's it's not that there's anything wrong with the format in of itself it's point surmises that she fell as a result of her suitcases interaction with the format as a result of her going through the t s a security screening checkpoint and as hutchinson states you have to look at the factors surrounding where that defects were there could be an argument that she didn't say adequately the chief filled the floor of the man that's if if we didn't know why she fell that would be different the question is is her testimony i not immediate but after i fell because of the wheels got caught in the man enough to get to it wouldn't be you wouldn't have you sure you wouldn't be here in this f t c a case that's tried directly to the bench every everything is credited with respect to fell everything is is credited with respect to there being a mat and it was the interaction of the mat and the suit case that caused quail to fall and respectfully there's nothing more to be done giving credit that a mat existed on the floor that it was a t s a mat and that it was the interaction of the mat in the suitcase that caused her to fall with respect to a videotape or any sort of incident are these issues of this burden shifting issues do you agree that those are binding on us  there is a southern district case where vasquez which is headed by that the district court which suggests that the procedural rules of federal district court would go to  the burden shifting and as a result the new york state rules with respect to burden shifting it becoming the defendant's burden to establish th a trivial defect would not apply