are next case for today is case number four sixteen zero five nine three and that is barbara among the sunburst is the city of bam hill and for the appellant and i know we've met but i don't want to miss pronounce your last name found that section article three section one of two codifies a general general duty but this argument ignores that plain language because a plain reading of the act and the article demonstrate that the legislative intent was to to immunize local government only to the extent that is set or with in article is the section that the defendant relies upon and they compared that to section article three section want to eight and while want to wait is not an issue in case i think there is a huge comparison that we can make between the two await actually refers to other parts of the act in that situation you actually do have to go back and look at the language of art specifically to a one and determine whether or not one of those supersede and in this situation consider it but i think what happened in this case is we argued that there were factual disputes because of the credibility issues in terms of not necessarily if the court should weigh the credibility but that because there is a necessary element o don't know that there was anything necessarily actionable strike that particular affidavit from my perspective the issue really came down to whether or not when you look at the facts of whether or not they actually had were were those i think her we get into is when we look at the other cases for instance the line of cases that the defendant cited there always was an actual specific specific articulable conscious off for a purpose of the discretionary act possibly i think from our perspective then we get into whether or not the danville ordinance which is one hundred point five two comes in the case because that's compelling evidence that the sidewalk was required sidewalk work was required to be performed in a certain manner and then it would take it outside the discretionary act situation and that would be the the organise would follow the statute in terms of article one or two who want to see it's not that it would trump it it's just that when you're talking about discretional versus ministerial if there's an actual articulable ordinance that's in place that specifies how the city is supposed to perform the work and the manner in which that work is supposed to be performed takes it out of discretionary and puts it into the stereo corey that means that the city employee no longer h discretion to make those decisions they had to follow the articulable path which would be ministerial and then we would be outside of the one or two are to a one immunity so i suspect that but as i mentioned specific articulable reason on or in rector there was a waiver of this particular argument up the plaintiff's attorney for whatever reason agreed in the trial or and then agreed again on the ballot level that the so concluded i think without a waiver and with the arguments that are set forth in our case the decision in return what if in different now certainly once you get to what we have in our case and we decide that section three one zero two applies i mentioned earlier that when we get into an analysis under article three and you take us out of article two of the new discretional immunity analysis we don't have to get into the facts of this particular case with respect to open an obvious cars that were parked along the roadway into the traffic along the roadway to ensure that there was no danger present in front of her as she reached her car so i think with respect to the open an obvious that there is a clear determination that the condition was not open and obviously that it was there was a distraction exception by with regards to the diminished certainly there was a question of facts here in this case and again the court did not reach this determination kobe went down the article to discretional immunity path however in this case i think the more appropriate way would have been to go towards the de minimus and and just a plain article three wanted to analysis and in this case we had a commercial  to a sidewalk got out of the vehicle to go put money in the meter went back to the vehicle came back out and took three steps along the sidewalk that range depending on the testimony from about one inch to about two inches it was in a commercial district in the port  specifically that when it cannot be found at all reasonable minds would agree that effect is so so slight that it should not go to the jury it must go to the jury in that case because of the a contributing factors down with respect to the commercial district and the adjacent parking and the traffic on the roadway the court found that that was a jury question and for those same reasons i would ask this court to find that discretionary immunity is not an analysis that applies to this case and under article three section want to two we would move to the de minimus analysis and in that situation it would be a question of fact and thus the case should be reversed and remanded to the trial  basically what the plaintiff is asking for in this case is to overturn a bunch of case law specifically fourth district case law in canal reject richter in the second district and basically find that a slew of other appellate cases that have come down over many number of years simply failed to observe that you cannot interplay to dash to a one community with three dash one zero to do and that's what many cases from a variety of districts have done you don't simply three three dash one or two which  deaths to a one council sites the language that says except as otherwise provided in this article and i think it's clear that what the intent of the legislature was there is that there after three deaths one or two there are numerous provisions in article three that discuss various communities whether it's supervision recreational property hazardous activities things like that however there is no court that has ever said that to death to a one does not also apply to potentially