thank you so because that tran cafe for a plaintiff stephen off may please the court where we are here today on a fairly straightforward issue summary judgment specifically whether the district court to the required inferences in my client's favor or not i will note that the clerk has asked us to address the all feed elvira case and i will do that in a couple of minutes at first because the decision class is over some key facts i want as long as the court will allow to discuss the evidence in the record in a bit of detail as a very brief summary my client's wife mrs wolf entered the defendant's business using a door to the side which was one side of the business and then she then he used an interior doorway to move from the beast row side to the formal dining room side there was a single step down at that doorway she fell down that stat she hit her head and she sustained head injuries that led to her death a couple of months later so the defendants have identified a former employee who greeted mrs  wolff when she entered the b stressed side that employee proport purportedly warned her about the step and i say purportedly because whether or not the warning was given is an issue a fact which i can discuss if the court is interested in but for because of the time  on our side we have mrs wolf statement to the paramedics that she didn't see the step that she fell over and this is this is the only available evidence from her point of view because she fell into she lost consciousness right after her fall and she wasn't able to give anymore information after that and before her death so she took she told the paramedics that she didn't see the step and from that we can infer that she wasn't looking for the step at the location it was and from that we can infer that perhaps she wasn't actually warned about the step so yes whether or not the warning was given is an issue of fact which i believe the jury should have been allowed to address but also even assuming that the warning was given whether that warning was adequate as a matter of logic discharge the defendant's duty to mrs wolff is also an issue that should have been submitted to the jury let me ask you this i think i mean we certainly assume that she didn't see the step so even if she hadn't said that i think we can assume that she didn't see it as that had she seen it we probably wouldn't be in the situation that we're in now that being the case someone ever get summary judgment or your view on a case involving a step for example is are there cases where you could get summary judgment well if you let's say the step was well illuminated it was in a  location where you would expect it to be a perhaps there was signage you could get several judgment and under the oregon case law to to constitute an unreasonable risk of harm which is sort of the baseline risk that needs to be posed for a premises liability the courts have held that you need to have more than a single step so it's a single step plus some collateral conditions and in this case we had several collateral conditions the parties have disagreed over what should be made of those collateral conditions so the district court correctly held that that issue is an issue for jury but let's say you had a single step and you had it was well that there was nothing slippery you expected the step to be there then yes that is a situation that you could summary judgment on because i guess what i'm trying to understand is that summary judgment if it is in the in the books right rule fifty six is there and there are going to be cases where it should be applied i'm just trying to understand if it wouldn't be applied in this case again we can assume she didn't see the step and to me the statement is not that helpful because i think it's if she couldn't speak it all we can assume she didn't see the step if that's all it takes is that there's a doubt whether she saw it or not you get past summary judgment there much sure where you would ever get summary judgment in a step case so i don't what you are going to your own case would help me feel comfortable going your way by understanding we can still go your way and not hold you could never get summary judgment in the step case what's different about your case well here the step was concealed  because of not absolutely concealed but not readily apparent because of the collateral conditions so from the photos you can see that the flooring material changed at the location of the step on the booster side which was also the more well lit side of the business the flooring was black and white tile and then on the formal dining room side the flooring was dark curb it and because of the way and because of the step it was a step down when you look at it it looks sort of like it's just just a change in flooring and not actually an elevation change and so we have that the flooring material and then we have the fact that it was more brightly lit from the area she was coming from and more darkly lit on the other side and which similarly sort of obscured the step there were no other no sign of age no handrail sort of add an incline that would demonstrate that she needed to be aware of that so those are that is what clued summary judgment in this case is it correct that the rope that was across the doorway there or the passageway had the step wasn't right there you had to walk a few more steps into a passageway and then there was it was as i understand it the  step was actually at the doorway and then the rope was right across it and that is one of the issues i wanted to discuss is that let's assume that mr williams the employee gave the warning she asked to use the doorway and he said you can use it but there is a step and then he walked her over to the doorway and he did the rope but at that point he didn't say watch your step or here's the step i mentioned and he didn't say anything else that would indicate that like that was the point where the step  she had a walker he would have been right there that is almost an obviously inherently dangerous situation given this step was it was actually six  and that was exactly the expert our safety experts opinion and i'll try to wrap that very quickly into the discussion of bar so that case clarified to the extent it needed to be clarified that two different levels of duty land possessor could have the unreasonable risk of harm which was sort of discussed and then an unreasonably dangerous condition which in this case because of mrs wolff apparent mobility issues that mr williams was aware of the step also constituted an unreasonable unreasonably dangerous condition which means that mr williams had a duty to do more than just ward and as as your honor has mentioned and as our expert opined that would involve either you know actually prohibiting mrs wolf from using that doorway or providing some physical assistance customer who says i can i can do this you know she might be sensitive being labeled as disabled and i could see how the employer would have some maybe hesitation about that but that and whether that was reasonable under the circumstances is really a question that the jury should have been allowed to address and with that i'm out of time all right but will do so will give you one minute for a bottle ok thank you  joe please the court ryan mcclellan for the pelleas as mentioned by my colleague alter was a case that was asked to be discussed by the parties so i will sort of lead off with that obviously if there's any questions or issues feel free to chime in whenever i view alters having a somewhat limited involvement or impact on the case in