in this case your honor there is an overarching duty of the county to maintain the road in a safe condition for intended users and your county in this case claims discretionary immunity from the must be met or the elements must be met are identified and they are in a case because both parties have cited it to the court and that a public entity must provide proof that the conduct of its workers here the road crew was a determination of government policy and an exercise of discretion a public entity further your honor claiming immunity under rule under section two to one must present evidence that the workers made conscious decisions with regard to their work andrew says a paragraph forty six in this is very very important regarding the standard of proof required to satisfy the exercise of discretion element this court meaning the supreme court expressly held that a local public entity claiming immunity under section two dollars to one must present evidence that made a conscious decision with respect to the acts or omissions alleged in the complaint failure to do so is failure is fatal to the claim your honor we present three points to win our appeal the st is with regard to missing evidence or missing witnesses although in this case the law is clear that edgar county bears the burden of proof to show entitle meant to to the immunity claim it shows not to present any evidence from the road crew who did the actual work no evidence to illustrate the decisions and the alternatives faced by the crew and how they made judgments or balance interests with respect to the needs of the community while executing the reap the recent repair work did he really opt for testimony about exactly what the road crew did or was it more along the lines of this is what i told them to do and so we're looking at a you share your honor mr mohan's testimony comes i guess as really speculative because he does he was not present and any time during the course of the work over the course of the years he had developed a general plan for this dump method which included the various steps involved and while it is true that he said that he thought his crew had exercise some discretion as to you know how they filled in i six how much they put it in and how they tapped it down there is no evidence presented for example that the road crew followed his plan in any way shape or form although mr mulholland said that they were supposed to roll it was a the outline of the plan and it was our position based on our expert evidence that c in complexion was incomplete because of the rip rapidity and the proximity in time in which there was a significant settlement that presented a road hazard to motorcycles mr faber may i ask a question of you in regards to mr mohan's testimony i think you argue in your brief the this court should not consider mr mohan's testimony in regards elements of discretion and i could find that in my arguments your honor but i the judge asked me about that saying that you know what proof do we have that they didn't follow the plan and then i argued to the court that well your honor there is no evidence from the crew that mr mo hans plans were followed and then the court said to me well he went mr maule when inspected it so he found it ok and i said to the court mr mohammed did not have x ray vision trial court a claim of error in regards to lack abound a sion would be forbidden on review yes your honor but i would say to the court that the that it's the this is a point still holds that it was the burden of proof for your county to present competent evidence of the decisions that were made by the crew and they have not presented any evidence and along those lines i am merely pointing out that all hans testimony cannot stand as evidence of the decisions the policy enactment of the crew and that is that he back to my question does his testimony need to stand is that evidence in a situation where he didn't tell them specifically how many layers to put in he didn't tell them how many times to fill doesn't that illustrate that they had to make that decision  would be our position that the that the edgar county presented admissions that the road work that was being done this day or that it is in a city that was routine work that had been done thirty or forty times in the past and that there was nothing special or nothing that was unique about the work that was presented in fact your honor if i may point out that one of the elements under herrick is that we have to show that the crew exercised the policy and when i asked about policy at deposition page twenty nine dollars with regard to the repair work that the crew did i wednesday may nd did they enact or make any decision with regard to the policy as to the way the care work would be done answer the crew than any club or or prior to this and similar before before the state of the wreck yes they had done thirty to forty jobs question with those project be routine and be done in a similar manner that they did a project that was involved in this wreck yes and that brings me to another question so it's your position and out here from mr coke when it does turn it's your position that not only do we have to have a shilling that the crew exercise discretion but also that they were involved in determining policy yes your honor and i believe when with this admission if it is admitted under rule a to one of the illinois rules  evidence that the admission that by mr mr mohan is approved and that enact any policy with regard to its work closed the door closed the door tight and solidly with regard to their claim for  discretionary immunity what mr mohan should have said all no of course they enacted policy they had a unique situation they had to use their judgment all the way kind of like in the dial case when they were called on to to make special consideration unique project this in no way was unique project it was very routine done thirty or forty times within the past year so it in no way does it does it fit with for example within the framework of the   well your honor with regard to the roble case which had become relies upon the plaintiff city of chicago presented evidence from the road crew and documentary evidence to show that the work was done and based upon a specific specific and detailed evidence presented to the court the court ruled that it was discretion in contrast to the case here edgar county chose not to present that type of evidence from the crew they presented not one is the specific act of negligence being claimed against the road crew what is it specifically that is claimed to have been done negligently i believe our complaint alleges that the  compaction work was incomplete that allowed for the for the undo a settlement and then the scattering of the undue scattering of the ca six rocks along the roadway those were the allegations of the complaint well in terms of your expert because sounds like does the your expert is the only witness the only evidence that you're relying on in support of both your motion for partial summary judgment and in defending defendant's motion for summary judgment what testimony or evidence do you have from your expert as to what the road crew specifically did not do or did in a negligent fashion his testimony mr billing the engineers testimony was that the compaction was incomplete that in fact it really wasn't compaction it was more just a consolidation of bringing the b particles together but not filling in the voids to prevent settlement he said that the because it was in completely compacted it allowed for it for the settlement he had identified steps that should have been taken which were not pipe so that it would not settle so even though the crew may have taken a more shall we say general approach to two compaction under the dump method there were still steps that were necessary to take even under the to prevent this type of hazard from arising well correct me if i'm wrong i'm looking at your brief your opening brief at page twenty seven dollars and it sounds like mr billings indicated that  so soon after the road