trier of fact to determine whether the your driver in such accidents was acting responsibly under the circumstances or that the accident was unavoidable here that's all that we're asking for is or  determine whether the rear driver such an accident was it all that rule of law it's been adopted in every district in the state including in this district and that was in  and that it is simply what really is an accident sure well i think there are many questions of fact warning get to start with the proposition that he did rear end options in case of an emergency i think the same actually the same situation was in the david black case that we cited to the court with the same situation where there's a car in front of the defendant is behind them there an accident so if you just hope that then acts of the side that this was a rear end accident and then pay particular attention to the specific facts of the case you need to establish and present here  that it was that was the negligent act on the part of mr hisor or ash and if you just focus on that there may well be something here and i'm going to ask some questions  least there is an issue of back to the jury to decide they could very well decide that this was an unavoidable and i'm not arguing that today but did you have the opportunity of deposition ask questions about speed does the evidence now show that the defendant did it was negligent other than the assumption that if if if there's a reason he must have done so negligent act right there at least enough to get by a summary judgment motion at this point in the other part too is limiting his options when he's essentially blocking the on ramp from any cars  i understand what the pro well i think under these circumstances in heavy traffic when you're in that left hand lane and you're passing a semi that's also going to be blocking you already i would say that's at least a question of r he it was ten to fifteen seconds that passed between the time that he saw him or his vehicle which had been blocked from view by the summit it was ten to fifteen seconds that passed from the time he saw no more and so now there is a promise correct that was the in front of the mars vehicle would be in front of the sam on ten to fifteen seconds between t second period when he sees moore's vehicle in front of the semi presumably at this point she's spending because it's my understanding that when she entered the right hand lloyd she had already lost control of the vehicle  i don't know you know these are things that they will be further explored at trial what the evidence come out and the jury very may well believe the there was no other option but i think the  plaintiff that's to have an opportunity to present her case and let the jury decide if that answers your question yeah because i wanted to make sure i understood the facts correctly here and that ten to fifteen second estimate that was an estimate that i know but did any of it i think were it's still before the court i have no problem addressing that well as a matter of procedure i'm not sure what we're supposed to do let's assume exactly that's why i think the practical aspect of it would be to just let it go and what the court decided were there but even there in the emergency doctor in the cases are i think very clear that these are because of traffic and a busy area which in turn led to her three with enough force that her really was total because of the damage to the rear and the vehicle head on more eyes or reddick they're all going in the same direction well north of that gravel and same direction technically speaking i suppose that's right or more really wasn't going to the same direction because it was stop and then actually started back up going east from i don't know she came to a stop your honor and she was not very clear which is understandable for the situation she was put in but my understanding from the testimony of the parties is it safe for whatever reason she spun a stoppage somewhere in the plane and i just i'm trying to get from you whether or not you're actually saying that she burst correction your honor say that i didn't do very well in physics but my understanding of testimony is that when they are all we know is what miss moore has had to say and i don't think she was very clear and i don't think it was a list where the one she's facing eastbound at this point yes whether she's moving or stopping yes and record page twenty two of mr hisor step is ition the ten to fifteen seconds is the time frame in between when he first saw the vatican vehicle and when he collided with it and my client's testimony no your honor page twenty one of the beginning do you have an estimate as to how fast colleen's car was going when you first saw it and you were to it the way the answer was wasn't hardly moving it on my client did not know the specific names of the drivers of the vehicles well hold on page twenty one let's start with line six so this question ok can you help me with formal stop answer ok it would have been going a little question all right what i'd like to get on the question is this when you first saw her you said she was almost stopped so this is now talking about more several or no i don't do so your honor i think the more nervous kind of the from when there because the first question on that page is do you have an estimate as to how fast colleen's car and the plaintiff is only ready your honor the car ahead of the other way would you say that of the more car yes i believe that my client is talking clearly about the plane if you will because it talks about the fifty five mile an hour collision on page twenty two and that's how fast my climb believe proximately he was going when he struck the reading vehicle on the shoulder which in light of the circumstances of the accident people miss perceiving what other people are doing is clearly proprium even is ready because i think she may have been moving she's not sure but again as she said this is a bang bang for the judge in the situation to determine then what's going to take your eye on the situation is that they have someone to your right but i mean your clients actually following the point in their lap and wife right certainly but he doesn't notice or even though he's the vehicle couldn't go very far to the left because we're on the overpasses see if i'm pretty old vehicle you know act or go on the shoulder or go straight unfortunately misread it was there was red they avoided colliding with imminent danger and slow down at least below what he was driving at which was fifty five mph but you know i think you're focusing on what my client perceived vs what ms read it said what would prevent him from perceiving well  vehicle nothing prevented him from receiving the more vehicle once he was on the shoulder and was in front of him but your honor again my client felt that she was barely moving she testified she was going about thirty five miles an hour thirty thirty five miles an hour which is only twenty miles an hour less microns she did not have the opportunity to stop it in this situation is very tenuous and there's no other way for trying but you can't go to the right you can't go forward you can only go so far to left and then you have to go straight live unfortunately ms reddick was still there still moving twenty miles an hour less but this reading did not have the same line issues to deal with all she had to deal with w the left with no one on the shoulder my client was left with the aftermath of the dreaded situation with which was a car on the show i believe that he did everything that he possibly could in that situation as stated by the trial judge he was trying to save his life go to the right maybe you can avoid the semi maybe not maybe you could under somebody who knows you go straight ahead you know what's going to happen is i mean if you head up you go to the lot which is a clear path and you can't again if this was an interstate and there was a fish or whatever on the side maybe you can go further there but we're not in that situation more on a bridge that has a defined area to go and mr highs are said that once his vehicle came to a stop he was still on the bridge because his truck door couldn't open on the driver's side because it was pushed against the bridge wall so he did impact ms i misread it and  forward with the speed of his vehicle which is certainly understandable but my fine came to a stop on that bridge so ms pfizer based upon the fact that his vehicle stopped on the bridge and he didn't move it from there after the accident he had nowhere else to go he could go to the left a little bit but then there's something in his way on the shoulder unfortunately that was misread and certainly not going to point the finger misread it and say that she did anything wrong with my find had very little options and i understand what you're talking about in terms of positioning of the vehicles in the lines of travel and what's possible in terms of movement i'm more interested in and wonder why the speed was what was the time well i think under the circumstances your energy abideth brakes and swerve if you would have applied as brakes few much at a high rate of speed i believe safe driving to tell you that you should not automatically slam on your brakes you should where happen the key thing here is where this all occurred and we're in a very tight space might find have limited options and that's why again i don't think that there's any evidence that he did anything negligence but as  reacting and i believe the undisputed facts show that he did what it reasonably prudent person do in that situation unfortunately his reddick had been hit and but she has a viable cause of action against ms moore because i think the evidence don't believe the court necessarily affirmed summary judgment on that base but you're asking in your brief this court to affirm on any basis including the emergency room i believe that yes the court can affir any basis that appears from the record pursued with a view to or do you teach them but i think clearly even if we don't consider the emergency doctor in your honour's there is no evidence of negligence on the part of my client and that's where the plaintiff's case fails  off it's a fact specific situation we've cited this specific facts i'm certainly i feel that if the court affirms the judgement this is not going to be a situation where all defendants can get out on summary judgment when they were ended somebody but again when we take all the facts and the fatality there is no evidence of negligence my client was going i'm going to speed limit at the time of the impact per his dustman he was going at the speed limit or over the speed limit before any of this