happened on october fifth two thousand and twelve educator memorial hospital one my client mr daniel stahl who is a farmer in macon county was rushing to see we bought was at the hospital his father in law walked over a parking lot under not reliable that was covered with puddles didn't slip and fall took the short in the bay down there are no signs saying couldn't take that embankment down he had been there before taking the same path it was the clearest path to the door of the hospital on the lower level of the parking lot he stepped over the curve took a couple of steps in a puddle and suddenly he has feet flew out from under him he was completely clean and dry when that happened he landed on his had neck and back and when he got up he was covered with mud on his entire backside from the top of th case the circuit court and a summary judgment for the hospital in this instance when you look at a lot of summary judgment you see some of the most and bad language i think we see on appeals it starts out almost every how of course court case says that summary judgment is a drastic means of disposing of litigation as a result the movement needs to show a clear right to judgment that is free from doubt the facts are construed strictly against the movement and liberty leet in face of the nine movement then the most  discretion everybody gets to put their trial court hat back on and go back to the beginning and it's not bound by and of the findings of the circuit court in this case we believe that if you look at all of the facts here in a life most favorable to mr starr you see there are several areas where there are material issues the fact that should be tried by a jury so in this case we're requesting that  this instance basically relied on four different arguments why they believe that summary judgment was appropriate the first element is proximate cause both  that he stepped into he did not see that there was mud under the puddle he took a couple of steps in the puddle and that's when his feet flew out from under him it's very important that when he got up after being completely clean he was covered with mud on his entire back he stated several times journeying his deposition that he assumed slipped and fallen on mud testified he's a farmer he testified he was walking on mud all the time that he knows what it feels like when you slipped on my and here in this instance he said i assume he said i never  eating lunch an ad for wendy's restaurant she was finished she picked up her tray she was walking to the trash container when she got to the trash container she could see on anything on the floor but her legs much like slipped out from under her and she landed on her back sign when she went to get up she noticed that her hands which had hit the ground were greasy she said she couldn't smell grease she couldn't see grease but she assumed because of the grease on her hands that that's what she had slipped on in this instance in bad case the appellate court reversed a summary judgment and on behalf of the defendant when peace and remain ended the matter for trial because it found that there were material issues the fact that needed to be try by your jury again the defendant cites two cases the first at all just that it had to be something that was negligence on the heart on behalf of the jewel food store the second case was the richardson case this gentleman slipped on up on known liquid on a wal 's floor he wasn't covered with water when an employee from walgreens went to look at the area he could find no water he could find no slippery substance nothing that could explain his fall though he said he presumed because it was snowing outside that there was water on the floor that he slipped on in this case we have actual pictures of the date in question and i attached them in appendix appendix a forty three is one of those pictures where you can see that mud has washed over a per and has collapsed did by that by that parking  found to be a body of water or an open and adding yes hazard again in this case open an obvious means a person with reasonable prudence should look at  i'm not going there because it's dangerous in this circumstance what we had was a puddle on an asphalt parking lot if that was the case that that was a open and obvious hazard the person parked in the that shown in the pictures from the date of the accident could not have gotten out of their hour because they would have stepped into an open and adding this danger and this case my client walked across the upper part of the parking lot he testified and it's nobody has contradicted this but he walked through several puddles didn't slip nothing was slippery underneath those puddles what about  town instead of taking the side of what about that embankment that he took down on the way down to where he eventually slipped while his testimony was that he had been to that hospital emergency room several times over the years themselves or going to see a loved one that's there in the hospital there were no signs that said don't step on the grass when he went down he said that testified that he was careful that he saw other people take that same route that day stepping over it and when he talked to the guard of the hospital that day she didn't say don't go back up this way or go take the sidewalk you turned around and went the same way back nobody stopped them while that may be an issue for a jury to decide whether it was reasonable in this instance for summary judgment again with all of  subject to impeach him by a prior consistent statement of course but he can change first more what happened here is the trial court says no you can't change your testimony in effect because of the deposition about i think maybe that lol then to arguing two minutes it's  submitted his affidavit his story had changed legally and it was nothing to do with the dot i slipped on the ramble and that's what caused my fall there's also a site the wall within the parties no such are you know it's a little awkward for us to be doing this it was five days of it well but again you can rely on the facts in this case and the fact that they do the fact that they do create a genuine issue of material fact that a jury could look at and decide in this case with things like impeachment if the defendant believes that they can impeach the witness with a prior inconsistent statement their whole entire entitle to do that and can do that in a situation like this just looking at summary judgment all the drastic remedy of summary judgment and that there has all you have to do is look at those pictures they