three the question of notice of the loose bolt on the loading dock and it's our contention that this falls into the class of cases where there is a recurring dangerous condition of the bolt and the the case is really about drawing a line between general awareness and a recurrent dangerous condition and we think it's a recurrent dangerous condition for a few different reasons one of which is that the area involved is restricted to the loading docks it's a very specific identifiable area the second is that it's a very specific identifiable problem and that would be the bolts becoming loose and the third is that this problem comes about because of the purposeful activity of the defendant this isn't like the debris in the parking lot cases where you have a large area and that dangerous condition results from the actions of random members of the public this is something that comes about because of the defendant's own activities in using forklift traffic to carry the pallets of  mail outs of the the tractor trailers like misters openness it's a recurring condition does that mean that the defendant post office had constructive notice yes it's the law is it's generally recognized in new york is that if it's a recurring dangerous condition then the defendant is deemed to have have notice of each recurrence of the condition because they know that the stepan's of it but if it if it occurs  and they've had a well the fact that it occurs doesn't make the life effect the question is how long how long what period of time is it past before the should have known about it's like it's like slip and fall cases  in grocery stores grocery stores know that people are people are going to drop stuff in the aisle in people then could come along and slip and that's why sweet logs become so important in those grocery store cases just showed at the grocery the grocer is regularly patrolling the aisles to be aware of the fact that that occur that that dangerous condition can exist the same is true here the bolts are always lose the question is the bolts occasionally come this has to be a condition that is normally left on addressed by the defendant and that's wasn't there or wasn't there in the record prove that they were regularly inspected well there's proof in the record that there's a declaration from mr bohun that says that they inspected these on a quarterly basis and that's and our contention would be that this isn't like detention is that it's not enough right that's not enough measure how do you what standard do you weigh what what you give to the court to say to the court that's on reasonable standard in the industry is something like that i'm i don't think there's anything in the record of about a standard in the industry but i would contrast what's done here with what has been established in the cases where courts have found that there was it wasn't left unaddressed and i'm talking about the cases where there were daily like what your honor talked about like a daily sweep of the store we had cases where there hangers left on the floor of the wal mart or something like that they did a sweep every day and our our position is that once a quarter is not enough to do this but getting back to the judge resumes question the there's two there's two aspects one where we're saying that the quarterly is not enough because you can forklifts going through there every day a jury should at least for a fact finder should at least have the opportunity to address the reasonableness of that risk and measure i didn't interrupt you but jurors got to measure that against something their standards and their standards and industry their engineering things and that's the thing that troubles me about your papers was that you know like in the sweep like things you have data that tells you how often spills occurrence like that you know whenever i'm in wakeman's i was see the guy going around and doing the little radio or the little computer checked and that he's that  covered the area but i guess the troubles me is that you used you think you've got an issue of fact you go to the jury saying well it's unreasonable as it's unreasonable for them to look at it only a quarter a year how many how many how many reports were there  over a five year period you know they were in here and it's not it's not in the record that's not in there jay asked for i don't know whether that was asked for well wouldn't that be important for you to establish that this was a regularly occurring matter such that they should be looking on a regular basis for i think i think that that that would be helpful if you think or it every month you you'd say a lot of quarterlies not enough right yes but but you do have the you do you have the e mail mr bohun that says that this is a common occurrence this regularly a call i understand that but but but the so you think that gets you think yes because you're and i think that the defendant has an illuminated the issue of fact and the other the other thing that i would point to the court's attention is that mr bohun says in his declaration that these maintenance you know that part of the quarterly maintenance process involved checking the bones if you look in in the record at page three forty six i think it  it's the e mails the e mails between mr bohun and the district manager a woman named kathleen burns one of the questions of kathleen burns directed to mr boone was is checking the bolts part of the p preventive maintenance and his answer is it's not part of the preventive maintenance so i think you've got a contradiction in the record from the defendant's representative as to whether they were actually jargon that are good to judge  say with what you argue to judge or carol i understand your honor i'm just pointing out the tats in the record my under but even aside from that that doesn't do you any good no but even aside from that i think that the that the defendant did not eliminate the issue and i would just like to depose the fellow who said that these things are common no he was do i not i think your honor i was in handling the discovery i can't answer i can't hear you i can't answer that question