or there is a problem please be assured that i will listen to the oral argument i would like for the appellant to please state your name for the record gerry stocks thank you and for the apple e will not discover or realize the danger or will fail to protect themselves against it and in this case we had the admissions of the plaintiff that he not only discovered the danger and actually had appreciated d that his d shoes were slippery and that the condition presented a hazard that he had to you can reconcile a verdict finding no liability or no fall on the part of maine because a t f has liability only if they could foresee that main would not protect himself plank who has an equal duty to protect himself and here the plaintiff did not protect himself the exception is not and yes i'm sorry to interrupt you if you could just bookmark where you're out there  this argument that you're making that the jury was required to find comparative fault in order for it to be consistent with the finding of the deliberate counter  exception is there any case out there that specifically says that or would we be the st to say that this is our extension from  or encounter an unknown hazard in asserting this exception so we look at lefever as saying that we recognize the exception to the rule of no d liability because it is not an exoneration of the plaintiff's duty which is a duty to exercise d ordinary care for himself for the choice may rather it is an exoneration or excuse me it is an himself of this breach of duty keep in mind the premises liability is depended upon an unreasonably dangerous condition on the premises and both parties w conclusion that subjectively says well we will hold one responsible for encounter in that same premises liability condition but not the other is inconsistent and we take it another letter is that when a d m is responsible for not anticipating or protecting the plaintiff for a choice it should know the plaintiff would make the plaintiff is still making that choice t favor case that recognize the exception yes they recognize that these are two duties one of the plaintiff one of the defendant but they're only imposing that duty or that liability because the plaintiff is marching forward and choosing to encounter that condition so two parties facing the same condition should have the same rule of law regarding a duty to protect but two different condition that a party doesn't present a risk of harm to a party because it's a knock us nature there is no liability in the st instance so this jury has had to march through to find any negligence on the part of defendant they under three hundred and forty three have to find that the condition at issue presents a unreasonable risk of harm and one to lies that unreadably dangerous where did you get that choice but an unreasonable risk of d harm because of a condition on the premises that same unreasonable risk of harm existed for all parts usually that d unreasonable risk of harm when known by a plaintiff prevents liability on the part of the premises owner when the exception is invoked to that rule it is not an exoneration of the plaintiff's duty to protect himself discover or realize the danger doesn't apply here because of the admissions of roger manning that he knew it and realize that injure or two will fail to protect themselves against it which is why he dead by deliberately encountering it and also no more specific as well as your question your honor is that b calls young reasonable risk of harm a danger so when i say those terms are used synonymously in the body of has to st prove that the condition is an recently dangerous or unreasonable risk of harm and to find that that same condition which is the defining points of duty and it is for both parties and it is the what is there is not conduct that would be negligent if a d m was negligent negligent not protecting against that deliberately towner exception cannot recognize or tolerate a scenario where there would not be a sharing or an allocation of fall because two parties are involved busy in the same condition anything an i p i bet is relevant to your argument that supports your argument that the jury is required to find plaintiff contributory part of the defendant and then you're going to load a mandatory finding in the alternative to the other instructions that are needed to riposte to the jury the power to allocate and balance decrease of all degrees of that becomes a conversation instruction when the jury has not per se been missin structed on the law that they view what the fault is and whether the plans of can establish it's the libera on actually the jury was instructed on the issues of compared to all and it was instructed on the ability to do the allocation so it was it's not like you're asking the jury to do something that wasn't within the province  that they were not instructed on what is tested here is that the result they came back with which an interesting verdict only tested once the verdict is in was inconsistent in the st instance weight but in favor of the supreme court referenced a an illustration to the restatement section three party per se it was the illustration that involves  work in the least space and in order to get to her least office must cross a slippery waxed stairway the only way to get to her office and says that the owner of the building is then subject to liability to the the employee in that illustration are you saying that a jury confronted with the same facts would have to find the employee guilty of