this motion for summary judgment was decided by judge hole in which she found based on her reading of how the jones act should be applied that there were no facts that could support a conclusion of negligence or on seaworthiness if her decision completely contradicts the evidence that was a deuced we proved through photographs that were taken by the captain of the vessel that there was a wet deck where mr brown fell we prove through the evidence of the same photographs that there was some ice in that same spot and i thought bound by the deposition testimony of mr brown who said he had no idea why he f that is not what he said your honor right mr brown said he so st of all there's a lot of evidence about what happened he was at the railing and he turned and took two steps and both feet slipped that it was very slippery he says he says that he felt in that position and that is shown in the photograph that a six hundred and fifty six of the record let me let me cut through this because i am inclined to agree with you that even vote his testimony contradicted march of what we earlier the position was there is enough separate testimony so that if we cut him out altogether there is enough separate testimony at least for run seaworthiness which is an on fault thing my problem goes to the primary duty issue which is a terrible problem because we have this opinion by learned hand in the opinion by harlan and then you have this opinion by clarke saying it into there and it my question is what we do with this doctrine and whether it applies in this particular case where we are it could be some evidence despite what he said that it wasn't his primary duty i mean that that used to be for me the problem in visit case thank you judge are you it was an issue that was not decided by judge designed i know what that's about right i didn't mean to dodge your question we did argue it and i do believe st of all that the primary duty doctrine should be jettisoned but brief it but i think in this case we don't have to reach that because there were other entities that we believe were at fault here with that had duties that also were breached it would only go into the mix for instance the condition of the deck being  having the nonskid very worn after three years of service which was in violation we contend of rhein our zone rules about maintenance that there's that evidence which it is not mr brown's duty  see that that is either way or covered with ice mr brown and one of the in his deposition put a stick figure on that very photograph and next page has an area that are dry as well so like he said he didn't know and so how are we to know now what cost him because he says i slipped in this area where he where he drew his stick figure and you can see from the photograph that it's wet there's some ice in that area so there is the extrinsic evidence that shows there was a condition to the deck and he says his feet slipped out on that deck of course in his after the affirmation he's again repeats i'm not sure if i slipped on ice or water i believe it was a wet deck that i slipped on but he does say he does say this is the area where i slipped and i see it in the photograph so he's referring to  his deposition testimony and his advertisement are not contradictory absolutely your honor that in his affirmation he specifically says i'm not sure what i slipped on but i know i slipped here and i know the deck was wet as can be seen in the extrinsic evidence which is one of the standards that even judge hall cited that if there's extrinsic evidence you can put in a different story as to what zandi brought them out and showed it to him and that's when he drew the stick figure as to is there any yes or no i'm not understanding your answer during the deposition was he shown the pictures as exhibits after he originally testified as to whether what he slipped on he was then presented with for instance this vote again oh so you mean after in the deposition it during the deposition after he said i'm not sure what i slipped on and then he was shown this photograph and then he drew the stick figure on this photograph saying here's where i slipped and fell and that is right in the middle that he didn't see that but he didn't say in the deposition the things in it were not he wasn't more specific in his memory he was not asked a lot of what is in his affirmation he was not asked to for instance about and he had the opportunity to recall those things in his affirmation he does he was not asked what was the condition of the pain it's not it's not the his job to ask the questions in a deposition  showing your age i fully agree with that and certainly this court's decision in martinez for the city of new york in fact highlighted that fact that in a jones act case where there was a slip and fall and that that plaintiff did where he found again where a plaintiff said i'm not sure what i slipped on i slipped on this plate i know that there was some sand on it and i know that it had some lubricant on it but i'm not sure what i slipped on but judge nathan said this is a to please the court my name is in counsel money ms geno's on getting on the attorney for right now or transportation company in this case your honour's this case i would submit to the court even within the jur somewhat unique the plaintiff in this case testified at a fair length about his accident and was asked very specific questions about the cause of his accident and his response to whether he could feel whether he could see in all to bill me whether he knew what caused him to fall or all negative and at the end of this line of questioning his response was i don't know there's no question that if we take his evidence as the only evidence he loses the question is if we ignore his evidence because it is contradictory to what he says later and so on which may well make a jury if it gets to a jury not believe anything but if there is enough other evidence of three years yeah three to six years and ten months later you'll get testimony that it was not bad is that enough the fact that this was a sixteen inch snow fall that nobody could deal with again this doesn't go to negligence but to create a question of and see were venous we are causation is so slight now my problem with that brings me back to the primary duty rule and the stand your honor see where venus is incorporated in the jones act and i believe that the supreme court's holdings with respect to causation apply to everything even if anything even more to see were  cause and that's why this slight standard come from comes from in fact that's the only difference between a jones act case and a traditional common law negligence case so respectfully i submit to the court that the standards different even if we look at and i understand the court's concern about you know particularly the f e l a in the jones act that they speak to a lib a liberal standard remedial act however this case is is really unique in the following respect you can look at all these cases and see that language in these