work was done is evidence of an insufficient compaction performed by the road crew and that sounds like a racist argument where it's the condition after the fact that of their work what did he bases does he express an opinion that there acts some identifiable acts on the part of the road crew led to this condition well your honor he said that the depression reis represented an unreasonably dangerous condition it was a large defect he said it was unusual to come across a two inch depression on this ship and that this depression was was a hazard to motorcycles more so than automobiles the condition in the photograph he said was created by the road crew when they put the culvert in it was a naturally occurring situation he said that the cot just based upon the photographs that he and the amount of settlement and the severity of the hazard indicated to him based on his experience that the settlement was too much and was premature and was based upon in his was isn't isn't entitled to immunity his decision to use a dump method isn't titled to manage it but under the harnett case there they are asking for immunity based upon the negligent acts of the road crew so it's up to present evidence of the road crews actual conduct actual performance of its work which it has failed to do know that's all the argument i have for the court this morning and i want to thank the court for making special arrangements for this is a meeting under these extraordinary circumstances all right thank you mr favor you'll have an opportunity in r faber we're focusing on the actions of the road crew do you agree that it was your burden to show that the actions of the rogue crew in passing the sites that  engaged in both the determination of policy and the exercise of discretion is that what you have to show i would agree that we have to show that you're one of the three series here which we can  road was smooth the dirt was built up on the sides the way it was supposed to be so he said it was satisfactory he also inspected the accident site immediately after the accident and said he had his fact that it just before the accident he wanted done anything different because it's that's what they expected to happen in the course of utilizing this point well the difficulty i have is as you mentioned that the  could assume that the county was negligent right and so i will that gets us to what do you have to show or immunity so i really don't see the  relevance whether or not they followed the klan or whether or not mr faber an expert agreed that was an inappropriate high and don't we have to focus on whether or not a road crew in the compaction work whether or not that was a policy determination and an exercise of discretion when it's in all of this discussion about mr mohan in his method and what decisions he made  irrelevant i respectfully disagree on more on devolve the point which was discretionary the economy had there are various alternate ways that they could have done this project and  inadequate compaction and mojados ascribe and i developed a plan that provides for compacting the materials in certain ways and that plan results in some settlement expected and that's what occurred here i will also say however you hire that certain aspects of the road crews activities were discretionary and left to the discretion of the roku and that is bucket is also a discretionary decision left to the road crew and then they roll of this road with a forty five thousand pound truck rolled over it multiple times the numbers of number of times fill in and that policy and discretion was left to the individual row crew members to decide in that particular pov all how many times or how much material had to be removed now which oyster had to be removed here in our case the row crew had decided this particular site you know how much camping was going to have to be done how many st of all how many layers of material they're going to put in this term and on the site you know how t them unity here is identifying what were the acts that we should be examining what what specific acts by the road crew should we be examining to determine whether or not they were minister ariel or discretionary acts and i still i haven't heard yet an argument and i haven't seen in the briefs or the record what specific acts have been identified either in the play tings or by way of evidence that are claimed to have been done negligent like can you put your plaintiff's eye on for a moment and just tell me what specific acts of negligence have either been asserted or a stablished by the evidence in this case  the what is what are the assertions or the what is the evidence in regards to specific acts of negligence by the road crew well that's the problem you know it's all speculative on the part of the point of because mohan inspected the road after the project assertion was an argument made or a request made in the summary judgment motion by edgar county to grant summary judgment because of a lack of evidence as to specific negligence on the part of the  settlement or run away we're immune from that decision and i'm going to have oster seems like you end up shooting in the dark because you're saying we're immunized the road crews x are immunised but we don't know what the specific acts of negligence claim negligence are it seems like the other car came before the horse there well the plaintiffs experts argue that the road crews which should have gotten into the condition and i asked him that his deposition so you correct me if i'm wrong your criticism of the condition of the rug way at the time of the accident was not the condition itself but rather that it could not be perceived by a motorcyclist in time to we believe that the trial court's decision should be affirmed because the decisions of the road crew and that with regard to camping back sewing rolling were all discretionary decisions  mohan developed a plan which he used which we expect expected settlement that's exactly what we got he inspected the the project after it was completed and found that the crew had complied with the plans was the cause of this accident or was the cause of the depression you know he certainly could have taken the depositions is individuals but to come into court with just rank speculation  negligent and even if these decisions were not discretionary to which deviations developed and even according to points expert admits that there really is it's a problem with the condition of  the road at the time of the accident the problem was the lack of a sign and place of miss we're immune from that so your honor that's that's all i have today i thank you for your time we respectfully request raised that we don't even know whether or not the crew might have might have thought the trench was a handy hole to dump a deer carcass and i made that very extreme example because mr cook was speaking about speculation talk about speculation he's just told the court that the crew was to use a backhoe it was to use a truck to roll but there is absolutely no evidence that they in fact used a backhoe to tap it down that they in fact  used a dump truck to roll it as apparently the plan provided so i didn't take depositions of those they have screwed because that wasn't my burden we took a corporate representative deposition of mr mohan asking for any of the witnesses that had information or evidence with regard to the issues raised in the complaint and the only witness presented by ed your county it was a strategic decision and these are very fine lawyers so they had a very good reason for making that decision i'm sure was to present mr mohan and justice harris if i may to address the point that's a court justice raise with regard to striking raised to the rule of evidence i believe would be appropriate for this court to consider at the appellate level as well since this is a day noble proceeding thank you justice with respect to this project and there are certainly things that he was not aware of that are tearing this to favor is now claiming that we somehow precluded his ability to get this evidence