are taken from the perspective of someone crossing the street it's clear that as you are approaching but the fact it's not visible it's impossible to see unless you're standing directly over the was crossing the street but that's because she said that there was a hump in the road that prevented her from seeing the area from the side of the street that she began to cross now there's no dispute that had she been coming in the opposite direction at the dugout area would be very obvious and in fact i was just lankan made clear if you're standing in the middle of the street at the highest point of the street that home area is the dugout area visible at that point based on the plaintiff's testimony and additionally that she testified from that perspective did she was she ever asked the question that from the point where you were at the highest point in the middle of the street can you see the dugout area was that question i asked her she was not specifically asked that question which i think in itself may create a question of fact but she and if we say that it was in open an obvious condition then we're saying that it's a matter of law that it's open an obvious and the only way you can prevent that finding to the extent this is the finding is by making it clear that there's a question of fact as to whether or not it's open an office is that your position that there's a question of fact as to whether it's open and yes that's my position there's a question of fact as to whether it's open and obviously the case  supports that it becomes a question of fact if there's a dispute as to the physical nature and i believe that the wife let's let's go on to that point what is the dispute as to the physical nature of the condition of the street other the plaintiff was specifically asked for her deposition had you been looking down would you have seen it and she sat now she said but it can't be true right well we do have the testimony of a kind of certainty a certain she looks down she's got to see that when she said according to her testimony so at her deposition that she identified the point at which she could not see it had she been looking down was well my point is that obviously we can't take that statement and its literal value because if she is one foot away from the dugout area and she looks down is there any question but that she would see it do you believe that she would see all the photographs show that she would see if it were just the plaintiff's testimony in this case providing that then maybe not but we have testimony from a complete any attention to what she's doing look you know all around talking to her boyfriend and almost trip at that same spot and then look to see you know watch what she tripped on but the photographs that were prepared and so right there pointed were taken from i can't say how far but certainly it looks like a number of feet away maybe ten fifteen feet away why i think it's important to consider miss miers the third parties testimony or should it only minutes ahead of miss caleb and tripped on saying that the construction was removed was walking down the street assuming that all repairs had been made and this is not reasonable to her put one foot in front of the other assuming that there that there was no all of a sudden she gets up to go to church on sunday all the barricades are god the streets look newly paved and so did my ring the fact that the constructions on a completed i'm sorry and proceeds to cross the street not expecting defect within the road whatsoever especially in the crosswalk is an area that's less than a block from my church and so i think it's reasonable for her to assume that at least the crosswalk area is going to be complete so what do you think is what do you think should be done in this case i think at the very least the crufty area with the cross talk should have been filled and to allow its well i assume it wasn't filled exists even in the absence of actual construction being performed at that location absolutely not i you have the case why in this case should there have been something more than what was done one of the reasons is because there was this construction going on for such an extended period of time that individuals and neighborhood would reasonably assume that the construction is complete that's one of the reasons another reason is it's within the problem that i would i would limiting ourselves to reviewing what an individual in the neighborhood would have done as opposed to someone who was totally unfamiliar with the neighborhood someone totally unfamiliar with the neighborhood happens the park and he was walking across the street why should he make a difference whether that person was aware of prior construction or not it doesn't i mean it's as an open obvious condition and it states that that to prevent to to to create a question for the jury for the trier of fact there must be a dispute about the physical you know because they are in standard parking it was the absence of it was a wheelchair ramp that wasn't painted to distinguish it from the surrounding area and nobody really  or the plane didn't see it headed competed yellow as it was required to be painted it would have it would have they would have made me clear that it was something different than she would otherwise would have seen so what's what what the visibility and also in your honour's have indicated in the pictures that it appears to be clear in the pictures the dugout area blends in with the street and you expect that area to be flush with the sidewalks cause a great number of lawsuits and there has to be a way to say this one goes to a jury this one does not and the question is where do we how do we draw that the parking appeared to have drawn that line based on the expert testimony we don't have an expert testimony here to know your honor but we do have the testimony of a third party who testified that she too did not see th the testimony of the the expert and al quality went to the visibility and the fact that he the expert felt that there should have been contrast paint to allow for visibility and i believe that in this case it's the same situation whereas if they would have maybe spray painted with the cross off orange or something to draw out the individuals attention and head written that even without considering the experts testimony we would find a question of fact as to the nature of the open an obvious condition to preclude summary judgment  case might support but he didn't say that what he said was the experts testimony gave rise to a question of fact on the visibility issue you're absolutely right and and we can understand why that might be something you might otherwise have to put forth as a plaintiff as the plaintiff because otherwise how many instances of cases