have a large group of extras and not clerks out here so maybe a little description of factually serving up it might be a good way to start particularly in this case right carolyn anderson is the administrator of the complaint of carolyn andersen and dismissed that complaint based on the issue of duty so what happened here was almost actually a little bit over two years ago jerome anderson had paid point i mean we have the modern day benefit of having a lot of video of his actions in this case exactly right rather so he walks down we see him walk down he appears to be as he walks down you know shape there's nothing that's unusual about his his he sent to the platform once he gets down to the platform me he's appears on the videotape and we played all of this as well ready to board train trains in your in your briefs you indicated that he was going to board a train to the loop right yes but the train that he walked toward wasn't going to look pleasant exactly and that's part of i mean did the c a players would not know that but that lets us know that he was experiencing some degree of disorientation already and that did that degree of disorientation  know that his behavior changed over time yeah well it let me start with from the video which is all of the vantage point of all of us right now it was a singular vantage point and so we don't we don't know all of which employees saw him when they saw my son who we saw lidia we know the trains are coming in go help yes the conductors are looking for people on the platform we know there if everybody gets a few nd look how do they know well it's it's not everyone getting a three nd look it depends on who the employee is for example there's an employee that does come into the video who is someone who has a cleaner cleaning in the event i believe the c t a and there's no indication if there's an interaction between that maintenance worker and that's right there if there was absolutely no no interaction that's something that would have to be discovered and i just general powers of observations then we're putting a greater burden on the c t a than than would otherwise be there the fact of the matter is mr anderson was behaving in a way that anyone using any general observation powers could have seen it was on a clear example of that was when he walked up to sure that you're honored for it remember this he walked up to an open car door c t a train door he started towing that trying to get out maybe going to get out and maybe he got hit by the door and fell down and suffered some sort of an injury you'd have a much different legal duty analysis would you oh i don't think so i think pence and pence vs northeast illinois legal duty to them as a common carrier and this court not this court i'm sorry the circuit court reviewed those facts and reviewed that evidence and that law and the circuit court found in fact there that there was a legal duty based on the special relationship under common carrier and based on the business invitee wellbeing that the trial court had to analyses the st one the trial court agreed with your alternative pleading that he was in fact a passenger even though there's some conflicting case law on that yet but there's there there is there are some historical conflict in case law but most of the recent case law and the case law he cited in his opinion supports very clearly bears and i would maintain very strongly the fact that mr anderson standing on the platform within the us in the depot and with the intent to board a train was passenger but you would concede would you now think there are a number of cases in illinois going back to the early one thousand nine hundred hundreds where to be called passenger one must be in the act of boarding be upon or be in the act of alighting from the bus or train there were there were cases that are older cases that do say that but but the the simple cases in the more recent case on  he'll get stuck in the platform well i i do understand that it's a little bit different than what you got here it's a little bit different but there's no train involved here right right and there's no train involved in the fall itself there certainly was the intent the board yeah and all of the cases that you cite about three from the restatement and the comments where they have the different examples yes each and every one of those the person was an a restatement wasn't dealing with that issue at the time so that wasn't that wasn't the issue of the illustrations that i raised were covering it they were really more geared toward looking at the two duties the duty to protect in the duty to render  proceeded to look at duty breaches that were claimed in the complaint as though they were separate from duty and then infused the concept of medical  oh no no no i try not amending here now we know ok but but i mean someone other than a medical professional a judgment made by that person who would be an employee of the c t a that mr anderson needed clearly needed some kind of aid and assistance that's all we pledged we didn't infuse the medical part and once the medical medical part was infused by the court there the court use that with respect to each one of  would be if you were to prevail would be a question st impression oh well let me step back up in terms of rendering aid in trying to figure out what's going on with this person or anything i don't like so it may be with respect to the c t a with  if employees are watching them twenty four seventh's and paying attention to this is a case where he collapsed on the forum and because of that collapsed onto the rails i mean there's no indicator before this tragic accident that there was something really wrong he could have been waiting for somebody he could have been trying