the court here would have made a finding that no genuine issue of material fact exists when a improperly resolve conflicts in fact when it improperly construed facts against the plaintiff in favor of the defendant and contrary to eleanor law which the issue in this case and whether a genuine issue of material fact exists concerning whether the actions of the defendant caused the injuries to the point and proximate cause is a cause that produces an injury to a natural he continuous sequence of events there's ample evidence on the record that the plaintiff's injuries were caused by a natural continuous sequence of events that started with the actions of the defendant when it as such this matter should go before a jury and that's the general rule proximate cause generally speaking proximate cause is a question of fact and that general rule should only be made exception to if there is undisputed facts and those undisputed facts only give rise to  was sufficiently closely connected whether it's possible in his words when you're referring turns legal cause where yes you're on yeah you know i think that is the primary issue in the case so when we look at that issue we have to look whether the injuries that it's been referred to as an escrow so we're starting to talk about the degree of the curvature of the road we're starting to talk about whether it is a sufficient amount of s curvature in order to support the plaintiff's case what we're really talking about there are disputes in fact and what we're really twenty one hundred three so it's obviously a long distance and hard to judge from where we're at but i think it's significant to know that the curvature of the road is is crucial understanding this case and so when your honor says according to mr according to mr sugar yes but well i think mr schumer gives the opinion but i think the common sense also supports that when we look at the smith case in the initial case we're talking about this xpect of proximate cause the legal cause common sense is enough and they actually say specifically that it's common knowledge that parking a vehicle on the side of the road in the commish case might lead somebody in an emergency circumstance of pull off the side of the road and hit common sense in that i'm trying to think about seventy five feet after that and that's really significant we're talking about the we're talking about a legal cause because what the legal cause in this case really is and i think it's important go through the facts if i may briefly that when the vehicle is traveling  what a reasonable drive ok is traveling north of six hundred street in the dark on christmas eve his lights or her lights are pointed directly ahead ok but we're not talking about the i think we are when we're talking about proof legal cause that's where a jury decide how much in other words proximate cause can be more than one cause it can be to cause acting together cause and injury and that's really what the court's describing when they ask that question it's the driver mr johnson who is so driving with a blood alcohol level but in combination with their negligence comes the negligence of the placement of the trailer so we have two x acting together to cause a singular injury in which proportion of liability each of those hold is a question of fact  a matter it's still a question of fact it's still an issue of fact for a jury to decide who bears what responsibility for this singular injury although it was caused by two acts and they james smith he's in the middle of the  way johnson saw the trailer swerve and they kind of goes back on that but the sworn testimony of the police officer saying well he didn't really tell me that and wayne johnson sworn testimony saying yes i saw the brakes and i saw this were those are the weight of his testimony and we can resolve that that now is a undisputed fact because we have wayne johnson testifying that he sees or approach we have wayne johnson testifying that he was behind her going about sixty miles an hour he was hedging up with her and then he saw her slam the brakes swerve out of the way so we have  case the fence counsel chose not to take his deposition defense counsel could have taken his deposition could have talked to him about the data that supported these opinions and would have been completely in line with them trying to attack the validity of his testimony but at this stage based all of his opinions that he says and i want to say maybe paragraph eighteen or nineteen when he starts talking about the distances between tire marks one where it begins entire mark two and three i want to check those paragraphs for you just to make sure i'm right about that on and out but he does testified that when you talk about the tire marks he says that he's relying upon the accident reconstruction report put together by the local county sheriff's personnel paragraph twenty eight so twenty eight through about attached to his affidavit all the facts that he's looked at the pictures the depositions of all the police officers reports of any decisions and so to say that he has to show his math is just incorrect eleanor supreme court will seven o five specifically states that the data underlined the opinions doesn't have to be talked about even a trial you don't have to talk about it but it is subject to cross examination so the proper way that that evidence could have been used to somehow impugn or impeach the testimony would have been by deposition but even that went to bat because it's still a fact in evidence that contradicts other facts and evidence