like th it and walk in that looking from where i keep seeing the crosswalk because i think that it's reasonable for a jack of person to expect it to be safe to proceed in a cross walk where you're intended to be on at the point of stepping up to the curb she fell at the point from the in the the closest point to her between the even pavement and the gutter i'm not sure the record is exactly maybe couple steps well i believe that if she if if the point of impact i guess is as she's stepping down into the excavated area i just supports the fact that for the argument as to the visibility of it because of th area like i said why didn't the smartest testify that first put would go into the into the ditch and the next foot would have been going to the curb that it was that was the distance between one foot walking in your complaint that there was a premature remarkable of the barricades or of the cones or the things that might have given to consider the totality of the circumstances and all of the factors involved the fact that the signs were there and prematurely removed the fact that there's testimony from a third party a completely unbiased separate third party that could fill the role although not an expert but to provide some support for the lack of visibility of  of of the condition is what's at issue and here the physical condition is not us even the photographs in the record taken by the theological rather at the time jackson would show that within the intersection that a person approaching the not on the subjective impression of those particular witnesses particularly where both of them testified but the one paying attention to what they were going to spare all testified that she was looking up the mire in the niceness of the street in the finished destruction in the area and the witness testify specifically that she was looking hear the testimony was that neither was looking to where they were walking that's exactly correct your honor and and here in particular is not reasonable so it's reasonable to expect a reasonable person looking out where they're going in taking care of himself will be looking particularly whether it only took one step or two steps to cross over that we don't have any record testimony about what the exact mentions were but we do have a you know you just described that it's larger big well it's clear from the photographs taken from a position side in a section that you can see the staff extending all around the sides of the sidewalk from within the intersection and that's all we don't know the exact dimensions force with we can see clearly the length of both sides and the clear visibility of this gap from within the intersection opposite side of the street because of the hump in the street right both witnesses testified that was the case but neither one disputed that it could be seen from within the intersection indeed the witness the activist meyers testified in her deposition that after reviewing photographs of the  cross that same condition just on the arms that's correct and why doesn't that give sufficient notice as to the condition of the others i don't know that we would argue as a matter of all that singing condition on one side of encounter exception case where there as a worker who is forced to face a dangerous condition as part of his job to hear something like that in fact there's been absolutely no evidence of any compulsion that's been shown in this case and  the immunity under section for judgment of for as far as the issue of whether the city should have put up signs of warnings not only is that relevant to whether the condition well there is a question as justice call pointed out that that statute only gives immunity for  initial placements barricades to those bare those additional barricades have been rebooked so why doesn't that expose the city to my potential liability that's correct the statute actually talks in terms of the initial of initially providing where one side of the last a greater fall down is no longer there after the decision was made to place it and that the city can be held liable and that's what the term initially provide is intended to show and that's right here where the decision was made to remove the size of the not to put them back up that both able to cross that area without noticing it and still trip and fall on the other side obviously if they noticed that on the one side they would not trip down on the opposite side of the street and as just the top rightly pointed out that let's let's go back to what you said she testified she testified that upon approaching the street she was noticing how everything was beautiful and everything had been completed and she thought everything was the way it should have been but obviously that statement can't be entirely correct because as she crossed the street she had to traverse the very same condition on the first time and that existed on the other here i don't understand i think he's not paying attention to what i miss her claim that everything that she believed all the construction had been completed can't be accurate because whe steps down into the street she's stepping down into the very same sort of condition that existed that existed on the opposite side that resulted in her fall but she did testify that as she was crossing the street she did look across the street she could not see any defect and as on just correctly point out the case of justified that you're not required to constantly be looking down especially i would think when you're in a crosswalk and there are other things that you know you need to be paying attention to as you're approaching the curve you shouldn't the reasonable person should be required to constantly be looking down and expect there to be some kind of stop or drive so i think the point is that you're not constantly required to look down you just need to look forward  hand if you see no condition that might pose a risk then you don't have to look down again but if you can see the other side then it might behoove you to once you get to the point where you can see the other side to take a look again to make sure that there's no condition that might pose a risk that's white based on all the other evidence in this case i don't believe that this ice excavated area was visible as cross while you're approaching it has to be physical sense the the mad in the in the case cited by counsel was found to not be open to an obvious and that was due to a number of different reasons and one being that there was a short time a short window of time in which to discover the defect so yeah at some point it does become visible but if there is not enough time to react then it's not open and that's and that's supported by that  case thank you thank you we don't have to change the channel so