front of you oregon law is somewhat confusing in terms of the terms on reasonable risk of harm and reasonably dangerous condition as they're used in the premises liability context all clarifies that those two concepts are distinct and carry with them different standards of care for the possessors to satisfy their duties so to that extent clarifies that a reasonable risks of harm are things that can be warned against and or eliminated against and that will satisfy the possessors duty whereas if a condition is an unreasonable risk of danger or those are things that must be eliminated in a warning is  insufficient the case we have in front of us the issue is is has already been i think decided that this isn't a case of unreasonable risk of harm and i don't believe there's any arguments that this was an unreasonably dangerous condition where that a warning would would be insufficient so with that in mind you know the old decision found that the step before them at issue the curb was was as a matter of law not in a reason we dangerous condition it went on to then hold opening segment here that i didn't want to just hit on the location of the rope was a question that was brought up that was at the precise location of the of the threshold in the therefore the step down so not only was there a verbal war given to miss wolff in which she exchanged conversations with mr williams and acknowledged that she could handle the step there was also visual cues including probably most importantly a big velvet rope there that had to be removed now so yeah  later where he went into a lot more detail about what he had done it at the first time of the first statement he was told to record everything that happened yet obviously  we believe credit his deposition testimony he didn't do that i think that there is some differences between the statements and his deposition testimony but i would submit that's one of those differences are what to be expected when you have a post contemporaneous report and yeah or at testimony four years later i would suspect that a person who is not perhaps savvy in litigation or or lawsuits or things like that might write down the basic facts that as they know them which is included in the report after the accident in then when you get you know three or four lawyers asking questions for several hours that's where the additional information would come from a lot of those things may certainly just have not come to mind about that i think however if you look at the at the statement the substance of the statement in the substance of the deposition they are in fact very consistent in terms of  warning itself and again there are more additional details included in the deposition but there are no inconsistency is there where that one would contradict one another and in that statement more broadly there is no contradiction or reason to man i don't know but he's an employee probably works for this company and we all know what we want to we don't want to get in trouble so isn't his credibility an issue maybe didn't say it the way claims for years later he explained the problem to the lady while you are i would point out that the deposition that was several years later he was no longer employed there was no of or inherent bias that would be associated there but just the concept that a witness might be biased because of their employment situation or something along those lines i would submit is not sufficient in order to r inference that that testimony should not be accepted i would submit that there must be something else in there in order to question his credibility and as we talked about and some of the briefing that the question is will is there enough in the statement made by would miss wolf to the paramedic that she didn't see the step is that sufficient in order to to call into question mr williams testimony and i would submit to you as outlined in our brief that there is a requirement of a logical probability of a connection between the two things and the fact that she did not see the step does not have any logical probability or connection to the fact of whether a warning was given or not one could imagine  likely seen it and all the other things lit up or whatever well you are i would say that at best that is a possibility but not a probability and in or therefore reasonable inference to attach it has to be a logical probability there has to be a probative value associated with those things and so it is possible i would submit that if she didn't see that one possible conclusion or inference that could be made is that she wasn't warned of it but is it enough to get it beyond possible her is miss will statement that she didn't see the step but again i would submit there's no connection there to whether a warning was or or did not happen one could imagine a scenario where a person runs a stop sign in the tells the police officer i didn't see the stop sign that's not evidence that the stop sign wasn't there that's evidence that the person didn't see the stop sign perhaps that's evidence that the person wasn't paying proper attention but we can't allow this to go to the jury because for the very reason raise there there is not that a logical connection between those two concepts and the jury would be merely speculating as to whether there is was a warning given or countering that issue and the evidence in this case does not support that the only other comment i wanted to make unless of course there are other questions as there was some issue about well miss miss wolfe was using a walker at the time and i want to reiterate two points on that i believe that oregon laws  clear that the duty that a possessor has under these circumstances is to either eliminate the risk or to warn about it there is no heightened duty for somebody who may have a certain physical disability or anything along those lines so the know watch out watch out for the step or something along those lines heads up was was the warning in here we have a much more detailed and specific warning regarding the step is back there it's a big step there's a rope across it in fact mr williams offered an alternative means and went back with her offered his assistance if she wanted help down the step itself it was she declined her is that in  that's in mr williams deposition testimony which i don't have off the top of my head but it is included in the record that was not in his original statement was that's i don't believe so i would have to check that but i don't believe so and with that i'm out of time t minute very briefly so the evidence in the record about the offer to assist was that mr williams escorted her to the door undid the rope and then said please let me know if i can do anything else to assist you he didn't offer to assist her actually down a vision impairment and so that particular characteristics of the plaintiff are relevant to both the adequacy of the warning and whether the risk was an unreasonably dangerous condition in which something more than a warning was required and just to touch on that the court held the district court held that there was no evidence in the record that the step was an unreasonably dangerous condition but the evidence in the record supporting that was the expert opinion the expert witnesses opinion that she could not encounter the step with safety even if she'd known where it was and the court did not address that expert opinion thank you very much counsel thank you both for your argument and briefing in this case this matter is submitted will call the next case on the calendar today which is united states vs little dog