for nine years at the watering store some of the facts are important too that it's no approximately two inches that day that when the plaintiff was entering the store that a snowplow was actually leaving the parking lot and mr luna based upon his experience knew that when there was snow in the parking lot that patrons attract in the snow and they would melt on the floor so therefore if you are acting reasonably you should inspect your floors when you know there is no outside to ensure that there is no water on the floor when i asked where the records are to show the inspections took place there is no records they made no records in reference to snowball they more records into what was done to ensure that the floors were safe now what also undercuts some of that testimony is that i asked both mr louima and heather rift as to when they put out somewhat for science because they said there was no water in the floor before or after but there are photographs that show that they did at some floor and they've gotten an affidavit from officer casey robinson who said well we must attract that in a while that's actually in direct evidence supporting what the point of said that when people walked in from the parking lot they tracked water and or snow into the store and you can see in the photographs was amply demonstrated that there is a lot of water on the floor and they acknowledge that that water in the floor presented dangerous condition in the case law it demonstrates if there's water on the floor in this serious knee injury which required surgery so her own testimony is direct evidence that there was water on the floor also light indirect evidence demonstrating how all that water got under the floor in missile room not did not act is it really prudent person would in reference to the measure in that store by going around and i mean the i need something because i thought she did not seem water on the floor before she slammed she did not  by posing counsel when you fell hard as you paul described how your body maneuver answers joaquin towards a cash register my right foot hit something wet and all my weight landed on my left knee i went completely down on my weight on my knee then immediately fell backwards  back question so your right foot did go court answer yes and you found something what under your right foot answer right that's why i slipped up now i go through and i provided definitions to the court that what is defined as covered noice and soaked are saturated with a liquid especially while while the definition of slippery is causing or tending to cause lighting or slipping now distance and why is it important because there's a bunch of case law that says there is sufficient evidence to allow this case to go forward there is also discussion which at that is very important reference to it all three for a buyout of the medical records in this case where she discusses slipping out of water and she also states states is followed robin austin fifty two year old female presence in the emergency department with left knee pain status post fall now why is it important they noted that while he says post ball it doesn't say how she felt present symptoms pain or sensations or and this is what's important the inception or general character of the cause or external source there of as recently purdon to the diagnosis and treatment dr crowell based upon his no states specifically that it was important for him to know what caused her to fall because he went on he just didn't say well she had her meet he says how she went about hurting her knee now why is this important while because the case law that was cited by defense co correct the frederick case which dealt with somebody slipping on ice but the ice was never seen by the person or it never found the present by anybody in that instance they say well we're not to look at the medical records but the reason to look at the medical records there is it's still morning good morning your honors my name is edward herne i represent walgreens in this case i want to start by you answer and judge over the question that you posed my opponent about how long what was the evidence that there was anything on the floor for a period of time before this occurred and the answer to that is there isn't it what the plaintiff relies on in this case is general statements about and there wasn't testimony that it was snowing outside but what there wasn't any testimony was in this case was anybody was tracking it in it was along the lines of do you know that if it's snowing outside people can what time what time they can they can and that was that evidence the problem though is this this accident didn't happen at the front door your honor the testimony from the plaintiff was that this occurred towards the back of the store some of the other witnesses says well it was near the photo area of the store all of who all of them agreed it was not around the front of the store it was either to the testimonies towards the back of the store or towards the side of the store not the front of the store and the problem with that is while i think it is a fair assumption that people  contracts no end to the entrance of the store the testimony in this case was it could happen but there wasn't any evidence that it did happen and certainly no evidence that there that it occurred in the area where the plaintiff fell and that's part of the problem with this with the evidence in this case now the plaintiffs cites two cases and both in and in the appellant's brief in the reply brief the plaintiff says the bar's  z and the goal but case control the outcome of this case those are indiana court of appeals cases dealing with was slips and falls but there's two ways to distinguish those cases in the first is the first is in both of those cases the plaintiff identified something and there was a corroborative evidence that supported that something that got the plaintiff to the jury in those cases in the bars case the plaintiffs said i slipped on something like ice or grease and the corroborating evidence was there was a water glass so sitting next to the plaintiff found right next to the plaintiff right after the accident the water that my opponent is referring to is water that was a couple of witnesses