lot of time when you are not arguing as our clerk jeff kaplan said please mute your phone each party will have fifteen minutes for your main argument and the public will have five minutes for rebuttal as you heard the clerk of the court jeff clip  kapleau will operate a time signal mr kaplan will let you know by the signal when there are five minutes remaining in your main argument the purpose of the five minutes signal is to ensure that there will be time for questions from our panel as is our practice in the nd district have all read your brief and were familiar with the facts what will be different today is that we will not be interrupting your arguments as we usually do conducting oral arguments remotely makes it awkward to proceed in that manner we will save time  until the end of your main argument for our questions keep in mind you are not required to use all of your time certainly if you complete your argument before the signal invited to ask questions at that time we remind you that no one except the clerk of the court is permitted to record the argument do either of you have any questions before we proceed you know your own judges adamle i know is i do not have the benefit of a rebuttal time here is there a preferred amount of time that you would like me to allocate for questions from the panel that's why we give the signal in ten minutes and you can wrap up your argument at that point in time you can jump off if it's but then you do would basically run out of time we want to have an opportunity to ask questions that's why we give the signal so sides in that case there are two that stand above the others in terms of being on point they all talk about more impact and that would be the record keepers that shall go with kate and the block versus low and the defendant also point to several cases there are those cases on the surface may seem to support the position advanced by the defendant but i think as we get in the deeper that there are major distinguishing factors stairs apparently the deputy coroner for lake county also testified about moose planks laying on the stairs and luke stairs near the top of the staircase he again mentioned the location of mr shek feet down on the neck she indicated she believed that that would require a fall from higher than the location where mr shit was so good and not simply a fall from that location but from a higher height and in fact she testified she thought that height would have to be at least halfway up the the ex wife of mr sharon the last person who had been with him that day the five that he did not have any wounds to his hands just before he went out the door and before he was found dead and the hand was that were what also talked about the force needed to break the neck of a human being and agreed to he needed to have been more than halfway up if in fact he gave in the loose boards and loose stairs were precisely the height where he would expect the person to have st lost the balance fallen and sustained the fatal injuries those are important fact i know the court's aware of those but i think it's important to review some of those  detail that proximate cause is normally a question for the jury which of course our position that this is a jury issue not an issue that should be decided as a matter of law and that the iraqi court also said the proximate cause only becomes a question of law when there could be no difference in the judgment of reasonable persons in princes to be drawn that's just not the case we have here there may be counterargument the can be made of those to be appropriate for the defendant an argument at trial but they're not anything that would rise the standard as a matter of law in the block versus alone in this case it was also fall on a construction site where representative was that he was reaching for a crane line to attach a bogus chair to an otherwise inaccessible area when he fell from a ladder and that essentially he had been reports to resort to unsafe construction methods  he concluded that the ball and hook on the end of the crane line must have struck him or otherwise a ball in this was circumstantial in nature because the coworkers only saw him before and after the ball and couldn't really tight in specific events the ball and book on the in the crane line actually striking him or doing something to make him fall the court found that there was circumstantial evidence there perhaps you couldn't say with absolute certainty what caused she can point to where she fell but she said that she could even locate with greece which she herself said that she didn't contact there's the coleman versus twin orchard case  they developed which the court was suggested than waiting so it wasn't allowed into evidence but without that they had no affidavit and well there d was a doctor who testified that fall with consistent with a slip in the shower occurred again it's not disputed that there was a motorcycle accident and we know the general area there is no evidence as to why it was merely speculation to say that some problem with the medium through it must have caused that motorcycle accident the wife herself testified didn't turn out the stairs were in good condition she had no knowledge of a problem with them she never had any issue or complaint so again there was no actual evidence suggesting why even though there was an expert was able to testify there was a building code violation there was nothing in whether that building code violation in fact made the deceiving fall in the   virtually all of whom had their testimony stricken by the court as being speculative the accident reconstructionist and architect i would say bear no real parallel to the now there was a doctor expert in that case as we have in our case with dr rudd but there's a major difference between the burke case and our case in that case the doctor who only go as far as saying that the  found sister or were consistent with having fallen likely to