good morning may please the court i'm in it has a penis appearing for the plaintiff neville taylor respectfully of lower court erred in granting summary judgment in this case by ruling that plaintiff cannot prove that the dangerous condition existed long enough for the defendant to have remedied it with the exercise of reasonable care there is a line of cases in new york that have been adopted by the district courts in tuttle and cruz and lacy that holds that where the defendant has failed to perform any inspections or has or there's a question whether or not the inspections are reasonable constructive notice is imputed and the plaintiff need only prove that a reasonable inspection what have disclosed the defect in time to remedy it in this and let's assume that that is enough to cover whatever constructive notice requirement is but we're do you have any evidence that if a reasonable inspection hit taken place this would have been seeing because would it have been reasonable for somebody to inspect for i guess after sixty eight hours not morven freezing temperature on a day when the temperature was sixty three in the morning we have a person where your client was working in his t shirt until n  an inspection that would have shown this what it says were well there were two failures to inspect and maintain here irani you're referring to the first one with respect to a failure to perform or even a reasonable inspection with respect to ice i'd point out that there's no evidence in the record as to when the lats had last ever been inspected for it right now i understand that i understand that that that's that that's what that did that the temperatures that day were more high enough and why would it be reasonable but the other shortfall here was that the defendant also admitted that they had they had never maintained the lots of these were but this was a gravel lot and our expert pointed out and that gravel needs to be replenished on a regular basis when you're driving vehicles and when you're clearing snow these lots had never been replenished for gravel the defendant i would point out never profit any evidence in reply from that he slipped on ice that had gravel in it is so he had done a five seeing gravel the fish seem grab a present now then your expert says well it could have been gravel there he slipped on he slipped on something mission you didn't say that so all you have a few have evidence you can't you can't run from it that there's gravel there i so i don't know how the i don't know how you can claim the failure to replenish gravel is part of their  negligence i don't think ice is any longer in it because if you're going with your expert and not your your your clients i would just testimony but if you do then you're going to ask the jury to disregard his earlier characterization that there was gravel there that he was mistaken well he doesn't say that and when he doesn't say precisely that i would for the quote page one seventy four and he says how would you characterize that he's asked how would you characterize the surface smooth choppy bumpy and he says it's smooth with gravel with gravel with gravel means that smooth with also gravel that's what i understand the word with yes but over words where is the evidence this area was near the mechanic shop as according to the testimony page one seventy nine had a replenished with gravel and as our expert a pint had it been properly replenished with gravel the surface would not be smooth it would be there would be traction and our climb my client would not have slipped on the surface yes there was there was there was gravel but he also described it as what he thought was a sheet of ice with some gravel in it and it was smooth and drawing the inferences in favor of my client the conclusion here is that had gravel been replenished then the surface wouldn't have been smooth and he would not have slipped if there was gravel on the surface he would not have slipped at the entire purpose of gravel and i would i would for the point out that this is a summary judgement stage this is whether or not there's enough evidence here for a jury to resolve the issue of fact this is not post verdict we're asking you to review the fact finders determination and the fact that the surface was smooth and my client described it as a six foot long patch of ice with that was says he slipped a murderous yes he that and that was his perception it was frozen ground which you know the defense has raised an issue about that but frozen ground it mean to him it was a sheet of ice and there because the gravel was not adequate while my client described it as a six foot long sheet of ice with grass that was smooth with gravel in it that is the evidence that we have on this record and that is that enough to say that if there had been enough gravel he would not have slipped yes our engineers testimonies and rebutted that had this deed parky the lot been replenished properly particularly after the thousands of vehicles being driven over it in the plowing that there would have been enough traction on the ground again premises that there was no gravel that had been that had been stripped away so therefore the oil was on a piece of dirt or it was on it was on an area that was completely screwed up because he that's his premise but it's inconsistent i don't how that expert could render that opinion during a trial when it's inconsistent with your own client's characterization of what he slipped up because of my client characterize it smooth surface with we have a ravel right you know i mean if he had said with gravel like i'm with you but he said with gravel i mean i don't understand how you can characterize the failure to regrettable the area when your characterization uneven surface going to down if i something this is location it all comes to you after the fact that you're it's trying to engage you got to go with what you got right but but in any of that i mean there's a there's a real disconnect between your expert's opinion and your own client's characterization of where he fell but that can but if my client describes the surface as smooth right with gravel in it that could that is a reasonable construction of that is that it was in fact a smooth flat surface and that there were pieces of gravel in the surface but nothing had been regraded in my basic problem is you have shown evidence of a negligence but you haven't shown evidence that the particular y addressing the comments made by your honour's we agree that the evidence is insufficient to show that the testimony the only direct evidence here is the testimony a plaintive the pla testified that he slipped on a solid sheet of ice that was dry his clothing did not get wet when he fell on it in response to expert just words it's an oil slick well i was going to and it's with water right in response to expert discovery that showed that the temperature was above sixty five degrees and above freezing for some thirty six hours before the accident both experts plaintiff's expert as well opined that the