i believe the facts are just been misinterpreted as to whether or not rises will form one this is the problematic area although it's fairly simple and straightforward i don't know that there's any disagreement about the underlying law that applies to this case i believe it's a factual determination as to whether or not the facts that we've already rise to the level or could be found by jury to be willful and one we basically have i think all of us understand we have three different in the torch toward action we have three different levels gross levels of behavior we have negligence referred to in this case as mere negligence so we might refer to it as a mistake and there we all know the legal standard is negligence is that behavior which is contrary to what a reasonably sane person would do a similar circumstance then we have the other end of the spectrum intentional tort this could be anything from murder local governmental bodies for there was a desire by the legislature tech them from certain types of suits they ruled that they were immune from a suit based on that was a mistake have but they were guilty reckless behavior i believe there's a case we didn't cite somewhere in the united states that where somebody hear the evidence they would pass and say oh my god did something this or the necklace and we've had trouble defining indifference or conscious disregard of safety of others or their property and i don't think any court hell annoyed has ever said that there's a difference in those terminology in fact i think that we've cited one case that would suggest there is real no no real  were only a several inches wide and they were sporadic behind the start suited spec that a high percentage of the contacts with that target would not come in contact with where the danger was so it's very possible you could have had this operational for a long period of time without anybody striking out it's just that the bulk of your chance whether you would strike the target a point where there was nothing behind it or the deal lisa case and the person because he couldn't see it because of the tarp became entangled and injured by that rope then suggested the fact it wasn't a permanent feature somehow makes that case more persuasive and support how does this show kind of it's a difference of other words it seems to be maybe the issue is that they were different but they didn't do it as well as they should here might be negligence as opposed to a difference for a distro per get about a agree with you one it's the key crucial element to us if the if there was no tar and they pad i agree with you i believe that that would be mere negligence it just didn't do a good enough job but they didn't do a good enough job and then they back you get your limits of when you can strike the ball the return is defined by the court but we all know that you're going back in your momentum they very well carry you into that and there's no way for a person to known where those columns were and there's also a physical feature about these power they are not straight up and down the base of this farther away from that tar than the area where this man struck the area where he had the most where he was in were up and i don't believe that distance is in the record either that was way above the hype the the ceiling height in this room is a minimum of thirty feet it was up high above the tarps and the tarps were from the photographs you can see there are other cases that we cite that are very supportive of our position we had some pipes that were in tall grass and that situation was turning to be willful one where the key element this case is the fact that it's the well you can do that with all you but there was also an area where people came and went from the tennis force behind are and they wanted to seal that off where they would be getting him and this falls  just makes the play more efficient and favorable to the players there's nothing about that it because if you have a wall like mine why don't you put it on so you can see clearly well painful it's just a safety net there is a soft landing point and tennis players do use all of area to hit balls back in their momentum they can't always stop but if they know it's a cha recommended guidelines recommended distances for side distance from the work and for drop from the work i highly doubt it's proficiency purposes what i do know is the minimum distance sets and certain parameters behind the baseline and what they call the boundary or backstop and that we exceeded that in this instance that's why it's there what we were saying is because the flipside is as you point out just a second flip side is heavily violated a standard or i guideline i'd be arguing differently here and i'd be arguing that violated a guideline is merely a guideline but you can take it as a standard point is the fact that we exceeded it was exactly for the reason that if we're arguing the usual whether we exercised it i just regard for the sake of our patrons the fact that we not only met but even exceeded the us t v guidelines on the distance is a significant fact that's why it's there i will leave it to see you guideline mr doors can believe it's there for the efficiency of the game what i do know is we  entire guideline for the trial court because much of it i believe it's more than one hundred forty pages if you download it off the internet and much of it talks about in finite detail the rules of the game and then there are several sections and i pulled out the relevant one for recreation play which is what applies here there are several sections that deal with either international play or recreational club play and then they deal with the physical setup of the courts and it also talks about a few more words in a line for example i didn't copy all of those and make them part of the record because they were case i think it's also very significant that the beam was not out of place it was supposed to be there it's a permanent part of the building mr dorsey has talked about the ollie's case that i cannot see any way as being significant or controlling or instruct it's a sliding scale using their term i call the slippery slope sliding scale on one hand it's slightly more than pure negligence on the other and it's slightly less than intentional conduct and it's on a spectrum somewhere between the that's what the common law carelessness or it doesn't include what's the other one that was in there were very clear you actually find those very allegations mr gore says complaint he says that we failed exercise when you're here to maintain a definition is very very different twenty minute definition talks about either intentional conduct or an utter indifference and conscious disregard for the safety of others and also requires a course of action those are hall the statutory definition and completely different from the common law that two points right at home back in one thousand nine hundred eight affected similar to the legislature added a sense i pointed out in a footnote in my because when the the legislature was represented guard explain your that the legislature was saying the common law definition is different than definition and when you're dealing with a local public entity it's the statutory definition that will lie and to bring it home what i did was cite a versus community school district twenty one you have a fifth grade student and you have the teacher's gym instructor direct the student rifle student known property theft that's significant no defect direction to run towards it and  when they when they said murray that the willful in my stance of one to ten incorporated the common law they're talking about the pre one nine hundred ninety eight to ten yes that's part of it a well you know there were a bunch of common law decisions that actually applied the correct standard and if you go and look at the jury instruction you will actually find a definition that mirrors the court immunity that the court said that's what the court should be applying is the jury instruction definition however when you look at the the common law is you take it in whole it uses the word recklessness it uses the word gross negligence it uses the word ordinary here in other words the failure to repair something using ordinary here you'll find those also the common law the court  chaos a good thing us reports here are one and the other years though always cases that were consistent with common law definitions i said before i've no problem with that it's those cases that take a different definition so really your case any other definition they violated separation of powers in my view i'd have to take that argument up i don't think that's why i don't think the supreme court is saying every prior cases consistent with a closer you think the current laos case is an and they gave an example one of their own cases which was burlingame which orchestra of the court ended up in this weighing process about risk purses benefits such things were said we're not going to do that because that doesn't match up with what the other only oral the word balance i think that they clearly the very case and other decisions i don't think their control i think their guides look every case we depend on our part history or city cases except only minimum i don't think i said that it was not a safety's ahead of safety and it's what i said is the record is total site we only have one page and there's nothing in this record and i think the jury if they were presented with that evidence could find the