result in pro ball after a trip he did not go further and explain why the trip itself happened in our case our expert why and where the fall occurred he took into account the location of the defect the rickety stairs and the boards on the stairs the forces needed to produce the broken neck how high  would have had to fall into for that to occur the positioning of the body when it was found in the defensive wounds on the hand is just much more evidence and much more basis for the opinion  ok it's a comparative fault issue it ironically brings up the strength of the planet's position because for them to bring in other potential causes those would only defeat proximate cause is a matter of law they are just as likely and based on all the evidence this in the body of the expert opinion i think it's far less likely and i think everybody would agree with that that simply fell down drunk for no reason other than the defect there is so by pointing that out i clear that in a promise liability case the plaintiff must present positive an affirmative proof abolition with reasonable certainty that the defendant's conduct caused the planes to injury would you agree that that's a very basic guiding principle here  i would agree that that's a guiding principle but it's also clear from the case law that the link it does not have to rule out every other possible costs and i understand to all the cases in a summary of the cases i think would would make it clear that they highlight the difficulties of the plaintiff has in a case like this where it's based entirely on circumstantial evidence in the fall was on boards really i think what it comes down to in this case i think i'd like you to hone in on in the cases seem to turn and whether or not there was another cause that was just as likely to have been the causative factor in the fall  other factors in this case i notice that rudd never addressed the level of the deceit and intoxication which as we know was extremely high in all the cases you're talking about when the court  upheld the granting of summary judgment known noted that there were other factors the defendants of the seat and physical condition in those cases that affected the balance and coordination which made it just as likely that the  i'm not even suggesting that it's not a factor here but i think too for the court to rule as a matter of law but there is not enough evidence for the proximate cause to be a an issue for the fact finder would suggest that the intoxication or some other reason had to be just as likely and i think as i think the defense argument fails on that there is not only lately the money as to what the circumstance is the the premises were at the time of the injury but there is expert opinion that those particular defects were of the type and in the location to have caused the injury  see so i guess my point being is it conceivable that he simply fell due with intoxication sure it's conceivable i don't think that that is as likely as the proposition that he's killed due to the defect noted by numerous lay witnesses and tied in to the type of injury and the other physical evidence on the body and if there's an up to suggest that a more likely cause of the fall and impact of cation would simply be an issue of comparative fault and that's something the jury should weigh in rather than court as a matter of law taking it out of the hands of the jury again if there has to be you know positive proof and has to be some level of certainty the case is talk about stablished the reason for the fall i mean you saying that equally a possibility or probability here as much as falling on the board are we going into the realm of speculation here with the respect i think it would be speculation to arrive at the conclusion because there there is not an expert opinion that the fall resulted strictly from the level of intoxication and there is an expert opinion that these factors located at the scene of the incident  he did discuss that and one of the important factors is that he found it because of the the head wounds that mr shek must have been conscious and alert as he still or he would have had those that if somebody with so intoxicated that simply fall down limbs that it is unlikely that they would have suffered wounds showing that they try to catch themselves during the long haul and on their way so he did get that the opinion that he very i disagree with the proposition that there is such a difference in the high levels of those two that they wouldn't act in concert and i guess my opinion would be that that again would be a question for the jury whether or not  any alleged difference in location of those two is enough to make them two completely separate causes but i don't think the dr rudd's affidavit leaves for it being something outside of that because  place they both make sense within the explanation given by dr roy and he ties the two in and he doesn't leave for there being some rd or th possibility he identifies those two and only those two possibl the fact is the cause of the book what are there steps between the two defects can we make that assessment from all the different af two i don't know that that is definitively established by the testimony that in the record before the court and i think trying to take it a step further filled in to further a trial and any shortcoming there should be held against the move and ask for summary judgment fair enough one other quick question and i'm not sure this is totally relevant but i want to know the answer i'm trying to visualize this apartment structure yes i my understanding is those would be step because when two separate apartments structure again i would argue for the record that i don't think th babylift and shouldn't be taken into account by the court but in terms of you know candidly answering your question my minor standing is this is a an area that the rear of the bar that patrons are allowed to go use was not required