a way demonstrates how the evolution of personal injury law has not always in my view been to the benefit of justice or individuals who are injured well i used to live as a defense lawyer if you guys take away all the rules which you were doing quite successfully we wouldn't have a game to play so it's coming around the octoroon that you're dealing with here well it is except for this they did they the other side cites no michigan authority or actually no authority at all if we are to accept which pretty much nobody ever does that  unpublished opinions don't count for anything they present an unpublished ohio opinion not a michigan opinion saying that a guy who bent over under a fire extinguisher and stood up and made contact with it that it was open and obvious  according to ohio doctrine that that he could be injured i under those circumstances and whether that's true or not i don't know or particularly care because this is a completely  situation where a fire extinguisher is mounted on a wall and myers knows from what it did in other stories that there are better ways safer ways to secure fire extinguishers you suggest it's with a strap or something like that well places have on a pedestal with a rubber boot there are numerous ways that are part of the record i'm there than just hanging by an asshole ok on the wall the being so fragile that incidental contact with the cart which is a hugely foreseeable event causes thing the fire extinguisher to come down and sensually shatter the foot of someone such as mr johnson  it was foreseeable incidental contact the height of the cart is the height of the fire extinguisher and in this case my client bumped into it with a part of the x of  the cart near the handle but it's incidental that the contact took place that way it could have been a child hitting the thing or any number of ways once you have cards that are high enough that they line up with you know the fact that it fell from this contact well i believe that roslin testified this should not should have been secured more securely them by an asshole but your ex  that's probably the slenderest part of our case roxanne and his opinions although i think that we get by under rule seven o two because he's possesses technical knowledge as a lifelong architect and being involved in the design and means of buildings but you know qualifications and reliability are two different things i understand that i don't really see this so much as a dog or a case your honor it was a case him leaning on but the defect is non obvious and i was a defect an obvious to the defense isn't that the catch twenty two that that michigan put your hand agents servants employees mainly agents installed and they're responsible under michigan law for on a cold for lack of a go around this without being got to walk through to get to the place the business or something that you couldn't see that it's foreseeable with people being distracted by displays that are intended to distract them and merchants will do that's that's they've on the wall i grant you that you know in the best of all possible worlds if you see a big red and i'm sure mr stock will tell you all about how obvious the fire extinguisher was and it wasn't camouflage certainly concede that point ideally you don't touch it but if you have thousands of people in a store over a weekend or in a week somebody sooner or later is going to make incidental contact with that fire extinguisher and it should be it and if it falls to the ground it was improperly secured that is that is to me something that doesn't happen in the absence of negligence if it's just incidental contact as opposed to try knock it down you have to have an and we are contesting that partly because this isn't if you don't have his testimony though do you have a case yes i believe we do based on well essentially the same thing as if this podium collapses it's not something that happens in the absence of negligence so i mean it sounds like you need to make out a razor theory in order to go forward is that there well mr wells it's circumstantial evidence of negligence but yes but yeah means of having the fire extinguisher accessible but still not amenable to falling to the ground on incidental contact then you use skin that can either way it's  has to be an unreasonable risk of harm and i just it does not strike me as someone who believes himself to be possessed of a least a modicum of common sense that that that this isn't an unreasonable risk of harm things that have to be available to the general public you can't lock up with a padlock it's no use and you can't have it up sat high that nobody can reach it of course you're not going to hit it with a car but you can get it for a fire well i don't think the magistrate is necessarily correct in excluding mr othman simply because he wasn't in the fire extinguisher business easy's had plenty of exposure to fire extinguishers over the years as an architect and this isn't as if it was a medical malpractise case in michigan where the statute says that you have to have a board certified specialist testify against somebody who's you know board certified that specialty there i think there's more latitude under seven o two in a case such as this so i think that the judge was wrong to exclude the expert but i also stand by the assertion that under these facts an expert is nice to have an it's what everybody does in the twenty first century but not necessarily the case thank you thank you you have your  catch twenty two but then it is if you apply the same theory that the plaintiff is asking you to apply to be johnson to monitor more you did not have noticed one now edge that this was someone recently dangerous condition with respect to the open an obvious doctrine michigan law makes very clear one of the principles as the spouse in the hoffman versus linked to a case which we cite indicates that that requirement applies to both the possessor of land and those who come onto its command to it to exercise common sense in prudent judgment when confronting hazards on the land these rules balance of possessors ability to exercise control over the premises with the invitees obligation to assume personal responsibility to protect