itself if you read it it reads not like any summary judgment orders that i've been accustomed to in my forty two years of practice it it reads like basically stipulated bench at each end of the ditch words broke up by the locks there concrete aprons that at the end of the site and walk and stops right at one war this apron exists that's an example of the parkway but if you take a look at the case the sprint court case of marshall that i've cited that that really goes in explains it very well and let me tell you the difference the difference  at the the the municipality the state whatever the government entity has a duty to maintain it and in an ordinary negligence  fashion and when it's a part way it's a little bit relaxed b what you have to show is that if it is a park where the people that are on it they are permitted an intended use and then the duty from the municipality is that they don't allow any pitfalls snares traps and this is just language from from a number of supreme court in our position our position is that the sidewalk from both sides were going north and south stops there's no signs there's no warnings there's nothing to indicate that no one should be on there was testimony  want to make it clear that this that this case is not about the ditch it's about the area the apron if you will and i would just point out that on the opposite side of th ditch on the other apron is a paved bike trail a walking path the same as here the only signs that appear that direct us on the part where my client got injured is that there is a sign that says no vehicles but that's the only only sign during all of the depositions utility people were allowed allowed to use that and to walk up and down and proceed north and south on this and i think just the fact that this was an parkway that is that's what sets this apart now in counsel's brief i just want to say that very briefly he says he argue something about waiver that that that that we waived this argument  really didn't understand what he was saying and i would point that on page nine of my priest i went on and cite the marshall case and i go on and explained the obligations of community w have with respect to a parkway and again the parkway designation comes from councils non compliance of refusal to come to answer the request to at the end of or order that i believe that counsels us that we waive it simply doesn't address it she cites the de bianco i believe is the name of the case it has to do with with a row with someone crossing a road that's that is not the issue here and the issue before you is is there are there any factual disputes well yes of course there s and what i thought really this is a complex case it's really not it's very very simple you have you have a lady walking and basically in her backyard as everybody else is doing it she has a grandson with herb and the grandson makes a move toward the dangerous part which is the ditch and again this is about the ditch and she moves likewise to intercept her grandson and enter deposition which once disputed that she comes near the edge but she still says i believe her deposition was six to ten inches away  from the edge and it just immediately it gave it gives way much like the slides that i had that i previously mentioned that they were aware of while of course when it slides she steps over and suffers a horrible injury the nine hundred and eleven call the she makes on this will make your blood corrupt and that's it i mean that is simply the facts now litigation they admitted that it was a parkway so you have to take a look at the marshall case and the other cases around now not judge smith did she at the very end she says that well even if it's this even it's that i'm looking at this the bianco case and i don't think that you fulfill the duty aspect of it that doesn't apply here that's why it wasn't addressed is it it wasn't trespass addressed throughout the brief that really that that doesn't apply she goes on and say that well it would be too expensive none of that was in the record she wait these facts and that is what a summary judgment and more more to signs that were put up the they didn't want to by driving on so clearly it's a parkway but by the evidence and by the facts that were a douche but more importantly it's a parkway by their admission therefore if it is a parkway the duty is that that it is intent at the the aspect of it it's intended for walkers because no vehicles are allowed and the walkers  permitted they breached their duty of care because of the giving away of this crown so close to the end it wasn't like she stepped over the edge and of course we would argue that that's a pitfall could be a trap i don't think that it could be a snare but i mean this is the language that the state that the supreme court used and this fall squarely with that in fact we did argue that judgment should have granted our partial motion for summary judgment but be that as it may again if you if you review her order she just weighed so many facts and it honestly looks like a other side right yes or no there was between a bicycle and there was a little bit of grass and then there was a ditch zero yet between the bicycle path and my hand yes the bicycle path is on the opposite adjacent sidewalks are i get would be perpendicular to the to this parkway if you walk north or south on this parkway then when it breaks you're going to come to a sidewalk and apron actually concrete apron so if you're coming from a concrete apron there is no sign no no no indication that you're going into an permitted area or anything there's just this grass walkway ok thank you the court counsel once again i apologize for the technical difficulties i do want to get into some of the things that mr ansal referenced but st i'd like to point out that i think about said it's important to describe just what my client is it is a sanitary district and not home rule entity that has only those powers provided to it by statute and if you look at the statute here  it is all about drainage the district doesn't have owned or maintained streets sidewalks walkways parkways recreational property anything like that