it please the court this hanley brought this personal injury action after she fell while crossing michigan avenue in one thousand nine hundred six she identified as the cause of her fall a depression in the pavement where there was a pothole and there's no dispute that the city at some point within the year prior to her fall had repaired the pothole and there's also no dispute that the repair that there was some sort of depression that the asphalt that in place in the hole had either compressed somewhat or erode it  among the several elements the mishandling had to prove in our case in chief is that the condition was unreasonably dangerous and that the repair was not completed in a reasonably safe and skillful manner the affirmative defense you know for it to really operate as it as a defense or  immunity the premise would have to be that even if the city failed to meet its obligation that that it would that it would be immediately ised if if the injury was a result of a discretionary quality policy decision the way this actually went to the jury it was no defense at all because it as an element required the city to prove that the potter was repaired in a reasonably safe and skillful manner that was exact flip side of ever reach that issue when the reached that's absolutely correct and so if in fact i mean we first i mean we disagree that it was fair to send the affirmative defense to the jury but more importantly if there was any error it was obviously harmless and harmless error is never a reason to grant a new trial and so commits an error of the law it's always an abuse of discretion and less there's a showing that there was prejudice in an air i mean that the issue whether there was an error is a legal question so that i mean really that that should be to nov review as far as the legal question as far as whether there's any prejudice from the air it's abuse of discretion but there is absolutely no indication that there was any prejudice that she was going to allow the city to prevent that try to present a defense but that the defense could only succeed if the city showed that the repair was done properly and so the language was added that the city had to show that discretionary policies decision  that the pothole was repaired in a reasonably safe and skillful manner but as we've said because that was the flip side of one of the plaintiffs burton it was no it was it was not a defense at all and so necessarily if i mean and the jury was clearly instructed that it secret so in order to get to the affirmative defense they had to find that the that the city fail to repair the proper pothole in a reasonably safe and skillful manner so if they've reached the affirmative defense they've am i have to make sure i understood the way the if i don't maybe answer is yes it was it was a fair trial because the what the city was allowed to do was put present evidence that you know that the method of skillful manner the only evidence the plaintiff had to show that anything was wrong with the way this repair was conducted was her expert from texas who has said that the better way to repair a pothole is you need to take certain tool the city but the the cruise aren't equipped with those tools that's not how potholes repaired in the city this is michigan avenue where we have to shut down traffic to do a fifteen minute pothole repair on every single pothole and so aside from the issue of discretionary immunity i think the evidence of the city presented about how it repairs potholes and how it is selected a different method job really just went to the question of whether this was a reasonably safe and skillful manner or repair under the circumstances the city does not have the obligation think it's an unfortunate fact of life that chicago's you know perhaps the pothole capital of the world that we you know have to repair a lot we do it with the resources that we have and the theory of liability here in the city has an obligation to keep it streets in crosswalks in a reasonably safe condition it's not the case that it's liable any time a plaintiff can come for with with an expert that says there is some other possible repair method out there that might have given you a better result plaintiffs the theory of liability here that expert also to show that the panel was unsafe his testimony was that the suppression which one witness describes about the size of a basketball a little bit sunken in would have caused majority of people who really no evidence about whether that's discretionary or ministerial and i think on the on the case let's sort of difficult to view the filling of a pothole as a policy making decision and i'll concede that there perceived by the twelve people good true that it was ministerial yet has also be perceived by the same people possibly that it was discretion yes and i actually don't think there was any other you know other than the crew sort of you know decide is there out there how to fill the potholes you know i don't know that there are specific evidence that filling the pot hole was discretionary and that just that wasn't something that the city argued that wasn't the the basis of th over three decision do we get to the point of law the case you how do we get to the point can we you did with your honor i mean the case was it was a summary you can't and there's also that it would be the nature of the defense ed that was presented at trial was very different so i mean that that premise for the circuit court's opinion was certainly wrong and then from the wrong premise the search the circuit court just said in a conclusory fashion that it her argument that the repair was inadequate was her experts testimony that you know a much more extensive repair method should be used and we should use tools that the city has decided not to equip its workers with and so it was it was that level of decision making and i don't i don't mean to suggest that we that the city took on the burden of proving it were the so you worry about it right away but if this happened why it and i think they probably convince the trial judge here post verdict that you interjected something that was in error and the jury was worried about it so we inappropriate i wouldn't view it as an affirmative defense so much as the city's answer to the plaintiff's effort to show that the repair was inadequate because the plaintiff said in that the basis for the plaintiff's expert was you need to do you to that the determination of whether the repair was adequate is immaterial the plaintiff's claim because defendant is liable for the negligent performance of a ministerial repair task if the repair was an adequate defendant section to dash finding that the court finds that the evidence does not support defendant's argument that the workers had discretion and repairing koppel's she in effect was saying i should it entered a directed verdict on the issue of whether or not this was discretionary because i know what there was not evidence that this was but that workers had discretion therefore she's making a finding trial was over and then in response to her close trial motion and looking back over her notes and thinking back over the evidence she realized and she says the evidence does not support the she means now in this case after i've heard all the evidence the evidence does not support defendants argument that the workers had discretion recurring koppel's so she had to do extensive morsi and other cases said it has to be decided on a case by case basis she's saying on a case by case basis in discretionary work ministerial they were simply given this affirmative defense first based on a draft proposed by the city and then changed by judge starks herself with no got i be half tells the jury that if you have first found that the plaintiff has proven all five elements of a burden of proof in the issues instruction then right to consider the city's affirmative defenses in the first affirmative defense is this discretionary