you're on if you don't have the case that i did not have the case ok so so we don't know what what the bolts being loose commonly are is common means in terms of whether it's happens once a year or i mean if you've been there ten  years i'm just trying to i'm trying to get a sense that quarter least not enough and if it's common he says yeah it's happened four times the last ten years then quarterly seems a lot more reasonable doesn't yes but again i would say that it's the regularly inspect the loading area because there's a dangerous condition that they helped create and therefore should be aware of right that's what the law yes your honor and i think that it mission that this is a common occurrence because of this what happens with these forklifts so that they have to go is enough to get us over the whole thing a summary judgment to follow up on judge wes's questions i'm turning to page three forty six to what you directed us before so  is there any follow up from kathleen burns after that there is there is nothing else in the record your honor other than mr boone speculation here so if it checked and he says it does not require the checking of both p so and she doesn't respond to that i'm not aware of any response your honor ok thank you i'm just here i know and over my time there was it there was another issue as to whether the that do you brought brought up with judge jacobs permission i would like to ask you did you did you give a did you have any kind of standard from an engineer or anything that said that in areas where there's regular traffic that a raised bolt constitutes a hazard or or violated some kind of building code or i mean normally when we see the one i used to see these things there'd be an engineer or an architect or someone who would put in an affidavit saying you know a common areas of the tripping hazards are great concern and so therefore any kind of raised object presents a hazard and sometimes or even building codes i realize this is a federal post office so mean there may have been certain local exceptions but something that would create a standard of care there is no proof of that sort in the record your honor but i would i would rely on the hutchinson case and the cases from the train sear from the court of appeals where you look at all of the facts and it's yes it's a small elevation but it is an elevation and it's different from the doctor he usually we work and he's working in a situation where his attention is distracted because if he's walking forward what's he doing he's looking up in the air to grab the door  straps that you were to close the trailer door so his attention is elsewhere it's not a situation where you would be inclined to look down so that's why in the particular circumstances of this case we would argue that there's an issue of fact as to whether that's true that the district court did not address the issue of raised belts at all the district court addressed it only with respect to the loose both that mr zubari saw up in here or not with regard to the normal the construction in general  thirty eight where the bullets weren't quite flush thank you good morning your honor is my name is mary pat fleming may please the court and i represent the defendant appellee united states of america in this case it is our position that the district court decision should be affirmed granting the summary judgment motion of the defendant for a whole host of reasons unfortunately mr is filled me fell on the loading dock but that was not an accident that the postal service could have prevented or had notice of notice of a raised bolt of the postal service there was no report of any accidents on loading dock thirty eight where this accident occurred there was no did was aware that these bolts come loose into some kind of indentation well i would i would contend your honor that the differences between loading dock thirty seven where mr me worked normally and loading dock thirty eight were minimal and there is and it's to this point they were not minimal because in one the bolts project and the other the bowls are sunken i would disagree that the bolts are suckin honor in loading dock number thirty seven in the undisputed proof your honor is that the bolts are less than one quarter of an inch raised on loading dock number thirty eight to be dangerous or someone  working there a quarter i mean if if you trip over a quarter net you've tripped doesn't make a difference if it's more or less your honor i think it's unclear as to what happened here  dmi has claimed many different reasons why he fell at first he claimed that he fell on a wet spot and a bolt that was sticking up then he claimed he fell on a loose bolt finally he claimed  fell as a result of the difference in configuration between loading dock number thirty seven and loading dock number thirty eight i have that assurance and it is our my contention that for that reason alone he can't even tell and a half an inch but but the problem i have with all this discussion about a quarter inch is i don't understand that was i don't think that was the theory in front of the magistrate that was something that came after the fact in front of judge or care or it was  was raised during in opposition i think to our motion and in where the objections i think the plaintiff it's buried within the configuration language there is some just got which is the odd thing because scott is really focusing on an inch and a half right you know and he and he's and he says well you know if the in an engine half makes some sense to me that that's observable but by the same token someone's pushing something it's also  far more substantial well in it and there is no i don't mean to object or interrupt but there is no proof that i mean there's certainly no proof that that bolt was raised an inch and a half before he fell i mean there is no proof the proof in the record is that mr hill after he fell he stabbed his right foot into something after he fell he looked back and he thought he saw something sticking up that was a about an inch and a half to two inches and he prepared another reason why there is we really don't know