and this is in terms of again of what is in the record for the jury to consider and consequently before us on a manifest weight of the evidence standard of review  as of it's simply that the architect certifies payment to be made to the contractors and no other packages attached to it this private financial authorisation that the architect makes pursuant to his contract with the with the builder i don't wish to pander but i will say that you  payment document that is that according to the plans there is sufficient work here to justify payment under those terms is also not self executing the certificate a substantial completion did put anybody completion certified compliance with code are can't be certificate issue and a point where core would has not been complied with and the premises therefore being at least at this point you go in your own direction i don't mean to channel what you speak to first but these are the three let's say two hundred fifty pound gorillas in the r were executed all the way back time the architect was well aware that so called whatever company was manufacturing it had not yet delivered right and that strings action was the school's but the the trial judge have precluded summary judgment on the first design the orchestra pit without that right yes so the trial judge taking a look at that there were sufficient actual questions about whether or not the architect had designed this orchestra pits without a cover correct so i mean but that that went to the jury that was the ruling of the trout you have said there were sufficient questions whether you had at design that was pulled out of there at that time primarily because of value determination but later of a supplemental assigned and was being fabricated but clearly not during the period temporary occupancy which was obtained by the district by the institut because the d l a and proposed a cover right but it had not been purchased and question is the question then to get right to the heart of it i know you had you have those issues well spelled out in your complaint based primarily predicated on the fact that the cover would only have been in place various silk asians yes it would not have been in place obviously if there was an orchestra and that pissed off it would not have been in place perhaps according to your argument for many days in between since it required a substantial number of man hours to remove it and put it back in place and there is also the factor that during construction there are other kinds of protective devices barricades which evidently according to testimony were in place during construction that were removed during this temporary period of occupancy although we're a little nebulous  it would be entire within the school's decision as to whether the cover was going to be instead all i ever had i mean it could have a wire effect and it would just be sitting in a box that was the school's decision to do or if it had been in place it could have been taken off and what this fear is truth is that it times the proximate cause the connection between anything they want to set about would feel really good and how the stage was being used and whether it was covered or decision why would that not have been a foreseeability issue in terms of the jury making a determination whether it would have been i don't i don't think they have to make a categorical he chime in shame but they have to determine probability watts whether it would have been in place had it been available because the the school authority and we do not have authority that we are it is it would be an impermissible conclusion by the jury because we didn't have the authority now if this court were to affirm despard and we have to think about what the consequences are record as to whether answering everything else is can i understand i can find i'm not mr reagan i'm obviously not slipping from what i started out with as the grasp my grasp under there there have to be guard rails or a person guarding it at all times and for this sport to reform the verdict then you have to buy into that proposition that that's what everyone is for but market has to look like that wendy that when the common law for all in the custom usages of the construction industry that you don't issue a certificate all substantial completion is called regulations  secures are one of the five point zero one and then the court then the point of sort of oh wait a minute that's a mistake i didn't mean to tender and that's how serious is that prejudice or let's put it the way  the case and not determining what this paragraph is to be about which is right is the standard of care different sentences now they think the tie breaker here if you will is that in the question or instruction if we haven't replied with the way we have the area they the jury says this is for you folks to decide in this area they're not in the fact that this instruction is the cause of the formant of such litigation such a lot to turmoil at this point of their full composure so to speak it may be between the lines but they don't say that this should be decided as a matter of common knowledge and experience but they don't to be complacence these codes exist in some car portal form and take the form of some regulation i we need to treat them simply as an issue as a question of fact are can we look at the codes and they could be known for a determination whether they're intended to apply to risk particular context and structure so that i ed that that that poker makes reference to which it was provided by one of the witnesses nobody objected and so that's what the jury did base the position by for the court to go behind that would be taking away something that might give the jury without a problem but the experts also testified and i think this is probably across the board in many cases that osha has become a standard osha made the only person i think that you can find a girl which is the employer but osha has in fact become a standard for construction activity and almost all the experts in all the cases say and that's what mr  violations in new construction projects yes as far as i know you're on it because your opponents say it only and does not apply to new construction i did i did not even understand that to be the argument that has or she is there on job sites and just i don't know if this case something that justice court had explored earlier and the testimony by mr with new skete was that it was wrong to issue the certificate special completion because you should not issue it until the job is complete this job wasn't