case like to start out with that under illinois law illinois has adopted what is called the manual and uniform traffic control devices and  this set of standards applies to traffic signals and in particular the traffic signals that were erected and operating at the intersection where the crash occurred giving rise to this lawsuit at illinois forty seven and creates a road in huntly more specifically the same standards were adopted by the i diot district one which encompasses this intersection section  four deep point fifteen mandates that no traffic signal ahead can be more than twenty five six feet above the highway this is not a suggestion it's not a guidance it's a  general contractor who hired virgil cooke and sons to actually install the temporary lights that were governing the intersection at the time of the crash installed the lights at heights that were too high traffic that mr below was traveling in was twenty nine feet in the air which is three four feet too high the one in the adjacent lane which to his right was thirty two feet in the air also way too high  the defendants move for summary judgment the primary argument was on whether or not the lights being in a improper position were a proximate cause of the crash  trial court judge in his opening in decided that the lights in that position a violation of the m u t c the standard could not have been a proximate cause and specifically the court looked at the actual cause prong of proximate cause and decided that one hundred percent of the fault rested with the driver based on the fact that in the court's opinion the traffic signal was visible therefore mr vila could not claim that he looked but did not see it's our position that the trial judge in order to reach this conclusion had to in fact decide issues of fact which are more proper for a jury i would point out that this is not a case where mr viola looked but did not see instead this is a case where mr avila looked at the array of traffic signals that were ahead of him but look at the wrong one in this instance  mr vila looked in the right place where he expected traffic signals to be but instead of the functioning lights he saw the new permanent lights that were not yet operational and were covered with dark and it's our belief that the evidence in the record shows that the mis placement of the lights in fact was a substantial factor which caused mr vila to st of all look at the wrong set of lights and then as a consequence of that he had to go through a number of perceptions and searches which exhausted the amount of time he had available so that when he finally saw the functioning red light it was too late for him to stop and too late for him to avoid the crash now there are there is testimony in the record four visible that mr emery testified that the purpose of limiting the height of signals is to maximize visibility and compress guity and he said further that the obvious reason is that if a driver fails to see a light it can lead to an accident and also mr emery agree that if a red signal is too high and outside the field of vision it could cause an accident a similar opinion was expressed by dennis  in addition to that the plaintiffs offered the testimony of dr david moyes but before i go into his testimony it is plaintiff's position that just considering the testimony that was in the record and has too high were in fact it cause of this crash with regard to david noises affidavit we believe that the court erroneous lee struck the affidavit and if the affidavit is part of the record then there is no doubt that there is a question of fact proximate cause that requires trial by jury on this particular case dr noise is an expert in human factors has studied human factors in particular as to how they relate to vision how the brain and eyes work together to see and he has conducted two hundred dollars studies which specifically relate traffic sig dr noice reviewed all of the evidence in the file the multiple pictures the videos the testimony and in particular the testimony  philo the driver reached the conclusion that the improper height of the lights was causative factor of this incident what he looked at is that when mr vaile approached the intersection the lights because they were out of their normal position were out of what is called the useful field of vision that it's an area that the eyes and brain can see and as a result that was another one explanation as to why mr keeler did not see the light as he approached the functioning lights the nd thing is a concept called inattentional blindness under this concept if something is out of the ordinary the brain as it's trying to perceive will put something that's unexpected on the lower level of consideration so that it will not see an object even though it's in plain sight and dr noice opined that this was a contributing factor a factor where the lights because they were not in the right place and that they expected place they fell out of mr viola s perception in his his reactions and all of these things are based on testimony it's not conjecture it's not made up as suggested by defendants if the affidavit of dr noice is studied it shows that his opinions are grounded totally in the description mr gave of what happened as he approached the light and that's specifically  opinion l in his affidavit and he goes through and he goes through how what happened at each moment what mr veale his reaction was and how it contributed causing the accident it's dr noises opinion that when confronted with this unusual situation of lights that were covered and not functioning that mr below then looked where he naturally would expect a stop sign to be on the side of the road and when he saw that he had been recycled back in his search for cues as to what he should do back to the roadway however in that time it took for him