record these proceedings today had noticed that an issue that involved tar in a crack they had been advised to fix the issue and they ignored that advice jeppe federal and the parking lot on august thirty and fifteen the nards is the only remaining defendant but just to make this make a little bit more sense i'll let you know there were two other defendants that settled the briefs referred to defendant roads concrete construction they entered into a contract with menards on may th of two thousand and fifteen to do repairs and that's significant because the date of that contract is three months before the plaintiff fellow at the parking lot so roads concrete construction was was retained to fix some known problems in this parking lot the other defendant was effingham asphalt they appendix of the appellant's brief on page ten of also included in the appendix the table of contents for the common law record and i'd like to point out that just the table of contents issue of foreseeability and notice just like even though you know there's a lot of the luminous material here the law is pretty clear would you agree that the issue here is whether they had a and whether there was a breach in the breach there has to be some foreseeability or notice menards certainly iran certainly so if the notice and the foreseeability the notice issue is actually pretty clear cut i can i can address that right now but page nineteen of the appendix contains the arguments in the lower court and i was discussing with the trial judge the issue of notice i said if notice is an issue there is very clear testimony that there are car corrall people who work for men are and are in that the senate the every day every single day notice is an issue the lower court said good point you're right let's assume that's correct and so the plaintiff's position is yes notice notice would be an issue for see ability would be an issue the court should go through a duty analysis but when the issue of notice came up the judge said you're right they've got notice ruling and how much time was there between the time the job was completed and your client well about three months and i have to point out the the job being definitively known is that representatives of the other defendants recommended to the menards people that they fix it they recommended you need to do something about this now i am talking about this that let's call it that your client that well are you talking not generally about the parking lot well it's about the parking lot and portions of the parking lot that were not routed there some of the important deposition testimony great cabs i think have asphalt looked at the parking lot before the incident happened he told the manager of monarchs the material in the parking lot would come loose you gave information so that the parking lot would be in a decent condition but the menards manager the client to fix that particular issue due to the cost and so we don't know exactly who who did it in terms of putting that material there but what we do know is great tabs of f e m asphalt pointed out the similar issue and said you need to fix this and the menards manager said well yeah but it's a little bit too expensive we don't want to summary judgment was entered it says defendant menards motion for summary judgment granted but it's it's clear that there were issues of fact because the other motions were denied remaining motions were taken under advisement for also have the arguments that are referenced briefly again appendix page nineteen is where the notice issue came up and the judge said good point you're right let's assume they've got notice so the order that the appendix to the plaintiff brief doesn't contain reasoning it does not contain factual findings it shows that there are genuine issues with respect to the other the other parties the only finding re it says this court behind the plaintiff's lawsuit is hanging by a guy asmer thread now that's that's not really a finding of fact that's just kind of an example of how the arguments went but the motion was heard  on that already and then the rd they argued that the condition was open obvious page forty let me ask you about this open and obvious issue yes your honor if it's record the weight versus wal mart case was discussed but the trial court below didn't really go through any analysis of the open obvious doctrine and there are references in the t ranscript that the trial judge incorrectly applied but law on page page eight lower court said it's a requirement to predict when is next with respect to open an obvious the court misapplied the concept on page nine of the record which is also page seventeen of the appendix and said open and obvious says it's it if it's open and obvious and you trip over it that's your problem not mine now if it bears repetition here that this is not a simple crack in a sidewalk is not a pothole this is what has been described as a spongy tacky clean substance that held onto cathy's shoe and that's something that nobody could have perceived the facts of this particular case how it happened was she was pushing a shopping cart back into a cart corral and then when she turned she stepped into the substance and so the i guess there are two points with the the open obvious doctor the st one is whether a condition is open and obvious and present a question of fact and then secondly it's not an automatic or to a finding of duty here we have a very clear dispute  you're and that's that's the do the analysis you're talking about yes your honor it's a similar duty you know to sin and most negligence cases but open obvious means the likelihood of injury is light because the issue is open and obvious the st c ability of injury is slight if you have something to open an obvious and usually that somebody jumping into a body of water usually involve cases where the appellate court has said essentially the stumbling point arises around two issues which are two dollars to two dollars inches when you have two pieces of concrete that come together if you've got  and that's the stumbling point of where you should take notice of that and it should be open and obvious but i think what we really need to do is to from the find the term obvious and in the way versus walmer case the court says obvious means that both the condition and the risk are apparent too and would be recognized by a reasonable person in the position of the plaintiff and so you've got you've got the the condition and you've got the risk and that's why i said this is not just a standard somebody fell on a pothole or somebody's trip in a fight on the sidewalk the facts of this case  defendant's brief and so you would have constructive notice there and we are just at the summary judgment stage here we're not a directed verdict we're at a summary judgment and the only question is is there a genuine issue of material fact and so we would have a constructive notice issue there we would also have an actual notice if you when you've got the contractor pointing out the glob and saying you need to replace this but then additionally that was after he judge with the notice issue our position also is that as a matter of law it's not really an issue at all the only reason the notice comes up as an issue it's usually  case in a grocery store or a grape falls and then the question is well how long was the grape there how did it get there and was the defendant land owner in a better position to find that great and to stop this from happening that's when noticed becomes an issue but the case law says that when the condition is either placed there by the defendant or his servants you don't even have to get into notice and the reason behind that is because when you're comparing the knowledge that the property owner had versus the knowledge that person in town or in the issue had the property owner knew about it and so there's not even a notice issue but to succeed on her claim the plane if your best proof or nearing a legend splice three additional elements that the condition of the parking lot presented a result