cases but i've not found a case where a plaintiff has testified that he simply doesn't know what caused his accident and even under that liberal law negligence principles most especially common law or negligent principles of the state of new york and i've cited nd circuit case which would states that in fact i was lucky enough to get a prior summary judgment case upheld by this court  the kennedy vs damo case different facts but the court's well and have upheld summary judgment jones act cases where we have this type of speculation supporting your claim i think one thing to say  we would ignore the plaintiff's testimony eleven dollars fact needs to be looked at what we then would rely upon is essentially circumstantial evidence photographs and so on look we have and this is what i'd like you to focus on i mean do we have to be bound in a case like this by his own testimony which destroys his case which he then counters or do we look to be extrinsic evidence apart from that which if we completely ignore this guy's testimony is vet enough to show for jones act and for own seaward vinas evil or negligence which is much more doubtful or strict liability under own seaworthiness just ignoring him but primary duty your honor will certainly answer question directly i want to point out one thing before that the before we get to the circumstantial evidence i submit to the court that we question the plaintiff at deposition about the circumstantial evidence and he was certainly the person in the best position to say so i was and that but by just one point you're on to the contrary that ultimately becomes a jury question right and the slip and fall case many witnesses are unable to say exactly what caused them to fall in till they fall fall and they see the bolt they see the raised up what have you he said no so based on the circumstantial evidence available to the plaintiff he was unable to say what cents they show a deck that has dry areas it has a nearly wet areas with with minor amounts of water they have patches of snow which the  nonce this the slip meter to the deck found that it met every standard he applied to it the condition of the nonskid was excellent and it could be it shown in some of the other photographs where you  said to last between up to three years up to six years and you have evidence ten months later but still well within  years and so closer to the three years that it was in bad shape that is evidence of seaworthiness not necessarily of negligence that is that evidence of the seaward venus and isn't that why isn't that enough which again brings me back to the question of was it his duty to see to it that was in good shape but why if we leave everything else out in just that and look at it is a standard seaworthiness case that isn't enough the evidence about the condition of the nonskid pain when it was viewed ten months after the accident comes exclusively from the plaintiff's expert  so so there really is no evidence who is in bad shape but it really brings to light the problems with the case can i just finish with saying that experts should not be believed he shouldn't testify we moved to exclude him and the court never got to that the court never got to that but the expert on that point should be believed because all of his findings were that the deck met the standards according to him but put it point to point out your honor that you know given these different possibilities if there was ice on the deck for one of the reasons and each one of the free reasons water snow or bad pain are sufficient to be on seaward then it doesn't matter that he cannot tell us which of the read is bogus all he has to do is to show and see you were venus because that makes it obvious that i'm not be the answer that makes it a guessing game your honor and that's not what these cases stand for and there's a th possibility which is the dry deck the perfectly dry deck is a possibility so so then we get to what we in this this was dealt with in this pres bill linsky case out of the six circuit is the closest case of any case that i found it's in f l a case where the where the plaintiff came in and said i tripped on the bridge on the railroad bridge and one of three possibilities the plaintiff in our case doesn't even give us a possibility he says i don't know so we're he's behind the people in that case to begin with and the court looks at it and says that's not good enough because a scintilla of evidence doesn't withstand evidence submitted to the court does not give rise to a prime official case of either negligence or or on seaworthiness i see my time has expired if there are any questions i'm happy to answer them and i think the court for its time you can feet went out that's at his deposition that's not in his affirmation that's his deposition and that both feet went out i just want to reach a couple points that mr zhan get he said i dispute that there are no cases that are similar to this i fell and injured himself he said i'm not sure what it was but the court reversed the summary judgment against him because there was extensive evidence of the area where he was presented slippery conditions judge you mentioned causation what is the causation standard in jones act versus seaworthiness it is my opinion that the court in models the supreme court in miles which said that where congress has spoken that this that's the standard should be applied in both and on seaworthiness and a general maritime law case and the jones act case miles  is in my opinion saying to these courts and it's not been raised before that the standard for causation in an seaworthiness case where a jones axeman should be the same as under the jones act i think everything that you water or ice on the deck that comes from mr marshall that the captain of the tug who took the photographs and he opined in his testimony that this well the evidence you say is that he could have slipped because it was her he could have slipped because of ice he could have slipped because of bad paint or any combination thereof yes or it does not standards of causation for the jones act and for an seaworthiness find that he slipped because of one of these things which might be saying they are worker and and in prevalence the court said you had to prove that each one of those conditions because it was a general verdict of negligence that each one of the conditions could have been negligent and the court said only two would be negligence the rd one we don't know what the jury did so was sent back in nathan judge nathan in esposito said both of the conditions alleged by the plaintiff where he slipped and fell because that plaintiff didn't know again just like here he didn't know exactly what caused his fall but judge nathan said both of the conditions that he alleged could have been negligence for the jury to decide with that your honor student thank you very much for apologise to both of you those cases for sixty years since which is a disadvantage because a judge should not know too much or this isn't thank you very much