don't like the attorney still step up to the podium i want you to tell the court your names who you represent and approximately how much time your argument will take we please instructions conference this is the proposed the pattern instruction that explains the plaintiff's burden of proof in a premises liability case they said he also proffered a special interac atory asking whether the contributory negligence of mr smart if any was greater than fifty percent of the proximate cause of his injuries the circuit court denied each of these requests this morning i'll concentrate on each of these decisions of the  court and explain why each of them constituted reversible error but i'd like to begin with a special interrupt atory issue a circuit court has no discretion not to give a special interest jury that is improper for in proper form if it goes to an ultimate issue of fact upon which the rights of the parties depend and if a question if an answer to it would be inconsistent with the general verdict that the jury could a tory that the city thunder is front loaded to say was the contributory negligence of town smart if any more than fifty percent of the proximate cause of his injuries furthermore if this if the city merely asked whether mr smart were contributory negligent that question by itself we not have tested the verdict because it would not mean it would not have gone to whether that contributory negligence was more than if you answered yes to special irag for a number one do you find that out smart it's contributory negligence was more than fifty percent proximate cause of the injuries when the city have done that well you are in light of the  pattern instructions be ten or three which was given in this case it was appropriate for the city to to construct the special interest to train the way to it asking one single question with the if any construction that was followed and if on the other hand the city broken up that the question into multiple separate sentences then you would run the risk of a jury returning inconsistent answers between one question and another so it is entirely appropriate instructing the jury on the contributory negligence question but the purpose of the special interest to tory is to test the jury's comprehension of the case and so a it's to be expected that the negligence count was phrased in the complaint was for specific types of conduct by the city failure new to maintain its property in a reasonably safe condition failed to warn the pla street that we're not using that we say so yes to the complaint was a single negligence count but it was phrased clearly in terms of the condition of the city proper in for this reason the circuit court should have given the pattern an instruction for a premises liability case that had an instruction requires a plaintiff to prove that property was not presented an unreasonable risk of harm and that the property owner could reasonably expect that a person would not anticipate the risk of the condition but i think an injury instruction on premises liability requires employing to show actual or constructive notice the landowner of the on reasonably on safe condition ok so why would when when the evidence and the plaintiff alleges that it was the owner that created the condition this city's objection to the failure to give this instruction is that it did not require mr smart to prove that the condition was not open obviously now in the us that's where you lose me because there is nothing in this never seen a case that imposes a burden of proving a negative on a player well your honor a plaintiff could prove the day that the condition was not open obvious by presenting testimony that by virtue of the conditions location its size the clarity of the day that a reasonable person would have been able to recognize it that's in that and to be fair to be the pattern instructions does not mean that the specific terms open and obvious i reasonably expected that a person would not have appreciated the condition of the property that allegedly presented or an unreasonable risk of harm and that's and that's what mr smart should have been held to in this case  deciding not to give this instruction in particular two exceptions that are stated in the notes on nice one is if the if an activity caused the injury and the other one is if the condition arose out the defendant's business the circuit court believe that both exceptions applied to this case but in fact neither one does there was no activity taking place when the injury happened  that would be an injury that is caused by activity but suppose a person walks by and falls into the hole that would be an injury that would have been caused by condition of the property and what we have here is it it's clear from  dealing with whether the property owner had actual notice in that and that's what that that case turned on in it because the employee of the store placed the plank of wood that had  condition of horton street at the time of the accident was the result of the city's activity that city employees created the condition of the road that's that's undisputed it's and whether an activity is what actually caused the harm and in this case there was no activity taking place at the time of the accident and that what was left was that the city had acted upon the property granted before the accident happened the city was doing work after the accident happened in the city resumed its work on the on the property but the city's activity created the condition and the condition is all that was left at the time of the accident and so for that reason that the circuit court erred by relying new issue of which pattern instruction should have been given it's our position that it was improper for the circuit court to rely on the activity except exception in light of how this accident actually happened but the activity addressed the condition versus activity techonomy that case involved a man named accumulation of snow and the question was whether that and that accumulation was alleged to cause an injury and the questionnaire was whether that  accumulation was better described as an activity or a condition and even though the court decided that even though activity caused the accumulation to exist it was done the last a condition of the property that caused the harm so was it in the activity that caused the injury or condition that it was a condition of the property that allegedly caused the injury but it was the activit is properly given when the condition of property is alleged of causing injury as opposed to an activity