this is the case in which a school teacher in an orientation day proceeding instructed the young students in his class to run through the gym a young boy young man said to him why a flip flop i don't think i should do this the teacher told him to do it anyway predictably young men fell and i use the word predictably because i think that's probably one here applied we believe in improper standing it required a high probability of a risk of serious injury you look back to the full weight in the polar cases but the history of willfully want conduct and what it takes that will  simpler definition the failure to exercise ordinary care after you have some knowledge of impending danger and distress mike if i could ask there were no allegations in the complaint your many prior similar injuries alleging that the of the risk of actual harm from running in flip flops so where is the evidence here in the complaint and there's something about general knowledge from the internet but is that a conclusion are there any specific facts alleged regarding knowledge of was wearing flip flops and all you need to do is look at flip flops and realize there are there are moves that moose kinds of semi sandals that are likely to cause injury and so that we added the citations to the the rules or the articles whether that reflect the fact that it's just introspect why people as white no one wants to wear them so all those facts taken together i i believe should be sufficient i'm not sure what else we could allege other than to have the videos in any way sy professional maybe a doctor or somebody who could say as in the trampoline cases which were early and are pretty pretty significant at this point this is inherently dangerous being on a trampoline many or otherwise without certain things is inherently dangerous in those articles that you took from the internet is there any such evidence of that nature by a doctor or some professional who is studied these things know and there's and there should be because at that point in pleading no have the truck would be pleading evidence we all know that you cannot plead evidence that came up in the murder case because it went to trial we know what happened and murray because of the expensive discovery that took place so apparently the murray the court was satisfied with the original allegations in the construct the complaint that came in after the evidence was before the court it if i tried to do that here i would have to go out giving some indication of your pleading that or what you're pleading i suppose would be that this is inherently dangerous and this is how we establish that i would disagree i would think that would be pleasing the evidence  some of the other cases a motion for summary judgment but texas put that in there not to mention the fact we don't know the purpose of the articles in part is to show that the school district should have been noticed of this so they had knowledge of it and pleadings here seem to be have to be more strict than maybe the approved and the what the jury would be instructed in seems to seems to be a good argument but it's also been addressed and i wonder how you want to respond to how it's already been addressed in terms of our position just  in some way and his defense that you know this is a this is a job for the jury once the pleadings area another job for the judge and i know there was a disagreement in this case and at the bench that the judge says no this is my job i have to make sure the jury is getting appropriate pleadings to go forward and so that seems to be the problem and of course justice bowman's in a dissent and justice mclaren was not  and but you want to comment on that issue a little bit judge jury who should be making this decision and that for the argument i struggled with that that that distinction is a i think a fin distinction i think the best i can do is say in all of these other cases that we're talking about even the ones that the defense relies upon whose cases all went to the jury now presumably counsel in those cases were just as competent as hopefully counsel in this case were tweeting is good or bad but in doing so how can the bottom line how can a trial court judge says kristin if it was a product liability case could the trial judge i'd opt a standard that was more the higher than the standard in the jury instructions product liability  adequacy of the complaint that was dismissed so where does that leave you if we were to agree with the trial court's decision it will leave the case dead in the water at this point and if the court is any lawyer i always get to retreat but if the court believes that there are further allegations that are necessary and is going to create a template as if you will exist when we were there then we would ask that the court remember that and to see if we can do better too if the court is going to have dorce pleading evidence which which is what i call it pretty somebodies affidavit it explains why the the d i don't think that's our job to give anybody a template or even an advisory opinion about how it should be we're here to review what the trial court did and certainly i'm not saying we never do slip in a suggestion now and then but i mean we can't tell we can't tell your collie how to plead and we have to rely on a trial court to review the law  and then we review his or her work so it seemed to me when i read that given take between judge i think it was judge waller and mr printable or whoever was there on his behalf that is plead something a little bit different down below if this court this if this court magician opinion that says that you need to have this you have have to have some specific factual evidence that something is in fact dangerous law so what here was the some evidence that the trial judge for whatever reason ignored or didn't accept in terms of fact leading the distinction is that it was not a pleading issue or bar when they said some evidence they talked about motions following pleadings staged so at that point if somebody comes in with summary judgment you have to put in some met with were long before that that would be my that's the answer to that question is it your position is that for fact pleading purposes you don't need some and then in the absence of prior injuries that's correct we need an allegation of fact as to what occurred and best a dangerous thing to do because flipflops running in flip flops is dangerous if the court will not accept that there is some danger running in flip flops it would be really come contrary to the school rule we cited and contrary to the articles you say and i would argue contrary believe council argued that all the cases we rely upon went to the jury and simply not the case we have cited the lack is from the score which was a motion to dismiss case the floyd case the motion to dismiss it was a case out of the st district was also a motion to up at the outset and then the nd point quickly before i move on is believe counsel is arguing that the trial court applied some stricter or higher standards and pattern jury instruction construction by the appellate courts including this court and where this court granted in law was a standard that the plaintiff must plead specific facts to permit the inference that the funding was conscious that his action would naturally and probably result in then notice issues so how is that going to get past a judge who and he's right to a lot of them are not real happy about evidence being presented in pleadings how are we going to deal with that well and i think it's an interesting distinction and i would not characterize the standard as requiring evidence but rather specific facts that