some degree of contributory negligence yes because the duty for that plaintiff to protect herself from that condition or to not encounter supporting the deliberate encounter exception which was that it exists because the employees only alternative to taking the risk was to forgo her employment and that is in that illustration given by justice harris anger on into the handrail white series shoes by a special pair of shoes sort of like turf used for the turf in baseball so that they're not slippery and she still falls patchy done what was reasonable under the circumstances given that that was the only entrance to her employment she still made the election even though we could foresee she would choose to do that that's what triggers our liability but her gym get ordinary care still remains that rather d you should anticipate they will encounter that's the side of the equation the fact remains that the plaintiff knowingly encountered a dangerous condition fully aware of not only its existence and the floor but the other stairway could be accessed without blocking d cross that slippery waxed floor there there is an option are you saying that bess what we're confronted with here because main had the option to proceed in a different say point exactly he had and this is the roads case that we cite and the fact that it was before the advent of the fall they think is of no consequence in fact it's probably more persuasive because it is exhibit or no it would have been a bargain but they find is that when you have safer alternatives if you don't follow them and the evidence in this case why specifically ask the rajah's main it anyone tell you could not pull forward sixty two of all of this condition he said no he knew the condition he alone knew that he had wet wheat mids on his feet he alone knew they were sleep slippery he alone attempted to knock them off the were not on the pipe he stepped on from which he slipped rather they were on his boots he knew he had to hang on to his truck a police hands away and did not hang on to his truck and fell into the trench presenting the very danger he previously  appreciate it and knew was a danger at the time and he made the choice based on his admissions not a balancing of evidence or conflicting evidence of multiple witnesses this appeal is premised upon the universe of the admissions of roger may and he admitted that he could have told six hundred and ten feet forward a couple seconds and avoided this condition that he knew altogether and for that reason all those factors the actual knowledge of the harm risk of harm and the availability of alternative that a finding that he did not have some degree of comparative fall is against the manifest way see my time is up try to figure out how to silence myself thank you reasons st the verdict is not legally inconsistent nd the evidence supported the jury's finding the roger mayne exercised ordinary care and rd the award bore a reasonable relationship with the law suffered in the same con element found to be not true in the other in this case there is no common element that defines the duty of the defendant as well as the duty of the plaintiff the proposition for a deliber encounter exception that must be proven by the plaintiff is that the defendant could reasonably expect that a reasonable person in plaintiff's position knowing of the condition would encounter the condition this proposition does not impute any fault on roger maint it does not confess any fact related to roger maine as this proposition uses the objective standard in fact this proposition itself doesn't establish defendant's fault plaintiff must still show breach the elements of a defendant's duty a importantly it's breached do not share a common element within the propositions required of the defendant to prove contributory negligence appellant had argued that the condition itself is a proposition that is common the proposition of a condition being and reasonably safe is a proposition that must be proven for a defendant in the deliberate encounter as and twenty point zero nine illustrates that condition that proposition is not to be found in any charge of contributory negligence for the plaintiff so by the plain definition of an inconsistent verdict there was no legal inconsistency within this verdict justice hairs you had asked about one hundred and twenty nine and whether there was anything in that instruction that supported appellants argument that the jury must find contributory negligence not only is there no support that instruction says the exact opposite that the jury must determine whether the defendant proved both of those propositions and that if the defendant did not then the jury verdict must be for the plaintiff and that the award shall not be reduced moving to the defendant's reliance on the fever of the light the supreme court in the fever did not focus on the concept of plaintiff's contributory negligence the fever stands for the proposition of adopting the deliberate encounter exception as to the concept of contributory negligence the supreme court left that concept on change that opinion stated that the adoption of the deliberate encounter exception was not intended to die loot or minimize the concept of comparative fault when proof exists that means that there are instances where proof may not exist in that the compared to fall remains the defendant's burden and is not established by the plaintiff simply proceeding on the deliberate encounter exception there is nowhere in the fever and there