walking through the produce department before you fell or you distracted in any way the answer was no again you with referring to walking through the produce department i would like to point out that you in this situation we have a box of produce that is resting on a pallet the corners of this box are not flush with the corners of the pallet so the pallet in looking at the pictures are true some four years or six inches and as we look at the first picture that is the area know a person does not have to always look down the worst walk the fancher question if there isn't a defect that these were the boxes with the produce was put in but on the square rectangular palace weeks at that time but using that various transfers to get back to where she wanted to pick up this box of kleenex and i think if we look at the restatement one of the r playing goods at that time so i think this fits into this fact situation it isn't the standard a reasonable person of ordinary perception intelligence and judgment would realize walking into this display would or would not result in tripping or falling oh we're not supposed to consider as you said it's an object test that's closed consider the fact that you have an overly client we were supposed to look at this object yeah and i the objective decision that she should've seen the box and therefore she would not run into it but here we have a situation where it's created only do we have the box which is obvious but we also have sure the peterson case which is a nine hundred ninety seven case i think that case can be distinguished from this case first of all there was a sense in that case  great i'm just wondering if if there would even be somebody there who could testify about when you're walking through a storm you see a big box like this how your vision is drawn to the box and when something's protruding hundred would not notice it or pay attention  the case with hill gardens that case involved a situation where there was a basketball ground invasion playing basketball guess i was only compare that to mrs grose situation where she was you know using the aisle that they created that she was walking down that you know she's an elderly person and i think they have to take the invitee is what they have which was be an elderly woman you know this is a super wal mart that sells everything from soft goods to toys to you know of a full grocery store or a soup or i did you know they have a lot of individuals into this i agree with you and i have great sympathy for your store and whether that means if there was someone said something to her or whatever you know it wasn't going into any any predator them you know she basically walking through the store you know she got to the point where she was turned around went back and took two or three steps and got her foot on the on the extension of the hou from the v and deposition testimony because you have to show two things first that there was something for which we're responsible that would make someone distracted and secondly that she was actually district now what are the facts here the could suggest in any way that she didn't say what she meant and didn't mean what she said when she said that she was distracted i think we heard it again this morning she's not shopping in the section she's not isn't talking to anyone her husband is trailing her pushing the earth fifteen feet or so behind her so she's not even talking to anyone and no one is talking to her so i what basis functions can we i think just just hope it raises the question about how was there an expert that would testify possibly that the box could draw attention well that's where the warnings from the rest of the display it's bright blue in contrast to a white tile floor council have referred to the point see a case involving a man well there you had and the court made a was you know if floor level here you have and the judge the trial judge made a very good point if you can see the box and everyone knows that the box is open obvious right you can certainly see testimony is that the boxes are loaded shipped all loaded and they're already stapled to physically attached to the wondering if there's some reason that the palace have to be bigger than the boxes for in my state might be to prevent the load from being shifted it might have to do with how it is being transported again it wasn't something that was developed in the trials of if you made if you made a box flush with a pallet so there was no protruding yeah that would completely eliminate the dangerous condition i don't know that you could do that if you're going to have to plant corners you have to change the shape of the boxes with fake corners or unless you're going to have the boxes now sticking out over the pallets and i guess at some point there might be a all in shape and the plaintiff tripped over to expose hoarder accidents will happen and i understand that if you give someone a warning you are recognizing that there is a condition that is capable of causing injury if if you don't avoid granted but the store is not an insurer of the safety  voided by again the reasonable person exercising ordinary intelligence perception and judgment and i think that this case  arrows if we did not have the warnings that were on the boxes where oh you're saying we should be where your customers would be looking if we were back in the peterson situation and remember there was a two to one decision to affirm a summary judgment i think that argument certainly is a more you know it's a serious charge but on this record with these facts with this display i don't see how a jury you know if it's a judge right i mean give me distracted in a number of ways for which wal mart would have no responsibility if she was if she was thinking about a box of kleenex if she was thinking about what they were going to do after they were done with her shopping all right i mean we're not responsible for every possible type of distraction that might come into of someone's head as they're walking straight ahead we're only responsible if we are somehow causing the distraction she's not saying the first problem is she's not saying she's district she's not saying she's distracted i think the speculations for someone to now say well she wasn't looking where she should have been looking she was looking straight ahead and i guess there's no display straight ahead she didn't say that you're looking at a slate so all again where would we find that there's a couple things to keep in mind first of all that evidence can be relevant for one of two reasons could be relevant if you're trying to show that it's a prior similar incident right there would require some of larry or two it could be relevant to show that wal mart had notice of the danger in that area but that incident does not fall under either category here there was no evidence to show it was similar it was the other incident was not in the produce section it was about fifty feet away it was outside the post section we don't know what was on display with the pellets outside the produce section there was no evidence to show any similarity as far as all of the other possible reason it might be relevant which is if there was to show notice when no one testified that anyone complained on this occasion about appellant so if you can't show similarity and if you can't