not not as a constructor but as a landowner who had a duty to maintain its property in a reasonably safe condition and they feel they breached that duty as a landowner because under the specific mandates of i doubt and national they were required to have a guardrail there and it was required to beat a certain size figuration which included being extended an additional sixty feet north which it was not and location in our least two occasions i made modifications to this barbara the first modification and we have limited evidence on this issue because even though we have requested documents and names of people who are involved in the first lot of issues we never see them streets testified that he as part of this job would who would drive the streets along with his personnel and check and see where things need to be fixed or they were not properly done and in fact here we have not just not just minor maintenance issues but we have reconfiguration new materials put in recent engineers decisions to modify the south and why is that going that off the answer to that is i don't know but under the standard of care and under the it complies in the sense that from the time that the guard rail was originally constructed in seventy seven seventy eight at the time of the occupation was made there was a trend towards using metal rather than what but there's nothing today that suggestion that you were in fact the national parks they're still going guardrail series so it was i think there's nothing to say that there was anything improperly done by modifying that way but the point was that the picture as a whole was standards that the city must follow mr hume with their engineer testify to that too when you look at those standards and my expert mr snob is relying on those then based on those stairs a place at that time that barbara had to be move case the duty of the landowner here with respect to the highway they have to follow specific standards which with respect to implement vacation of barber ales when they're putting into streets slash files so their duty is created by these specific standards and that's why we get into the up to the discussion but that's where the court immunities don't apply here for terms of discretion or immunity because the standards tell them specifically what they have to do there is no discretion it's a ministerial act but going back to the n b a the third amended complaint was the subject of a motion to dismiss filed by the city of peoria and it went before judge best who has since retired he originally heard a motion to dismiss based on the that's correct so that the difference between that could be complete there's i think that's correct in terms of now you're looking technically at the facts excuse me but and that was a decision that he made as a matter of was when he said it is the facts affect the ones that are facts if you relied on which i disagree with is that the city was involved in the original design destruction of the guardrail and therefore because they well over ten years before the explosion in that case and the plane to the hotel owner at believe it was sued that gas company for the original design and for maintenance failing to maintain and fix the stopper  rejected n b a but what it wonder stood n b a to say and i think it's an absolutely correct interpretation of n b a is that where you have a party that has a continuing duty to maintain a landowner or a supplier just because they are involved in the original design and the original design involved the defect which was the cause an injury doesn't need it or immunize or the failure to identify or correct that design during the subsequent years where they had a duty to right to reject every day he was he was absolutely required to follow up and i don't think that any of his detective distinctions have merit because here we had a defect in the guardrail back  was involved in the original construction which we disagree with based on the facts are put in but even if we assume that to be true just could be said because they were involved in the original design of construction the deputy still immunization from all claims related to their failure to argument in ninety five in two thousand and two and undertook to modify that barbara when they did that they had a duty to do it in the correct way and they did not comply with light up stairs in a head in terms of what the terms of whether they had a duty to fix it per guard rail number one other i doubt standers they did when they went out there and number two their argument that they didn't even think about the war site they cannot prove that because they did not produce the records and they did not produce the expert who made the decision to do this work they were seeking summary judgment they have the burden of proof of showing what the scope of that debate was and they haven't produced any of that your material to reflect that this is a drastic  of a reversal i don't like that at all let me tell you what i mean i want to mention a couple things if i can about the facts slash what allegations are supported by the evidence in this case which i think are important on all three complaints and obviously the court has read them all three complaints allege the exact same thing they focus on the design of the guardrail wasn't long enough wasn't long enough and likely seventy seven was as to was long enough in two thousand and four when this unfortunate accident happened their expert says that one and only one thing his only criticism of it is should have been one time he said twenty five or twenty six feet longer another time sixty to sixty five let's say should have been sixty to sixty five feet longer that's the only thing he says he was a little bit maybe moving closer to the curb but but those are the complaints that he makes those are the only on that but the only thing we're talking about here the only criticism from the expert is this needed to be from day one needed to be sixty feet long it is up at the northern end and that's what the case talk that's  interestingly enough no i think i think it is spelled the same way but in any event the right case is this it may sound simple but the logic in the reasoning in the analysis are right are on point in this case that's the one with that little stat in front of  a work done at the south and but that there is also work repair maintenance done to descend as well once just replace the wood and then mon things those are the two things they did over time but our position is that in the case law supports that if you do those do those correctly and do those not negligently but the waltzes then you don't have suddenly a duty to then go ahead is no case for correct correct if if i would like to move forward to a different issue and if i may get off this special repots just a minute because there's another issue that i think is very very strong in this case as part driver loses control and that causes someone to go off the roadway that cuts the proximate cause off because that if he's talking about this somewhere along the line they are going to run into a ditch a tree or something something is that even after the tenure statutory period a party who is in a position to correct a design defect loses the protection of section three to forty to correct the designed effect and i think we're getting  of arguments here correcting a design defect could be fixing a rail it could be fixing it could be extending the rail further north that is in my opinion its maintenance its fixing its making it immunize if it has a continuing duty to maintain because it is incredibly dangerous thing to do that's not the purpose of thirteen to dash fourteen per million i somebody who has a duty to inspect and to fix i cannot see any distinctions between these  of the dangerousness from intel these that are all do we want to be in a position where just because an architect or a contractor build something defectively but that has a continuum duties made him remember they don't have a contract to but if we identify something that he's to be fixed then you know we don't have to worry about fixing it because we've got permanent immunity immunity under thirteen dish to fourteen so we have no duty to inspect it all if somebody says if we fail to identify something we can just go back to the fact that we originally designed an assault and that brings me to my final point if you look at the evidence i respect we believe the judge typically was incorrect the city was never involved in the original design of the solution if you take a look a ton of information about that which he disagreed with and said now when i look at it i think they were involved and since they were involved that means the permit we immunize all the way up to two thousand that was his opinion which in my opinion directly oppose