risk of harm to customers that minerva knew or should have known about the condition  asked all had with the manager for mccarthy prior to this occurrence it should be noted that this conversation could have taken place more than two years prior to what happened here and what was absolutely stated in mr canvasses testimony is that he was trying to make a business pitch to menard to get them to hire  lot speculative at best but the more important issue is that playing aside into the stress money for the idea that this game in our snow is our problem with the parking lot and they did nothing to address that undisputed facts of this case is that i think an asphalt for whom mr kavis worked actually provided the services so to the extent that he was telling their client there's an issue because these cracks are routed that even though they created the situation it was open according to kmart it was open in obvious the court said it's easy to understand how people actually restore could be distracting so guess you're safe excuse me how is this case different than the word versus kmart line of pieces that we've seen develop in the interim way that there's two different distinctions your honor st of all we didn't we didn't there's no evidence whatsoever that we created this condition or that we had a notice of it and fact the only evidence in the record is that likely this came about because a patron ran over with their tire and pulled it out that's the only speculative evidence we have here referenced she she can't point to any reason for it and so that's the only evidence we have if you look at the don't look at the good tournament moment you're allowed to make inferences based on what's in the record and that's really the only thing that's in the record  going back to your question about that the war case the other issue here is that we had no notice of the circumstances that were present in the parking lot and we didn't create it the court talks about applying liability if it to me and for that the property are themselves created the condition here they're at there's no evidence of that it shows basically the same court outpost and it if there is parking lot we certainly didn't sell it we certainly didn't it was a part of operations i think the reason they infer it is because it should be more likely that the defendant knew rather then because it's most likely that they create the condition and not  actually excuse me donna they didn't say that it could be a situation where it's related to the operation being a parking lot is related to an arts operations i mean they routinely by the employees is what resulted in this and i don't believe that a party lies necessarily part of the operations as what the court was considering in the navajo case because there think it was i didn't say there was a restaurant as onions but if you look at the cases that was not part of the operations of that particular property owner and i think that's exactly what we have here your honor so it's more akin to those cases where the down a court done the court said no they have to have notice the notice  and so it's more akin to that then i would not agree that it's necessarily part of our operations the fact that we're arguing about all these facts don't you think i mean this is for us on summary that she said that the condition of the parking lot was visible to her that she had no problem seeing it that she was not distracted that the condition of the park why is not disputed your honor because that's not  provided so there are really no subpoena facts and you know if you look at i know that the court didn't get much in the dock and she but if you look at the army in your honor we go through every element we want every issue that was raised in our brief and he the the burden it would be on i'm the property order to protect against this type of injury so essentially mine ours once a year has hired a contractor someone with expertise in the asphalt business to assess a parking lot and perform any repairs that are necessary so they did that the year that was just fell on parking lot they use i think an asphalt under asking us to remain to present perfect parking lot i do now says that's not required probably are you not have to have the perfect premises instead i mean we once a year we do repairs review was an indication that they knew about this for two years and then services were provided i think that the inference the defense counsel wants you to draw is that they fixed the problem at issue they did not fix the problem at issue the problem existed for two years it was pointed out to minorities management menards management said we do not want to do that we do not want to fix this particular issue and so the term superior services is used sprinkled a few times in the defendant's brief and it was just used an argument there but to say that's a peer your services were provided and therefore we complied with their duty that is that misses the mark misses the point superior service and we're not provided it probably would have been if menard said yeah go ahead and fix this another question defense counsel asked was what could we have done differently well what they could have done differently is follow the suggestion given to them to fix the problem they were told basically the glue that's in here that somebody else did it's gonna come out and it's gonna cause a problem and the menards manager said well we don't want to do that so what they could have done differently is fix the problem an issue was raised about how substantial of a burden it would be now i agree that if property owners don't have to have perfect premises but they did over twelve thousand linear feet of this material and the testimony is once we get to twelve thousand and fifty feet we're down and we will walk off the job and so the burden is light the burden here was do a couple more feet do what you were told to do do what was suggested to do now there's also a suggestion that this was a business page and that's just mind boggling imagine boeing with their seven hundred and thirty seven dollars max dollars out of the sky saying well that was just a business pitch when somebody told us that the sensors were off and that our jets would crash that's just somebody making a business pitch well that's exactly why he was there he was there because they wanted to find somebody to fix the problem they went to the property they looked up and down the property they recommended changes they told nard this is going to come out because of problem so to say it's a business pitch is  just a bizarre bizarre thing to say with respect to the donahoe case and whether this is part of operations or not we are not talking about a banana on stairs we're talking about tar on a parking lot that they knew about for more than two years happy japs didn't know about that and you can expect her to act like a six year old kid and just get over any crac sees they knew that they had a problem they knew that they had an issue there are several different things that i want to highlight from the arguments with the lower court to show that there are genuine issues of material appendix page twenty is what i already referred to when we were talking about notice when the court said good point you're right let's assume that's correct and that's not finding genuine issue of material facts appendix page twenty three we're talking about the photo i'm quoting the court here she's not going to know that all she knows is she fell and broke her wrist appendix page twenty five question was how long did it exist the court said how is she possibly going from know that bendix page twenty eight i'm quoting from the court again this is a very interesting comment and it's very telling or says why isn't that an issue of fact that precludes summary judgment appendix page thirty six the course  appendix he says he's almost as confident in his ruling that menards motion for summary judgment is granted and so there is a clear lack of analysis i feel that my time is up i thank you thank you your hon