then whether that's a question of law or if it's fully developed enough to be a question of fact it if it were to be concluded by the court then it's a question of law but in arguing no alternative then whether or not the deliberate encounter exception applies to that duty question factors there had to be analyzed under traditional duty analysis not simply water open obvious in a given that that were the case followed lerma which was then followed by jackson he seemed to me that the war matter puts a finer point on the question of open obvious as it relates to manmade conditions in water and that is a reason why that was part of my argument which will be done successful in the trial for the argument about them however seem to have a lot more fastenal than this one in particular as the word case suggests fourteen to the court i think in summary judgment after we learn where exactly does this this undertow get to the kids in this particular case how far out analysis for those those three factors the likelihood of risk the foreseeability the magnitude it was just this is this is water it's all been obvious that's the end of the discussion which i think works as is not not a long way to do it depending on the meter of that's my that's my thought on that so i think in some cases when we have a duty question there are mixed questions of law in fact in order to get to the question of whether there is or isn't a duty and i think that perhaps a trial for felt  water it's been obvious and i don't think that was the right way to go moving on if you would like me to there was a issued in the rose of super discussion say that it was open obvious as a matter of law which i don't personally but it was if we do that a risk there's the children appear to be drowning in the water what risk though again i don't think he would know about this the nature of this unusual water in this area of water downstream of the dam that's actually i encounter exception which is with the person i did the person has some reason why they would go in and deliberately encounter this danger so i think foremost his knowledge of what danger was there versus what was actually there that's that people would deliberately encounter danger simply for money in you know we find in the workplace that you asians oftentimes workers are put in spots in the responses you had to encounter that the other response seems to be you can't use the deliberate encounter exception because it's only an economic compulsion and yet the illinois law has found no that is a good reason for economic compulsion and when we look at the solomon case it actually says that we the court don't  application of that doctrine i don't believe in it or he said that i don't think i think they just left it open and have applied it in ninety konami cases and i think that looking at what we know about what happened i think that mr sushi's activity would be something that was reasonable person a jury would look at this is usually a fact question deliberate encounter was the compulsion that the actor acted under the circumstances something that a reasonable person would expect someone to do and i think that the way i put it is i reasonable that is reasonably foreseeable that someone would jump in the water to save the children or drugs i think that would be yes i think that's a fact question but i think that is the answer would be yes and then the delivery encounters option could be triggered if the jury found it could be triggered to defeat the open obvious argument by the defense so that's how i think the common law aspect to do question in actually the whole case against the open obvious then  will tell you a read without getting into too much detail that there are no exceptions for wolf one one two and i think it is one of those absolute statutes and that question those sixteen or even exceptions for water think obviously i think that all distinguishable but i will tell you why in this particular case i think that the ways one can show one of these exceptions being triggered is for instance control is the one i believe applies in this particular case and   what friend was saying is what we would we need by control one way of control is controlling access to the water which i believe the park district can do and i believe the city can do to control access to the water in these locations i also responsible for the entire fox river but the statute that gives the park district the three hundred foot control which is really this incident occurred seems to me that's what they must be talking about three one time but now irrelevant of whether or not they had posted any signs of being here by the park district posting a sign or adopting an ordinance prohibiting swimming in the river are you saying that they control the river in that spot or are you saying just by to a second question and that is then that i have to litigate this case on a movement want a standard these are the the the park district as in this corporation i think because the three one ten doesn't immunize them if they have control over the water and i think they do have control of the water by the ability to control access and then the question is that the act willfully monley in the way they've caused or allowed access or not and i can speak to some of those facts which we really never talked about in the trial court about what the park here is a poem to mention there's only one question before this court and whether the city is even for liability under section three patch one ten of the illinois toward the act the question is whether the city had control over the fox river control and control by its plain and ordinary different definition is the ability to direct the function of the ability to alter the function of the ability to call something to function in a certain way appellant had two reasons river this city has no ability to alter the course of the fox river it doesn't have the ability to fill it if it needs to be more shallow to dam it if it's too fast and fact if a pellet of poland's contention power of the department of natural resources to vigorously defend those bodies of waters to protect them from encroachments or wrongful seizure and makes an unlawful for anyone including the city of geneva to fill the in minister just six is the ability for the city through its police power to make laws for the protection of its citizens and it's why she there seems able to say that swimming in this area is prohibited but that doesn't the city has police power that's different than having control it is and it's the same thing that the court insurance vs y m c a found is that even if jurisdiction is considered control over behavior of persons it's not control over the waterway itself they are a very similar case children drowned in the fox river the school district had the power to supervise them and told them when they could and when they could not use the river nonetheless the court made that distinction that the ability to supervise the activities of those children is different from the supervision of the river itself and for that reason this portion of that actually owns the property weirdest condition exists which is the day on the river going over the dam the state would be able to enjoy the benefit of the open obvious risk defense but the adjoining property owner would not that's the point of position in this case and that's why it was difficult need to know because that risk is objective is this court said in the lower case the view or reason by using water are dangerous because of the attended surface in subsurface natural and artificial conditions compulsion in on the jury instruction one twenty point zero not in which the point is this we should cite to when you read the committee comments they quit correctly said economic compulsion is a factor to be considered when you are determining whether to apply a cliff if i have the edge of my property a danger beyond my property i think it's actually a good thing that i put a sign that says don't go beyond my property not to be here because you may view that's what the purpose of the s are the park district configured this way and in such a way as to invite people to recreate along the river fail to put up financing and fail have that was fine if those are all allegations regarding the division of the park district property and for that reason i pointed out in the briefs the fact that we have the right to supervise to make arrests on the river doesn't give us the right to control the river itself that is a completely different issue it's not hard to control obvious doctrine because the park district doesn't own the water or the dam and never said it's not in my brief i didn't say it up here that it does it can apply and i realize they don't own it and i realize they don't own the dam or the water is something for you address it should be addressed in the way i believe that a treadmill here would work but i never said those imply what i said was that three one of the two does not apply to the d m or the river because the the park district in the city don't own the dam of the river three one of the two is the full property that they own their property that is the distinction i was making i know how so knows that was the distinction i was making but i don't want the court to misunderstand if he said that i'm claiming that the open obvious doctrine doesn't apply the three want to apply it to the condition of the defendant's land in its will from one standard and it has its intended permitting use or do so those are all the issues that i don't think can be disposed of on a six one nine because we don't know all of the signs mr dunn is talking about obviously there isn't anything on the flip side because they don't have any evidence other than their statutes that they're applying so this is why we find ourselves as i described earlier in a six one nine so that is where i was talking about three one two and over an obvious count count turning to the issue for a moment of when he said that all the law is clear in this state are always easy it's a known risk of drowning the law and the jury instructions in the comments because the solitary supreme court said quote and they were talking about those cases the fever and whatnot about economic issues where is sometimes used as an explanation to shade this is compulsion one compulsion apply in this case either and i know that's fine but that's still again that's not saying that it has to be an economic compulsion case this is not the longest and it would it would contradict a couple of cases up there would soon be the first one ever say that it is a condition preceding to the and in fact the c t g that's working is where denies people allowed within fifty feet of the dam so they have these controls in the park district seven people down to the water as opposed to other places where you'll see that the edges go railings