previously that afternoon in little conditions in a group while speaking with police and his wife the conditions were completely different than when he went alone in unlit conditions at night and area obviously different lighting conditions but he knows step that there's a step down or we can infer that because he's been through there that day that there's there's no   previous to that day he was speaking with a police s p he was speaking with wife and may not have been paying attention to step that everything exactly he stepped down and was or another door way that he went down to the basement yes your hon both unusual and dangerous because expert went off and described exactly why i have presented several scientific studies number of papers research as to why that is as he was moving through the kitchen the landing was on his right and the steps were on the left side of the land ok so your argument is that it's a reasonable inference that things that he we know he was condition to exist if the police had taken one of several steps including as your honor mentioned closing the pocket door turning the lights on telling the dissident that he was going in the wrong direction or going with as to how common it is today it's very uncommon in the time the house was built which i believe was the sixties or seventies type of single stair step down was fairly common however because of the research between the times between strong points i'd like to point out from the brief first that the district court ignored the circumstantial evidence circumstantial evidence is not alone and in doing what in the district court have found for you your honor the district court should not have granted the at police motion for summary judgment nor should it have granted the police motion to limit the testimony of r yeah i thought that the the point of the appeal was that the district court will you really need the expert testimony for the cause of before because the jury can draw inferences and looking you had a jury might draw an inference that he step down it w on the construction but this it require an expert on causation your honor it does it's our position that it does not require an expert on causation oh i'm sorry so i thought that was the point where you argued that the expert should be allowed to give a part to give a causation theory but what you're saying is that even if he couldn't the jury could do all the have the expert was permitted to testify as to the safety hazard of the speculative i argue and opponents argue that that was not speculative because it was based upon the circumstantial evidence that was present which we've discussed some of it so that my argument is that simply his opinion was not speculative and he should have been allowed we would have been in total to a summary judgment based on there not being any negligence but the first issue is causation and the issue of the expert's report and the restriction that the court put on the expert is based on the fact that his opinion is conjecture of circumstantial evidence that an expert needs to have upon which to base an opinion there's no evidence here upon which to base the opinion that any condition of the stairs caused him to fall all we have is that he fell or i'm sorry all we have is that he ended up at the bottom step so i accept the court's suggested he probably did not cast himself down the steps but anything could have cost him the fall back have not ruled out any medical conditions because in fact there's no autopsy all they have is a person who went to the bathroom going in one of two alternative routes and ended up at the bottom steps in the record it was like i'm sure there were no children house like child no no there's nothing like that you know no no in fact if you look at the cases that we cited there were cases one in radcliffe involved the woman who ended up at the bottom steps they had six great marks they had other physical evidence that we don't have here in the court said there was to speculat cost in the fall he could have tripped over his own feet the fact that he felt does not prove that any condition caused his fall and that's the problem with the experts leaving it was built was no no because there's no indication  any any of these cases talk about conditions that are existing you know the example that they gave and i think was the for door case of the wreck of case it was very interesting was they said let's take a set of steps some of which are bad some of which are good and a person ends up falling down the steps that doesn't prove that the bad steps cause the fall so the problem that you have is the expert is giving the opinion without any predicate that makes sense and the key word is reasonable it's not a reasonable basis upon which to formulate his opinion the court actually did this in two steps with the court it was the court restricted his opinion to things that could have caused the fall that she permitted and then in the in the summary judgment basis to the second phase she rule anything more in the way of evidence he could not give that opinion we submit to quote as well that even if the court were to reconsider that ruling which i don't think it should do the court also is to look at the record in terms of whether or not there's any evidence of negligence the evidence is negligence it's not merely the suggestion that it's a dangerous condition these people are licensees and so the duty to mr butts would be to warn him of condition they have reason to believe he wouldn't stop so even if you out for the sake of the summary judgment argument that there's evidence of a dangerous condition you don't have any evidence that they had any reason to believe or expect that he would encounter it under the circumstances that he did it we cite karen diverses fitter and i think a couple of other cases that support the proposition that there was no by lation of a duty here so that even if the court were to agree that the expert's report was too  and i want to mention i'm only making this argument the alternative is i don't think that's the case they still don't get past the summary judgment on the liability issue because there's no negligence and the evidence is clear on that a case where a young man was taking care of his father upstairs the stepmother's house or somewhere and he went up once or twice and came down and he fell out claiming that the reason first post because there wasn't a railing ever been in the house prior to that a kitchen floor was going to cave in you somebody was going to cross it then you'd have a duty to warn them well that would be an example of that right i mean here we don't have a duty because we don't have a reason that he could have gotten in the bathroom the way he went another so too is the bathroom one was around that way and the other was the other way so that saying he's going in that thread saying he's going to the bathroom saying he's going in that direction doesn't suggest that he's going down the steps basement or out but i'm not positive of that actually i don't know if that landing was the entire distance between the door and i don't know that i'm not positive of that but i do know that that and the leaning that he supposedly had to tripping literally no circumstantial evidence pointing to the fact that the plaintiff there encountered the dangerous condition that that dangerous condition caused him to fall here as we've discussed today there was ample circumstantial evidence there was no reason for him to be there there was it was dark it was a dangerous step down and he ended up at the bottom of the stairs you know another point would be that the way to the bathroom was much shorter the way that you would suppose you were supposed to go  the other way but you agree that either way you can get to the bathroom without going down on the landing and obviously down towards the steps i would agree that you can get to the bathroom either way however the way he went she would necessarily have to encounter the dangerous condition that was at its issue here and that's the negligence of it's part of the negligence of the defense so he'd have to take one step down and then go back up when i mean encounter no you are the entire kitchen it was somewhat it was night lighting it was a dark kitchen i mean encounters he would have to go near that dangerous condition or into it to go to the bathroom so he wouldn't have to go down the landing correct or to go either way to the case was a licensee on the property therefore police in this case had a duty to first of all to warn and to do to make sure that he wasn't he didn't encounter this dangerous condition they knew or should have known was president's house explain what been has had walked on it and so we knew about it for tom for four times the record shows so it wasn't that this was something that he encountered for the first time i mean that years yeah because they did they knew he was going the wrong direction first of all a direction from the wrong direction so you know you're on one level right through to get to the same place you just go around the circle it's not like you know you know it's not like off so when you say below standard you meet i mean what do you mean no one's in a room by his no standard for what light should be in that room well they knew he was going into that room therefore they should have known that there was a lack of