will counsel for the parties in berkeley please approach please identify yourself for the record ok mr paul i would all right and i will tell you that the microphone in front of you is not for amplification and solely for reporting purposes so if you could keep your voices  wife correct correct and error she was doing that in the short walk from the lottery machine to the only act that the customers could use of her force came in contact with the bottom of the post three foot high cast iron aged black the post was there to protect the security device and expensive security device that was there it was to prevent people or grocery cards from bumping into the security device there was a gap at the bottom of the post between post and the floor and her foot became janan into that gap and that c i think she used the word in tangled in the gap and in down she went the post the been there for eight years that was the period of time that the defendant's own operated the super fresh market th post idea was to take the shock of cars or people rather than bump into the post than have them bumped into the security device so that this post was there for quite some time i believe the president of the defend the company said he was there on an average of about four days a week and he was in the area of this post though he maintained it they paid him they've maintained it they they controlled it it was totally within the control of the defendants after the accident obviously they could have brought people into examine the post it was their post photograph it do everything that we want and if they could turn ticket to see if she got what she wanted to get right at another part you say oh she was looking on a lottery ticket to decide whether to put it in her purse or her pocket and then all of a sudden there's again and so frankly i was having trouble  there is is going to be a ruling on the case but i do believe that she did say it was a gap if you want i can i can get her deposition now read the words that she said responsible for somebody who is looking at their ticket because it could be foreseeing by the defendant who wanted people to buy lottery tickets that after getting the scratch off ticket or lottery ticket out of the machine that they might very well look at that as they move toward the exit i would argue that that's something that's foreseeable by the defendant  security thing which from the picture is almost as large as the doors to the outside the store and there's a post right inside of this right in front of the security things and then there's a cash machine and then there's a lot of device is tall it's hollow than the average person right it's right here you have to you can't miss and it's right there in the poses right next to it so since you can't go between them if you're paying attention you have to go around the po to get out because you can't go there's no shortcut between the security device and the post you can't do that so if she were looking she would have seen first of all she's got to be to stop and look at a lottery ticket and then take two steps and figure out what she's going to do because she's not right on top of it post at the lottery machine there's a good two feet before she gets to it but more important if she looked up at all even if she had seen the post which i believe is a clear and i just i don't see how she could not have noticed as how she could not have paid attention to them she was distracted by a lottery ticket the cheap purchase she willingly purchased it but the store walking along in addition different from say to stop him and scratch it or look at her to decide whether to put it in her purse or pocket it was her decision she decided to do that while she was trying bags of groceries and walking out of the store the store didn't say hey stop right here paying attention i think it would see some part of the post that he was about to walk into while holding a mirror on he was distracted and the only supreme court recognizes that as an exemption exception to the open obvious rule we believe that our client was distracted and we believe that that the struction was caused by her purchase of a night of the store wanted her to buy and she was doing a fairly foreseeable thing of checking out to see what she got out of the machine and then her foot touched upon the as you point out right or so very short distance between a lottery machine and the post it didn't take long its a few stops and her foot then hit the bottom of it and then the question you know this case has been difficult for me because i was involved in the trial involved in the deposition involved in the in the motion for summary judgment i wrote it i was the one who was involved in the reconsideration and i always say pressure to my kids  we can argue about whether monday's a good day or a bad day but the one thing we can agree on is monday is monday the facts in this case are that there is no gap between the bottom of th stories of which your honor pretty much laid out first it was the machine with the distraction except that she had her back to the machine at the time that she fell then it was that the whole unless something  one with what we don't know what's wrong with it they never you know they never point out that this poll has any kind of dangerous condition or it's not a kept up but there's a problem with it so in the first instance when think of she's looking at her lottery ticket so so let's just take that scenario yes they put a machine in their store because they want to make money from selling lottery tickets yeah for the same reason that they put one just in their store and boxes of cereal and she she goes through the machine issue by it and oh that was the other one their original one was as she was right and you'll find that the priest as she was rising from the machine she turned in her foot tain and in the hall however you know that can stand up because the poles over there the machines over here she's turned in she's walking now what she's doing is she's looking at a lottery a security device there's a half hole it goes like this and it's sits in front of the security device it serves two purposes one is so that people do not knock their carts or walk into this then security device because the cost of replacing that would be a constant people would be getting with their cards the other reason is they don't want anybody to walk into a number now this poll sits this way but you have to walk so to speak to the wall and go around to your honor pointed out aware of the paul she knew there was an all there and yet still chose to look at a lot of ticketed while she was the standard that applies in this case is the is the reasonable person standard and sitting over there on the site and then that's the other really important thing that the court should consider she did one thing for paul that was sitting out in the middle where people have to walk around the pole she wasn't watching where she was going and she drifted to the left she had to address because the poll doesn't sit out where anybody walks it's got a machine right behind it and she got her foot in tangled in that opening in the poll but it's your honor pointed distraction if the courts were to find that a person can just simply let's take a barnes and noble the owner of a barnes and noble certainly anticipates a people will read the books that they buy and they put the books out there so people will buy them and  affidavit of an expert who say is that the design in the placemen and so forth were such that it would be districted and what what is he talking about he's talking watching where she was working she's working had her lottery ticket and now she wants the defendant to be responsible for her conduct as if the defendant could have done anything different that would not have caused her to walk into that hole if you shut your eyes and you walk you are going to walk into something if you're looking at your cell phone and you walk in you don't watch where you're walking you're going to walk into something she could walk into the poll she could have walked into up another patron possibly injured another patron if she's coming around the pointed that out my brief what difference does it make what color the poll is if you're not looking if you're not watching what your wife why does it change in all of the case law that is cited supports our position on this pay off the  case i understand the workplace rather versus the might of course they sold him something that they knew could possibly prevent him from watching where he'd seen what he was going when he went outside and you shouldn't have a poll out there there's another least attempting to either watch where they're going where they're being distracted by something that they've bought none of them are walking looking at their phones none of them are walking looking a lot of it and so on unless your others have some other questions  affidavit it consisted of plenty seven paragraphs numbered paragraphs seven of those paragraphs he mentions outside sources so the let's for sake of argument let's agree with you that the matched pages of material that this to robeson had made references to and according to trial counsel the word was in effect the entire document should have been attached as an exhibit instead of just the sections of mr forward i realized my foot was incredibly in something and she said i just basically did a normal turn as possible as i could and when i made the turn i realized my foot was entrapped