so sufficient to show knowledge on the part of the teacher was not a gym teacher so there are no allegations connecting how this teacher would have even known of this alleged policy nd we have the floyd case and the related line of authorities that stand for the rule that simply the determined that it simply wasn't enough there have to be some facts beyond just that there was a policy that after the facts that would be sufficient to show the high probability of a serious physical harm that were missing it wasn't enough and floyd then i would submit that there are far less allegations here with respect to any substance around that policy that would put this teacher on notice of a high probability of a physical harm well it's not to be anecdotal but i mean i can't tell you how many times some people in this court probably yelled at their kids stop running around the pool and your lip lock you're going to hurt yourself i mean there are some activities that are kind of obvious in terms of the stupidity especially when the kid says the teacher i don't think i should do this i'm wearing flip flops i'm not trying to be cute but they're not certain and i'm not saying  necessarily want to one of them but are there not certain activities that are in here that are obviously dangerous such that you probably need less knack for being for lack of a dangerous statutes can tell us what i feel these are inherently dangerous to give i wear protection act in school which was at issue or at least discussed in the hadley case so certainly there are some activities where involved in the context of running that allegedly poses a higher risk and i think you do need facts there this is not you know those a case involving a student running in a gym as well as dangerous condition speak which leads me to the other points a complaint should not be dismissed with prejudice and less of this clearly apparent that most of the facts can be proven that would entitle obviously the plaintiff to recover what's your position and him being able to replete well certainly we did not oppose his ability to replete in the trial court and he was allowed one opportunity of the fleas in the trial court and if you read the transcript it was we did  i guess is if the question is is there anything that would preclude you from amending it if you determine that on its face it's her as currently pledges not stated claim it would seem to me that your choice is to affirm that decision or over or you know overturn that decision and i'm not aware of a method to affirm the decision to dismiss it for failing to state a claim when the plaintiff chose  dismissed with prejudice i'm not sure what part what would be the basis for than a re man without overturning some underlying decision of the trial court only asking us to any ability of the plaintiffs to amend the current operative plan well the trial court the trial court before he was asked to do it with prejudice did it without prejudice so that is an indication that he thought that they should have another shot at it and they be could be successful yes i'm not sure whether i guess i would take issue whether with the trial court and given that you may be successful in  amending i certainly think it's the right course for trial courts to provide a liberal opportunity for leave to a man and to me that's what the judge said well i was offering in this case and plaintiff had the opportunity t that and chose not to was to me is more indicative of the fact the the point that there are no other facts that they have in their possession to add to this complaint mr manning what he is saying and this is strictly  hypothetical what if there was an allegation or in the complaint that a certain physical therapist who has treated these injuries said that running in flip flops is inherently dangerous running on any surface in flip flops is inherently dangerous what would you wouldn't want something from it least that name of that person or by how did he get to that decision or how did she get to that decision somewhere in those pleadings i would certainly want you know sufficient facts that would provide us with notice of the basis for that conclusion right and that's we're entitled to a fleeting and i think more importantly you know there have to be some connection to actually were lost by this the funding of the risk which is clearly missing in this case well and there is a problem here i mean we how how do we know he didn't know we never got to depose that he may have known it was dangerous to run in flip flops and he still made the young man do it i mean you know we're going around in a circle here you need this and they need that there has to be a point where there is something clad that gets us past i don't wan us past the point where we can find out what people knew and what people didn't know and so you know if i listen to your argument and i try to logically apply it you need  or you're your client would want for this person this this person at orientation to have seen c n n fox news in w g n talk about the serious injuries that occur when people wear flip flops how does that work sufficient to put this this teacher actual notice of the substantial risk of harm and the common knowledge allegations that are our support and here we are you know there was nothing even cited from the state of illinois and we've got websites from maryland in new york and none of them offer really any basis for the notion that this is such a common well understood principle of this teacher would know this this teacher may not be a gym teacher but he doesn't he have some responsibility in the district as in physical education or in sports not alleged in the complaint and it's my you know what this day was an orientation day he was there  alleged as a supervisor for that orientation for freshmen coming in via school and just to keep the freshman business so that other teachers could deal with them i mean go outside and don't play on the gym floor there's got to be some  reasonableness applied to this even bill we're at a certain legal standard grade i think we're getting close to your time and i don't mean to cut you off but if you want i'm not sure what other what the teacher could take from that other than the child inspecting i should run on my flip flop because his bidders bet alone should be enough notice to the school and it notes does this the child thought it was dangerous secondly through the grass where the woman was present because a tree this strikes me and i know what strikes me as obviously not controlling of the strikes me is the same sort of situation anybody looking at this would would say the same thing as if the teacher said let's go judge may be reversed the stress that do you have any cases you keep saying it would obviously be stricken such information would obviously be stricken given the cases when an action an affidavit or some additional information some specific fact that had been pled is backed up in the complaint by an affidavit or something else that that affidavit or whatever that something else is has been stricken i do not i'm not aware of that happening wanton requires something in addition to what normally would be in there how what you know and if it requires as mr manning said that's it b gentlemen thank you both for your arguments here this morning we do appreciate them and they will be helpful in making our decision we will take this matter under advisement we will issue a decision in due course and at this point we are going to stand in recess to prepare for our next argument so you are free to go and enjoy the sun which is peeking through in both of your backgrounds have a good day and