that mistake could not be corrected by major league baseball on february twenty fourth two thousand and ten tried to or made a mistake that cost no waters their day in court you can't correct that mistake the central issue this morning is whether the record before you chose one of the two limited exceptions to an open an obvious condition but let me stop you right there so you are you are conceding that it is an open obvious situation that she  are ok deliberate encounter does not apply so it's whether or not there is a valid distraction theory the basic longstanding principle in a fall down cases if you know of a defect see the defect before you step into it because the situation was that she's she encounters this open obvious situation on the sidewalk and you believe that the facts support that she was distracted at that point periods there so she was anything but distracted this situation sounds more like if there is such a doctrine a startling event where i'm not so sure that it's this traction at all i'm not sure that the scheduling event can't be a distraction theory this is not personal inattentiveness such as the babysitter such as in the bonnet case yes normal wal is being very careful as she encountered the known defect in the crosswalk and that no new fact was either the ng that iron basis of the barricade where there was a little cut out hole he was past the whole one of the brief this is not a barricade the construction site this is an open crosswalk open to the public there were barricades encroaching that crosswalk they could have either put the if they wanted to use that style barricade moved further up so that it didn't encroach the public crosswalk there or they could have closed off the crosswalk and directed people to the other side so you're saying that they should have taken additional steps to prevent someone from even trying to cross there is that what you're saying no i am saying that if you decide to leave the crosswalk open to the public and you're going to put barricades there just don't have the angle barry says encroach into the crosswalk or use the type of barricades that don't have the angle iron braces but doesn't the parakeet itself shout out open in obvious danger here be very very careful now these are just barricades to prevent cars from going westbound on him he's found out he was still there but that's what those barricades were were there for now does it indicate that there was construction in the area of course no doubt about that but the known defect had the horn some car on the horn and distracted her and falling just as she did here that liability or at least a factual question would still be present where by a trier not necessarily because there are some cases which i just require with that saying that the startling event the distraction has to be caused by the defendant caused created or responsible for so a passing motorists who honk your horn it has nothing to do by and that startled her then i would say that our city of chicago can't do anything to startle her but anybody else can then and like no liability meaning i see this right i disagree i think that some of the cases now say that it has to be a city of chicago cause yeah we're it happened to then the defect where there is a hyped elevation on stage street and somebody on the day after thanksgiving is looking at macy's windows trips over that that used to be a distraction now under really doesn't tie into the source of the distraction so much as whether that sort of distraction itself can lead to liability because i have to say that what if she had just been crossing the sidewalk and she was just about to put her foot and she was on the street and encounters the curb and she was just about the put her foot on the the parkway and she hears something startling that very same jacket and she trips  nothing there other than the distraction event that caused her injury caused her to misstep isn't that the same thing i mean the existence of of those barricades really didn't lea to the injury so much as the distraction led to her fists i mean the sounds led to a distraction which caused her to miss that well let me ask you this is there s discussion with you are you saying that this situation where the person is stepping onto a curb and is distracted by jackhammers and missteps and falls that that present respond to that distraction in a way that doesn't cause her to miss that correct let's assume that on the waters is crossing in the crosswalk and because of the saddling event she doesn't trip over being a one but just tripped over own feet she was still st a perfectly maintained stay injury or cry or i'll change my opinion but there they are exactly but very very there it is it is not a startling event that is then kmart it is a distraction that virtually every customer coming out of kmart with that has a large package may be entirely focused on maintaining that package in front of him or her and watson to think he's very kids that are there are these out holes sticking out of the outside of anybody's control kmart kind of maybe put up a sign or put have done something to prevent to let those who are carrying that big package coming out of the store to remember that there are these all sticking out of the ground  i just wonder what could the city have done i would then basically reconstruct the construction site that as you say put the barriers in a different way maybe put higher barriers or done something to prevent people from walking in there i'm not sure that's that's a reasonable alter well it is so reasonable to just not be in the wires or use a different type of barricade that presents the same message to the vehicles entering are these routes of big tall trees sticking out of the ground and she's watching herself and and then gets startled and trips over the root of the tree that's protruding from the ground why isn't that the same situation because if she's in a parkway  normal negligences imply i have to prove that it's you know like a trap or snare hold up wait a rock is different than if she's in a crosswalk which is open to the public that we're going back to the open an obvious issue the  dangerous condition applied here when she was trying to do was to take the danger that was objectively seen in the record and across walk and then said ok the whole construction site from higgins all the way out or from milwaukee and  barricades up and i always i mean it's going to be going on and i would agree with just his grin that that's a question of fact that i wasn't able to present to the jury and i think a jury would agree that yes a lady is walking carefully as normal was in the cross walk given notice that it was open an obvious but that barricade itself created more open in august he got more we know the danger of the known danger it was a dud the barricades really don't aren't there to to create a danger they're there to give notice of the danger ok but the barricade has to sit on some sort of a base they couldn't use the barricade that had a different type of base that eliminated in an open crosswalk  distraction that is directly responsible or directly traceable to the city i like the police car i would say it would not because the decision to enter the destruction zone i don't know councilor so that this was miss the the feet yes that were holding up the barricade correctly she had stepped over the two of them anyway yes let me ask you just as a as the distraction had to be something that's caused by the city  if if if distraction is the cost if the defended should be considered to be reasonably for see a distraction what's the difference what the source of that distraction i from the defense let's stay with the case of this as it doesn't make any difference or certainly needed to be consistent with kmart no such element exists in this sort of case why why isn't this a case where a factual question has been raised and we should leave it to the wisdom of the jury to decide whether liability exists or does to i would make is that really the the condition here if you can isolate the barricades from the construction zone the barricades were on one side of the crosswalk and the other side work was the working area the there was a large hole to the right of the crosswalk there were more barricades and work was going on all down that wa well your honor it's not clear from the record but the record never got to that question without first examining whether this it would not extend especially exceptions to a distraction that was itself part of the dangerous condition conceptually this case is analogous the construction zone included the barricades the at least the possibility that it would be distracting sound that's correct there was so shit with the construction yes and and the plaintiff was aware the construction was going on at this location too she walked by the  the see around the huge mirror the was carrying out of the store and that there were large bulky items in this k mart and this is reasonably foreseeable that people will have these that the in fact the defendant there is actually encouraging this once this to happen  there's nothing like that in this case she didn't have to go into the instructions of the here here's another difference in k mart the the those holes sticking out of the ground were meant to benefit kmart by keeping their cards out that danger exists here be very very careful and those who choose to walk among danger have to be even more careful and be sure not to get startled because can't just look at this particular location there are thousands of miles of streets and intersections across walks and i mean time destruction takes place next to that we'd have to close off the cross walk or otherwise monitor and ensure that nothing north structures of any car you would have had to ensure that the me ask the question or let me put out a question to justice cahill's observation because i'm not sure we can get a concession from plaintiff's counsel that if the barricade did not extend into the walkway and had she been walking a little bit outside of that walkway and that barricade feet still posed a problem and she was startled at that moment that a lawsuit would not have been filed because she wasn't within  hole for the stairway and the court said it was proper to be looking at your coworker when you carrying a heavy package and following the whole you just cut out i think any hole should be buried prostration is just simply an  and it's only at the third barricade that she fall and so i have difficulty accepting any kind of danger posed by what she was able to cross over to an identical things previously danger had to really come from that outside so now the danger is the anger line just like this fanchon in k mart the distraction big bulky box looking to see