and afternoon your honor this may please the court jonathan holmes for the appellant i respectfully request to reserve four minutes for about oh no problem your honor is this matter centrally involves two issues one to the district court err in failing to appreciate that the nature and condition of the foreign substance can range the genuine issue of material fact to prevent summary judgment and to do the district court err in its consideration of whether there were genuine issues a material fact raised the plaintiff's unopposed rule fifty six point one can or statement of material facts starting with the st point now the facts are not in dispute interesting st year law school case in torts but much of the case law you cite involves substances that are drying or ice melting i don't know of any case this necessarily forth just to set the nature of the condition can internet itself raise these issues and the nd are frozen sort of beverages frozen substances melting whether  and ice have a particular distinction is something that b j is free to argue to the jury however it's a genuine issue of material fact based on the fact that these conditions need time  after the snow started to melt is that not correct because the cuz when the car was broady and there was no dangerous condition yet create your own in the dangerous condition would be the water on the floor had it not melted anough time to get on the floor it would not have caused the fall so i would agree the dangerous condition was you know there's not a whole lot of new jersey case law in the briefs and we did some of our research we found some cases where that is the new jersey so the period court has declined to drop time differences based did those cases distinguishable where you thinks there's some general indication in the jersey courts that they're disinclined to draw time differences are inferences based on the condition of the of the hazards your honor i certainly feel there distinguishable the  concept of black ice outdoors with ambient temperatures if it goes well beyond the idea and into our setting with ice or frozen drinks permitted to last long enough to form a puddle in that exact location it's a lot more straightforward then all the things that go into a black ice condition outdoors it's still something that has to happen over a course of time and they don't seem to be quite as willing as i thought they might be to deal with temporal in princes your honor i feel that the the amount of time if you say it's a substantial amount of time required that would in order to my benefit on my arguments because the more time it takes to make this part of the more constructive notice on beaches you say that again isn't it isn't it that the more time it takes to melt the and the question here is if it's no snow can when it comes indoors it's like seventy degrees can melt very quickly perhaps your honor and that sum for the jury to determine whether it was of sufficient time that the nonmoving party responds to a statement of material facts or have them deemed admitted it's ambiguous whether there is a reciprocal requirement i would argue that there is in this matter i distinction without a difference because if your honour's find that there is a reciprocal requirement then the court well to deem it made it plain is unopposed counter statement of material facts however if your honour's find that there is no reciprocal requirement or lead to it is plaintiff's having an unopposed properly supported counter statement of material facts which needed to be viewed in a light most favorable to plaintiff thus affectively deemed admitted anyway so i would honor that whether i would argue that whether a rule fifty six dollars is found to have been expressed reciprocal requirement or not does not change the fact that here no matter which way you look at it the district court was required to honor the plaintiff's unopposed properly supported counter statement of material facts and especially not to reach diametrically opposed to facts that are not supported by either party specs but if you really i mean they're prejudicial perhaps not material your honor whether or not their material will depend on your decision so i have to make my arguments well fifty six point one provides that facts in a summary judgment brief will be deemed admitted if they are not responded to in an opposition brief but it doesn't say anything about what happens when a reply brief fails to respond directly to facts included in the supplemental statement of disputed your honor is the rd circuit that found it ambiguous whether the exact application in this situation my argument is simply whether you find it to be an express holding in the rule or whether you find that there is no express holding in the rule it doesn't matter the district court should have honored plaintiffs unopposed counter statement of material facts whether they were required to be opposed or if not deemed admitted p rule or whether they were just unopposed counter statement material facts which needed to be viewed in a light most favorable to the plaintiff on a summary judgment motion but even if that's correct i can use my own analogy by going back to what judge roth just said when is the what you're talking about here as supposedly big admitted is relevant would it have likely minimal effect on the constructive notice analysis you are just going to have playing it for if your honour's were to disagree with me on my arguments regarding the nature and condition of foreign substances then setting that aside i would argue there were still genuine issues of material precluding summary judgment in this matter based on plaintiff's unopposed counter statement of material facts and the genuine issues of days of material fact they raise regarding b j his actions and b j is policies and procedures wertz good afternoon again my name is john wood smith please the court i want to start with when i st read plaintiff's brief the st thing that jumped off the peach to me is we have in erie new jersey substantive law which is what's absolutely here and you're looking for it but might they be supported by at least some aspects of new jersey law for example due to a case to a certain extent your honor but you know again new jersey superior court has no new jersey supreme court spirit court no case law that we found specifically says that the nature and character of the snow on a cart that's left is not for a period of time constructive notice and your honor made the point of snow coming into a warm building is going to know much quicker than you know an ice cube or something else the things that were established in this case beyond that were we don't know when that car came into the building we don't know who brought the car into the building we don't know how long it was walked around the building before it was left in that we don't know how long it was sitting in that  store how long it took to create that