is nowhere in illinois law that requires this bright line rule that the appellant proposes the supreme court has consistently stated that a defendant's duty the defendant's breach and compared a fault are separate issues and must be considered so the fever rejects appellants argument of a legal consistency in fact the only legal inconsistency would be the that the appellant proposes which is to tell a jury that it must find fault or evidence does not require so and that brings me to my nd point the evidence supported a finding the roger main used ordinary care it was a t m s burden to show that roger may committed an act or an omission in that that constituted negligence there is no per se act of nail negligence here the jury was asked to determine the ordinary care meaning that the reasonable care a careful person would use under the circumstances shown by the evidence and that's important here because we're not talking about how serious we're not talking about hypotheticals we're talking about the circumstances shown by the evidence and there's several important facts that are must be accepted as true roger mayne stopped exit is struck encountered we mit's because a t m instructed him to do so he stopped exited his truck and encountered an open trench because a t m instructed him to do so these were not choices made independently by roger mayne in fact when you look at roger means conduct on a d s property it's clear that a d m controlled roger maine from the moment he entered that property until he left they told him when to get on the scale where to stop on the scale when to move to the loading where to stop on it when to shake down this truck when to move his truck for when to move backwards when to he clearly stated that he did what he did because that's how he was instructed when he was cross examined isn't it true that you could have pulled forward his answer was no one instructed me that i could so he followed the instructions of a d m from the moment he entered their property until he left in it's more than just a t m providing instructions a press these conditions and provided no relief for the for roger mayne to save to adequately safeguard any more than he did when you look at the charges that a t m made of which are b tory negligence one of them was failure to keep a proper lookout there is no evidence that roger mayne was not paying attention those minutes he testified i did the best that i could the other of the other for the last two or century the same and that goes to that roger mayne elected to exit his truck and walk a pathway where there are alternatives available and i think justice there is that sort of goes back to where your question is st he didn't elect to do it this is how he was instructed this is only his th or th time at this at this facility and he did everything this as he was instructed to so there were no there there were hypothetical alternatives but the circumstances showed that there were no reason alternatives meaning that when were there was not testimony related to what he could not do the testimony from roger mayne was that specifically a t m employee maicon instructed him where to pull onto the scale once he got onto that scale maicon instructed him to now come up to the shack and retrieve your paperwork that was the same instruction that he had received the five other times that he had been on that property and he had taken those that same conduct to use the same conduct those other five times in so it gets back to the question of should the jury ignore the circumstances shown by the evidence or the should they consider how plaintiff should proceed based on the circumstances and the question is did roger maint exercise ordinary care when he encountered those in the question is absolute as had asked in the hypothetical the deliver encounter regarding the female who holds on to the railing who walks slowly who has his used particular shoes that's exactly what roger mayne did he explained that when he got out of the truck he took it one step at a time that he held the handle as long as he could until he had to release it those that's the conduct that an ordinary careful person would use in these are the same arguments that attorney for the appellant made before that the a jury in the jury did not believe that a t m had met its burden they believe that the evidence was sufficient to support that roger may exercise ordinary care which brings me to my rd and final  for a reasonable relationship to the last the jury was asked to determine the compensation for the future in past damages of pain and suffering and loss from normal life the medical in the medical testimony of the injury was century on challenge uncontroverted this was a permanent injury there was structural damage to roger means back there was a disk injury to the l four  five l five s one an annular tear at the l five s one compromised the integrity of his back roger made it testified to the immediate pain that he suffered explained that he had severe bruising the jury saw the picture showing the severe bruising across his back he was on able to urinate immediately after and for the day or so afterwards you was under the that he was still suffering from the permanent injury but he had reached maximum medical improvement from there rather main testified that the pain had only increased had only gotten worse in while he continued to work his testimony illustrated that he is in fact limited in his work despite there being no official work restriction by the