provide an immunity for maintenance of public property council cannot cite a case that says that what we have is a specific case the canal case from the fourth district in one thousand nine hundred two that specifically look at all three sections that are at issue in this case specifically look at three deaths one to duty in terms of the maintenance of this roadway rise at a really heavy rail crossing and it's an issue no no much different not much different than what we have here we have a rise in the sidewalk there we have a rise in a row and they look at sections two one zero nine and two decks to a one both of which are at issue in this case that the scots immunities based upon discretionary activities and the back court specifically said that the issue involves joint consideration of all three sections did not say that we cannot consider discretionary immunity in light of this three want to go to duty that the municipality have and the quote specifically from that case is the question to be answered is whether three want to impose a duty on the township to remove the rise in the roadway or whether the decision to do so was one for the road commissioner thus triggering the immunity to dash to a  and specifically that courts that three want to applies only to the performance of ministerial teams and clearly what that means is these terms of been well defined by the appellate courts in the supreme court throughout the years the ministerial duty will impose a specific set of requirements and how somebody does something in three one of two is a general duty statute saying you have to maintain your property that's it they don't say that you have to do it in x sort of way or why sort and now you have that duty is there is that ministerial in this case no because we know from the evidence and what the trial court considered in all this was that mr arns as the chief decision maker of public property the director of public works for danville testified that  it was his job to determine the policy and two in their policy that they determined as he along with his staff would look at the sidewalks in the city and make a determination of their own accord what needed repairs and how such repairs and when such repairs we need to be made and so that satisfies that then the first prong of the immunity analysis and then you have the second prong which is ok or are you then executing that discretion when going about doing your job and clearly he as well as shelly larson his subordinate who was the director of downtown services specifically testified that they then did that they eyeball the sidewalks throughout the city shelley larson that it first she marked the sidewalks that she determined needed repair and this was a continual process but specifically there was a project that involved this very area of the fall that occurred less than a year before miss matson's fall and she determined that some areas need to repair some areas that including the area involved here did not and then mr r mr arms then followed her to determine that she made the right call and he his discretion so we have almost a bifurcated double level of discretion that happened here and plaintiff's position that is essentially that you can never apply discretionary immunity when it comes to maintenance of public property and that's simply not the law it's not how the courts including the supreme court this district in every other district has handled that area of the law there are numerous cases which are addressed to d potholes maintenance of signs maintenance of median barriers maintenance of the sewer line and all of them found that two desks will want to be unity discretionary immunity applied so plaintiffs position was actually say that that entire line of case law is out the window that those cases were decided wrongly including that now was decided wrong and i simply don't think that's the case i don't think that's the law nor do i think it should be the law and i think the richard case perfectly exemplified how to apply it we have facts in our case that are very similar there was a maintenance of a sidewalk in that case maintenance of a sidewalk here there were people in richter that specific job it was to look at the been established particularly in this district and so whether that agreement even if that agreement was never made that the richer opinion never said but by the way we would have had a much different result if plaintiff didn't make this agreement i think that would have been you know something sir i've certainly seen appellate court to do is make note of why they are ruling a certain way and that certainly was not something that the second district made note of as being significant to their decision everything else  is falls right in line and i'm point with our case in terms of the facts and it was a well reasoned decision and it was well thought out it i want by canal i think it addressed all of the issues and it decision so i you know in looking at everything that richard decided this court i believe certainly is not bound by that but i think it certainly is evidence of a well reasoned decision that this court should should follow based upon the facts of this case as well canel i think you know being a fourth district case i think being perhaps the most significant part of that analysis the last thing i wanted to bring up  statutory construction part of this when counsel says well because article three want to start except as otherwise provided i mentioned before that i believe the reason that's in there is because there are a number of communities in article three that follow that and i think that's what they were referencing there certainly was no prohibition on referencing i think an immunity that would be on article two they could have easily written that in two or three desh want to do by saying this does not allow for an immunity based on discretion they chose not to do that and that but i think if if the legislature truly wanted to say that only the immunities enumerated in article three apply can be applied to a better one or two