so that seems to be a jury question isn't it once not your honor because again plaintiffs have the burden to establish some evidence of constructive notice that what plaintiff expert did you know three years after the accident didn't address the specific issue of constructive notice which is where she based services so that the experts can answer that opinion you know noting that you know for instance there's a recovery team there are there specific employees who are there only jobs to go up and down the aisles and make sure that things are safe and to recover those aisles and treat your product again there's nothing in the record to establish that the substance existed for a sufficient period of pj's should have known about it but there's nothing in the record that necessarily establishes that the other way that was sufficient evidence and that the product existed for its distinguishable from here we're talking about again a car that had snow on it that had been walked from the outside inside we don't know how long it been walked around the building up to eight hours for that product to melt through so you know it's very different and here we're talking about snow and ice and but at the same time all of us are very familiar this is not florida or why we're familiar with snow and melting snow and we can form our own estimate from general knowledge that to create a can put purple promoted snow when it's going down drip drip drip is going to take if there are considerable amount of time and the plaintiff is saying the nature of this substance is sufficient the nature of the substance plus the dirty had been walked around the car or walked around the store for one thousand and fifteen minutes before was abandoned so there's no evidence of that here we don't know how long that car was barking around the store before it was abandoned so again there's no evidence of duration that would be sufficient to find constructive notice on the part of the believe in net do we know if the if the puddle was formed by the snow dripping off the car or did it chunk of snow is no evidence either way you know everyone in this case is there's a cart and snow on it we assume that that's where the water came from but nobody's established that that's where it was so there's no evidence said the new jersey courts have recognized that typically constructive notice is an issue of fact left for jurors determination this is a construct of those case and typically it is result of that goes to a jury and you're saying no that shouldn't happen here because the record doesn't give you any indication that there is anything that leads to constructive notice and that i'm having trouble buying but you know it's again the for other jurisdictions it looks like it's starting to dry you know that's evidence of duration that the courts will look and say all right well that's enough to get some are going to leave here again we have no evidence of when that car came into that aisle and started we have no evidence of whether or not that car could walk throughout the entire store warming up before it was a band there's just no evidence of i know i'm running short on time one hundred so i right the penalty for failing to respond to a statement of material facts for a not moving party is that they are going to be deemed the statute is silent or the rule is silent as to the punishment for a moving party to not responsibly counter statement of facts statutory interpretation it's not there and so we're going to say that the drafters of the rule intended it not to be there you know and so it's not part of the thallus to respond to the movie are a statement of fact that even the rule says it's mandatory we're going to deem them admitted huge it we're only going to do that if they're not addressed in the other papers  oppose opposition fifty six dollars statement the movement's fifty six dollars factual statements would be deemed admitted unless quote disputed by the now movement in his briefs or contradicted by the so the decision your jersey has addressed this even when you have that mandatory language saying it's going to be deemed admitted oh except only if you know those statements a material fact or not disputed in the other papers so in this case  the failure to respond to plaintiff's counter statement of facts does not deem them it but even if they did the scoundrel statement of facts doesn't address it doesn't go to the heart of the issue is before judge where content is whether or not plaintiffs do sufficient evidence of constructive notice on the part so even if they're deemed that it's really of no moment because it didn't dress the specific issue before the court can decide thank you very cited in my brief there is another typical and vicious and that is dirty dirty in a sense been noted by the courts to be one of many one of multiple typical items that you see with their opposition to plaintiff's counter statement material fact all that did is create more genuine issues of material fact there contradicting their own operations managers testimony set forth in our counter statement the cart had been allowed to remain in the aisle long enough for snow to melt to cause a two foot wide puddle to cumulate on the ground so for purposes of the summary judgment motion that's how the judge was viewing the facts so whether it melted completely in another portion of the story and was only there for a couple minutes that's the new issue raised on appeal that is not how the district court viewed the evidence in this matter how the court did the evidence or was the court just restating your out your client's allegation your honor that's how the court recounted what plaintiff was asserting and i they put that in the opinion and then they went on to say that they found this to be quote an unsupported allegation which even if true fails to create a genuine issue of material fact as to defendant constructed knowledge of the hazard and co so what we have is for purposes of appeal it is plants argument which the trial court accepted that this car remained in this aisle long enough to drip into it too and that's what the court based its decision on that it was an unsupported allegation which even if true fails to raise a genuine genuine issue of material fact that's a constructive notice so if arguments are going to be made that it melted somewhere else around the store that's that's fine for trial we'll deal with it then but it's not before this court on this appeal was you have anything further say i'll give you thirty seconds sum up if you wish yes or no i would argue that the district court erred by not considering the nature and condition of the genuine issue of material fact the nature being snow melting into ice and the common knowledge of how long that takes the condition being that it also became dirty which is a typical in disha duration additionally the court failed to consider the genuine issues of material fact raised by pla