to make his mind about whether you really wonder go down the loop i mean there's no there's nothing in his behavior an that is that would have really telescope to anybody watching him oh there is there's going to be a problem here until the actual event there's there's nothing really hang your head and he's not  not approaching people in an aggressive manner he's stumbling and falling he hasn't passed out there's there's nothing here that would say to anybody watching assuming for a minute that that was even there their responsibility but if they were watching it would have been anything that said we're going to get down there there is some sort of emergency down there he wasn't accosting people he wasn't being accosted wasn't passed out on the platform nothing like that he's just standing there on the platform just as the jesse i respectfully disagree with you on that point i think i think video may be a matter of interpretation but i think that the video that's at issue i would say ultimately is worth it is possible if that were the only thing but all of these items taken together would demonstrate to even a casual observer that something's wrong with this man even the c t head c t a is indicated in this freak the pill or have to the patrons that were there were on the train and off the train so quickly they wouldn't have the opportunity to do that was opposed to employees who were there no way like the employees who were there there's only one employee i know is there was a custodian either train engineer on notice that there is a problem here with this man right so that let's let's move a little bit forward to what specifically happened here the trial court talked at some length and it's memorandum order about foreseeability and whether or not it would be reasonably foreseeable that a person could have some kind of a medical event in this case you said it was diabetic issues it was he had known diabetic or something he was but that's that's really not the issue  springing off it and a very unexpected not unusual manner he was doing something with a camera ballo was any yes yes capable white why is it that that never made it in anybody's briefs  well i'm not sure i'm not sure but again it was odd behavior i think probably he did make it into either of our breeze because it was kind of relative to some of the other opens that he the boarding area of the strike there and then goes over and pushes it a little further and i'm a cancer right on the edge and he steps in there can and that's what provokes the you know it's a loss of balance how the heck is the a supposed to expect that that could happen well the the c t a is that supposed to it obvious wants to guard against it happening it wasn't the c t a isn't necessarily supposed to guard against obviously him kicking a can or is finding his way over to the edge of the platform that is just how he that wasn't the st time he found his way over to the platform he found his way over the platform at least one other time of the other time he caught himself and was able he read it mattered it wasn't necessarily that you could look at him and he's dramatically reeling one way or another but if you see you but if you saw him an observer you could see he's he's stumbling he's he's barely so eventually i think that's where you see what you see is you see some wobbling you see some leaning but in your complaint that that comes out a little bit more colorful only because you're saying that there are clear signs and symptoms of a medical emergency well that seems to be a bit of a stretch well and i will grant the court that twelve people watching that video will come out with different viewpoints of what they see and we guess is we as a trial lawyers will do our best best to describe what is on video as best we can and it is subject to interpretation so i certainly understand how the court might go there but it wasn't our intent to do that our intent was to to clearly describe all of the behaviors and activities and actions that we saw him undertake while he was on the platform as as shown in the video and this is the same actions that any employee who would have been in i'm getting cottonmouth in the vicinity at the time big issue here with the circuit court's decision is by by infusing into the four factors this notion that the assessment by an employee must be a medical assessment that essentially if this  who's acting a little odd and that's a subway platform that's not you know that's not something a maintenance workers expected to do well that well i i do think that lay people do have the ability to see what was happening with this gentleman and arrive at a conclusion that something is definitely wrong with him in terms of disorientation back how many times a day would a maintenance worker have to stop sweeping and go look at the person who's talking to himself or talking to herself or you know rocking around a little bit or isn't tax akkad about the platform or somebody who has no intention of ever getting and the train that lot of people hang out on that l platforms in the city of chicago well well you know st of all runner there there are no facts in this case that tell us that there are no facts that say it's one person a day or one person a month or thirty three dollars people an hour but if there are facts it tell us that there were two hundred and forty one million people annually and the it and the other kind of trains yeah the trains yes and the other fact that we have in the case is the video that shows this for that forty minute period which is which is more like thirty ok thirty minute period we have a microcosm of what happens on the c t a it's yes it's this one but there was only one individual who behave that way there was only one