say that that mug was unnatural accumulation of my on the parking lot dust blowing turns into mine if you look at those pictures issue in this case where i disagree look at those facts combined with all of the other facts and determine liability in this case what are the  well that's interesting too there's testimony from the director of facilities swaying a long while that said yeah we're were really into safety at the hospital we check every month we have this detailed report their questions and that report that that family would pick up something like a problem with occur and that they do these reports monthly we do discovery on that when don't they have records august september and october three months two months before and the month of the accident here so it's very difficult for a plaintiff to prove that they had actual or constructive mounds so we're jury's going to have to decide that by looking at the mind and terminating if it was reasonable for them to leave that on the parking lot that they should have seen that it's our argument that looking at those pictures it's clear her what's going on that it rains the water washes the my over the curb magos on the asphalt parking lot which we normally walk across and don't slip even if it's wet and they could determine after looking at the credibility of the witnesses what happened to determine that they should have constructive knowledge of that and again that's so on all of these cases my priest pretty long thread for a case like this but i think we've gone through a lot of the case law there's not a single case that has been decided over that that's not where he slipped he slipped several steps into the parking lot when he couldn't see that there was mud under the face of the water the body that you can see in those pictures is actually on the outside on her now act in the puddle that and not in the place where he actually slid and again as i said there's a car parked there with the driver's door right next to the puddle where he found it we're going to say that's an open and obvious danger individual couldn't get out of their car without assuming the bridges that they could slip and fall to that says you can't walk across the grass but the testimony again it's nobody is contradicted this testimony that he did that several times in the past that he saw other people do that on the pass on the day of the accident and agent of the hospital who was on the security staff watched him do it didn't turn him around from doing that so again all of those facts show that it was pretty much regular practice and that if it was a regular practice and they believed that that was an unsafe condition after stating that that's all we are about is safety bay it would have been reasonable for them to do something that would have been foreseeable that mud he admitted he did not know what caused his fall that day he fell specifically while walking through a puddle and he assumed that mud was the cause cause of his fall because he was wet and dirty when he stood up there are diagrams and photographs here included in the evidence and part of the record the planes testimony was specifically that that diagram he did not know when he made that but it was after the fall he also testif reflect the conditions of the parking lot on the date of the fall that with this diagram and with his photographs he didn't and he did not know when he took them but then in his affidavit stated it was years later after he took these the first issue before the court is with respect to party cannot use their affidavit to create a genuine issue of material fact to defeat a motion for summary judgment with statements which are contradictory to their sworn testimony once they give that sworn testimony to deposition they can change it to avoid the consequences which is exactly what happened here the plaintiff is change his testimony in his affidavit to avoid the consequences of the motion for summ there were four particular paragraphs which were stricken from the affidavit particularly to start with there was paragraph eight begin he makes contradictory statements in there that the diagram was accurate it reflected the exact conditions on the date of the fall paragraph eight paragraph thirteen her got fourteen paragraphs fifteen were found here who were stricken by the trial court because they were conclusory and self serving because they contained a contradictory to the player sworn testimony this deposition and also attempted to create inferences of negligence which were based on speculation in and of itself more particularly in paragraphs eight thirteen and fourteen the plaintiff particularly concludes that might was the cause of this fog but he testified he did not know what caused his fa eight was it the diagram was accurately reflected the same exact conditions on the date of the fall despite his testimony he said that he did not know when he created it and it did not reflect the conditions on the fall he put in his in paragraph eight that there was dirt washing down on to the parking lot over the curb from the embankment despite his testimony that he did not know whether there were areas of dirt coming over the curb of the embankment he did not fall at the curb of the embankment he was well beyond that area where he fell he testified put in paragraph eight that there was dirt present underneath this pile of water at the time this fall yet he testified he did not know that there were areas of dirt and again that mud was the cause of this fall despite his testimony not knowing what caused his fall and that's essentially the same with paragraph thirteen and fourteen  plaintiff concludes that his injuries were the result of his fall and that d n a specifically engage in negligent conduct which causes injuries those are improper legal conclusions of the sport and saturday and for those reasons we believe did the first is that the point of cannot prove the causation element of his negligence claim in this case he richardson and ken both cases are relied on by the hospital here the point of certainly notes in his argument today and in his briefs the factual distinctions in these cases however the law still valid those cases hold that if a party cannot identify the cause of their fall they cannot prove the causation element of their ne in the plaintiff it testified unequivocal in his deposition that he did not know the cause of his all he assume that mud was the cause because he was wet and dirty when he got up from his fall that's based on conjecture and speculation is improper basis to establish liability all the