that's correct and i'd like to reserve the rest of my time for a bott good morning again mr good morning thank you for allowing oral argument in this in this important matter i have been the lawyer involved in this case from day one and i've been involved in all the trials matter some very important points i think need to be made here first of all this court did not just decide not to give a special iraq atory because she was had some aversion to special in iraq where she did give one of their other special in iraq toys that wasn't proper form that was properly submitted and that special interactive toy specifically asked the jury to determine whether the road rage at the intersection of marcin corn land was in a reasonably safe condition they answered that  when it came to the special the next special iraq a toy that was given i was just i just heard argument that that in iraq a tory complied with b ten point zero three but there are some very specific words that were omitted from that in iraq atory just as an example the word total proximate cause is nowhere in there special in iraq a tory b ten point zero three when it asks about whether the pla contributory negligence if any which is fifty percent or loss of the total proximate costs total is completely eliminated from their instruction and all of the special energy interact tori's that have been the courts on this particular issue they've either used the word soul asking whether the plaintiffs comparative negligence or contributory negligence was the sole proximate cause or would they have used the term total the total more than fifty percent or less than fifty percent of the total proximate cause but that isn't the reason the circuit court rejected no special in the rugged you're correct the circuit court rejected but since this is is sending a message to the jury assume the plaintiff was contributory negligence whereas here in this case the jury found the plaintiff was not contributory negligence they used verdict form eight they had the opportunity to find a verdict b which would have allowed for a finding of comparative negligence of any degree the jury didn't use that instruction the way this instruction was worded it was front loaded was the plaintiffs contributory battle jet that is like a message from the court saying what is the point of did the plaintiff do something broad if any is in the middle of the sentence but that's not where it ends you're asking the jury to do multiple things by way of a special in arriving story they're having to find was the plaintiff contributory negligence and then they're having to find was the plaintiff's contributory negligence more than fifty percent of the proximate cause and not of the total proximate cause this could have been remedied very simply and that is our biggest argument and our biggest issue with what transpired at this at this trial she gave them the opportunity to come back and say give us she said we'll be happy to review and listen to rejected it then you moved on to talk about some other instructions that needed to be modified and at the conclusion of that session of the instructions conference she said to the city if you want to modify some things bring them back sometimes i guess when you read things that black and white they don't may not appear as and the nuance of what was being said but clearly any party has the right to bring other instructions back once instructions are den to resubmit alternative proposed instructions and special interact right but in her in a waiver in this this goes to your waiver humor and if the city believed that they had it special by saying we're going to stick with the iraq atory in the form we presented i salute lee correct you are absolutely correct if it was my and defense defending this case i certainly would have come in the next morning as they did with some other revised instructions i would have tendered something alternative if they think it is correct they do not have the responsibility to come back and tender alternative instructions and they can stand on that the problem though is this if this in iraq where the special iraq today had so many problems built into it you can't used johnson there was no disagreement as to whether the plaintiff had lung cancer in that case it was it was agreed in acknowledge that the plaintiff had lung cancer so they weren't being asked in the first instance did the plaintiff have lung cancer and if you find that the plaintiff had lung cancer was dead lung cancer a contributory cause a a or b in our case in all the example cited by the defense there was one simple singular question being asked not multiple questions being a this jury had answered that question yes it would have been irreconcilable with verdict form a but if this jury had answered that question no an argument could also have been made that it still was irreconcilable because if it was no the plaintiff could still have shouldn't be confusing to a jury they should be able to say was there comparative negligence was there contributory negligence yes or no and if there was contributory negligence then was a greater than fifty percent of the total proximate cause to me this could have this whole issue could have been resolved by two very simple questions you see them all the time in trials and to me the only reason and putting forth an i this way was to confuse the jury into thinking that this man was comparatively negligent from the get go the jury found he wasn't they used verdict form had they used verdict for b then i guess there could have been a whole different argument made that the jury didn't properly understand the instructions but they didn't find that he was guilty of any comparative negligence so if they had asked the question very specifically very straightforward not front loaded it in one simple sentence and then asked a follow up question which has been done in cases i think that would have been the appropriate thing to do here the case law that has  they ensure that that question is a single direct simply answer question for this reason because it is such an important aspect of the case to all parties so that anyone have any questions and th move moving on to the next issue the next issue of activity what i'm hearing is that the activity has to be ongoing on the premises in order for there to be the premises liability instructions being used that's just not anywhere in the instructions or anywhere in the case law if you look at the scenario of events that transpired here the city  basically removed the surface on june twentieth left the