because there's some wrought iron over it is there's the testimony is somewhere between five and six feet tall there's it's a brick fence solid brick that's on top of that is a foot or two so there is an opportunity tempora this is no man's land at which point visibility visibility of the sidewalk would become apparent is that correct or incorrect critical component is that it will ask the right way wouldn't see and that's what we have in this case as well couldn't hurt us like that was what the court used to not let the case go forward the opposite is true here driver rely on a mirror in this instance i think a driver can rely on it i don't see how any careful driver could ever leave a parking lot and rely on a mirror to let them think that they can be careful and go forward without actually looking in the direction that she needed to look i think that she did she try i mean if we look she said that she looked to  occurrence i guess to the extent that rafe and finds that way i did i did because i think that it is likely that an accident going to happen and there are factual i think that rate that as a fact pattern but even then in rafa in that there's there's a there's a distinction between the area eat grass from the position where you can't see the facts of this case i mean anybody who has driven a car understands that if you're inching out into the roadway where the tires could be going forty miles an hour faster it's a bunch of dicey or proposition then if you have a few feet of space between weaving the place where you can't see and running into the sidewalk where people might be violating the ordinance and riding a  because of the mirror on the right instead of looking to the right because there was no mirror there but leaving that aside i'm not sure the raf and facts of the situation is is sidewalk and that's exactly why the smears were installed she said she wasn't she said she was in the middle of the driveway didn't she she approximated her position in the middle of the driveway yes and if she say she had to do that because so she  what what she just said that she was going out the middle or she had to slowly creep out until such time as she could bend forward and see past he would think it right way it was described as being able to accommodate basically two cars going side to side but somebody who couldn't see through the right would be on the left side of the driveway especially when she was familiar with the driveway in the absence of the mirror but instead she's in the middle of it looking to the side where the mirror would show somebody could go to one side or the other you're in it designated x but the reality is you can't see past that wall until you're already on the front of your brother this is also a safe when he reaches that he's still not in danger at least from the hansard involved in on the facts of your case because the hazard commences in the area of the sidewalk if he hands several feet you the stuff that's an area in which there is no danger but i am while it may be foreseeable that people will not take good care of those holes the duty imposed on  and the people on the other side of the sidewalk are blind and it's not till the car gets past that wall that it opens up ok everybody can see so what does a reasonable driver do in that circumstance one recognizes that they can see through one recognizes it somewhere outside the the stone wall is a sidewalk and which people could be walking or if they're in violation of the ordinance riding a bicycle and one doesn't exit by a third party who is under a duty to avoid it then the landowner will not according to the c m bub be liable regardless of how you treat  present case set forth facts under which the contractor's actions of maintaining snow pile at least contributed to brophy and in the act well of course and you know the obvious distinction between between think the injury took place as soon as there was any step up eight the smallest that it can pass the abstract as opposed to this case where there is this up you know what you say strew you have a situation where it's much different proposition to be creeping into an area between a fence and a sidewalk and creeping into a roadway where people might be going at a high weight rate of speed with a car the worst you're risking creeping into the area of the justice court referred to as the no man's land is that you might be struck by a pedestrian or a bicyclist violating the ordinance which is a whole different proposition from sticking with the what if your car out snow there's no there's no way to avoid saying this trujillo the car has to creep out a certain amount of time before the driver sitting behind the wheel computer around the work she was past that that she was past that gate the testimony why i believe i took her deposition what i believe her testimony is she's freaking out her slowly because she can't see through the fast and she realizes that mere is missing in her testimony if you read her deposition she relied on the mirror so he said for months he didn't rely on it he knew it wasn't there going out left and the only way she knew she could get out safely turning left was to look left and then she knew the only way she could get out safely to the right was looking to the right not relying on a mirror on either side i mean i don't know how anyone could rely on it was a recent vintage relative the age of the facts itself that the mirrors weren't strong and further there was no pitch to the trial court of a voluntary assumption of any duty so whether anyone would have even a sitter that this landowner owed some sort of affirmative duty to provide a safe or a manner of he grasped from this premises i don't know i'm different i would say that every driveway as i would like it more to a parking garage right down the street where you're actually in a parking garage he can't rely on those mirrors you really can't i mean it's i don't i don't know how someone can rely on the mirror to get out safely but i want to go to this up when i will if i should we can go back to the the court concluded there was no proximate cause you haven't responded in your briefs what is your position since you haven't responded to her alternative part of her order where she said that you cannot establish actually causes fars sequin well i think that we did touch on proximate cause i think it goes hand in hand with the duty question and going hand in hand it alternately comes down to well she said there was no duty that's one but that is not what i'm talking about and they said that you had not you were not able to establish proximate cause or se proximate cause issue but i think that they go together and that's my position i think that the court could order to have continuity of rulings can look at everything in the record on appeal and i believe that it has been addressed maybe not as much as the other issues but i believe that it has been addressed and the end of the day it's an issue for the jury if this court finds that there's a dude that's my position on  you know going out may i ask you mr kreider you have referred to the statute that was in place regarding the building construction now the your opponent says that this was grandfathered but there's question of fact truly when this it when it went up now how do you how do you work that into your complaint has is it in there is the is that in there already if you're broadly reading any mandate that people are not supposed to construct walls that would struck the view of road people walking on sidewalks and roadways so that went into effect i believe in one nine hundred ninety nine one of the people testifies that they believe that was built  ninety seven or nine it actually stand rockets were see when filed actually say that was two thousand and one after the initiation of the ordinance put that aside when it was built when it was constructed there's