complete and was news you also said this ok to use it without a pickguard it's not ok to use it without a pickup or because it's because this court knows it's black you can't see it in because it's nine feet deep we don't have to close down every orchestra pit in the country we just have to provide for protection if they're more than six feet deep that's that's what everybody i thi agreed to in the court that's why it was applied because the fall was more than six feet it was not it wasn't an egress under the balcony exception because it was more than four feet deep and it had to have four protect against yazid meant just that  means that you can have a ten foot or a hundred foot pegs as long as it involves a car or putting a guardrail around the stage or putting up a very around the state thank you up the area of the orchestra pit at the very perimeter of the stage and would be subject to that it's crucial it would not again it would not again because because it's more the night just to has to comply with that architect's job on the site now they were speeding they don't describe this pic hired the architect and said they hired him and we rely on him for safety because he the architect now takes over the owner's duties to comply with safety codes and there is i don't think there's even any dispute about that everybody agreed that the architect had what force the safety was and they did not hear because because even their own people  for safety is not the see happen independent duty to protect the implement the safety implementations of his design then his general do we need to make sure that an architect does the lie i think we're well after my first base and what we have here in this situation though is to go one step back from i just a sports question is one more step it wasn't simply a matter of the architect being required to do way that we needed to cover is this a safety issue and feel way came back and said well the district does not and that's more to say as i read that that question in my mind it's basically only on that there certificate essentially means that you have to it has to be safe for occupancy i think the figure is it the like nelson versus wire is it a certification to the world or is it only a certification if he's correct that it does that only as far as the owner is concerned the say pay off it's own ready for occupancy but is that a warranty to the world i suppose you could i mean you know no certificate of completion would make that warranty what is the connection between the certificate of completion and the  because there certificate of substantial completion which is what the jury heard emphasized meant to the district it's ok to have this for years just that that the that the district relie and going back to the design issue i'm sorry there's two issues the design issue is not having a cover and telling be owner but that's ok but that's a moot issue because at the time the certificate was issued there already was a supplemental design for the cover so the fact that the original one was degraded is moot how does that impact on legal costs are as a matter of fact cause in fact because because when when the design includes the cover with that i think i understand where you're headed with that comes the make sure the police with that comes the understanding that the cover will be there when the stage is used it doesn't do any good to put a fire extinguisher in a year from now if you're in the building you need the fire extinguisher there now and that's a design issue they should have i thought i suppose the conclusion for that is they should have said you need a cover and you needed now think they need it now comes from the fact that but they need it during construction because race ipsa it's not it's not race it's a but i think it i'd like to believe it could go to the jury on the question of whether or not it was that big the simple question of substantial completion should be able to go to the jury without an expert witness because just because it's a question of people  bing their work this is what we did this is what our contracts told us to do and from that your brother conclusion whether it's a family complete enough i just say we did offer as well i should i should tell you that i recall and i don't have it with me somewhere in the early ninety's i negligence and the failure to have an expert testimony was suf prevents it overtly and i have no quarrel with that with either the opinion or stuart's reasoning even though we have a lot of common sense a waiver i think should be and i think truck was just think it was intentional except because the truck were just sitting there could well say you know rest say it was really he was really worked up about this but now we've got to him he seems to have changed his mind he would surely not be the first time in history of  you as the plane just experts said these are the building codes these apply to this project based specifically did not say that that you know protect reach the standard of care as a matter fact one of the arguments in the defendant's brief is how do you determine the standard of care and response to the question for the congress rather about it is this a matter of common knowledge it's not what they say is common knowledge is that any layman any driver should be entitled to which it's under a section talking about ingress and egress it puts me in mind of the title of statutes being held to be not part of the statute to look at the wording of the statute and not the title except in very rare circumstances you know you can find some found liable by a jury for not providing mr madden with a safe place to work he cause there was the pit it was painted black as was the stage it wasn't open in obvious necessarily at least there would be a question so that we can't simply assume obvious that's up that the regulations would avoid it nor is it all that clear that the don't care which is ordinary care can't be applied to it they may not find necessarily a deviation of the professionals here but they could question of you know what's the duty imposed on the architect how can an architect comply with the logical extension of what they say is the duty here which is basically to warn the school to instruct the school about how to use the or and that's really what it boils down to and are they going to be liable for any future injury if they didn't tell the school you've either got to do you've got your head to pick up in place at all times or you have to have rails or a guard last thing or just give us a great deal of