what happened is he prepared a replica bolt which looks nothing like any bolt and he and the loading docks number one through forty six or loading dock number thirty eight the main post office which is another question as to what really caused mister post office said knowledge that one of the recurring difficulties was that these bolts became loose right you knew it but with proves they don't do this daily they don't check for the both daily that's what the exchange between kathleen burns and john who who establishes are these check during the pm and he says does not require check balls well the there is some conflicting evidence because mr bay home in the second record three forty seven he indicates that  bolts are checked and discovered either from notice or through inspection so there is some conflicting evidence but your honor it the post to me  as discussed during the palance presentation the postal service is doing its best to detect hazards the postal service cannot detect something that is not visible and it is our contention that the no i think the contention was that occasionally  there someone who expected the ball right after the accident what was their testimony yes so mr baden did not he was the safety employee of the postal service and he the next morning well actually that morning around in the morning ten o'clock or so he went and he went to loading dock number thirty eight to see what caused the fall but it is it and he didn't see anything he didn't see anything didn't the loading dock looked perfectly normal or did he employee he was with actually went down and checked the bolts with their fingers and it took one employee prying the bolt with his fingers to discover that there was a loose bolt we don't even know if that was the loose bolt but there was discovered afterwards there was an e mail one of the e mails the because of the use of the forklifts in the area that the these balls becoming i'm not sure your honor i don't know if it was in his declaration i i think he's been a long time employee because he is a the supervisor of and involved in safety issues so i think he's been a long time postal employee so i think recurring condition doesn't apply here because i don't think the postal service can be required to correct something that it had no awareness  it has to be a recurring condition of a dangerous condition there been no proof that anybody's ever fallen as a result of a bold there's been no complaint it's not safe to walk to walk across the surface that is even and that has and that has impediments to your honor with all due respect to an expert but with all due respect loading docks of necessity have to have even surfaces in mr  was well where aware of that because he had worked for three days a week for many months at the main post office so it's our contention that a loading dock cannot have a flat surface it does of necessity have to have some little bumps minor bumps doesn't have to have a bull protruding one and a half inch it's i would say there is no proof your honor that that bolt was protruding one and a half and has in fact the the the proof is much to the contrary that despite you know you know daily weekly quarterly there is no proof mr highly testified there is no way that they had bolt was sticking up an inch and a half when mr me was working before that you know that i'm just going to read this sentence that loose boat was visible and apparent it was it was not apparent and visible and did not there is no proof in the record that it existed first sufficient period of time such that the postal service could remedied it or fixed it or repaired it your honor so there is no proof of constructive notice and i guess when the postal service is is you know inspecting these loading docks very concerned about safety daily weekly quarterly but they don't look at the bolts that's what the email is between burns and they don't look at the  well i think it's unclear as to if the the proof with respect to the quarterly inspections is a little unclear as to whether the bolts are looked at or not but i would say it to our it is our contention that there are two documents that say that they are looked at it's they are they're not really a problem in the sense that they were there are a maintenance issue they impede the delivery of mail but there's been no proof that loose bo have been a problem with respect to accidents and people getting hurt this is not the situation where you have a you know thing of salad dressing on the floor well have salad dressing on the floor it may be people who have slipped on it but if you know the salad dressing on the floor and nobody slipped on it before that does not mean that it's not as dangerous condition but but i  i agree it could if you have a loose bolt it could potentially be dangerous but we also have to be able to detect it and that there is no proof that this loose bol visible in a parent and the postal service cannot be that's not the standard they are not required to anticipate they at a bolt that is not visibly defective in a pump me exactly thank you thank you your honor just briefly your honour's the question was raised as to whether this was the issue of the the boat's not being flush was raised at the district court in front of judge scott and i my references to the memorandum of law on which t memorandum of law document docket number thirty two guest five shows that the argument was made as to the whole construction of that page is that it's not in this record your honor because it's a memorandum on that is that it is in the memorandum of law that this construction and yes did they refer to the the the number of bolts the height of the bolts all of those things it's it's in there and that's why in the record i can actually point to the record beginning at page three thirty six there are a series of photographs which contrast the two loading docks thirty and thirty seven so if you compare three thirty eight with three forty three crosby gave a nice speech in which he had many nice things to say about mr macaskill i man safe journey home to both of you thank you i think you will reserve decision