interview individuals who stayed on that platform there was only one individual who migrated two to three times to the edge of the the platform in a precarious manner and one individual who took that that open door to the train at a time when when we maintained the the train engineer or conductor should have seen him and me have seen him in the discovery might reveal that in fact didn't see him when he was towing that door in that manner and should certainly have done something at that point to protect him and did not and we we certainly believe the circuit court in the manner in which they concluded that the with respect the the foreseeability factor in the likelihood of injury factor yeah and also the magnitude of the burden of guarding against this i think that the trial court was concerned about that too  was based on the court the trial court having infuse this requirement of medical assessment which was not put in our case and we don't think it's necessary and and to do that which again would be to vista rate the restatement because then under no circumstance would any common carrier have an obligation to render aid well why don't you read from your complaint what it is that they failed to do what we read what we what we stated was they failed to approach  one we use you know maybe we're guilty of being lawyers but we use the word assess in the broadest sense all plead guilty and we use that there are the broadest sense and we intentionally did not use it in in tandem with  to to turn off a rd rail to the right yes yes now i mean very very honestly in terms of turning off the rd rail that is something that may be developed through if it were allowed to proceed through discovery because this is something where if there's an employee that we believe is out there who saw this behavior he had a duty c t a had a duty through him to protest him and one of the ways that could have been done is to turn off the power the c t a so that you know raises burden issues with that claiming that then they get that they would be turning off the power all day every day and i  that you know that's to me that's wild speculation i think the c t a would probably use their judgment to try to don't turn off the electric rail at the appropriate times when they see somebody like this who is at risk of falling in into the tracks and the final item was to negligently failed to notify the emergency response personnel that a passenger was on the blueline  on the subjective perception of the plaintiff the focus is on whether it was objective reasonable for the defendant to anticipate that certain of external circumstances would distract the person from notice in an open open open and open moving towards the train every single case and i mean i read i think most of them so if one has to take this you know language with a grain of salt because in the factual circumstances and even the skeleton that you know i restatement it's triggered only by illness or injury and the plaintive makes it so there's no issue of actual knowledge that only issued his constructive nor did shoot the city employees have known you know if they saw him that there was that he was ill or injured and that is not  intoxicated people sometimes you know wobble but again the critical issues here is that there is no case at all that plaintiff side that would be similar to the situation here and if this is not the case in the you know in which in which to render this st impression you know certainly applies to no and obvious hazards and by its own definition contains an exclusion which reads unless the possessor of land shouldn't dissipate the harm despite s knowledge of obviousness and i believe in a case where an individual is suffering from a disorientation hope whatever his source for cause this is a case where he would not be able to appreciate the danger and the possessor of land seeing him knowing of it would know that he would not be able to appreciate that harm so we don't believe it for we don't believe that doctrine applies but more so in a case  of duty particularly with respect to come and carrier there's only one place i'm aware of that even considers the open and obvious doctrine in the context of the four factors and that is m they looked at it as a factor and no more and rolled that it was a question of fact for the jury because of a gap between the subway car in the platform interesting said to this court mr anderson did not sleep well we maintain and we still maintain that his state of disorientation was enough to let any lay person understand that he had a serious problem and know more what they need to know medical understand medical diagnoses their assessments to be able to figure out he had a problem then if he didn't believe  council also said well there's no case that has imposed or disk even discuss the duty in the case of a person who's disoriented of course we played disoriented due to medical condition but obviously could know that what this means is this doesn't happen every day what this means is under the magnitude burton factor number three and factor number four the the effect of that burden it doesn't create the huge burden that the city c t a would like this court to believe and so we believe that the approach of marshall versus burger king should have been taken in this case and that is once the duty was found based on the special relationship that's it unless there was a compelling public policy to determine otherwise and we submit in this case there is no such compelling public policy as a result we asked that the decision of the circuit or be reversed so that we might proceed to case thank you thank you very much for the very well written briefs and cogent arguments we will take matter under advisement and issue