richardson in kimbrough cases granted summary judgment for the same reasons both were dismissed for the assumptions of the plane up and not knowing what caused the fall nor complain his affidavit which was properly served in here to establish the cause of his fall he can't create this genuine issue tiriel fact based on improper conclusions in statements which were contradictory to his sworn testimony hospitals relied on the issue case which holds that the plaintiff has to prove that a fall was caused by a condition in on are related to the fall area and attributable to the defendant that is that the defendant was directly responsible for the condition or the defendant had actual knowledge of the condition knew of its presence or that the defendant had constructive knowledge of the condition that the condition would present for a period of time such that his presence would have been discovered in the exercise of ordinary care plaintiff points out weighing longbows deposition testimony here and makes reference that there were no reports done inspections of certain areas of the premises at the time of plain fall or with the evidence is different the evidence it is not that inspections were not done the evidence is that there were no reports from that time frame however there are vendors and the m h person site daily looking at the prin deposition testimony was clear that there's no evidence that the mh was directly responsible for any condition which causes fall and there's no evidence that d m h had actual over constructive knowledge of the condition which caused the fall there's specifically no evidence that the parking lot in the embankment were in the same condition on the date of his fall his point of has depicted in his diagram and his photographs that he first testified he did not know when he took and then later put in a burman in his affidavit were years after the third basis by which the trial court granted summary judgment was based on a natural cumulation the mh relies on the crime when web cases the show that landowners have no duty to remove natural accumulations of ice snow and water ahmed case in ten years on with that says that it's equally onerous to require a landowner to remove a natural accumulation of dirt from their property here there was a natural accumulation of water a nd the rule in natural humiliation cases is much broader than just ice snow and waters evidenced by the amik case the parking lot was way it was a rainy day outside there were puddles on the parking lot which the pla walked through that's a natural accumulation of water nothing prevented the plaintiff from walking through these puddles of water and he fell while walking through a puddle of water also this is an open air parking and an open obvious condition is a condition where both the condition and risks are apparent to unrecognized by a reasonable person exercising ordinary perception intelligence and judgment in persons who encounter natural errors using open obvious conditions will take care to avoid any danger inherent in such conditions as the open obvious nature of such a condition confers warning again the parking lot was wet it was raining out that day there were puddles of water on the parking lot which the plaintiff walked through and not around he specifically chose to walk through those poplar puddles he chose to encounter the open obvious nature of those and by that we need to be concerned or sure trocar have been concerned with options available  center of the parking lot which the plaintiff did not take is that important for be open obviously that was well that would be an option for him to use it is opposed to choosing a potential danger in going through  through an argue that there's no case like this point where you heard the argument is there one is far as open and obvious this i don't think particularly other than the fact that the law is the same for many of these issues yes it does apply to water ice snow natural accumulations of dead bodies of water for that matter now this isn't a body of water it's clearly a small holl water that you chose to walk through and by doing that he troubles to encounter any danger which would have been posed by the puddle or anything within it in for that matter he's done the same with choosing to traverse  so for these four reasons the trial court properly granted summary judgment there was no genuine issue of material fact on these four bases in summary judgment was appropriate as a matter of law in the trial court should be affirm remember that because the grass of sweat so i took it slow across that and then i was walking on past you know after i had gone on to the blacktop and then next thing i know there's water there which there was lots of water puddles there and i just was walking and next thing i know i went straight back when i got out i was just covered with mud i was walking on the blacktop i was walking by the cars where i actually found him far on the embankment while the mike may have this part way no signs point to it walk only here on this but lots of other people and there's experience both my client walking down way his seeing other people walk that way and the hospital's agent a security guard whose job it is to say don't do that that's not safe watch them do it and didn't find those are all facts again that a jury could look at in a scribed way to it but there's a genuine question of material fact in relation to the judicial admission i have to admit it's a fascinating question disputes the question of whether the stoplight was right or not and the plaintiff doesn't have to present evidence in back regard in the defendant can't show up and say oh wait a minute wait a minute i totally changed my story on that especially has it as it has to do with summary judgment in this case the complaint says i slipped on my if you read my client's deposition he says it several times in support of that so he never took that fact out of of consideration he can present evidence concerning that and again court pointed out he could be impeached did you say this at your deposition and that goes to weight not whether there's a question of material back therefore in this case even if you looked at it from that that perspective and not the simplistic one that obviously the child court and the parents used that it has to be a complete change that's not a reason to say mr st continues to lose in this case there are facts here that need to be tried to a jury the jury could reasonably find in favor of my client so we would request that the court reverse the trial order and rema