to perceive and determine that there was no stop sign that the lights were not functioning that there must be something else he digs the limited time he had before he reached the intersection and this is not a case where like other ones where mr beale was driving negligently he was not driving over the speed limit he testified he was going thirty to thirty five it's not a case where m avila was inattentive he was looking forward he's looked for the lights he just happened see the wrong lights which put him in a position where he had to search for the proper cues and in doing so lost and used up valuable time which led to the crash so we believe that even without dr noises affidavit testimony that there is a question of fact and certainly with  with the testimony which should not have been stricken because it is based on fact it's not contracture it's dr noice applying his thirty some years of experience and expertise to the facts that this the jury should hear his testimony and decide whether or not there is proximate cause between the lights being in the wrong position and the the accident with that i will include my certainly his conduct is a contributing cause but illinois law it's very very clear that there could be more than one cause to an incident and in fact the i p i instruction fifty one  but also it was not the negligence of the defendants in putting the lights in the wrong position contributed because he ended up looking at the wrong light st it was more conspicuous that he had backplates which the temporary ones were not required to have his attention was drawn to the inoperable lights he was drawn to the position where the light should have been the new permanent lights were in the proper height they were in the area that the driver would expect lights to be so when he looked in that area he did not he did he saw the inoperable lights but did not see the functioning lights were too high and out of his field of vision so i believe under the circumstances that this is an accident that was caused by a combination of factors and not just the negligence of mr padilla did the law ever claim that the you know the temporary lights obscured or prevented proper height they would have been at least three feet lower or more that they would have been in the same plane as the new permanent lights that were not functioning so if the signals were in the same plane when v looked where he expected lights to be he would have seen the functioning temporary lights and therefore he would have had the opportunity he would have seen the lights in time to react in time to slow down he was only going thirty dollars to thirty five dollars and stopped before in time before entering the intersection so the evidence and when especially taken in conjunction with the testimony of all the other experts the other experts have said it's important the reason why the m u t c d has a maximum height limitation is to make sure that the lights are in the field of vision mr embury said that  i would have to respectfully disagree your honor what that opinion is based on is the testimony of mr avila mr avila when into a very significant detail as to what happened he said that he approached the intersection he was looking for the lights he saw the nonfunctioning lights with the with covered with tarp and based on his experience he believes that there may there likely would be a stop sign because if a light has been installed but not yet turned on stoplight stop signs are generally placed along the roadway to govern traffic so he directed his tent attention from  to the side of the road looking for a stop sign when he saw a nun he made the conclusion that this was a through highway that the lights weren't functioning that he must still have the right away and it was only then that he at the last moment as the car started emerging the ex all the light at the same time but it was too late so this is not based on conjecture and speculation ok endings are based on the specific description pictures and the description dr noice is at this intersection had a lot of things going on and there was construction i believe there were some traffic direction drums along the side of the road there were  two sets of lights for every street so there were eight lights or eight sets of lights so it was a very complex a ray of information scientists like dr noyes called inattentional blindness it's where if something is unexpected that but in plain sight that a person may fail to see it because it's not quest thank you just just organs and you have any other questions you know i think my question really goes to how does this become the proximate cause plaintiff's position that if the lights had been in the proper position if they had been in the lower position where they should have been if they had been installed in compliance with the maximum height mandate that those lights would have been in the same plane that they would have been in the virtually the same line as the new and functioning permanent lights were so that when mr vila looked at the expected place to see traffic signals he would have seen both at the same time and would have been able to see which was the functioning light and he would have had the opportunity to understand why they're there or what the purpose of the regulations are etc so your position if they'd been because he saw the nonfunctioning light if the functioning light of the temporary had been in the same place he would have seen them at the correct correct that if the lights had been in the proper height it would have been in line with the nonfunctioning lights and he would have seen them because they would have been where he directed his vision and where and it would have been within his field of vision and he would have seen them and he would have seen them in time to have stopped and not  ok and