good morning everyone welcome to the illinois appellate court first district first division we're going to ask that the wires we're going to argue today please step up introduce themselves and tell us wh very well they're here to merely record was being said and please understand we have read the briefs and our family with the facts of the case so devote your time to the strongest arguments i would also note justice cunningham is the third member of the panel she's unable to be here today d accumulation situation of snow and ice all over the platform all over the streets near the platform generally prevailing it was there of course and i saw a totally different procedural case from what we had here and that was after a full hearing or full tr not immune from a general negligence claim but the trial judge in this case essentially did was to say that because hyslop lies the city is simply not liable for any standard of inappropriate conduct which of course is number one not the holding of high school and number two is contrary to prevailing case law in other words i still didn't say that the c t a was not liable under any theory at all they simply said it was not hazard on the part of the seats yea should be considered and it did now that actually differs from our case in the sense that there was an assault on a platform i would bet is to operate by the states but the idea is that the trial court in this case did not consider the fact that the c t a had previous knowledge of the hazard as actually specifically placed their vehicle such that the door opened immediately over can you summarize what he said regarding his prior knowledge of the part home yes from record age sixteen the way deposition is provided at page and ready sixteen for system four pages of the deposition because of the m only describe that what it wants is the real thing that he knows have to be actively aware of what's going on in every condition the street well reasonable driver should be aware of the conditions and what's going on around them as they operate the vehicle certainly we're fortunate in this case in with regard to think i think i'm a person argument more difficult question here just as with regard to the city of chicago i'm going to turn to that now with regard to the city of chicago there is an issue with regard to the prevailing municipal code at the time provided by the city of chicago and that code section is is is more important i would suggest you know because right says that vehicle is not specifically designated to be in that needs broad purposes is the municipal code does consider the possibility of other vehicles being present in the c t a best claim other than a city about it was for further w that's the crux of it because now she's not intended or permitted user but bass and well whiskey breath as i mention before we're right on that one sessions the municipal code without reference to any other for the proposition that she's not intended use or because they read that first session to say the eighteen inch requirement is there and that it's there because there are people stepping in the street but the plain wording of the there because they don't want the best obstructing moving traffic now curious hold up the supreme court says yeah dancing while whiskey say what they say but they are attempting to draw a very specific section for some reason that's the distinction when you're trying to cross moving traffic a city can't possibly be made liable for any of something that occurs because you get hit by a moving car if the person is today that point and that's what your trip trailer recognizes the supreme court sa stands for the proposition that as an individual is learning a trough in an area that has never cited the we don't you don't know partners rather not the population is still a protected area it's still an area of intended and permissive use if there's any question in other words there's any question about the usage of the area the courts ever intended in permissive use in the parking area and we should only about a minute left so somehow please my name is rachel kathleen and i represent c t a before i get into my main argument i would like to respond to the questions that you asked of opposing counsel relative to two issues one of which was whether or not the bus was crowded and secondly whether or not there was a warning  as to whether or not the bus was crowded there is consistent testimony both from calhoun at page six to anyone in the record who describes a bus as being passed on the day in question as well as from the bus operator who on page  say at six seventy five in the record that he did not hear warning other the bus operator stated that he did in fact issue a warning about something being in the back of the boats i'd like to focus on three arguments today the first a situation like a pothole which is what is at issue here the rationale behind high school is that the c t a has no control over the potholes therefore is not responsible for repairing them and it has no highest duty relative to them the bass operator here was generally aware of the possible however he did not know if the civic condition on the day of the accident and anyone living in the city of chicago knows that potholes are virtually everywhere on the city's streets but this was a part that i think your driver testified he knew a lot about for three weeks so given i'll give you that you know that it changes and more sun usually gets bigger rented a smaller system in the winter when the or plants are close and they can't be felt so in chicago winters we live with a lot of potholes but a good what the plaintiff is trying to hang on the c t a here is that your driver knew about this product because he ran the rock have some money and therefore was for example if it's not recently and both calhoun and brock testified that it had snowed within the last year or two and the snow fill the pothole the possible even though there was a pothole they pose no danger whatsoever so just because there's a pothole doesn't mean that it's a static condition and it doesn't mean necessarily that a piece does a danger and for this court to charge the c t a and its bus operators to know the condition of each and every pothole three miles of city streets and hundreds of bus practical operation of a comic series vehicles the primary job of a bus operator is to drive passengers safely from point a to point b while avoiding the best chance while avoiding traffic am i following the rules of the road even does not have control of the streets and that and the case of his does create a specific exception to the highest duty of care when the conditions of the street are at issue which is what has occurred here going back to the specific situation at the bus stop here as i mentioned either braga myth is a very challenging situation and that the bus operator had very limited options in terms of what he could do with this but it was early february there was snow on the ground there was a car parked right at the bus stop the bus operator tried to him going as close as possible to that particularly because he was trying to lead an elderly passenger with groceries a light on the bus the bus as i mentioned earlier is very crowded and the bus operator was doing his best to avoi testimony on that but we have people who say it was full of ice and slush so it was more or less undistinguishable from the surrounding unpack hole packed pavement that there really is no compelling testimony your honor all three witnesses brock weighed in calhoun are testified inanna mislead about this large size they all agreed that it was large massive enormous at least one or two feet wide deep enough to hold prospering well and the only person reasonable person if it was kind of camouflage that means it was at least visible part and that is enough to show that this particular pothole was in fact open obvious especially in light of the unanimous comments about on that pretty because they certainly did probably rely on f vision the code to see that the city had indicated in the municipal code that does it should come in with eighteen inches of the curb and therefore dozens are expected to step to the curb and not to just shoot into the street and sorry there's the use of the street for that purpose right and that's where i think you get yourself in a traffic right because doesn't the city off small invite these giant of c t bosses to go up and down the you know one hundred different routes on the foreseeable does not make it intend it one has to look at what the city has actually said about a particular use and whether the city has made any manifestation of an indication that it intends for that use just because it uses forseeable the laws near that foreseeability alone does in the real world is that she chicago and we have these these areas a lot all the time because the you know we're only it would be imaginary world were these giant buses quick always always park directly parallel to the curb and it took that that's not the real walk all right we've got construction we've got other buses we've got taxi cabs we've had everything else going on so what are you saying you said in case of spot the bass can't park next to the curb and there's a giant you know cartoon like open pothole and pothole but an open manhole all right the end person walks out doesn't see the man on drops out the city is not liable for that for not guarding the men home with some kind of barrier everything else the best stop is on the curb itself and the city intends for people to step there there's nothing in the street in sight where the city has said to people you can wait for a bus the urge you can get on and off the bus here i'm right with a park or just an actual practical space in that area or crosswalk where there's an actual passing lane except with the exception of received about someone out and only if it doesn't interfere with the bus of the self otherwise standing and stopping is illegal under that word is and to this is an argument that's never been raised by playing it at any point and so therefore should be waived  always say well i will protect you unless you happen to use public transportation there is no reason other than a legal fiction to differentiate between a passenger a private vehicle and a passenger a city a bus route passengers are all in that means the city allows it and those they allow it and that is it's intended to permissive us why we should differentiate that for a passenger on a bus i have no idea