doctor the evidence shows that after driving for one or two hours he must stop on the way to st louis get out of the truck to alleviate some of the pain he described trouble pushing a broom every single day at the at the job he had limitations lifting feedbacks he was no longer able to scoop feet those are real work restrictions that roger may testify to he describes his pain is sharp and burning in regards to activities he's rubbermaid testified how the activities are affecting his daily life the pain affected his daily life from sleeping from getting out of bed from going to the shower every single day he talked about testified regarding playing with his seven grandchildren specific examples that he used that was no longer able to go four wheeling with them was no longer able to play baseball no longer able to kick the ball just by that walking his dog he was unable to do that anymore because the simple jerking of the leash was unbearable now the appellant had used in evidence for one page question nears the roger field four as part of his physical therapy back in two thousand and fifteen that showed that roger's pain waxed and waned from no pain at one moment to moderate pain at one moment but it also showed that at that time in two thousand and fifteen that the pain was limiting his activities at different times he complained about sitting standing travelling looking after himself his sex life his social life all of those are a single snapshot for different snapshots into roger main life in two thousand and fifteen and wow on one hand it may have shown that there were days where he was feeling alright there were also show times where he was experiencing moderate pain and roger testified that the pain  only gotten worse since then lastly a t m makes mention that there's that there must have existed a prejudice against a t m there is no evidence to support that the jury followed the evidence in awarded reasonable compensation for a gentleman who is sixty one years old had suffered for the last five years and will continue to suffer for another twenty one years the appellant here cannot claim that it did not receive a fair trial there were no evidentiary errors no one favorable rule is against a t m there were no objections to any of a questioning the jury was properly instructed and followed that evidence as well as the law the determination that roger mayne exercise ordinary care is not against the manifest weight of the evidence view ward that the jury rendered bore relate reasonable relationship to the law suffered and for those the st time he was there he was cold when he was at the end of the scale after he had wait to get out what the a t c come get his ticket the fact that he may or may not have done that every other visit that's what roger lane testified to but on cross examination exploring what was the d scope of that alleged instruction we asked did anybody tell you that you could not hold for now in their brief they cut off that way whether he could do it but b he says that no one said that i could and then the next question was that he wanted a d m ever tell you you could not hold for the of a single economic loss no evidence of economics books and the suggestion that there was work restriction or limitation he never missed a day of work in the five years not quite four and a half to four and three quarters years in data backs that to date of trial no work missed no doctor ever put him on a work limitation or restriction he defined the physical demands of his job he did th em he acutely went to doctors and reported de minimus to no pain or disruption of normal watched remote from the occurrence he does not go to doctors and at trial says he now is heard that those are all the admissions and testimony of roger may we get a three hundred thousand dollars pain and suffering claim when he's never been on a pain prescription never missed a day d of work has a pathology and a low back with preexisting degeneration in the low that is expected to cause discomfort upon except in every questionnaire when he went to the doctors he denied any pain was lifting weights or otherwise mechanically noting the back there is no benchmark as in the tyranny factors  acceleration of a pathology as a result of this occurrence there is no bright line test going to dealing with the excessiveness of damages but you cannot ignore and a war that is so unmoored from any evidence to support a very large number one hundred and fifty thousand in loss of normal life there is zero evidence of what he's baseline was before this  the amount of the damages far exceeds the quantum of evidence to explain it and you know that that's always a difficult deference to a jury does not mean disregard for the  and we recognize that a manifest weight finding on damages is a tall order for an out but this is so and more from the evidence and the evidence are the admissions of the plaintiff not conflicting testimony from various witnesses from the final is there a prejudice that informs this or you never know and juror never admits that you look at the totality of the circumstances a verdict that ran away a finding of no fault of the facts presented those infer or inform a jury that harbored a strong prejudice either reasons we respectfully request that on the issue of fall for a new trial for either any of the reasons asserted or if only damages are an issue for appropriate remitted or which would be within you counsel will take this matter under advisement and recess until our next case