so in a nutshell tell me where you deviate from the trial court's finding where we deviate well in the trial court  i understand stood his opinion is that regardless of what heights the lights were out there they were at the proper height thirty eight feet high too high five feet too high whatever height they were the lights still could be seen therefore vila should have seen them and complied with the light and it's our position that it's more complex situation than that and that  the lights because they were in the improper place were outside of the expected place of vision and so when mr vila looked in the place where most people would look you know they expected place court just took the position look if it's all these people traveling through this intersection over however many months as we all know traffic direction takes forever but if these people going through were able to stop properly then therefore the like should have been able to see the light and that that's basically it i mean i think that the fact of other people seeing that played an influence but i think it was more of just because they were physically there's a ball at whatever height they were right about i write point and i would point out that there is testimony of a witness seven and she saw another car proceed through the intersection while the green arrow was was alumina aided and that that driver kind of shrugged and said oh my god and then continued on so that that show that other people had problems they were just fortunate and didn't have an accident and likewise there is a video from wal mart which shows another snowplow driven by mr pitt who also went through the same light and the lights and the other side a little not calques measurements were not calculated they seem to be at about the same height as the ones for southbound so there were more people who went through but but for the grace of god they did not have a crash and the double lights were not up for an extended period of time the double lights the new permanent lights were installed in early march thank you i have no further questions s not exactly sure i mean there are purely fact affidavits it would be somebody in a witness who might say you know like misfortune instead of her deposition might say i was sitting testimony of experts so some facts have to be stablished through expert opinions so if that's your question yes there are i believe two types one where an review of the evidence and his using that evidence as a foundation for those fact opinions so if i understand your answer there are no one hundred and one dollars affidavits where a layman is given the opportunity to render an opinion that is within his level of expertise that if it is a layman and not an expert then they are never allowed to g same whether you're in court testifying or out of court giving an affidavit that that your opinion still has to be admissible under under the rules of evidence so if a lay witness were to have an opinion and it was something within the scope of that person's knowledge that a layperson could give an x give an opinion and then you have retained experts who provided it fell within their area of knowledge and expertise of the trial judge was aware that mr noise was an expert or at least was submitted as an expert yes and was saying that you know that he had to testify to facts and but i know that he was aware that dr noice was an expert so i mean he made several comments to indicate that he did not believe that dr noises testimony was admissible because it was not fact factual i mean there were there are some cases that use those terms and discussing affidavits but you know for example in medical malpractise cases in the case you cited brooks versus illinois masonic hospital you know when it comes to the issue of proximate cause a doctor has to give an opinion that in my opinion the negligence of the doctor caused an injury and so ultimately that's a fact that has to be determined by a jury but it's a fact as i would call it an opinion fact that the expert says that this is a fact that the negligence caused proximate cause the injury based on the information in the record and my application of my knowledge and skill to that information gorilla in the video a real gorilla or it was just somebody in a costume it was in the video as i understand it it was somebody dressed in a gorilla costume who walk behind the two people that were passing a basketball back and forth and some cases stopped and made gestures to try and draw attention to themselves and yet i think it was around fifty percent of the people failed to see the gorilla it i mean and he says you know he isn't research in the area so it's just it was reflective as as an example of his knowledge about this phenomenon called inattentional was any of the experts experts in the area field of view and what relates to what is deemed to be believed by the camera manufacturer what a normal lenses which for thirty five dollars millimeter format would be a fifty millimeter lens i'm angle and essentially what they do the normal lens supposedly presents an image in a perspective that is considered to be normal as opposed to being distorted in some way and when you talk about fields of view for purposes of affective ewing for purposes  abnormal or different lenses the normal ones is on a thirty five dollars millimeter format and so you'll get a distorted view the eye is a very interesting computer and it  can actually filter out different color rays of light that the film will not filter out that's why you have filters on cameras so  what i'm getting at is is that was there any evidence presented as to what is considered to be a normal field if you did say something to the effect that the lights are supposed to be twenty five point six feet maximum and i think it was seventeen feet minimum