themselves from apparent dangers here the plaintiff had personal responsibility the trouble with are obvious seems to me is is that it doesn't take into account how people act i mean myers displays it's merchant he's specifically so of the person pushing the car a look at its merchandise  and specifically companies fight to word that merchandise can be so that they can do it and then to say you got it when when the owner does that then so you've got to look out for yourself again as a little troubling their blanket statement doesn't seem to me to ever take into account how people are or you well your honor that's a good point as a spouse by the plaintiff's bar for the most part and if you look at the way we live as individuals whether i'm walking down the aisle of a group of a grocery store i have to balance i have to look and see what i'm you know what draws my attention plus looking off my own safety just as we're driving down the road in our vehicles we pass by hundreds and thousands of billboards every time we go on a road trip that doesn't give us the right to be so distracted that we deviate from our responsibilities to ourselves to have person safety and to protect ourselves and i submit to the court that if you change the facts just slightly here the open obvious stack in is not pencil sliced and diced and watered down so finally to the point that the plaintiffs suggests change the facts of bambi johnson being inattentive pushing the shopping cart runs into us of a merchandise rack and an object falls off i'm sure your honorable shriner has been in the mire stores before it and you can see that there are objects that if you crash into one of those one of them falls off and lands on your foot you might be injured that doesn't alleviate that situation from the open obvious doctrine similarly if baby jazz it inattentively pushes this cart and walks right into the edge of the middle shelf and cuts are neat she can't be excused from the open obvious doctrine simply by arguing oh i didn't the open obvious dr has gone so far and if you apply that to this case as your honor kind of alluded to earlier the problem here is that if mrs johnson's theory is accurate that this wall mounted fire extinguisher wasn't giving off any indications that it was a dangerous condition then i submit to the court that there is no evidence in this record to provide any evidence that meyer knew or should have no the affidavit that was supplied to the trial court in response to the plant's reply to our motion for s indicated that meyer didn't install this they hired outside contractors they ordered fire extinguishers they were applied by a competent contractor utilizing the brackets on the hardware that came with the fire extinguishers mr lekman have a point that you know the fact that the thing falls down from what is fairly forseeable contact is evidence that one way or another it was not properly mounted but his own expert i'm acknowledged your honor in a point to sort of page six of my brief then to page twenty seven of his testimony he acknowledge that there's no evidence that the hardware was improperly mounted he acknowledge experted know anything about anything that was going on in the story so let's set aside his expert wise and wise i mean he calls it circumstantial evidence why doesn't he have a point about that he doesn't have a point about that because the michigan law with respect to circumstantial evidence as we indicated page twenty two for the four conditions that must be present are first of all it must be a crime which ordinarily does not occur in the absence of someone's negligent second the if then most of cause by an agency or instrumentality within the exclusive control of the defendant and third this is the important one i submit to applies but three is the key third the event must not have been due to any in theory action or contribution on the part of the plaintiff outgoes a circumstantial evidence so if he were to lean on the podium in a crash down that would not be an application or res ipsa because he had leaned on the podium voluntarily well it would not he'd have to present some other evidence of negligence in the design or manufacture i mean if you lean if you just want like this and the thing collapsed on you you'd be out of luck i mean well most of us would be pretty skeptical of this appears to be rather sturdy and i think the divide looked at night well that i wouldn't have much reservation in doing that however if i look at something that's mounted on a wall and whether i bang into it with a shopping cart or i bang into it with my shoulder it comes off as something that's clearly i believe someone with common sense and ordinary prudence would look at that and recognize i need to heinrich's comments the poets swinging back and in in terms of justice it would be an injustice here if bambi johnson who had an obligation to make reasonable improve napster patients for her own safety is allowed to be excused from that clear evidence that she was inattentive and instead the burden is put on my client when there was absolutely no evidence in this record to suggest that we knew or should have known that there was anything about this fire extinguisher in the way that it was mounted that pose a reasonable risk of harm to the plaintiff thank you thank you it's just i'm not going to use the whole five minutes unless i'm questioned this is mr stokes argument takes me back to the first ten years as practicing when i did argument which i think has scant if any legal relevance and besides we know that something similar happened in ohio unpublished li if that's a word  and the old dog of personal responsibility is trotted out and i think we all seek in our lives to be personally responsible for our actions and inactions but that goes to compared of negligence if indeed there is an industry stack is i think if there is it's scant but bambi johnson's conduct should be viewed through that prism and that is something that would bar the case  as far as my eyes knowledge we've been through this they're very sophisticated retail chain they have secured fire extinguishers in a far better and safer manner in their other stores and they through their agents