here your colleague my apologies i've seen is a little unnecessary you know and i'll tell you one of the problems with it is that often times when you're so focused on questions unanswered and i'll go ahead and ask you the question right here and that concerns out the plaintiff's assertion i've page twelve of their brief and this is a  direct quote there is no evidence that donald and gallagher and was aware of the stairs when he opened the door and fell and that's a pretty remarkable statement to make and it may be accurate  really see and this is what i was looking for i was looking for a quote from the trial record from the well you would think that if they did make that assertion in their response of brief that you would come back and say this is this is a response to their assertion in there and i would suggest that if they make that assertion in their response a brief they aren't reading the record the way you're reading it because otherwise they wouldn't have been they wouldn't have said it to begin with but anyway my point is this that it would seem to me that it would come out stairs subsequent question is did he say that i was aware that there were descending stairs immediately to the left of that side entrance this record they say he was told him to use this entrance there's no record there's no testimony that says that we pointed it up or here here's another question i have but did your experts say that it was human nature and here's the quote for a person to take and that's exactly what an individual could have died and should have done and i'm sure the residents of that home did it every time that they open that door you can step backward into that hallway didn't say don't it that you would you would never said it but more importantly we have david hope in who's a home doesn't design the house everything is coded nobody disputes that there's no violations here this is ordinary home he said well he he was aware of the there's no evidence before they said he was active in the construction ok that's neat when the door the side door got larger can't prove that then when it got closer to the stair well he was aware yes he gave the same testimonies deposition i don't request it let me ask for clarification judge are you saying that he is an expert here and he did and in fact as my career i could be simply saying whatever your grounds for your respectfully i disagree there's an objection to the lack of expertise is over wolf short of getting into a war with the judge in front of a jury he has resigned you asked very well the objections already been overruled i see in this court questions we have will give you no question at least five minutes and probably more but i'd like to get an idea of just what plaintiff's position is so if you have some comments you like to wrap up now and i do want to ask you how door that becomes a factual question doesn't it or speculate no noted that he had alternative based means of interest you know but i'm not sure what i understand your position you're saying that as a matter of law yes as a matter oh it is one recently dangerous which we don't agree that it is right when somebody acknowledges he saw the stairs he was aware of it and they try to use the kmart exception saying this is the only way he could come in and he was ordered to do this there's no evidence of a i so i am saying is all scored i'll be like you will you will get i'm sure ample time to respond because we have a lot of questions thank you thank you as to whether or not a duty existed on the part of the home to regarding that dangerous stairway descending into the base for that was a questionable and given that it's a question of law what happens if the trial judge is confronted with a summary judgment motion saying that there is no duty and the trial judge says motion review before us even though the summary judgment motion has merged into the judgment in a sense that summary judgment issue of question of motion then we would have to enter that jagan will be as a matter of law if we find no duty of care if there is no duty i think that's certainly something you can address that's what the question is if you're asking me what can you review in order to determine whether or not in this case there's a duty now what prevents let's say we're inclined to do that what would be your best argument that that a duty does exist and of the facts of this case wide open  obvious defense doesn't act well you know i'm saying the duty itself how do you get to that to my understanding from your brief is that the experts testimony mr cook expert in this case she did have an expert that that makes it a jury question and not a question of law i don't think that's necessarily we don't need an expert i think the board case did not have an expert i believe taking what are oftentimes questions of fact and converting them or finding them questions of law under particular facts the elkhorn case points out there really that as we all know with all stairs almost all of them empty onto a hallway as an example and this is all corn who's walking into the immediately on the other side of that door as she opened that door thinking that there was going to be a landing and there was no landing and so she fifteen mediately falls down the stairs of course that should suggest that there is  you meet an expert to tell the jury that this is a reasonably dangerous that's a very interesting question and that's as i question i'm going to answer that i think that's a box that this glass and elkhorn cases try is accidentally i think but in parties and you need an expert if that's what one has to read those cases and in the other hand you could never well but i think the interest on the expert said it was unreasonably dangerous but it is also something that when we look at newton's testimony in the fact that sense i think one could certainly read it that way but how do you explain how a homeowner having to determine something some reason we dangerous let's throw out mr wood there was no evidence  anyone having any kind of accident before this incident occurred was there no not that we know of this was what is in the record and factually to establish that the homeowner had a reason to know that the stairway was on recently dangerous this and i respectfully disagree with your honor when he said how you open the door but i do actually think the way people open the door and the way i open it often times i was there only five inches between the edge of the door when you're opening it and this hole on the right down and that's less the problem is that you're right there he certainly could have opened the door and stepped backwards into the hallway and not try to squeeze around the door  get it unless you open it just as garcia i'm not and are you really suggesting that you or some jerk should be able to conclude that that was on recently dangerous because the door handles on one side and the door  knows the holes there was was there testimony that this syria that they were leaving at a time of day when it was somewhat dark yes yes so is there a claim that this was insufficiently lit or were they actually operating in a situation where they should be a little more careful that well that's a good we're going to comparative negligence to ensure first question that is in the charging instruction whether it was properly illuminated with respect to comparative negligence times he had to have gone in through that side entrance you know i thought he testified that he had to go through that site and there is testimony of that but there's also testimony in the trial record where he went in the garage is there really testimony that he had to go in th and then the question for me is can be testimony of an expert give rise to a duty of care on the part of the homeowner when the existence of the duty is a question of law and we don't care whether you have an expert or not unless unless he expert can say that under industry standards the configuration is violate certain standards and therefore is one reason the dangerous if the incident such testimony seems to me that the existence of an expert willing to come in and say this is reasonably dangerous doesn't