the district does not do it it maintains drainage infrastructure that drains water from granite city into horseshoe lake and eventually into the mississippi river so plain as counsel is talking about all this the sidewalks and aprons none of that is the district's the district doesn't own any of that the bike path on the other side there's nowhere near where this accident occurred is owned by madison county transit through and is operated via  on the district's property that is the only thing on the district's property that is you know could be considered a walkway of any time and that's not even the district's  that he didn't quite understand argument with regard to the forfeiting argument so i'll just touch on that really really briefly the circuit court ruled in the district's favor for numerous reasons one of which was that  judge smith said there was no duty because the case did not meet the traditional duty factors and specifically the court referred to the magnitude of the burden and the consequence of the place and the burden on the district at all issues that are not argued are forfeited and since it's a dispositive issue cases essentially over the same thing goes with breach the discharge of the circuit court judge smith  stated that for the reason set forth in order that there was no breach of a duty even if one exists existed and the plaintiff raised or kind of touched on that in their reply or in her reply but but whether that's the case or not this case in point is claim fails basically at every level first there is no duty here and the plaintiff has referenced these requests to admit and i'm a little concerned that the plaintiff has not acknowledged in their briefs or in her briefs or here today the court's actual order with regard regard to  request to admit and the issue of whether something is a parkway specifically judge mudd's stated that no none of the requests to admit ask the district to admit that there was a park claim and what he was getting at is if you look at the request to admit the plaintiff try to little bait and switch they try they said there is a pass over on the west side of your property and then they put in parentheses a different term the word path parkway and judge mudd said they've admitted there's a path they haven't admitted there is a parkway you can't take a word and then put something else and parentheses and claim that they've admitted to it so plaintiff is not reference in fact plaintiff even says the judge smith failed to or actually reversed judge much just order that's not correct judge much that district never had mid there was a parkway so i don't know why plant continued to argue that because that issue is mo and was resolved by the trial court specifically judge mudd in the mud and the plaintiff has not raised any issue as to his ruling in the briefs and just skips that ruling and says the district image it was a parkway so this or did not admit there was a parkway and to justice well says point there is no sidewalk there and absolutely parkways are adjacent to sidewalks there in the public right of way there adjacent to streets that's the area that's been referenced in marshall and every case since then this random property next to at the very edge of a ditch is in no way shape or form shape or form a par and if you look at the the facts here there's no no street no public right of way no streets no mailboxes no garbage pickup no parking no bell bus pick up all of the characteristics that make it a parkway it is absolutely not a parkway it's plants essentially trying to create an alternate reality here where they can get past summary judgment but this is not a parkway never was and the district never admitted that it was as set forth and judge much as order and the other point is basically what point is the same is that we the district that is admitted there's a duty well black letter law that you can't admit a duty through quest to admit whether or not you answer those requests to him and so the whole argument is fails but the as i stated  the case fails at every every turn there is no duty here plaintiff was a trespasser there's no doubt about that she admitted she did not have she did not have a door to be on the property and she knew she was entering the district's property and the only way that she could avoid trespass being labeled a trespasser is if the frequent trespasser exception applied which it does not there is no evidence in this record that people constantly in persistently walked in the area where she fell which counsel said was six to ten inches away from the did she plaintiff never testified as to the distance she marked it right at the edge on on i picture right at the edge of the ditch so she is a trespasser and the issues raised by judge smith on that point are not the law she said she's not a trespasser that is a because the district failed to post signs saying she couldn't be there but the restatement of the case law is clear you don't have to post signs in order for somebody to be deemed trespassing so plaintiff was a trespasser and for the that reason and the bike trail none of this is relevant you know you won't hear plaintiff and you haven't heard plans counsel today and you didn't hear them in their briefs or see it in the brief where they discussed the actual property where the where the accident occurred they keep talking about the these abrams sidewalks and the bike trail and none of this is owned by the by the district none of it is operated by the district none of it is maintained by the district and none of it isn't anywhere near where this accident occurred and plaintiff is making conclusions that aren't in the record that somehow this apron curb cut  on the sidewalk is for pedestrians to enter the district's property well a that's not true if you look in granite city and you look on the maps and the overhead overheads that were provided by plant you'll see those curb cut everywhere what they are as it's well d established in the record that the district runs heavy track machinery and tractors in that area granite city simply put a curb cuts so that their sidewalks curbs did not get smashed