today with regards to what we believe was the improper granting of a motion for summary judgment on behalf of the defendant we believe that a court error on two different issues the first was finding that the condition was open in the obvious as a matter of law and the second was looking fully at the traditional duties of analysis and finding that especially the last two factors supported imposing a duty on to this defendant your honour's obviously have read the briefs and looked at the very extensive record i think what is very on point here is that the lower court judge white winters that the case at hand was very similar to the bushel laris case and a lot of the analysis in during oral arguments and in the oral decision that the court renter really looked at to solaris and comparing this case to push a lair so i would like to start as i did in my brief looking at some of the key differences between this case and that case and i think the most keep the waters of lake michigan which had very very sea levels as well as very large hides away from the sidewalk and in both of those cases the seawall was not built for any in fact in the accompanying case there were even rocks underneath that area of the seawall showing where deeper it was underneath the sea wall in this case we've got a very very different set of facts first of all you have a manmade pier up here that extends off of a two foot retaining wall and twenty five foot pier that goes into a lake this is a lake like lake michigan this doesn't have large waves it doesn't have  person what was his understanding of the purpose of the pier why it was there and whether or not it was safe to jump in the water and the second is is by building disappear and actually inviting the trends onto that here whether or not the defendant should have anticipated the harm when but don't we know from the law that water is and a place  refer cool they are all they can all be dangerous they can be shallow they can be run through they can be a lot of things and it is up to the person who itself it's not the fact that there's a large body of water but it's as your honor said it's whether or not the water is shallow or whether there is a risk what it is that the defendant should anticipate based on what is what the structure was that the plaintiff jumped from and i believe in this case the fact that the plaintiff was using it for it's a very good intended use the standard is that a reasonable person and a reasonable person i believe that there are sufficient past perjury to feel that a reasonable person would think that appear in this case on the lake as it is and in the pictures that were submitted with the various briefs showed that this created a swimming hole this created a way for someone to get in and off of the water moreover if someone could be fishing on that boat someone could slip while they're talking they're both and it's a west circus coming on and off there are many reasons that the defendant should have anticipated the harm from people using this pier for the exact purpose that they built it that being away from teachers to get in and out of the lake they created  do agree with that and my response to that would be on the like to show layers in this case number one we have a defendant who has a for profit property that is gated he can control who comes on  off the property they collect money for that and more importantly there was no one yes it was there or signed with thirteen bullet points which is the standard issue state of illinois health warning yes there was and  thirteen bullet points that were at the front of the property and one of many passed to the lake but unlike you show paris there was no diving sign there wasn't a shallow water sign either the leading up to the period of the twenty five feet going to the edge of the pier or on the edge of that here and the argument for us would be it would have been such a whole burden for it to find it to just take a cab and spray paint and a little symbol and put it no diving sign on there or a sign that says shallow water by opening his property to the general public by actually charging feet as of course and they also saw in jackson the absolutely say absolutely not but in this case it would have been minor bird on to bed so late that sign on there and that sign would have been placed there then we would be looking at a completely different set of  leo which is also a case from the illinois supreme court where the court very clearly stated that even if you take out the last year and cited the first two factors showing that it is open obvious and therefore going against imposing a duty we still have to look at the last two factors and that would be both the magnitude and the burden and in this case i believe when comparing it to that case as well as the bronze case we're looking at an enclosed area where the property of the defendant is not that large we are looking at a for profit area where they are making money for having people and their proper and we're not looking at a government entity where this would extend to other very large in other words this would not create a very large difference in what is expected now when you walk into a pool and whether  district or a private pool there's a reason why it says no diety or it says eight feet and that's because people come in and yes i understand that a pool one might be more distracting but they're not going to be any more destructive than they will on a lake where there is a boat subject skis and it be closed off property by having it be a for profit property where the actual worked itself in jackson as in this case was created for people to come to enjoy the lake to enjoy the water to go creating a resort area and by having people to come to that area to use it for the specific purpose of enjoying the lake the defendant should add to his opinion the harm and more importantly by charging money to ensure and by creating such a resort the defendant has actually taken colic or should take on a duty to make