and skillfulness that washington township during these repairs improvements on the roadway negligently created a hazardous dangerous and unsafe they are liable for any injuries that are lost because of this dangerous condition that they created to be clear we're not talking about just a pothole in a row and that if this situation on the field is far beyond just hard to be clear what is a circuit and alleged in the complaint is that washington should have begun removing asphalt and substrata layers from a considerable portion of the roadway during these repairs there were high levels of dirt sand and block in piles all over the roadway there was gravel strewn trying to make sure that i understand it your question in your situation the road way before any of these repairs here we don't have any facts here and would be outside of our knowledge because any type of plan or undertaking a repairs decisions that washington township made would be in their can not and so we can only alleged facts that we basically know are can't before  discovery and i think that's a good time to bring up the fact that again the motion to dismiss that was great at the lower level was just solely on six fifteen where no discovery had been had occurred yet on or ha that and maybe i'm not making myself there but washington township at some point before the incident occurred decided to show most to took an effort to begin repairing the roadway and once the roadway repairs began the hazardous conditions were essentially created by the township and it's because of those that condition that has it is dangerous and others it condition that was a proximate cause to the accident that occurred on april twenty third two thousand and eight that it really doesn't matter what the roadway looked at looked like before the repairs began big it's because of the repairs and the said in essence the repairs were still ongoing when this incident occurred it's not like  a government employee individual the salusa you know basically stated that a government employee a mess for a municipality cannot be held liable is immune especially from any decisions he makes and there wasn't discussion about situation and that's the reason why we're arguing that lucy get up doesn't go far enough it essentially doesn't apply because it stops short of what happened here you see it all basically discusses discretionary nature of where  resources what potholes to repair where should we repair we've got limited resources we can't repair everything so we have to put priority we have to make decisions and those assistants are immune from liability the the situation we have here is already two steps that washington township already made the decision we're not as as athletes argue second guessing their decision we're basically holding the washington townships feet to the fire say you already decided to repair this roadway because you made that decision and because you started the repairs already you have a duty to do so those repairs and the recently say and skillful manner they breached that duty when they left the roadway in a hazardous dangerous and unsafe condition so that again it's not that it's bad luck it's just it doesn't apply here so going bowen but the problem is is that with those cases is that it actually cover situations where i mean it's a pallet he has already decided and undertaken repairs and then that talks about and those cases talk about that luciana it was basically a trial it it made it really discussed more about the decisions made by the individual employee remember the defendant in that case was an individual employee i'm not putting any blame on the drafters of that of that opinion what i'm saying though is that they want that situation doesn't apply here just because it talks more about what what would be considered best discretionary where should we  earlier this is not merely a particular case this is beyond a pothole case but it the decision has already been made and it was you know i believe they're arguing get the decision making especially process in place the decision making time the answer that just to go back to what i was saying about with yellow is that if you hold lucy at oak controlling the situation it's basically giving carte blanche to they say that they're they choose repair and bridge they leave a gaping hole in the bridge but don't they don't you know just leave it there overnight no warning no signs no not no nothing but then when someone gets hurt when a part it really goes over the river thames to go over the bridge and fall through what in towns you can just put their hands up and say well you know that's not our fault we're mia they can't create hazardous condition and not be held liable for it and that's what's happening here in this case again we see you know again not blaming the drafters of that opinion it's just it applies to a different part of the of the process the sensually here and definitely shouldn't be controlling here because again it does not apply just a couple more points on new seattle you know there's there's a need right now to basically  y the statutes right now even way across all the districts of new seattle get it stops just just short of where we are in this case at this time and you know any other  with a b b on the burden of what we have for a complete and b it's outside of our knowledge we wouldn't discovery in order to but more specifically when the repair started how long the repairs were going to last what the w the repairs were going to entail i guess it's it's a it's a situation of since the repairs had already begun once the repairs began a whole new set of duty and a li particularly those in the third district and further down state i think there's been distinctions drawn or attempts to draw distinctions between the law that has been the water here in our district for quite some time to the shadow cases like havens versus harris and ship cases that have spoken directly to discretionary immunity versus other cases coming from the first district the hanley case which has been cited by plaintiff and it least in the br he did grant to six fifteen in your honor points out of the question i think the mechanism and the sequence of events was he granted the six fifteen he had questions later along the lines of think that your honor mentioned here t decision which overturns sovereign immunity and then the ratification of our constitution there after which the supreme with that or we know sovereign immunity is no longer in place but courts including this court ha recognized special duty immunities and other immunities that were previously in compas within the