testified about that was the president at least seven minutes after this accident one came from the plaintiff's friend stella vander here who was at the plaintiff's son in law's son's home and got a phone call and drove to the store and asked her estimate is it took seven minutes to get there so at a minimum seven minutes later but in that bars case this water glass was found next to the plaintiff after the immediately after the accident in the indiana court of appeals said those two things together i slipped on something like ice or grease and the corroborative evidence of water glass being on the floor immediately following the accident was enough to get past summary judgment the goal bookcase was the other case the plaintiff relies on both in the opening and closing brief and in that case the plaintiff testified i slipped on something and i stepped on a stone and she says it was either a stone or a b b in that case so again the plaintiff identified something in that case that she stepped on and that is not is decided under indiana law you know we opened today with a federalism discussion and we're close with a federalism discussion because indiana uses strout rule fifty six but in a very different way than it is used in federal court and we cited the atkins case which judge mannion you were on and judge judge wrote for you were on and that was a case of a similar case it was a slip and fall case or trip and fall case in a meyer parking lot judge tender decided that case out of the southern district of indiana and this court distinguished bars and gola the two cases the plaintiff are lies on in this case and said those don't apply because for the reasons i just explained there was some corroborative evidence but judge tinder did something in the district court case in that atkins case and he picked up on what i just mentioned to you and that is the difference between indiana's rule fifty six procedure and federal rule first fifty six procedure the indiana supreme court has said at rule fifty six and this conflicts with the standard at trial but it rule fifty six stage defendant is required to disprove the claims of the plaintiff and judge tend to recognize that and then this in the atkins case which we cited and then this court picked up on that and distinguish those two cases and i think that's another reason the lack of the core operating evidence the plaintiff wants you to speculate or the jury to speculate that it was water but that's not what she says and fact counsel just did a good job of explaining the definition of something wet it it says especially water but it doesn't have to be water it could be a myriad of things and then the plaintiff wants to make the leap that there was water in the store because of snow but that is not what the plaintiff says she doesn't say i slipped on water in fact she says i speculate that it was water many times in her deposition i guess it was water but she says i stepped on something that was wet so in order to conclude that it's water you'd have to speculate and again i think the standard between the federal rule and the indiana rule also makes a difference because in the cases that the pla ff is relying on those were decided at judge tender says this in the district court opinion in the atkins case on what the defendant did a set a stablished in those cases and so i think those two reasons distinguishes the case now one little word about the piece of evidence first of all i think judge martin the trial judge in this case did a nice job of saying look the the the reason somebody falls can be relevant to a diagnosis but but as a pope as opposed to you know they have a an imbalance or a disorder but what they fall on and whether that establishes fault is not admissible now i think he made the right decision in that regard but i also think this piece of evidence is a red herring and if it's admissible or not doesn't determine the outcome of whether the plaintiffs can make the case and that is because the the medical records the plaintiffs says i slipped on water was she explains this in her deposition she says the reason i think it's water is because i'm guessing it's water i speculate that it's water so the foundation for those statements are made in the medical records don't are not enough a stablished that that piece of evidence is not enough to sustain the plaintiff's burden at s broken bones her you know i guess it's all relative if you know which is she an invalid and unable to move anymore no it's not that kind of a case but on the other hand it's not a septic shock to us so i'll just conclude i have a minute left by saying that i think the cases that we have cited where the plaintiff says i don't know what i slipped on are controlling i think the summary judgment standard in looking at the indiana cases as opposed to the cases that we relied on which were indiana cases out of federal court like the freidrich case that judge league decided in a fort wayne similar set of facts and said it was not sufficient under the federal rule medical record she thought that it was relevant but still found that that was insufficient to establish the plaintiff's case and granted summary judgment so we would ask that the court affirmed the district court's order thank you very much briefly your honor of the action case in that case the planet could not say what if anything cause a person to fall so as not that ability or it was a parking lot case couldn't say whether it's a crack or anything there's nothing there to show what caused the fall and as for property  the floor as was pointed out by your honor the fact that we have water on the floor it's what she says water whichever it is a situation where there's a foreign object on the floor and in reference to the question was put before about constructive notice the fact that walgreens took no steps to ascertain when they had noticed that this condition could exist they did nothing to inspect the property and they allowed this to happen we know what was happening because of the emergency personnel were there after stella got there and she said she was there within a few minutes of the fall and it was water all over the floor so there's enough evidence to let me go forward thank you it has reversed the district