exist the presence of ice was impossible in given this discrepancy taylor changed his story of the solid ice to a surface that was wet and slick with oil deposited by the vehicles that were driven through the lot there was no evidence in the record of any oil of any cars leaking oil plaintiff requests that this court exercise its well its  daughter was in high school i used to furious with her with her classmates because two or three of their cars regularly deposit oil in my driveway they like it so so if you've got a lot of cars you're going to have some oil on the ground archer well there's no evidence that particular spot which this plan is hard to show that the particular spot where planets fell at the strongest or given the plane makes is that your adequately replace gravel and bit if the gravel had been replaced then this surface would not have been one on which her client felt that's were strongest argument the cheesemaking i'm not sure tell me what how you meet in the first place we disputed that there was any proof that this dangerous condition of a lack of gravel sufficient to render the surface slippery with oil and water ever existed there is no proof of that the plaintiff's testimony is materially different from the experts interpretation of that testimony therefore the experts conclusion that if the surface had been completely covered with gravel plaintiffs color and that there was oil on it because of the fact that there are lots of used cars around there and that there was a while ago he doesn't tie there to anything that's deposited on the fellow's pants or anything the fellow says that he didn't it respect to war and grow right with respect to ice it would be a different thing but i says no out of the picture that's correct i do want to address calibrates is arguments regarding i mean questions regarding the expert's opinion if we're assuming that this condition did exist and our position is there is no proof that the circumstantial evidence is far too weak but assuming that it ted is that is that enough of a connection can we make this link that the defendant negligence so mean the condition existed was enough to get to the jury the expert's opinion that had the service been completely covered with gravel then the accident wouldn't have happened our position is that opinion is highly speculative we did not retain an expert to position because there was no proof that the condition existed in the first place to have retained an expert to rebut it would have been in our opinion tantamount to acknowledging the condition existed and there is no proof that it did with respect to the opinion itself the expert relies on a completely irrelevant report from the federal highway bureau saying that you have to replenish gravel on highways because the cars will displace the gravel through the a guess over the shoulders and down and the sides of whatever the the embank was in that particular example that that was being discussed in the article that's highly irrelevant to the situation there is no there are no regulations requiring that a forty eight acre lot storing vehicles this is not an area that is open to the public we're talking torts it's not a matter of a understood person over forty acres would that you don't need to over state so i didn't regulation all you need to do is say a reasonable person wouldn't be doing that is something that we don't have any hard evidence heavily on cases pretty much in particular they rely on cruise versus target to argue that a failure to inspect is a means constructive notice in the first place cruise is contradictory to the established case law that says you have to show that not only did the defendant fail to its back that a reasonable inspection would have prevented the injury going to the expert's opinion that of forty eight acres had to be completely covered with gravel such that no bare spot smaller than a shoe could still require the plaintiff to prove that that was what was going to happen they have not done that and we'd also like to point that a reasonable inspection would have prevented the injury very briefly we just would like to address the claims councils comment or the record we did no such thing with respect to our hypothetical questions to the expert as to whether or not he had considered any other bases for the plaintiff fall such as if the plaintiffs had reported to his medical providers that he had fallen off the step of his truck to the plant consider that we weren't speaking to the statements in the medical records to prove the truth of those statements we were just asking using them to ask  expert whether he had considered any other reasons why the plaintiff fall and we also like to point out that those statements are in fact in the record ok thank you if there any other questions thank you i'd like to make a few points if i may in rebuttal first the plaintiff never has changed his testimony he made no attempt to recant his testimony in his deposition plaintiff's expert has spoke to the plaintiff's mistaken belief that it was frozen ground as opposed to ice second mr kronk did not did not cite the fact that there were fluids leaking from vehicles as as anything except for the corroborative evidence that the surface was slippery in other words you know this is an auto auction lot as you pointed out there are thousands of vehicles there he also opined not that a surface has to testimony most favorably to the way you do it that a reasonable person would who would agree with this injury would know that in answering a question i would correct  counsel's statement that this was simply an awful lot mr miller testified at page three seventeen of the record that there were auctions held on the property twice per week with at least one thousand people onsite knowing that you have a thousand people traversing your property twice a week requires that you reap regrade replenish gravel and ensure that is reasonably safe for people who are traversing the lots to look at vehicles and determine whether or not to purchase them so it is a forty my clients accident occurred near the mechanic's shop so this is not as if this was on the periphery of forty eight acres this was near the mechanic's shop there's ever they knew the thousands of people are onsite twice per week and yet there is no evidence that they ever did anything to make their property reasonably safe finally i'd point out that the reference to the federal highway safety standards are again corroborative proof supporting m that gravel needs to be replenished and services need to be regrade regraded when you have vehicles traveling over them and when you're plowing snow there was no effort here to analogize this to a federal highway it's for the corroborative evidence and again i would refer the court back to the fact that this is a summary judgment proceeding the inference is must be construed in my client's favor my client did not testify that it was a gravel lot he testified that he slipped on a six or seven foot long patch of ice that was smooth with