and is this based upon research that indicates what a person normally looks at in so far as field of view vertically ringback as opposed to detailed explanation as to why they were there is this maximum height mr emery who was involved in supervising the drafting of the plans testified that based on his years of being involved outside the field of vision of a driver i'm assuming i believe that that you know these standards and i put together willy nilly that they are based on  research what dr noice was talking about is that there is a cone of light usable vision that for example when we read you know we were looking at a small part of the page and likewise when we're driving and looking forward we're looking our focus has a it's called a cone expands as it goes outward and that if something is outside that cone then it's less likely to be seen and appreciated by a person and it was dr noises opinion that the temporary lights because they were in position too high above the ground that they were at the upper end or beyond the field of vision of a normal person that they were approaching the intersection and what he also points out in his report is that  if someone is under pressure or has stress that the field of vision shrinks so that a person sees less because their intent and focusing harder on a smaller area which i believe you also indicates was a contributing factor here because mr avila after seeing the nonfunctioning signals was trying to figure out what what he should do and that the pressure the stress is likely to have reduced this field of vision which made it less likely he was going to see traffic lights that were too high in the air he testified that as he got closer that the lights actually got further and further out of this quo mr de lay did not testify to that but what he did testify to is that after he saw the  car i can't see many lights simply because i'm so tall sitting in the car that the roof of my vehicle blocks my view of the lights and if i was a small person where my eyes are roughly at the level of the steering wheel i could easily see the lights and so as you approach an intersection similar to my problem with having to look through the rough did not mr beat up did mr noyes opined that mr beale would have more difficulty actually seen the alternate lights based upon the fact that they would be moving outside of this that mean he did not make a specific calculation on that i believe he notes that mr vila was in a truck that's sitting in a at a higher location and i believe he effect on the useful field of vision and i believe in its full report he notes that mr vilar because he was in the truck would be sitting higher that that would cause problems similar to what you experience as a i do not thank you i do not thank you thank you thank you mr lund glad you will have an opportunity to make the puddle thank you height of the sign was not a proximate cause of an accident but it most a condition and then lindenmayer the court said the city failure to fix a left turn arrow was a condition and not a cause of the driver's decision to turn left in front of high to be signaled immaterial and substantial element in bringing about this accident and the answer to that is no there were five temporary signals there were two at the height the plaintiff demand a doesn't rely on sax he talks about speculative possibilities what kind of windshield some drivers might see some drivers might not and in fact the us position in the cab of that semi placed him in a higher level and made it easier for him to see both signals and the people travelling behind him and to his right in regular cars and given did not tell the police officer either at the scene or two days later that he was confused said this is what he said he said it's my fault i had a red light and then he said i noticed two sets of signals one covered and i thought i had the green light the circuit court and the real proof here lies in the fact that i got a hold of the plan approved the plans and approved the installation of the signals and activated the signal i got had a question about the heigh i think i've used my time but if there are any questions produced you have any questions i do think you just traffic control device requirements does not indicate that it applies to temporary traffic signals but doesn't identify design details that we've been talking about required that the top of any signal not exceed twenty five  information we have about that came from a witness forty who said she saw this chevy cavalier try to stop but couldn't and went through the red light and she couldn't tell if she did it on but we don't even know the  circumstances surrounding that vehicle and we know that the driver to his right and the driver behind the signals and obeyed them isn't this a question of fact as to whether the look could have seen the temporary signaling reacted in trying to avoid running a red light you know i think that's that's what the body of case one condition versus cause it's all about the law does not permit be able to say i looked but i didn't see and again i go back to the fact that two of the twelve seconds approaching this intersection to find those signals and i would invite the court when the argument is over to sit and count those twelve seconds inordinate amount of time so you know i think the law the last question i have is it your position that no matter how much higher the installed temporary signals were placed at that intersection it would be considered the proximate cause of this accident no i would never say no matter that's conclusion but its findings finding i think the fair bit court stated over and over again that these signals were unobstructed and could be seen by mr veale if he had looked i think that's more of a cause and fact argument and a little bit of a condition versus