road in the unpaved condition came back on the twenty fifth with their small grinder created additional of the facts that were a hazard to this bicycle route that fell directly in the pathway of these defects the court needs to understand that right after this intersection this bicycle route becomes a shared route for buses cars and other traffic so that everybody merging into the same lane right after this intersection there was a very important point there was nowhere for this man to navigate around these defects they then came back on july tenth weeks later to finish the project this accident happened on july first first dead smack in the middle of when this project was ongoing there was no real dispute at trial as to because all of the defect period there was one witness that was presented at trial by the city all  their other witnesses were withdrawn and this defect that was caused by the defendant's activity is what caused the damage now there is no case  let's start with the glass case the glass case basically said that in a sidewalk situation that where an activity results in the failure to repair a city sidewalk nevertheless that they cited the more case the more cases a case that involves a recreational property as well as a natural accumulation of ice and snow completely different then a situation here where the defense created the defect the premises liability instruction is typically used in a situation where there is a condition that the city may not know about the city may not have notice about so there's a whole big issue and a whole big dispute going on as to whether or not the city has notice of it whether there is actual whether there's constructive notice how this condition came to be that is the appropriate use for a condition premises  instruction in this case when an activity and the law is when an activity has caused the defect the plaintiff does not have to prove actual or constructive notice because it was caused by one of their activities so they know about it then it is why one of the reasons when there is an ongoing activity as was such in this case the court determined that the ordinary negligence obstruction should be given because it removed it according to specifically removed it according to the notes from there at scenario where the plaintiff has to prove notice from that scenario where the plaintiff has to prove that this is a condition on the premises that the defense may not have known about it's an entirely different case so once you get to the conclusion which there was no dispute about that the defendant's activities caused this harm you don't spare cursing out these instructions and say well because activity was not in motion at the time of the injury it's not an ordinary negligence instruction there is no case that i have found where that says the activity has to be in motion let's say these special grindr had left an hour before this incident had happened under the defendant's scenario this would have still have been a premises liability instruction under their arguments that is not what the case law has said the case law says you have to look at what just caused the problem if it results from an activity then you have to give the ordinary negligence instructions and that is what this court did and that is what the court made the option but it also resulted from the the defendant's business activities not just from some unrelated activity by an employee or a random act by an employee it is the business business of the defendants to repair the streets so i don't understand why in this particular case where open in the us is a defense it is not the plaintiff's burden to prove it were the defense had the right to insert any length which that they wanted to that was approved by the court in the burden of proof in the issues instruction and the defense did insert their affirmative defenses why they were at all harmed by not using  one twenty point zero eight the opening obvious defense was argued throughout this trial they have in their formative defenses in the issue instructions that the plaintiff failed to look out for where he was doing but one of them i think one of the reasons for the confusion is open and how the this is not typically a defense in an ordinary negligence case it's contributory negligence if you're talking about open an obvious but open that when the when the trial courts were going to have a trial on open an obvious we were kind of mixing concepts oh i think in any case an open and obvious defense and then  defense can be in any bicycle case and any motor vehicle case open enough me as can be a defense almost any kind of negligence case that you want to present because of some things open an obvious i would assume the plaintiff's not going to and counter that situation and not be blamed for it in some way shape or form so when she was saying we're going to trial and open obvious what she was meaning was yes you can raise the defense of opening up b s throughout the course of this trial you can put it in your jury instructions you can put it in your affirmative defenses you will be allowed to present evidence on it but she wasn't meaning to say that's going to dictate what instructions we use on this case and structures are tailored all the time to comport with whatever the situation is so she wasn't making some conclusion or drawing some determination on what your instructions to use and i think that's where the you know some of the confusion comes in because they keep arguing that the court said we're going to trial and open an obvious just because you're going wait and that's what transpired here the one twenty point zero weight does not comport with the notes it would have been improper for her to give b one twenty point zero eight under the facts of this case and i also have to say that when the time came for this jury instruction conference and she had decided to give these instructions that she gave one twenty point zero two compiled with the other ten point zero four and twenty point zero two there was no objection from the defense and that's in the record they agreed to give those instructions and those three coupled together there was no objection and i think that very important because if there was going to be an objection enough objection should have been raised at that time  ok i was going to comment about other things but i really i really feel as if this trial court knowing the situation the facts of this case tailored this group of instructions that was very appropriate for these facts and i feel that instructions are not always