person and i am the one of the attorneys for the appellant susan reach out to oh yes the court is aware that they were asked the the court to reverse the summary was in a protest rain walkway and subsequently as a result of that she suffered a fractured leg now the most and to compel is very interesting in this case because it was not it was never comply with by the district the order stated that it was to be produced by the summer of six of two thousand nightrain and just for reference cutting out for anyone other than me yeah yeah you know i thought it was me the answer i do have knowledge of it the employees there by another person and i'm not sure who that person was so based upon that particular aspect of the death of this and it is clear that the district at least based on ryan flanagan had knowledge that there was a dismissal but is available that for some reason was not produced to the plaintiff in this accident so this is the evidence this related to this particular most insecure pale that the district was required to produce an affidavit and that no but it was available no longer in the plain of elites of that time and continuing throughout the discovery that the district was privy or at watch this no foot is that the plane that did not have and that's one thing in terms of this that point now this this dovetails into another reason why the summary judgment was improper which is typically the standard is that a genuine history of material fact is grace that there was no additional but is available we now know based upon flanagan mr solana again that there was that this was evidence that the trial court did not consider and the standard for the summary judgment granting of a available to answer any questions related to the case law or any questions the panel may have about that but in this case this is a very straightforward case where this grandmother was watching her granddaughter attend  to participate in a track meet and was injured and believe that it is in the interest of justice that this goes back to the trial court that is reversed and vacated thank you thank you very much mr person i will ask just shostak do you have any questions that you would like to ask thank you yeah i do have i do have a few questions just to clarify your position so you're indicating that prior to the defendant and indicating to you a video by december th and then that was never followed up with is that what you're saying but you know that i got to clarify based upon the admissible conversation deposition with mr flanagan an actual deliberate intention to cause the harm or you know if it's not intentional your disregard or a conscious disregard for the safety and how are you going to prove that when the testimony if it at the depositions is they were not not made aware of this condition how it how are you going to get past thirty one million sixty three thousand one hundred and eight because it was it i know i hear what you're saying it's still i'm still wondering even if the video was produced and it shows as i think the one witness said there was a pole vault why there i'm struggling with you know notice and or and you know with a deliberate or just total disregard for the property for the safety of others i mean but i see what you're saying with the support i can count and i will talk to your opponent about that as well so thank you for for answering the question i think that's pretty much all i have so your position court to rule not all the negative in terms of the exceptions those are addressed but frankly that that's true that this this particular ruling was premature because all the evidence was not considered by the court posture of your motion to compel i mean and i'm the motion was going to go forward the argument on that motion the motion to compel had not been complied with correct single statement is a waiver i think is is is frankly is a stretch i mean it's a consideration of the written briefs and also the argument that was made only a few minutes later did anyone or something that i mean you have to this is something some case law something that was not in place at the time so it didn't seem that it would be appropriate to call a motion to conduct here here here's here's the thing is that the video i mean the why flanagan stated in his deposition he watched the video we don't know what that video so  fact of the matter is that no one knows because i'm flat against all video that the plaintiff was not privy to so it is really no evidence there that so one way or the other because i believe that video is very critical to the consideration whether it's willful and wanton we don't know what happened someone could have run out there and done so i don't know we don't we don't know so i can't really speculate as to what that video would have shown other than what mr flanagan stated that it that it ok i have no further questions thank you thank you thank you justice jorgenson i have one or two mr person when was mr flanagan stephens mission taken an approximate date you don't have to give me an exact da additional tape correct was not exactly it is basically just that is that is correct to a certain extent but is also deals with a complete timeframe and forth between in this estate it obviously and the plaintiff motion to compel that pay if there is a business but it's just provided to him this is back and forth now at the time it's going forward and it does trigger from that particular day past your question the trigger for that particular day but this is something where the point of mr settle it was not a thought process that the district would be withholding evidence of the strong evidence that may have out this motion for summary judgment that was decided in november several weeks before the december motion to compel date had been briefed and had been set on calendar for argument correct yes that's correct was there any motion to continue by the plaintiff all there was not a motion in the motion to continue the argument yes no there was not a moisten to continue the argument was there an objection to starting the argument when did and my last question would be did anyone or anything prevent you from you or your co counsel from making a motion to continue the matter at least until after the december th state well i mean i will say this that you know i think is it goes back to probably the timing of this and i'm not sure if the court the i guess the court or the parties agree to have both most is held on the same day now that been said that probably in retrospect created some confusion regarding