they could have easily said only as otherwise provided in this are they used the term except which i think does implies that it is not barring any reference or application were another line of argument that article two immunity is trumped by article three because it's more specific i certainly believe that see a misleading argument if you look at our three what needs to be considered in terms of whether it's general or specific is what act is the plaintiff alleging the defendant did what here they're alleging that they failed to inspect and maintain a site that act the evidence has shown in this case was specifically discretion airily done by the city through two employees who were in charge of the services and they said we inspected it we chose not to fix it that is our we used our it's no different than any other case that someone need to specifically remember looking at one thing in order for it to be admissible at trial of course that examples were brought up in the appellate response in terms of a police officer talking to witnesses at the scene search every case i've ever handled the police officers do not have an independent recollection of talking to witnesses at the scene however it's documented in such a way that they can then testify that yeah the this person would have made the statement to me doctors the same way in terms of medical records so what these two people will testify to for the city is that they certainly would have looked at this very area because they had inspected they in fact replace an area a mere feet away from where mr monson well less than a year after their inspection and both witnesses testified that clearly that's what they would have done pursuant to their custom and practice so i think that that allays any concerns in terms of foundation or admissibility or anything like that i think that would be solid testimony in that regard the final statements i want to make your honour's well concerning to minimus and open obvious obviously the court can make whatever decisions can base whatever decision it wants from the record doesn't necessarily have to be on the day scene basis the trial court decided they travel and it's considered judgment only got as far as the discretion which i agree with how right you think solid bases would would allow this court to either determine this was the minimus or to determine it was open obvious i don't think the plaintiff can have it both ways i think it's one or the other the evidence the record is clear that this is a condition which is about an inch and a half i believe we submitted a supplemental record that has color photos to the best extent we could provide of the scene that as a rule or so i think that's what that  shows a lot of cases of comedown saying this is a de minimus condition council makes a point that this is any business district that is one of the exceptions to this rule however it is right next to a light pole this monson specifically mark the patch talking where she fell and i think that eliminates that exception because it's not i think clearly it's clearly not a normal pathway for somebody and it's clearly not a deliberate encounter because this might it could easily take an alternate path with respect to open and obvious if it's not the minimalists then it's right there for her to have seen she admitted she was not distracted by single thing was there water she said well she didn't say covering it she said there was a pool of water where the lower level of the sidewalk was compared to the upper level but she never said it was covered i'll bet what's significant into that what she said as she walked over that very same area when she was when from the car to the business she went to would someone step in a puddle voluntarily that might be getting into credibility issues but i think it bears to make to make a point of that whatever she was wherever she was walking everything was clearly in front of her if she saw water then i think that would have pooled in that area that would have indicated that there was some sort of difference in deviation too so i think either way either way you cut it she can't have it immunity analysis in course in back in two thousand and two again this very same court there was a summary judgment case that came up on appeal and corson this was pretty marri course and specifically addressed section sidewalk falls within three dash one two but we're not necessarily asking this court to overturn kenneled because there's been two heroes any of those other cases served turner was not correct it was sort of done it never got brought out kennel it's not brought up in the issue in the court had come down in the same way that it did with this very argument that's being made in our case certainly i think it needs to be overruled but in that case because there was a waiver i'm not necessarily arguing that their analysis of discretional versus ministerial was incorrect the issue is it never should have gotten there but we and certainly i think in a perfect world cannot needs to be overturned and i think the analysis and murray that talks about this  except for there was absolutely no discussion as to the except as otherwise provided section well i understand that but the reason i made reference to this is what this quarter over  i don't know that anything that happens across the street is an indication that anything has been done right or wrong or are in this horrid i think that's getting into a whole new ball of wax certainly with politics especially with in light of what's been going on in our legislature here in illinois of late  i don't know that they would have much of a recourse to get much of anything done given our current state of affairs but i think if we go back to murray for a second the problem with this entire line he says that there has been waivers there's been insufficient insufficient consideration of the acceptance of the rights provided sections it's almost as if over the line of looking at these two articles people just really read over that as if it's irrelevant and it's not because article three