or at least supports the point as physician if i'm contradicting i'm which is really significant we're talking about the second aspect of proximate cause the legal causation and i think that when you look at the cases cited by the plane and then you compare it to the point to the side but then we start to get a really clear picture of exactly what the courts mean when they say cause versus condition which goes back to i think the original question in this line of questioning commission what we're seeing is vehicles that are part in a very similar fashion as the vehicle is parked in this case in some cases it's even exacerbated more in the cases under review now because the vehicle is actually in the roadway which is worse condition than the others another issue that i think is super important is the fact that actions of the defendant are what caused this vehicle to be hard to see or not plainly visible as it's been pointed in the in the briefs and i control in this case the actions of the defendant by placing it in a middle of an s curve on the roadway without artificial lighting no previous warning harness the vehicle to be less than plainly visible to not be plainly visible so in other words it exacerbates the underline logic and logic underlined the plaintiff's cases because the defendant's actions in this case actually caused the lack of visibility which i think is very significant and so when we compare that vehicle was parked on the side of the road for two miles back wouldn't have mattered because the placement of the vehicle wasn't will cause the injury it was the fact that he slid on us and then we look at chapman that not going to tension talk they could have had warning signs all over the road flashing lights artificial light showing exactly where it's at none of those things would have mattered because he's looking over body talking not an attention to the so in each one of those cases the underline logic unites under this notion that even with unlimited advanced warning what if it made a difference because it work fifty according to the defendant fifty feet seventy five feet seventy five feet and fifty miles an hour one second that's how fast the vehicle goes fifty miles an hour one second when those lights finally reflect on this vehicle that  three cloaked in darkness out of the way place in the middle of the road to find a reasonable expectation when we're driving on the road at night when you christmasy place well i'm certain that the poor phraseology placed on the side of the road so pla us as reasonable drivers our expectations are by only when we come around and suddenly seventy five feet away we see for the first time the trailer and the only warning devices are up against the trailer so in other words when you see the trailer we see the warning devices entirely ineffective did not begin until four hundred sixty four feet past the trailer it was at that point that misty who we know is intoxicated failed to negotiate the second in the road so there's no connection between the trailer and the action not even a remote connection but even if the trailer furnished a condition which made the accident possible him c c will still significant that the this accident happened on a clear night whether it was not a fact or no fog rain snow nothing like that and so misty was going  negotiate first and that we don't know anything really about the exact speed she was going when she got in between the curves and when i say it's not esther perel map shows there's really a traffic coming in the opposite direction that testimony goes are plenty of room on the road for to get around the trailer even one of the deputy said had a car been coming the other way which was not the case but if a car coming the other way there still would have been enough near or near the trailer so and then of course not only was schuyler pleading for his mother to slow down but he testified that she was dancing and hitting the story will happen on it and saying he told her to turn the radio down she told him to shut up in this ain't my first rodeo those were her exact words according to schuyler and it was moments after that that the accident happened and of course i'm big on sports analogies but the tire marks begin four hundred sixty four feet past the trailer that's the length of one and a half football fields and so it's at that point that a portion of the  car the left side left the roadway where tire mark one is that's the first indication of even a partial leaving the roadway and then she tries to go back on the road over cracks that about two hundred eighty six feet i believe north time that she went right on trail but then when i further examined him he could not see the trailer at the time that she swerved so i think he's guessing that's what happened because then you later girl by the trail as all i could gather from that but even if this court had to believe that that's true there's still no question in fact because the it was a clear night and she was able to make her way around the trailer there was no tire mark until one the half football fields after that so even if she did put her brakes on or swerve to some extent near the trailer that doesn't create a question of fact the  cases that are really on point well on it and let me say this also that even if the court concluded this accident wouldn't have happened if the trailer had not been there somebody just still broke in the garment case in the supreme dr illinois which is still the law here and of course i've even cited cases from massachusetts and new york