tie our hands one bit if we decide that there's no duty of care to begin with because the configuration was not unreasonably dangerous to me it was certainly dangerous but it was approved by the m it was approved by the building code it was the well it was within the building code provisions on it why should we start allowing experts the experts willing to come in and testify that something's on reasonably dangerous to decide on a really a questionable oct well i think this reason because these when there's a question of is there a duty oftentimes it's a mixed question of law in fact and there are some things to him at least to me a case that talks about a mixed duty mix question a duty in fact because to me a duty is a question of law school is only now applying that duty to the facts of a particular case certainly that becomes a mix question but  spirit in some way they don't generally become a reasonably dangerous there they're generally considered you know passing but they don't become i'm reasonably dangerous unless they are configured in a way that the that their math or up secured to the you know the human act that i saw and class an elephant and i think what's happening is we're taking the stairs and treating them separately from any other condition that might be on the one hand open and obvious but u i believe we should frame the case of these stairs as compared to the glass and of course stairs just like a hole in ward compared to other ways that case could have transpired so in class and help quite a while ok why don't we talk about the trial errors first of all i think the question was what he had and i think you have to ask this question here is right it's one thing to say you know i didn't see the stairs i was there but i didn't notice the stairs it's another to say the door had opened this way th this would have corrected this and it wouldn't have been on reasonably dangerous is that really what if he was saying no you know giving an opinion about whether this was unreasonably you know well actually argue i don't have the welcome break about the wel hadn't been any accidents and you know he really hadn't done anything i think what happened here is hogan mr hogan and his attorney overstepped what they should have done because they do have a need to change and anywhere with working these cases knows that when you trying to make sure that doesn't come in you tread carefully on what you ask and what answers you're giving and you tell me that i'm not going to ask you certain things don't volunteer well what this question was asked and there's never been an accident sense there is no good up there yet what kind of a gate is the child gate to the right no you never get he doesn't he doesn't remember well he does remember opening the door he does there is testimony regarding those five inches you have from the if you're going to open the door and try to let the door squeeze around you you'll have five inches and the suggestion i thought originally was that he lost his balance and topple backwards because his back was to he descending stairs into the basement and so i have i'm just not sure where that pushed him down or pushed and gave the man meant to go in the direction of the open stairway i recognized what you said that is actually a quote from given a trial and while it was never developed by anybody in the stairs you're really saying that the plaintiff himself forced himself down the stairs because he's opening the door and quite honestly he could have taken one step down or there was one step down the stairs he could have stepped down that stairs and allowed the door to completely open but no he tried to state on that five inch landing that the door didn't reach as it was making its path to the opening true no  without any of this without we have been giving is expert opinion without the testimony of a little child whatever preventive measure without all this testimony regarding what to some people would appear to be us to say in light of the fifty fifty ruling by the the the jury that he was fifty percent liable one homeowner was fifty percent liable that we might see we might look at those trial errors a little differently or we would look at those trial errors in the back drop of that fifty fifty decision by the jury would we be wrong in i think there's cases i've read i that what given the testimony of you just address that regarding the plaintiff and given mr newman's testimony what do you think drove the jury to put fifty percent responsibility they were and there was a photograph introduced showing waffly and didn't didn't one of the photographs show from the outside looking in you could see the stairway that i don't recall well it's represented in the record that one of the autographs if you're coming in that side door and the the stairs are apparent what would bring it's in my estimation to the ward where on the one hand you do have something that would maybe be open enough and at the same across like it might be reasonable to say that someone might forget and like here if people open the door the way i think people when they walk around it might be so and this is what i know what i mean doesn't matter anyway but it is something that wrap it up well i don't know if we're interested in the post judgment matters and it's kind of curious you know this is a curious situation and i really wonder why why go through those supplemental if that's what their call to me why rush wrong why rush to collection when there is no need to rush i will say only disregarding i i think that there are probably reasons why those rules are written the way they are and there are specialists in the business of judgment collection and this is not fully developed in this case we read the rule let me ask you this so you're very candid mr weiss a let me ask you what do you think the better rule should be should we have a rule that says collection should be stayed until post trial motions are ruled upon at the very least because it's not unheard of to have a verdict set aside it's not unheard of to have a reduction in in the award that was given by the jury all those matters would be seems to be with would would would would go away in favor of what they fish and see what weighed in favor of not doing things that are going to be fair i think it probably would make sense but as the he admitted he must have gone through this entrance several times before he said i'm sure i didn't use this entrance i weren't versus kmart think talk about deals with open arms so you can't pretend you don't see what's open out so this gentleman it mitigated trial that he had gone through first of all he wasn't forced to go this way it's also there is an alternative and he said it's at page eight in this age thirteen of our reply brief your i apologize when i them for me so here we have somebody who under ward wasn't forced to do this this is something he was aware of is a matter of law if you can't change your own testimony on cross examination he said yes i've been through deciding whether there's a duty here is what's the fix i'm sorry what's the fix what should the homeowner have done to have prevented the accident and you don't award thing seems not to have been sufficient because he'd been in and out numerous times and you think coming in during the day it's right outside you can see the stairs so with the working if he forgot that it was there he could have forgotten the running i mean how many times he have towar and the other question because it goes to turning the hinges to putting the door on the other side putting the door on the other side blacks it if it stays pipe into a perpendicular the only reason it doesn't open one hundred story here you have a jury that basically if you look at the fifty percent of the mothers that we know the series where there and that's a great question of a special verdict you had one but it seemed to me that that's special was recently dangerous and i think i don't know or certainly whether he was aware of the stairs or not like you pointed out judge of people who are being blunt i think if mr wise and i tried case we would be able to be a different case there be a lot of the evidence would