perfect for every case you will all have to agree this is a unique case not many cases do you have against the city where they've basically admitted that they created the the only testimony that the city presented was mr stuff and who said it looked like a perfectly level street to me yes but he was also impeached on that if you and i'm sure you've read his testimony and we have the photographs that show the defect as well as the people who were there at the time who actually felt he was not there at the time this defect was created he was there in the first sequence of events of removing the pavement there were other people who were disclosed and deposed who were there at the time that the state fact was created they withdrew those witnesses they only really decided to go to trial on this one witness and he said well i'm looking at black and whites he did not look at the color photographs until trial time he said i was looking at black and whites and it just appeared to be a concrete shadow it was a two inch deep five inch wide couple of feet long and it's the exact same size of their grinder the bottom part of their grinder makes these types of defects and mr holland who has worked with the city on projects recognized the defect and recognized the size comported with the grinder and when we asked mr stephan about it he actually agreed with that but he had his point was there was no defect well he was not there he was simply looking at photographs that were taken he never went back to the scene afterwards and i might also say that he was the one who was supposedly in charge of ensuring that this roadway was left in an appropriate fashion because he was the forman so it would have been partially his responsibility to ensure that this project was done in a timely manner and done appropriately having said that i just i just want to conclude with when you look at the problems that would have been created by the giving of the special iraq atory the problems that would have been created the unfairness the prejudice to the plaintiff and asking question of this nature that's cumulative that has more than one question it was just simply improper and she made the trial court made the right decision on that with regard to the  activity i have not seen any case that has been presented by the defense that has effect payout unlike this one where the court said you should not use the ordinary negligence instructions the only case we have seen where there has been activity that has resulted in the problem the courts have used the ordinary negligence instruction it makes no sense to say that the activity has to be actually in process at the time  the accident or injury occurred because in if that were the case then we would be using the one twenty point zero weight in every single fact and you can tell from what one twenty point zero eight requires of the pla prove that in every case an actual and constructive notice is not required to be proved so in closing thank you return reasonable risk of harm and then the plaintiff also has the burden of proving that the defendant could reasonably should reasonably should have anticipated that a person on the property would not have anticipated the the condition of the dangerous  instructions issue as to whether and the activity exception requires that therapy activity ongoing so to speak at the time of the accident that's that's not the city's decision we it's not our position that the difference depends on whether means i'm going to give an example that would give it's closer to the fact pattern of this case that hopefully illustrates the difference between activity and condition suppose grinding were taking place at the time of the accident while the grinding is going on a rocket shoots out from underneath the grinder and strikes the person who causes an injury that would be an injury that causes clearly the activity would be going at the time it was on going but it is there any case that makes that stink for purposes of identifying premises liability versus ordinary negligence it says the activity must be going but you know that's not our position here so we could see if supposing this case the city were at this intersection that at some place in the intersection and we're in the process of finding the street so there would be some activity ongoing but mr smart encountered this  on the road and fell off his bicycle because of the condition of that part of the property that would still be an injury that would have been arisen from the condition of the premises even though there was activity going on elsewhere on the property so we're not relying on the idea that that activity must be ongoing at the time that an accident in order for this exception to apply and there were some discussion about the glass broken piece of concrete the city should have known that this piece of concrete was broken because two or three other people tripped over it notified the city that your premises liability the city didn't create th sidewalk cases are really beside the point when we're talking about this case where the city offered its property it took off the surface of the street it modified it it created th trench i don't see how that's not any good your honor we acknowledge that through the city's activity this condition the condition of the road was created but ultimately it was the condition as it existed at the time of the accident that actually caused an injury and we any property condition can be attributed to an activity or a lack of of activity and in this case we acknowledge that city employees around the street to take out you know it's requirements since there's basically no dispute as to whether a city employee created this condition finally i want to touch on the fact that i p i one twenty zero two which is the duty instruction injury mr snark agrees that this instruction was properly given the circuit court thought it was proper to give it up force and i only and honor has a duty to maintain its property in reasonably safe only one twenty zero two defines the duty of an order of one year whether the owner is sued for premises liability or negligent so ordinary negligence instructions are not going to instruct the from this is likely the case says he's this instruction if the injury was caused by the condition of the premises it's so it's clear from that instruction that this is that this instruction is to be used for a particular type of case which is compliment the two of you on your briefs and on the arguments this matter will be taken under advisement and this court stands in rece