to even touch a foot on the stairs in order to go in or out of the bar correct i would agree with that i guess i would just  on the issue of duty correct right i mean and those that stairway you know were kind of treating the the defendant here as one going tensity back to the issue of cause and effect your your client that the deceased i should say is according to his bentley and it's a matter of common knowledge he was in a drunken condition left the bar to go fama it and he was cut off by the bartender correct that is correct with respect to planck's they were on the spur of the stairs correct they were laying stare or the in your briefs you say it's improper for the defense to raise checks contributory negligence without a formal pleading but isn't there a formal pleading in the record  opinion impacted by his failure to even acknowledge scheck's blood alcohol level in his affidavit and the effects it would have had on his condition and his balance difference between somebody who is completely out of it in their drunken state to the point where they can't even try to catch themselves as opposed to somebody who may be past a certain point intoxication but it still has the wherewithal e he was he was not unconscious when he fell dr rudd's opinion was that this must have fallen from more than halfway or halfway up the stairs in order to have generated enough force to break his right i guess if you only read that portion but i think reading the affidavit in totality he also states that the loose stairs and look for down the stairs were at precisely the eye to cause the injuries that he examined and he goes further by giving it being in one or two of those causes were the cause of the fall so i think reading the entire affidavit takes it out of that explanation then you know that's just one portion of what he said in the affidavit saying that it would have to be at least that i think he may have even used that language because it's consistent with what was already used  ments he was actually at work it was a labor correct yet there are no impairments mentioned in that case i'm aware of case the court honed in on the appellate court honed in on the fact that there was testimony that the jet canales had been a problem in the past they had been a problem with being an obstruction on the scaffolding correct  boarding d the court there had there was testimony that there had been a problem correct or did say that people had found those to be an obstacle ok that's all that's all i have thank you each other that it's not only merely a possible conclusion but it's the probable conclusion furthermore that they go further to say the nonexistence of a fact to be inferred to the extent it appears to be just as probable as existant and that is a conclusion a matter of speculation campi been permitted to go to the jury that the keating case which i cite my brief speaks of in a different way that the existence of multiple inferences regarding a factual causation does not create a tribal issue of material fact i do want to go back and just talk about some of the very i think important factual issues that we have in this case all that we know is that mr shek left the backdoor and that he was found the bottom of the stairs beyond that we have no  witnesses to identify any of his activities or behaviors at any time on this set of stairs furthermore you know contrary to i think some of the assertions made by the appellant we have no specific information or physical evidence that mr shek interacted with any specific portion of those stairs that's not only just the specific plank it's laying down the side of the stairs and also the loose board at the top this is any portion of the stairs  was asked about this in her deposition she even said i can't place him anywhere on the stairs i can't tell if he was at the top of the middle at the bottom i don't think he was at the bottom because it takes more force than that but outside of that all i can tell you is he was intoxicated and i believe he fell you know that's it to the extent that any of the st responders are alleged to have been able to provide an issue or a allegation of causation they simply can't all they could identify was we found him at the bottom of the stairs mr rudd the doctor also effectively had the same limitations he identified no information in his affidavit or from any other source  actually interacted with any of the hazards or any specific area of the stairs to even argue or suggest that the wounds were a result of defensive wounds trying to reach out to mr scheck fell down he was found with his hands underneath his body with his palms against his chest and the wounds you identified around his knuckles i mean i think any determination or allegation of the man or mechanism at any time of the fall is purely speculation simply don't have that you would we can look at the cases that were cited by the appellant in their brief namely the radtke case and the block versus low hand case you know we have information from eyewitnesses both before the incident and after the the cases specifically there's information that the plaintiff had a mark across her foot exactly where the jack handle was this panel was correctly identified there was information that the jack handle had been problems before that she felt precisely in the area of the jack handle and that one witness saw the jack candle down right before the accident you know we have so much circumstantial evidence that the court in that case says well that is the more probable reason for the fall also not just because the evidence we have is the evidence we don't have there was no information of any additional hazards or possible issues there was no identification of any impairment or any physical issue she had the may have contributed to it all we had was this bevy of circumstantial evidence that led to one at a height this that where the chair was i mean all the evidence suggests the one