umbrella of sovereign common law discretionary immunity is one of those and i've never seen a case in but it also starts except as otherwise provided by this act so there are certain exceptions i maintain the common law discretionary immunity still exists and operate separate and apart from the in the statute or media so to answer your question directly i think the case was rightly dismissed under six fifteen because under the common law wrote there's simply no duty so plaintiff failed an essential element do down is discretion once you undertake to do them you have to do them in a non negligent way the specific acts you agree to that i agree with the general principle was that i believe the correct statement of  however if you buy that this case the plaintiff and this is what judge powers who is looking for what has been playing its township did wrong that made the road more dangerous than it was before other than to say which i believe is what plants are really are here that repairs will commence but not enough were done and that's the crux of the issue that's why this is so important as a particularly in april like this case particularly when there are large trucks or overweight driving roads as has been referenced in this case you can repair roads today and come back tomorrow it's right back where you started again i think we can take judicial notice of that fact and this is why i think some of the first district cases may diverse they don't have the same type of roads that we deal with this is very unfair or you're you're you're going to use to distinguish roads downstate do you have to then repair that road every day and i say no the idea is to promote safety and not give governmental entities a distance set to do things like essentially we have inside us when it comes to repairs you can always point to a repair that was made plaintiffs can always argue that the repairs were done enough more enough of them or to their liking but the crux of the cases are in th overweight truck and drove on the road runner correctly pointed out that in their pleadings the same exact descriptions are used under the blade in surface spill state of disrepair sander pits potholes growth that is principle that this court announced in the shuttle should apply to how much repairs you do i believe the shuttle is on point it's still good was the fact that it is from thanks hundred sixty nine does not make it back it's still very applicable and i think right on in this case and that's really the bottom line of all the discussion when it's failed to allege with anything of factual support that we created a dangerous condition that was different than before is a possible for plaintiff to make that allegation absolutely the plaintiff all they had to do was allege very simply township created dangerous condition crucial element that shows a nexus between what the township did and the allegedly dangerous condition that was somehow different than before so we did so we have a pleading de facto absolutely do you deny that once a governmental entity undertakes to make a repair it has to do it in a way that's consistent with the safety of the people i don't deny that once a governmental stop your ira under this framework decision in the last three one all for my simple answer to the question is no matter what anybody does if there's no sign there you have an obligation or one oh no i won't dispute that if a governmental entity goes out and creates a hole in the bridge then they need to fix at all because the creation of the whole is the negligent act that would fit within the decisions that your whether or not to undertake the repair of that pothole here what we have is an allegation that they made the decision to repair the pothole or the street or whatever it was and that they did it in a negligent man that created a dangerous condition so i'm not thinking personally that lou shadow is controlling in this case and it sounds to me like what you're saying that the fact is that the plaintiff either didn't know or trucking company that had knowledge of the condition of the road allegedly before the repairs and after the repairs and they split that those conditions are the same and that that is the also the problem that i think the trial  had that there has not been a demonstration even at a bare minimum fact leading basis that the township changed that conditions and there's no evidence or even allegations argument  distinguish that says it much better than i did and it does not distinguish between the condition before versus the condition after we allegedly act that's completely lacking in fact it's not completely lacking that actually shows didn't change if you read all the allegations the only allegations was minus a set forth where that we in fact did not mean it negligent because it was in the same condition before as it was after so then there was permission replete micra there was permission to replevy there was the opportunity given to the plaintiff to go in and say no your honor it was not the same i'm going to show you how we changed it i will demonstrate facts as to what we did to make it so the lights and signs argument that also argued under the west wouldn't apply here because it's not an initial construction type of situation i think it's it's wor repeating to state that you know our argument is that washington township has started these repairs and during the course of these repairs created this hazard this roadway  a solid flat even surface for vehicles to drive and that and then later the state that washington township failed to act in one of more the following ways and one of them being after mr after having that their trucks were overweight essentially that they operated and used overweight trucks with a gross weight in excess of the maximum legal limit for the africa after the sept roadway basically says that as a result of the continued operation of the overweight trucks with the gross weight and excess upside when we go back one paragraph and at all times rolls in there to the trucks owned by the defendant trucking company i work overloaded so created by the township and mission because they had under it started the repair so you're saying that the trucking company exacerbated the dangerous condition that had already been created by the township yesterday exactly because again if you go back and council kept bringing up in seattle and decisions to repair again that's not the situation here the decision had already roadway condition was as moving normal wear and tear again in our situation the roadway condition was created by the township so i think there are some distinctions in th