in allowing a gainers condition on their premises and a possessor of land is subject to libel the following a dangerous condition on their land if they can discover the condition people on the premises will not discover the condition and fail to exercise restraint here really their condition now the defendant argued that the plaintiffs testified in her deposition that had actually been looking down as she was traveling across the parking lot she would have seen the hole and had she seen the hole she would have avoided that's not to testify what she testified to was had she been looking down she might quite state exactly what she said yes i believe she testified it is possible she could have seen the whole i don't believe she testified she would have seen the whole  conditions i was holding i was when the person who was there at the time couldn't say son of quickly yes i would have seen the hole had i been looking down and this and the law does not require a person to look down has there traversing terrain that would secure looking down all the time and you can't see items around you the laws not require you to engage in inappropriate behavior in this case i believe that the issue of whether or not a condition is hoping obvious is a question of fact for the jury their case law is replete with cases were courts have been reluctant to rule that a condition is hope and obvious as a four square foot hole grounded by trenching that would clearly be an open and obvious condition where you've got a power lines that's also an open and obvious condition what we have here is a parking lot at night and there was a video that was submitted to the trial court that was also suspended because for the you can see that where the plane it was traversing the parking lot it's dark there's nothing that draws her attention to this condition on the premises chief trotting across with what people to do so they have an obligation to make certain that their premises are maintained in a reasonably safe condition what we're asking is for this court to reverse the trial court and have the jury determine whether or not this condition on their seen thank you may please the court all your honors i think first to clarify question on the testimony there were two portions of the testimony that i think your honor was referring to and counsel is referring to one question posed to the plaintiff was whether it was possible to see the fact and she acknowledged she could have possibly seen that the fact i think a reasonable inference from that testimony is that nothing prevented her from seeing it and that is in contrast with cases like the adoptee case where there was a professional engineer who said there was not enough contrast between a curb in a parking lot and the levels surface of the parking lot and as a professional engineer you believe that may be a difference in elevation too difficult for a person to comprehend  apprehend so this is a case where the plaintiff though had testified nothing prevented her from seeing the hall if she has placed down so then the second question that was the follow up question was if you had seen it could you have avoided it would you have avoided it and she said  elevations and curves from part humanized this was an opening and and a parking lot and hopefully your honour's had the opportunity to view the video and could see the parking lot in this evening was relatively empty there were no cars directly next to the plaine in two spaces from a light post so the area was relatively well lit there were no patrons or other cars that crossed her path so i think that evidence showed quite clearly that there was nothing that prevented her from seeing it had she s looked down and i agree the law doesn't require people to constantly look down however that also doesn't automatically put a burden on a defendant or a possessor of land too fast warning signs to something that a person could see had they just looked down and i think the bronze case which came out very closely to the summary judgment hearing in this case is a good example of that is an extremely open and obvious condition the fact of sidewalk caused by uprooted tree branches the plaintiff was well aware of and her only testimony was you know i was looking toward where i was going the door which is perfectly reasonable i didn't need to impose a duty on the landowner in that case so the other question that the court went to  which was what with me the condition open and obvious i think you know counseled attempts to pose that as a question of fact however i think it's important to know that the only evidence a jury is going to see is essentially what you've been able to see the pla photographs of what she contends as a whole she fell into there is surveillance video which unfortunately is not very helpful as far as showing the whole itself and the plans testimony so unless he changes her testimony at trial a jury will have only what your honour's have seen and what the trial court has seen and i think it would really impose too much of an obligation on a jury to determine whether the hole was open obvious and that's why the open obviousness of the question of a duty is often placed on the  court because it can be determined as a matter of law if there's no dispute regarding the physical nature of the condition here player filed her complaint in november of two thousand and eleven defendant summary judgment motion wasn't filed until september of twenty fourteen so there was almost three years during which the play of could have conducted discovery to present more evidence regarding the openness and obvious snus of this condition all that we moved on was the plaintiff's own testimony knowing the heavy burden on s evidence that you could take that mostly in her favor and that's if the case why and to the jury soley on that evidence which we know all more evidence will come in from the defense at the very trial but if it went to trial solely on the play of some events it's simply not enough and the jury should be asked to conclude open obvious this question primarily because there is no dispute in the summary judgment filings regarding the physical nature of the defect we accepted for purposes of the summary judgment that plaintiff description was one hundred percent true and accurate her testimony was sure an accurate and there was no conflicting testimony so i believe in those circumstances my case holds that if there's no dispute regarding the physical nature of the defect the court  rule as a matter of law whether the condition was open and obvious and to do that you have to have some description of a and then her not being a couple of feet of on few inches deep and then her acknowledgement that if she had seen it she would and could have avoided  i think those are sort of critical factors and i noted the trial court went to some length to compare this case to the ward vs kmart case and noting about that he couldn't apply word here because there there was a distraction exception and the plane was carrying a large mirror which prevented him from avoiding a rather open and obvious condition here as our brief indicates there is no evidence of distraction plaintiff herself acknowledged nothing interfered with her ability to walk toward her car and observe her surroundings to be decided as a matter of law for that very reason we don't contest the physical nature of the whole for purposes of summary judgment and we are fully willing to allow the court to accept as it was the plaintiffs testimony is true and we ask ok would it be accurate to state that in the event that you had been looking down when you were trotting back to your truck after dropping your partner route that you would have seen the whole earth answer it is possible ask your honor keep in mind that this is black asphalt at night with a subtle rumbling hole now that is substantially different than a sixty four square foot eight foot precipice that you walk off that's  situation objectively is a reasonable person be walking across a parking lot at night where there's a subtle crack asphalt parking lot that black at night is a reason for that person to observe and see that there might be