this but it still goes back to the both motions were held on the same day almost i mean especially immediately after the summer doesn't motion was held immediately after the motion to compel you know is actually on the same order a forty three and the seven  that that describes that the motion was held on that day ok most were held on the same day you notice on thank you very much for your answers and we will then for so you will have an assertion about rightly and against testimony is false the record in waverley on the excerpt that plaintiff provided the record is very clear that ryan testified that he watched the video that was produced by the district and again confirmed with her after it was established that the district did not have any additional video footage whether she was relying on the evidence saps advance for summary judgment argument to which she answered no now there's also distinguishing it from this case are key focus it she focuses on a twenty five year old case which is not only highly distinguishable but was taken into consideration in the line of cases we cite it specifically bit when the case which fully supports supervisor to meet your other obligations now plaintiff's argument which is made for the st time on appeal is that her claim is now based on the failure to adequately supervise that on the lack of security and policing but that doesn't actually save the claim because could have been there for any six significant period of time and most importantly there were no prior injuries related to the poor so though played it was arguing that a video clip showed this that still when it does show that the call was lange on for that this in this case the poll is should be considered a condition of the property the discretionary authority under the willful and want he has argued your opponent has are you and put much weight on the lack of the video minutes before the video in which he got with the would be video the video would be key to show whether or not there was notice in light of the fact especially my the fact you had one of the employees say yes that it was there well the act if you read the actual transcript  video even if the video existed and even if it showed that ten minutes prior the poll had been laying there there's also another case that was cited in the summary judgment groups and it wasn't cited it i don't believe  brief because it wasn't brought up but simply being there for ten minutes or even thirty minutes i believe is the threshold isn't sufficient to prove actual or constructive knowledge of the dangerous and or or the other indifferent he wouldn't be able to bring a solution claim in our our opinion for two reasons why he and she had ample time to bring this claim so we provided a verification and july t now seeking a motion to compel for additional video and it was to munich it it should the court during that oral argument prior to the summary judgment motion that no additional video exists and that for that controversial moving forward with the summary judgment motion knowing that it was only going to be an affidavit attesting that we don't have additional footage it was it was more of a compromise between the two parties just to resolve made by the plaintiff that she's not relying on this video as you're going forward with the motion for summary judgment your question i'm sorry could you repeat it well here's the gist of it if plaintiffs make their representation that she's not relying on what may or may not have been in the mistreat video shouldn't the trial court be able to rely on their yes absolutely i mean that's the very reason he asked that question and then the parties agreed to move forward with the summary judgment motion well let me ask you this why so we had all of those attending and my co counsel actually went to argue i believe the the hearing was the next day or two days later so we didn't believe that the judge would be able to read the arguments representations that no other video existed the trial court still allowed the motion to compel didn't it yes did it cite any of your concerns in issuing that motion to comp argument all right now this this track meet was being held in what's called a field house in the briefs direct and i assume this field house is somehow on the campus of plainfield high school this is essentially the school's uneasy i'm ok so is council's argument is that it is actually maybe primarily an educational facility and not just a in extracurricular events but also from i believe it was after two pm on weekdays and then throughout on the weekends it was nice for other recreational community but in korea is if we take your argument literally that the track meet hadn't started yet i think there were about ten minutes left before it was to start and nobody had yet been injured are you not scheduled to get began for another twenty minutes somebody actually has to get injured before the before the the school district is aware that there's a problem correct so if somebody got injured by that call after misprision oh she just gave him or her kind of grabbed her her grounds does that make any sense if somebody is injured when someone can see this pole on the mean one can make an argument for negligence if someone had actual or constructed notice of a dangerous condition such as being left there with then within a reasonable amount of minutes it's not sufficient even under the negligent standard to show instructed not to show constructive notice all right thank you very much now mr person do you but the most important thing i want to the court obviously the panel to consider is that what we have here today is that we know there is a video that the district did see and we do know for a fact that is something that the plaintiff did not state and in terms of this be the start since essentially that is premature because all of the evidence was not consider what respect to the arguments regarding the court of unity again be critical to a case that had been proceeding for two and a half years and as was stated the order was in place motion to compel the court found that it was worthy to proceed in again with ask the or none thank you sir nor do i think justice jurgensen i have not i i believe at this point i will i will also follow suit and we think you for your attendance at this these strange oral arguments we will issue a decision in due course and this case this court will now stand in recess to prepare for a next argument to mr kaplan it's you go on line which you briefly explained the delay to counsel will him thank you