good morning in a place the court i'm caton care for the plaintiff appellant monico beyond the district court erred in granting summary judgment against the plaintiff and in favor of speedway gas station because genuine genuine issues of material fact exist as to whether the in question was an open an obvious danger and whether the placement of the palace so close to the air pump hose was negligent and whether the speedway employees were negligent and going to follow their own company's standards because they're  it not have been open and obvious when she testified that she parks between the two pallets so she's enter car between the two pallets the one on the one side i guess and one on the other side of the air pump it's just hard for me to visualize in the state time so there's no visibility issue that i'm aware of so housekeeper possible this wasn't obvious to her testimony appreciate the fact that it was so close to her vehicle or that it would pose a hazard to her as she was maneuvering the air pump both and according to i just don't get me she parks between the two pallets somehow there's some testimony about that she has to go open the car door to get out and walk up to the air pump so she could have been so close that she could get the door open to it and she would've bumped into it when she was walking through the air pump a specific risk to her that she would fall while using the air pump and that she understood and appreciated the risk obviously given the fact in this case the point of did not understood understand or appreciate the risk in this case and that there's nothing about what happened that was outside what you would expect if you saw a power sitting there in the risks you might trip on it and fall it's not like the palette was coated with some toxic substance that she had no reason to believe it was going to injure her skin or i mean there was something weird going on about the risk that this pallet posed was just sitting there out in the open and unfortunately me of course it's terrible when these accidents happen but unfortunately she trips out and takes a particularly bad fall she does it she does because not because she was walking near it but because she was using the air compos the palate should not have been placed so close to the air pump pose where the focus of the was walking on a path of a and testified in mid it that he was aware of the ice and recognized the danger of walking on the ice but that he traversed anyway in summary judgment was denied in that case and that case also went to trial finding that the point that was only she did incur the risk and that her comparative fall is greater than that of the bend it but this case this is not an open an obvious case in fact the i don't know what would be actually if this is not an open obvious case  the the problem may be bad placement of the pallets but it surely can't be not open and obvious with the open they are where they are there are essentially the public policy argument in this case is summary judgment is up tell is that patron such as the plaintiff in this case to avoid having heard created by the premises owner is that she would have had to just leave leave the whole premises and not use the air pump as intended because of the hazard created by the landowner and that is not what the case law suggests that we do for these for these customers and why he was supposed to post the speedway had just blocked the air pump altogether you know they'd had these deliveries of from using it all together right and it's akin to show these are issues of fact they did not in fact do that they place it so such that the patrons could get in there but creating a risk of harm to them by placing the pellet so close together that it was difficult for peterson placement reasonable did the employees follow there are company guidelines in placing the products specifically the company guidelines say that they're supposed to place the merchandise to encourage impulse buying and be accessible to customers but without interfering with customer traffic and without creating any other safety hazards and in fact the case law shows that this is really a factual issue should be left for the jury and i want to point out one specific no in the mallard vs speedway case cited by its own speed away was listed as a summary judgment case the summary judgment was granted for the premises owner and fact that was not summary judgment was not granted that was a case that went to trial and it was on appeal on an issue on the motion of the woman and so in sun this is a case where it's very fact sensitive and a general knowledge of a potential for mishap is not price the level of summary judgment and there are many different to rest and just to clarify to the extent that the district court granted summary judgment based on the absence of judy you're not defending that you know i think that language went to a point which is not absolutely positively speedways ot duty to its customers by commission so and lastly this case doesn't involve the indiana standard for the granting of summary judgment as plaintiffs argued in their a national brief and cited cases from the indiana courts as opposed to describe in other federal courts you know the report has made it crystal clear that it's a very different standard which is why summary judgment is appropriate in this case the question it is your honor pointed out is how can one be aware of something generally and what does that mean and and it's it's not at all i thought i could do it but record says it's daylight she's been to that store puffier she's gotten out of the car she's actually put air in her front driver's side tire she is moving toward question is whether it was recently forseeable to speedway that its patrons would misapprehend the danger of these pallets requiring the company to move them are put collins up or put yellow paint us in them our decision or otherwise mark the hazard or eliminate the hazard and it seems to me there is a jury question on this record on that question speedway invites its patrons to use air pumps and then puts these pallets with salt and look at the pictures on it you know on either side of the pump and such a way that they have to maneuver their car in at a dangerous angle to access the pump and the hose and then maneuver around the pallets and so it seems to me there is a jury question about whether it was a breach of the duty to maintain a safe premises for the gas station not to anticipate that people several fines that must be made in or to impose liability on the business owner one is that the condition be unreasonably dangerous that it be hazardous the work has or has been thrown around here this morning that's one question the one that brings us here today and i think in titles speedways summary judgment is that says that degrees are stolen or should expect that the customer will not discover or realize the danger or will fail to protect themselves and i deciding that objective question not judges and there's different ways to view this evidence i think there are ways to view the seven assess as it's clear from the argument made by counsel what i suggest is that given the negligence law but the negligence question at south the question of the breach of the duty is usually reserved to the jury if the evidence can be interpreted in more than one way objectively in other words the courts intervene on summary judgment only on the duty question and sometimes on proximate cause ation but on the question of breach of the duty and in this instance again it turns on three forty three and three forty three day of the restatement and that's whether the to protect themselves because that's exactly where they're going to park and they're going to be paying attention to their vehicle and paying attention to putting the air in their tires and that the speedway fails to exercise a reasonable care to protect the invitees and in this case the way obviously exercise reasonable care as shown by the fact that the pellets were there where they were and that the testimony of the employees was that they didn't engage in any sort of evaluation or thought process as to where the pilots goes just the lillibridge driver show up and they just put him over there the turn vs caremark case was very clear that this is a jury issue this should be decided by the jury and the specific quote was after all the interpretation of the evidence with the necessary assessments of what in is clear that this case should go to should go to the jury for the jury to determine and point it does not have to prove at this stage in the game that she would prevail at trial just that there are factual disputes that should be left for the jury to decide right thank you very much thanks to both counsel will take the case