our fifth case of the day is smith against the united states despite a genuine issue as to why mr smith fell off a stool struck his head while he was in the custody of the united states marshal service in january twenty third team that issue is material and it's very much in dispute mr smith testified clearly and unequivocally that he fell because the stool that provided to him by the marshal service was broken if that testimony is credited and it has to be credited at this stage in the proceedings than illinois law possible that some other inmate work some mischief on the chair inmates are certainly known to take things apart in order to make weapons how do we  rebut as a matter of law the grace absence in france so in illinois the defendant is permitted to introduce evidence that it was not negligent or that some third party was negligent even where race applies so i think it's quite unlikely in these circumstances that an inmate in a cell with permission of the marshal service and with his attorney on the other side of a wire screen would be likely to tamper with or you know disable this stool in a way that  nobody would notice i guess it's possible it's an argument i think the government can make but illinois courts have held that ultimately i think that terminations goes to the trier of fact and that's the mets case from one hundred sixty five in many other cases  noticed that it was missing bolts and that in fact it wobbled when he put weight on it so i think it's a natural inference just to say that there are there were bolts are there should have been bolts but they weren't there on the day that he fell and mr smith also testified that he returned to the interview rank several months later and noticed that the stool at that point had been well that the government disputes that that's a genuine issue that i think has to be resolved the trial itself for purposes of a summary judgment you know there were there were no card inmates patted down after they leave the room i i believe that there was testimony that it was not i mean it was used for you know in major pretrial detainee an attorney conversation so i think i think it was  not but i don't know the answer that for sure again i think that ultimately just goes to to the reasonability of the inference of the strength of the inference i don't i don't think as a matter of law or undermines the inference ultimately i think it's important to realise that both under illinois law and under federal law which governs the summary judgment procedure mr smith doesn't have to prove beyond a shadow of a doubt that that race episode would apply he just has to introduce confident evidence from which a finder of fact could as a matter of law  make the inference and i think i think he's done that you know first of all it seems to me that it's uncontroversial that the government had control over this stool for purposes of the doctrine the government exercised vastly more honor but but in other cases where the race epsilon twitter inference has been held to apply the level of control that's required is far far less ultimately this as the illinois court supreme court has said it's really a question of duty was the defendant under  duty to take precautions to prevent this kind of accident from occurring and here it's conceded that the government was you know it was under a duty to the plaintiff and in fact a government purported to inspect the room for that purpose so so i think i think that element is satisfied in a very straightforward way second i think it's the case that this kind of accident is not the sort that ordinarily occurs without negligence again the question is really whether it's ordinarily the case not whether it's always the case and that's true as a matter of common sense it's also true as a matter of law it's true in the robinson case which was cited with approval by the illinois supreme court which has never been disputed as good law by the defendant in this case or any other case of which i'm aware and which is consistent with a vast body of law outside of illinois ultimately i think unless the port has any further questions i'm happy to answer them but will stand on the briefs and ask that you reverse the judgment in this case for a it please the court i'm kimberly klein representing the united states the apple in this matter i am going to start right out because i think trying to figure out how this case is materially different from the robinson case mr smith set down in the chair that the pendant supplied to him by his accountant tipped him went to the floor given that this was you know the government's stool and the government breaking of the store the fall from the airlock it's a store in a prison if there isn't a stool under the control of the united states in the world right still in the prison is the thing most popular control if you our house yes and to enter the room you did have to have gained access through the marshal's absolutely so are inmates patted down when they exit the conference room i do not believe that information is in the deposition and he certainly hopes not because he's having confidential communications in that location you also asked how the seat was connected and unfortunately the record is woefully deficient in explaining that in this case mr smith testified there were no holes when he looked up piece on awards and he doesn't ever establish that there should have been bolts oh  fasten it it is and unfortunately there is no picture a picture is worth a thousand words and unfortunately that is not in our record to explain to you how this story is actually a tap attached it swings against the wall and swings out it's on a hinge it's on a hand with a metal pole the seats it's on top of the metal pole swings away from the wall to allow handicapped access is how as it was it was explained on marshall's yes set you also asked the question about i believe counsel said that all he needs to do is provide competent evidence from which a jury could make the inference that race apps i should apply were here however by the defendants who testified that they performed inspections who testified that inmates have used the stool for years since two thousand and five when it was installed without any incident but for this case they needed new inmates continue to use that still to this day there are no further questions i ask you to affirm the district