the promise reasonably safe for the people that are coming and they are paying money to get on that resort and i don't see th that defended themselves built so they created this retaining wall to build off the area where the grass is and the pier is actually off of that two foot retaining wall and two feet above that retaining wall and the lake itself looks and by that material changed it actually altered the lake in a way where one would believe not only from the pier but also from the retaining wall that the water's actually deeper than it is and in fact with the poles there to that provides even more of an appearance of the water being deeper in the area plus it also extends twenty five feet into the water off of the retaining wall so that would be the same the someone coming from the beach and walking twenty five feet into the water which again would give one a belief that the water there is deeper so again it's not a material change it's actually to the top of the water and therefore we believe that if anything it actually obscures the fact that the water underneath the pier no what i'm saying is it's not the lake itself it's either the risk of drowning worth the risk of diving into water that is too shallow and in this case it was the water being too shallow but the cases don't really condition necessarily on the water that's quote open and correct and that's what i'm saying is by materially changing pyrrhus of the lake on the surface of the lake they have actually obstructed the fact that the water was too and get out yes is there a need for both stories at me for people i don't believe that there was a distinction made one way or the other however it was said that people use the dock in order to get onto coffee itself there's lots of private homes on this lake and there's the defendant's property where they bought what could have been a private home but actually opened it to the public and built additional structures onto  closing a duty that is the burden of guarding against it because the consequences of putting a burden on the defendant to look at those two factors to mean we consider that all the traditional factors well what is the burden of guarding against this too great to put up a sign that would have come up you know an x through it and now that said no diving how much of the bird with that big if we're looking at the other two factors right well should the other line of cases boucher laris bizarreness and perhaps if she can be read to say that they can't be there should be also taken into account by the court and indeed could counterbalance the impact of the other are met that it's open in obvious interest is about one or two as i recall and if there were no exceptions and there weren't then there's really no reason to go to the final two because you name three fire and ice about water are these so open obvious that it just defines common sense that you would do something dangerous around them or different again yeah there really no science necessary tell me tell me your perspective well i'll start by me on are going to the bronze case which is on the supreme court case which is there every cent and aware that that court was very clear in saying that i think that kind of goes with your honor's question to my point with regards to is is there something special about a body of water and i would actually make the argument that there is something special about a body of water and i think there is kind of touches on that because bronzes well the sidewalk is huge that we're talking about a duty that would extend much further than just this little patch of sidewalk or of the trampoline or i'm sorry wall because the city property is so huge i think bodies of water when we're talking about these large bodies of water it does make a difference because there's a question of how much of a duty do we have to impose how much of a argument isn't just what he saw on that day but more importantly world as a reasonable person's understanding of peers and appears on a body of water should he have contemplated with regard to the depth of water and more importantly what the very significant difference here and the point is that the plane to doping in the area that was designated for swimming council has now heard stated that this pier was not designed for that intended purpose more go back to that original question that your honor have was was that you can't put a sign up i receive all time there is a crack in the sidewalk but you can't put a sign up in the area where someone is entering the water and i think that is what is so for and with bodies of water what we're looking at a large structure of water maintained by the city of chicago as a bouchal lyrics you're looking again similar to a sidewalk because you've got such a large area in which there would be such a huge bur on to the city in order to maintain that property in this case you're talking about a very enclosed small area so while somebody said why there might have a certain distinction i think that the smaller the body of water  fewer the issue with regards to open obvious would go against it being a body of water because again it's not just the body of water but it's also whether or not the plaintiffs actually reasonably and whether or not the defendant should have anticipated that harm and that's just going to open in august when we go to the traditional factors i do believe that the case law says that we do we should take a look at those second two factors is especially in this case we're talking about barbecuing in this scary and this is where you can do this this is where you can do that it's a for profit business he wanted people buying from his restaurant but he didn't take the same care to warn people that he was inviting to use his property and i believe that finding if we take a look at those last two factors we need this court must find that the herded would not be so great because to do that we're perpetrating a substantial injustice and relieve commercial land owners from creating a