cause argument you know he said that there was nothing in this record to show him these were instructed he also said that noyce of the affidavit was completely speculative and he said you know if we if we relied on oysters the affidavit we would never need a witness we would just need experts to come in and say oh i bet they could see it but here we have a the illinois supreme court would recommend a firman from the condition st causes well all right i have no other questions thank you thank you  'am your argument seems to hinge on statements made by mr v is that correct in part the admissions that he made to the police officers  perception within a timeframe of twelve seconds which according to the speed limit would mean that if he didn't see them in apts time that there could easily be an accident arising out of the expiration of like the game shows on t v the most famous one was beat the clock where they were given an indication of the amount of time that they had in order to complete the task and it was a bunch of lightbulbs in a circle and so your argument to me fails to take into account the things that he didn't say which the expert did say which relates to the fact that this time frame related to a time period where there was movement in three dimensional space and there were judgments to be made and unfortunately he did see it but did he say i saw too late or did he say that i saw other things too early that distracted me your statement of what his it missions were in my opinion seem to be equivocal can you explain how his statements are unequivocal and how they establish beyond any reasonable doubt that the premise that you raise that if it's there it must be seen and therefore he is soley the proximate cause or his negligence is this sole officer that he noticed that there were two sets of traffic lights one being covered and the other set he stated he thought he had the green light i mean i think that's a pretty quick to call unequivocal pardon a statement that he  two sets of traffic lights one being covered and the other not and and the twelve nd time frame that noyce set up assumed to be to forty five miles an hour and below testified that he was going thirty to thirty five miles an hour so he had more than those twelve seconds to view that intersection a the temporary traffic signal to all five of them and bring his vehicle to a stop just like people to his right and behind him and the important thing to know about that test is before it was run the people who are the viewers are asked to count the number of turns the basketball has passed between more than two people it's more like explain things but it doesn't excuse them when you're on the road driving a truck you have to be paying attention to all sorts of things the weather other cars the singles everything that that kid in the construction pattern everything then out there you need to be paying attention so you can keep yourself and everyone else sa his discounted and really ignore the whole concept of peripheral vision or a cruel vision is big look at any wall from a distance and see how much you see dr noyes put in a ignore the fact of peripheral vision what should they have done out here based of car and his own testimony his own testimony w standard of care according to discords on was when under under section eleven real size he of illinois vehicle code which is probably the same required one label was about eleven inches higher another light was about two feet higher than the one that was thirty two feet that wasn't even covering his warning so there would not have been reasonably reasonably low so this case can be seen but as we know of course that's not the situation here and of course the driver was in a truck which puts him in a high out of place roll in what he did is the role right into this car this this is the light at that intersection were in no more than a condition they were in they were not the proximate cause the proximate cause of this was the fact that mr view did not follow along and did not pay attention to the to the signals that were very obvious to him as a driver covered so they were in operatives and he may have thought that he had the right away but as we know he did not you know the law did not give him the right away you know but this  that this intersection is changing but right now i'd really like to govern the other direction but no light to govern my direction so therefore it is not an it would indicate it would certainly indicate that they were directing his right away they were not telling him because they were covered that it was both caper him to roll as he put it intersection is fully inspected at the end of the project those lights i'm not even turned are anything but anything further than that but i think that's a reasonable interpretation that any driver would take well it seems that you and i have a difference of opinion because to me an operative means something other than being covered with a tarp if something is covered with a tarp to me it suggests that it is out of service now being out of service means it's also a it doesn't mean that it's an operative to the extent and nature that you've described which is there are other rules that now apply if this was or these were lights that weren't in tarps i might buy  argument or if they were lights that were flashing red or yellow or green or whether they're growing through their cycle i think they would be operative to the extent that at least they're giving signals they're not giving the the normal sequential signals but your definition of inoperative seems somewhat skewed to the extent that you're claiming that it's an operative because it's  covered so explain to me or at least make a better argument if you can why you think that because something is covered it qualifies for the an operative expect that they