problem outcome in this case we simply do not have that we have no information exactly where mr shek was at the time of his fall we have no information whether he we just simply don't know he could've removed the railing st and then followed her follow up against that it's simply too much to speculate about in the burke case were the ones that i cited there was an additional not only the issues with his his own personal health issues there was testimony that mr birkhead typically walked down the stairs backwards in barclay versus yoakum of the nd district case that i know justice burkett you're on the panel on recently there was some testimony in that case that the gentleman had a habit of sitting on the railway and that was a possible cause you know any allegation or suggestion as to what exactly happened in this case is absolutely speculation and when it comes down to that critical analysis that we talked about is is any one of these situations any more probable than the others i just simply don't think so you know what we have is a number of mere possibilities and none reach or rise to the issue of probability i think all show basically the same one photograph but if you look at that what you'll see is these two planks are on the stairs that the traversing about the bottom stairs to about halfway up and they are on the side up against the wall they don't cover all the stairs and then there's at least three or four steps i believe where there is no hazard this been identified by any party and then we have the top two or three stairs where there is some physical evidence or some witness testimony that those one of those the treads was loose so we do have an area but there is absolutely no hazard whatsoever in addition to the planks don't cover the entire stairway so what we have is a gentleman somewhere on the stairs and we have no information from any source that he actually interacted with any portion of these hazards in any way he could have absolutely been standing on a step that contains no hazard he could have been doing a number of different things we simply don't know and when m trying to suggest that well dr rudd testified that it could have been the loose stair nd from the top or it could have been the planks half way down in below or it could been a combination of the two i think from a simple analysis and applying this critical taste law to suggest that all possibilities are equal and none rise above that and make anyone more probable not to read that very own opinions and his different options so to speak happened on the stairs knew numerous things can happen while just on the stairs that did not necessarily result in the negligence of a party if they don't actually interact with one of those hazards it's their burden to do so you know and this cat that he could suggest a jumps out i think her testimony experienced she suggested and testify that not only could this cause someone walking on a flat surface to fall it would cause major motor center impairment and she specifically testified it could have been the sole cause of this accident we're not injecting this just as a matter of contributory fault and it was properly pleasant of her defense by the way what this suggest is it's no more possible than any of the other ones i mean these these all options are all equally possible  none rise to this problem level and because of that we don't have the ability nor does the jury have the ability to render a verdict that one of the hazards that was identified on that staircase was the proximate cause of this and he is identifying not only the elements of the forces necessary and you know how the medicine works out he's able to then extrapolate that out into a why scenario well st off i don't think that is ability to suggest a why scenario is appropriate unless he's going to consider the intoxication as a wholly independent possible cause of this incident but what we see in all the other cases that i've cited is there's numerous other cases where there has been a medical opinion the burke case there was a medical opinion to discuss the forces involved in that case they said well we understand what you're saying that the that the medicine can suggest you know the nature of the force and the type of the force but it doesn't tell us exactly what happened same thing in the case also in the stress case you know we have medical testimony that suggesting this is a head st fall and this is a trip style fall but until we the courts have said we appreciate that you can suggest that you can make that medical opinion tell your argument into the well settled principles for granting a summary judgment motion as we know the case law makes it clear that summary judgment is considered to be a drastic means of disposing of litigation only when the right the inferences they can be drawn and i'm not suggesting that but i think if you look at what the case is that just is it's the plaintiff's burden to get beyond and advocate one of those as the more probable and i think that what we see the distinction from would say is there is sufficient evidence to suggest that they are a problem because so well i agree with the statement of law i think they also then have to have each of those elements must meet a certain level of probability such that the jury could even assess that thank you that's all i have just as president i just i don't know that this is particularly remain to the issue ultimately but it  getting your argument you seem to suggest that we can't even put him on the stairs at the time of the fall i don't think the evidence could seriously support that kind of an argument i mean you've got some kind of a height and as i understand it is portions of his legs feet are on the stairs he's facing down unless he crawled backwards after the fall to the part of the stairs that makes no sense but i just want to be clear you're not actually seriously arguing that he was not on the stairs at the time