deposition that the appropriate transfer for a resident who was unable to assist with that transfer would be a one year left so right here we have conflicting testimony as to what is an appropriate phrase from what is not she further stated the side for a transfer was for granted in this instance we feel as though there is a genuine she of material fact we haven't been inside from this testimony that stating that it was not a proper transfer and yet there it is conflicting testimony that it was a  proper transfer and for those reasons we believe that the issue should be presented to the trier of fact and it's not a matter of law that can be decided by the court or purposes of sergeant it's basically there is a political case law that on the train she testified that she personally inspected the bathroom herself she never saw any missing caps she never found any shirt on surfaces on that thing however when we asked her further questions regarding th central to all of the venture area recycling excuse me stated that the trier of fact has the responsibility to determine the credibility of the witnesses and the weight given to their testimony to reserve season result conflicts  trial court had made some comments regarding the credibility of these dugouts testimony and respectfully we believe that his comments were inappropriate and i have the trial court's stated at we believe that although the court may have had his best intentions in mind at this time it is not for the trial court to be weighing the credibility or determine the weight given to that witness's testimony that is an issue for deposition testimony and prior to this notion being presented to the circuit court and that's one of the reasons why my client believes that he should have the opportunity to continue this discovery because we feel as though there is more confidence that can be presented that this injury occurred during the transfer which kind of goes back to what you were asking me about in their response to earth in their motion for summary judgment they the even stated quote in all likelihood there was the issue of whether or not the trout are committed reversible error when relying upon personal experience say and very respectfully we believe that this scale was committed was so that we could look at this and investigate it and go further and so therefore that these are things that are not traditionally noticeable facts are not things that my client could explore and so therefore this is not evidence that can be relied upon  patients are residents hundreds of times a day i think the record suggested five or six hundred times per day and i think enough particular instance you can employ a slide or transfer as was done here without there being a breach of the this is a metal back and so we don't know if mr duos like human contact was something that was as intended from the from the main factor and we don't know if there was something that came off of manufacturing one of the you know slight makes contact with a frame that you know of itself is evidence of negligence and the testimony we have russian men is that during this transfer buying tension with the again i think where we would argue that this is not necessarily indicative of a breach of the standard care or of lack of showing ordinary care is that every transfer where i'm a resident  proceedings where they said hey we are filing one ninety one the affidavit we need to figure out what happened when that happened so we're looking at is this this record and sure i suppose if they took half a dozen more depositions they might find something else but that's not what the record shows at this point in time so what the record shows at this point in time is a bad that was inspected following this this particular injury with no findings of what happened in your point because there was no findings using my hypothetical example that there was something that came off the manufacturing line or showing some defect or whatnot there's no opportunity for indemnity on our behalf because our evidence is there was nothing wrong with the bad we still can't figure out how the season happened and so we are kind of in a between a rock and a hard place in the sense that they've not yet shown or proven or alleged anything they are kind of all in on this black caps idea but the only uncontroverted testimony there is that this bad had all caps on and they're circumstantially raising the issue that six months down the road department of health in germany twenty three beds did not have these black caps but this bed was not one of those so all of the evidence was suggesting this bad happens house and that is really the anything with that we saw in jefferson granted what an easy way to reverse it you just said well we didn't think the witnesses were being honest and that's our basis the kong question of credibility i don't think is an unusual situation you have a case where the  adversary things are their adversaries not being given truthful testimony or accurate testimony that's why we're here that's why we have these cases of the trial court level as well but the fact the matter remains evidence we have to consider the record indicates that facilities and they have somehow have to places residents in a match on a mattress without their body or making contact with a friend i just there's a lot there's a lot going on in that respect for me already in terms of what would be  that i can say firmly believe there was not not only not with this particular resident but there was testimony that no other resident that ever encountered the similar injuries well this was the first and i think that w evidence would show the evidence we have to consider the record will show that the transfer that was done was done correctly we don't know what is like make contact with ashton testified that she was sure that the right made contact with the bad but again i don't think we can from our perspective we don't think that can be an indication negligence just the fact is like such a bad and again if you if you review the photographs and again this is a metal bad so there highest level of personal freedoms is one of those but i think that there would be a heightened since it would be like the innkeeper or something like that or a common carrier standard it would still be ordinary negligence but i do think you take your your plan as you find it and that's and those will be addressed through his care plans in assessments however implementation of those assessments and care plans would still be just a farm ordinary standard in other words just maintain standard was a missing black cap and now it was what caused the injury i'm the contrary what we're arguing is that there was a negligent transfer that allowed our client's like to come into contact with an object which we believe was in all likelihood supposed to be covered by this black cat so we're not arguing that a black cat was innocent we're not arguing any issues this effect that that is being in main cause of this injury what we're arguing and what you feel as though there is a genuine issue of material fact surrounding is the issue of the negligent transfer we believe that this negligent transfer performed by ashley minton and two other defendant ois was done incorrectly the defense counsel mentioned the slide or transfer allows for the residence like to hang off the side of that and touch the metal that frame mrs clinton testified during her discovery deposition that a hoyer lift is the appropriate caps and and what not but this negligent transfer and all of the testimony regarding kathy douglas or item ph reports or other evidence regarding the bed frame itself is really to show that there is conflicting evidence and there is a credibility issue that needs to be addressed by the tray or fact i'm taking this negligence issue in its entirety under under  consideration and for those reasons we have those side issues that i need to be addressed by a tray or a fact because at the end of the day what they do is they come back to this issue of negligence and whether negligence occurred at the time of transfer and for the person to the record i'm not aware that it ever was used before that was never an issue that was brought out and that's not on the record so i cannot say one way or another thank you