immunity so and that's precise weight opposite we contend of a of what the ruling should be based on the prior appellate decision because that decision said if the build back decision for the two seventy seven illinois decisions at page one forty nine in the first column is where it says the exact quick words that judge starch to the determination of whether the rico was adequate is material point of screen because defended his lab for the negligent performance of a ministerial repair task if to repair was inadequate comment defend section two dash with one affirmative defense fails then based on the at the top of the jury should not be twelve dead if you have found first twice in that sentence that it was prejudicial to the point if she made a specific finding in order that it was prejudicial to the point of and she granted a new trial because she thought it was so prejudicial that it wanted a new have already found that the pot it was not prepared in a reasonably safe and skillful manner and and that that negligence perhaps because the point of centuries then they had to consider this affirmative defense so that that they find the defendant because the plaintiff failed to prove the element of an unreasonable retire or did they find for the defendant because the defendant proved their affirmative  can't be certain you're out of but these are we can't be certain but many cases judge as i'm sure you're aware so that when you have a close case when the facts are close as they were in this case any significant  well you know if this is a close case then there's there's no trial is the incident this happens well in this case judge starks granted the new trial because she made a specific finding  prejudice to the to the plaintiff in this instance i think obviously she must have felt that it was close enough that the giving the disapproval of defense created significant trial error and it afforded the jury  would be nearly impossible for any appellant to win a new trial because any time one could say that there was some other basis some which the jury could have reached a verdict that they did that no matter how egregious the year a new trial would not be believe the judge of my my recollection is correct the did the city had initially proposed some special erotic tories but we had objected to the phrasing the way they were phrased and judge studs did not give them for that reason because she found that they were not correctly phrased it sounded contention that from the point of standpoint that we had no obligation to tender a special one to ride detroit from my perspective as plaintiff why do i want to give  asking the jury do you find that the city has proven their affirmative defense of exercise of discretion in the filling of the potholes because then if i get a general verdict in favor of the plaintiff but they michigan avenue in ontario where one and a half to two million people per year rock through that crosswalk and this big twenty nine inch across hole is right in the middle of that cross walk that asphalt is pushed out to the sides and it has nowhere to go then the asphalt stays in the hole and you gotta get the water out of the hospital if you expect it to take you can throw in equal mix won't get pushed out by the cars so that's one of those things that came up in the testimony but the city wants to make it sound like that combine him said in every single pothole that you repeat are everywhere in the city you have to do it his way regardless of the location and that was not the way the testimony came down  it's really think you have to take his or they can demonstrate to us that this jury got it he even consider reached the point where they were considering the affirmative defense because it appears f else in the record or any other basis in the record for the jury's verdict in almost every case particularly for example in medical malpractise cases you can find some other basis some which the jury may have made the had some other basis in the record i'm which to return the verdict that they did i think that's terribly unfair to party seeking it can work i view sweet against defendants as well as plaintiffs which the if there's serious error which afforded a basis for the jury to reach the verdict that they did then a new trial should be granted to the aggrieved party for every wrong there should be a remedy our supreme court's precedents and it's not the case that in any situation where there might be some basis for the jury's verdict there's never reversible error but when there are multiple independent grounds that could support the jury's verdict wrought presumes that an error in one issue is is harmless and there's good reason for that and that's judicial economy that it makes no sense to entirely scrap the results of a trial just because it's possible to speculate that that  error affected the jury's verdict there's a way to avoid having to you know do that speculation that's to present special interest to tory's to test the verdict now understands the nat'l of matter of trial strategy here plaintiff had reasons for not wanting to do that and there was no obligation to do so in the first place but if a if a plaintiff or a defendant after a trial where there's multiple grounds for the jury's verdict seeks to obtain a new trial then they cannot stand on speculation about here it's actually just not possible that the discretionary unity offense affected that jury's verdict because juries are presumed to follow the instructions and here they were instructed that they could only reach the affirmative defense of discretionary muti if they found that the plaintiff met all burdens if the plaintiff had met all her burdens that would have meant that the jury would have already found that the pot hole was not repaired in a reasonably safe and skillful manner and if it with that finding they could not possibly have found for the city on the basis of their discretionary instructed that if they found the city met the elements of the affirmative defense and they found that the pothole was repaired in a reasonably safe and skillful manner then their verdict should be for the defendant the only way they would have reached that defense in the first place is if they had already found that the pothole was not repaired in a reasonably safe and skillful manner so i mean you of course it's always possible to speculate that a jury didn't follow the instructions but the legal presumption is that they did it and for good reason because otherwise you could always speculate about you know possible problems with the jury's verdict and we'd be tossing out you know the results of lengthy trials all the time and that's obviously not the rule that the square follows or that the trial courts should follow  and i think that the book with the quoted here was an effort to try to follow the two thousand and three himly decision i don't i don't think that what the court did you know was in keeping with that decision but if there was any ambiguity or any error it was obviously harmless and the courts the circuit course statement here that that there was prejudicial i think is entitled to know deference it was it was entirely conclusory it completely ignored the arguments that the city made about the two issue rule the elements of her case and it seems most likely here the jury's verdict just reflects that it decided that either this possible was you know it not unreasonably safe or that the repair was as good as could be expected the city could be expected to do under under the circumstances and with no you know it's long is that ground for the verdict stands it hasn't been just proven it's not the city's burden to prove that the special that  the affirmative defense was not the basis for it for the jury's verdict it is the burden of the party seeking a new trial and it plainly that burden hasn't been met here because there's absolutely no chance that there was prejudice to the to the plaint