of the fall or are you no sir i'm not and i apologize it may have been a you know either i was not clear over the phone or what i was citing was sara penley deposition where she effectively her testimony was i can't place him on the stairs i know and and i read that and i that we accept the halfway up marker or you know and or greater we still don't have any evidence that he interacted with the hazards and that those hazards cause the fall what we have is just a location at least halfway up where there are areas within that nd section from half way up to the top where there are no hazards or where the hazards are or to one side of the stairs and absent any additional information as to what he was doing how we interact with the stairs what you know how his body was moving we just can't reach to the level of the causal relationship that is necessary all right thank you discussed the lighting and advised there was some natural like she was able traverse the stairs without a flashlight now she did use a flashlight i think to take some of her photos to highlight that but i don't think anyone is suggesting that it was so dark you couldn't see anything in fact i think she said she was able to easily identify the two plants that were there and avoid them so i don't think that there's an issue with lighting this been identified by anyone is that is a specific causal factor in this would you agree that that is the point it does not have to show that the defendant's negligence was the sole cause of the accident only cause i agree that it only has to show  cause but we don't have any information that's even a cause in any any suggestion of that would be based on pure speculation and that's why i think ties into the st question i was asked is you know isn't it part of the jury's responsibility to assess factual disputes and yes they are in order for it to be a cause that a jury can assess and make a determination on it must rise to a level beyond mere impure speculation and i think that's what the case is talk about in this circumstantial evidence case that is difficult when that's what we must rely upon but in those cases we must have enough enough evidence circumstantial nature to put this in a in a situation where it's beyond the jury reach a conclusion that it's most likely the checked intoxication plus the condition on the stairs both contributed to his fall when the jury concluded that i think that there would be required to speculate they would be required to speculate we know he was intoxicated i mean that's a factual statement that is not in dispute what we don't know is did mr scheck actually interact with those portions of the stairs that the plaintiff suggests that  were negligent that's what we don't know absent any physical evidence absent any testimony evidence that he was in that area or interacted with those areas that rise of speculation so i think the jury based on the facts that we know and could without speculating believe that it was a result of intoxication alone in order for them to assess one of the hazards and believe that it was even a contributing factor and represent a cause loss if they would be required absolutely speculate that he interacted with any of those things we simply do not have that in any form or fashion whether it be testimony evidence or physical evidence ok thank you very much the others and i think the simple answer to that is yes the conditions on the stairs not only because they were identified by multiple lay witnesses but also because they were tied together by competent expert testimony which stand on rebutted at this point i so i do think that years the more likely reason are there are other possible reasons yes and that's why they'll be a trial for a fact finder to make that determination council says it's plain to spur to advocate one of the reasons is more probable well that's exactly what's going on here and it's not just simply the lawyers make an argument there is expert testimony as to which of the reasons that have been potentially raise is the more probable reason here a lot of attention was given to the testimony of sara pendley and yes she was asked the question you know could a person at that level of one alcohol simply fall on a flat surface and she did answer in the affirmative but i think taking into account for actual testimony she's simply answering a hypothetical question  that it is possible for that that into a person who has that wrong because if you read the rest of her testimony he also says that he had to have fallen from a great height to sustain injuries he had and she takes it a step further and says that she characterize her as a basis for saying she didn't know it could be this caused it to be that climate she told you what she didn't think was the cause and she didn't actually say that she thought it was just as likely that he fell down drunk in fact identified why that would have been the case location of the seat and the height that would have had to be in play for him to gain that type of injuries and i agree with the state by the court that a jury could easily conclude that it was a combination of these factors they might find that the intoxication played a role and also the stairs played a role and contrary to what counsel says that that would be inviting to speculate d results from intoxication because while there may not be any serious disagreement that he was intoxicated and there isn't any qualified expert opinion that his call resulted simply from intoxication if there were competing experts just as much reliability and consequent maybe that would be a different argument right now i think it would be simply engaging in speculation to say that the intoxication alone was just as much of a arguments today we thank you for participating in oral argument remotely the case should be taken under consideration a written decision will be issues due course the court stands adjourned for the thank you thank you