i typically i wouldn't do that but the i got of those are conservative forums just they still follow the black letter law where they make that distinction between condition and cause and of course those are cases where like here with jangle or not and with with long where the driver actually ran in season but something that was cause of the accident it was a clear night and long was the same thing but then its car was parked one real protruding slightly on the travel portion of a road the road conditions were hazardous plato spahr lost control  crashed into a cement wall on the side of the road but there was fog and it was impossible for the driver to see for more of them by feet so you can see where these two cases that are primarily relied upon by pl that they're not evidence that this is not a situation where somebody is driving down the road a move they make a curve in the road all of a sudden there are some object there that shouldn't be there if you look at the area on my apple you're going north on six hundred avenue you get to her and then there's a considerable distance from there to the intersection and then it was fifty feet past the intersection where this trailer was located so everybody else said they had no problem seeing the trailers are head seven and that's what makes this case clear whether the clearly visible trailer makes this case easily distinguishable from the case relied upon by playing us and then of course as far as  yes and there's a huge gap here in the gap is what happened to misty struck in between the time she successfully passed the trailer into worsted marks began four hundred sixty four feet down the road nobody explains that if the question was asked i thinks tyler scott daughter was asleep doesn't remember a thing about the acts of just breathing once for mom got in to the straight away in between curves and then didn't really recalling i don't think there's anything record it's him noticing the trailer but what he did say was he was selling his mom slow down in between the curves and she was busy tapping the steering wheel right what why was the barricade there's nothing in the rector vista while i can tell you why it was there but it's not of the letter but is there anything the record indicates where there it had been there for several days or just several hours now the first that the court consider that the state trooper had a right reconstruction that was taking the consideration by the affidavit we've shown i guess for a reason the opinion of the reconstruction is upon were going in there were some substance he was there he was an eyewitness but even can't can't tell us what happened to misty struck in between the time she passed a trailer work firework one that's all it's not for all reasons i previously explained but the you know the big thing here is you know that was never any contact between misty struck in the trailer on a clear night and then there's no evidence that what happened to her truck lane was like half way across it yet there was no contact with it and no tire more for several hundred feet later the football field and a half of the testimony was and we've not admitted they witness but i realize for purposes of the motion you have to sue my client but the trailer on the spot it wasn't supposed to be but the evidence shows that it may have been six to twelve inches first off speculative and even if you agreed with his special this it doesn't change the case at all because he doesn't explain it yeah he's just trying to say well she wasn't speeding but he there's no basis i mean wayne police driver side we have the first tire marks appear when those wheels enter the roadway either somewhere between four hundred three hundred fifty seven feet after the train well we're talking about the physical evidence and that's something the justice the army brought up well let's put aside the physical evidence or recognizing the physical evidence is what it is i think it's extraordinary really important that we talk about the physical evidence in a life most favorable to the point and when we talk about the physical evidence not in terms of football fields from individual standpoint but instead  the light most favorable to the plaintiff in terms of how fast a vehicle travels eight hundred feet when it's traveling fifty miles an hour that's in a light most favorable to the point ten seconds ten point one seconds is what it takes for a vehicle to travel eight hundred feet fifty miles an hour so i'd like to walk the court through briefly from the time to do those calculations or the calculations of the distances are in the report rs copy yes in other words to say that because we filed an affidavit when the defendant decided not to take the deposition of our expert in other words the defense says i don't want to think deposition it said we have to file an affidavit in order to satisfy that requirement that we create a rule or a genuine issue of material fact to say that creates a higher onus on the plaintiff is just not accurate and said instead we look to rule one ninety one today and it tells us exactly what we have it says it has to be filed within a certain time like to go through this time print one at one second we see the trail we're off the roadway now we're back on the roadway now we're told we're correcting now we're flipping and would come to a stop ten seconds at fifty miles an hour that is how fast this accident occurs after we swerved to miss the trailer the driver's side wheels are off the roadway we see the tire marks as it comes back on the roadway