need to do things when they see the operative lights that so you're telling your kids to are telling us that this driver was negligent because he looked for stop signs  an padlocked and unfolded because he saw inoperative lights that were in tarps it would seem to me that it's reasonable to conclude that if the lights were covered with that whoever covered them with tarps probably opened up the stop signs that he was looking for but didn't see because they weren't open or they weren't there what he's done doesn't strike me as necessarily being negligent if in and that's why the definition or this discussion about it after it's a right just to be a broad one because we're dealing with we're dealing with safety at the probably we're running out of time unfortunately we're late you're making a very good closing argument to a jury i have no questions to the panel have any other questions and i didn't hear you i'm sorry no i did not george or just make a couple of points one i believe the court is correct regarding the issue of the lights being covered with tarp it's not a situation where the lights are out and i think that based on her own experience in driving that if a light negligence on his part what he is soon just the other thing with regard to duty the judge in the trial court assumed that the defendants had a duty to hang the lights in compliance with the m u t c d and assume that there was a breach however i would point out that everybody agrees that the lights had to be installed in compliance with the specification and project documents the project documents say that the m used to be cd as adopted by the state of illinois was incorporated into the agreement incorporated into the contract and the provisions were to be followed meaning that the section four d fifteen moaning limitation had to be followed counsel for ploesti did made a reference to another section regarding temporary lights but i would point out that that section does not give the maximum or minimum height but it does say that temporary lights must meet the physical display an operational requirements of a conventional traffic control signal which i believe means it has to conform with section four d point signals even though these are temporary signals they were in fact considered to be spanned where mounted signals and mr googe the person to prove the plans testified that  height in the drawing is because district one adopted a different minimum height than the m u t c d which is which it has the option to do it makes the minimum height th the rather than fifteen feet and that's why it's in the plan but otherwise mr googe testified on it quickly that the t c d maximum height requirement applies to all span wear mounted signals which would include the signals that question in question also there was some one has certain specifications that have to be followed they were included in the exhibit ten to his deposition and that document says that temporary traffic signal specifications must include appendix b and if you look at appendix b it has the notes and one of the notes says that the maximum height of any traffic signal over the highway is the twenty five point six feet and if we look at drawing eighty those notes are incorporated in there and mr jana koski said that the note with the maximum height had to be followed it was a mandate so it's a worst a question of fact as to whether or not the limitation applied certainly enough to defeat summary judgment on that  in the road as shown by a police video were not visible until a vehicle was that far from the intersection and with regard to the comment that two lights were within  those two signals were for left turn and turning cars left turning lanes and would have had no relevance on the movement of mr avila and the one that was over his lane the one that he likely would have been focusing on was a light that was three four feet too high and one should keep in mind that it's the red signal at the top is at the top so therefore it was the furthest out of the peripheral vision know other thing is counsel talked about vision in some ways that's why we have experts because how the eye works how the brain works how vision works and being as scientific subject and doctor noyce was worked in this field for thirty four years has described the limitations on peripheral vision the field of vision concept and that his report you know they were there they are statements that were put on paper not by mr veale him self but by the officer we do have his sworn testimony where he gave a detailed description of the events and it's the detailed description that dr noice relied upon and actually he quotes it in his opinions and and that's what the basis is for his opinion so that your honor i believe that there are questions of fact  proximate cause that defendants had a duty and there's evidence there was a breach of the duty therefore we asked this court to versus the summary judgment for both parties and remand this case back to the circuit court for i want to be crystal clear that i understand your position so the trial court assumes that there was a height deviation but found it was merely a condition and your position is through the  end of dr noise that the height precluded developed from seeing the red light in time that it in a nutshell  yes pretty much i mean i would say that the basis for that it's also found in the testimony mr emery and mr bila and i guess i would say that instead of the word precluded is that it caused mr vila to see the wrong light st and that it was only after he went through his checklist of things to look at that he looked up and then saw the functioning temporary light but it was like ok that's all i have thank you thank you i have no further questions george you have a question in response to ann's question i do not thank you thank you