that's all d it is and has nothing to do with pedestrians and nobody in this case is ever testified that this is a conclusion and an assumption made by plaintiff not based on the evidence plaintiff is not an intended user and specifically we've got to look at where she fell she fell at the edge of a twenty foot basically cliff this is not a small ditch this is a massive almost canal  like infrastructure and plaintiff fell on the edge of that it's ridiculous to think that a sanitary district intends for work for pedestrians to use the edge of drainage ditch s to walk on you know that and if you look at where she actually felt the plants are calling one area a path well if you see where she fell she didn't fall in the path she fell on uneven ground right next to the ditch with a thicket of tall weeds and grass a place that no one in their right mind would walk and everybody in this case has testified that that's a dangerous area that you should not be in even the plaintiff herself said absolutely not i don't go over there i stay over here by my property the only reason i went over there was because i love the child to get loose and i had to go retrieve them and that is the only reason i went over there nobody in this case has said that the district intended for people to use the edge of a twenty foot cliff as as a walkway it's absurd it defies common sense and there's no basis for it in the record whatsoever  so she was not an intended user she was not a permitted user and for that reason also she would not be there would be no duty and then we get in the traditional duty factors which judge smith pointed to factor three dollars and four dollars which the plant did not respond to  so i won't waste time going into it and the other another point that i mentioned before that the plaintiff and not address was the the actual breach of a duty did exist what the plaintiff testified to here was that there was soft ground that compressed underfoot but there was no hole that's what she testified to in her deposition plaintiff attempted to change that testimony by file an affidavit with their summary judgment saying that there was a slide that occurred now there was no evidence of that the plaintiff didn't testify that none of the representatives of the district testified to that and there was no record of any slide whether physical or otherwise there was no slime what happened according to plaintiff when she testified in her deposition under oath was that the ground just compressed a little bit and she fell forward she told the empty is that she slipped and fell  there was nothing mentioned ever about a slide and there is no evidence of that that is basically another fiction now the reason why the slide came up was that the district had alleged that it didn't have any notice and one of its affirmative defenses in its discovery it provided documents and testified to its maintenance of the did and one of those maintenance was about a mile plus away where some time before this accident there was a slide and that it was repaired so the point if thought to get around the notice issue by now claiming that a slide happened even though there's no evidence of one but even if we assumed that there was a slide moving on to the notice issue it's not you have to have notice of the specific condition that cause plaintiff to fall a condition a mile away is irrelevant you can't say that where there's a sidewalk defect there and two blocks over the city or a municipality knows about any sidewalk effects and similarly here you can't say that there was a slide some years ago and therefore the district has notice of any slide that occurs from here on out now plaintiff said well it's it's it's not  a leap to believe that if they knew about one they knew about the other that is not the law this had i  yes i know it happened in march and it did which is you know time period where there is obviously more stern thawing and to have soft ground at the edge of a water collecting dish is not a breach of duty plaintiff shouldn't have been there anyways and we didn't have notice of a sub jason issue with the soil but it's ridiculous to argue that the district should have known about this soft ground and especially if you look at that area where she fell which is different than the area that's mowed by the district you'll see that it's a thicket of grass and weeds tall  you know which usually happens with ditches you don't get the vehicles close to the ditch and it's overgrown and you know you can't see your feet and it's it's not a place that you should be walking so there is no there is no breach and even if there were a breach the district would still be immune pursuant to three das went to a because it doesn't have notice or didn't have notice so you have no duty you have no breach and you have no notice and immunity under the toward immunity act the case fails like i said at every turn now the point of point out signs the district doesn't have to and there's a pit for what he didn't tell you is the statute in which this organization is formed this levee district it calls in the statute for them to maintain their property and their breach was in mid in the ring of raga towards response their arguments clearly judge smith found she specifically stated i find she is not a trespasser so if you didn't like that finding you should have filed his own cross appeal and then he would have been able to argue that that is the finding that she was not a trespasser rd of director and it was walter great as he testified in his deposition that they did maintain the entry and the exit and  determine the the proper analysis to put on this the public right of way is the property they admitted that it used to move north and south they admitted that yes you killed the workers go on it is there any statute is there any regulation that you have is there any rule that says only utility workers no no no no no to all of that may admit it in their depos that the purpose of the property was to traverse north and south they admitted that they knew the people used and when they were as did you run anybody off well we saw a couple of kids in the d