a further ordinance which requires them to is it your brief about the it's just referenced as to your ignorance is a page fifteen of years but i didn't see any reference to to the maintenance issue i think i just generally described as the a case i think that there's a specific notation in there that in the absence of any statutory or legislative duty we're not going to find one but here there is that up when we talk about the the the duty you say that was to maintain it are we are we left with the mirror again that not really because the wall is the initial problem you can't see through the wall that's why i liken that to the snow pile it's a clear obstruct destroy the wall or once they've built a wall that was in violation of the ordinance they then had a duty to maintain it or make it safe which is exactly what sequined did they had one of these foster parents complain that they couldn't see through the wall so they took it up with the safety meeting at the safety committee the safety committee looked at it and said yep let's put mirrors up let me say for ok now i want to go back to this what is the evidence that the lack of the mere cause this accident the place that morales testifies in her deposition that she couldn't see through the wall of her one she also testifies that she relied upon the mirrors she testifies that the mirror would have given her all visibility down to the core if it was a concern mr prager then we go back to the questions i raised fifteen to twenty minutes ago her behavior was was even more negative if you build into it the fact that she had worldwide on the mirror in the past in the end was conscious of the fact that the mirror was absent her behavior is the exact opposite of what somebody who is in that situation should be expected to do and the question then becomes again whether or not the absence of the mirror is the problem or the negligence of the driver is the problem and it becomes sort of a combination which is what you have in rethink where you've got this combination of events and that's what in my pinion makes this case s more muscle up in terms of what's going on in a totality of circumstances and i would liken it almost in some ways to the z n c the case where that was a similar situation snow piled up the two parties couldn't see each other and the plaintiff was actually a passenger in the vehicle that was freaking out and got it and so while there there was no room for it within which a driver responsibility of maintaining the safety of the roads and that's probably why this in court doesn't even bother distinguishing or involving the z m analysis into it analysis in that case i don't know i but factually i look at these cases as right on point frankly i was somewhat surprised that there was no reference to c m but there was none of the there are a couple of matters that come into play with respect to the ordinance firstly this is an illegal bicycle  on the sidewalk and that same set of ordinances provides the it is illegal to be a bicyclist on the sidewalk in the business district but this event just go to whether he was contributing the class of persons protected by the ordinance three one eight you need to examine it in relation to the surrounding ordinances which say that a bicycle rider cannot be on the sidewalk in the business district and that that that excise is that person from the potential class of people that you're desiring to protect couldn't you're trying to get around and then say that if the ordinance that if this sky who is struck the maintenance provision well that's not a safety statute that would create a duty as opposed to the three on it has a good sound to it but it has no life because what you're saying in effect is that if you build the wall originally to ups truck the  language of the statute that tells us that your interpretation is the only interpretation so you're saying that it's just a matter of keeping the brick you're saying that the ordinance would not apply to with the ordinance would only apply to condition there is no structure due to begin with but because of the road a lack of warning should there be is there a question of fact it because they have this kate has brick wall that does prohibit visibility from the people on the sidewalk that there should be some kind of  warning for those pedestrians bicyclists it off garage you know or eight needed something well be at the summary judgment stage you look at what the evidence has revealed and there's no evidence of record from the plaintiff bicycling that his vision was in any way obstructed i don't find that anywhere on the record so to be able to support that i don't think coming out that no no evidence was presented that he couldn't see that the car he he may be offering no testimony on that point so for us to try him and make the lea mirrors and say the one that was broken been in place they have prevented the exit there is no question of fact on that the evidence as laid out in my the evidence establishes that this ability was provided before even entering the space between the sidewalk in the us she s carefully and look from side to side in that she was aware that there would be others about and then the only evidence if you look at the picture it's in the record i don't see how anyone could come out without briefing because there's five feet yeah but so so the car art is from the ground to the top of the cop in your opinion greater or less than that five feet or do you even know it was the records  it's not clear to me from from the record on that point you don't think the picture shows that you have to creep out of it rise that parking lot rather o i l way that you can't see it with some on the sidewalk or a bicyclist know not only do you have to creep out bed your stage truly required to stop before entering the sidewalk area and that's more of it is that regardless of what the driver should have done there is no evidence that was done in this case right  have more than one cause converging or acting in concert with another cause of the bet that would if anything be a question act in to the extent that this driver  think that's where the viability left that i would submit that when the testimony is that she had a mere allowing her to see completely one way and that she testifies that she direction before reaching met sidewalk then you have a situation where if she had stopped at the sidewalk that would have broken the causal connection because if she'd stopped at the sidewalk and performed the liability of the friend of the owner of the premises in which the illegal act is performed because people now recognise that human beings who may have free will in every visual aids are kept out even where the visual aids is not the exclusive means by which visibility can be i feel sleepy it's more foreseeable that without the mare there is a greater likelihood of something happening in that intersection then there would be with that the question is how far does the supreme court want us to go with it you know the action i mean is there anything else that you want to well they in response to the ordinance it wasn't led like we know right what else apart from that that the arguments i make in my brief are that there are no duty was breached and that there was no proximate cause for any duty and so when i was making all these arguments on proximate cause ation and i breach in the brief i'm referring to all the duties and that in my view the the concept of the stop and the need to stop can sever the causal connection that th and whether the failure to move even brought them below the acceptable level of the maintenance for the safety of others before you even get to the issue of whether somebody was riding a bicycle on the on the sidewalk isn't that protected class that duty question is why do you do you any where your complaint allege that the mere the absence of the mere prevented