summary judgment but before i try to go of the facts i know the courts from i would i don't tend to spend time going over all the facts again but there's the question here of whether or not the plaintiff gets to take advantage of a five point zero one day adverse inference the court's aware there was a video to use the inference the same inference that a jury would use under the circumstances we suggested five point zero one applies because obviously we had some evidence if it was it was evidence that would support the many prudent defendant would have brought it forward and their argument is oh i see seem like they're trying to be prudent they tried they were trying to get the thing working they knew they had problems with it it wasn't like they they said oh we got this video let's throat in the asking that not not only except it depends upon who you believe that's what their version was but the end they say we called the seminar many many times but remember scott and his father said we didn't get any calls scott said if they called me i would have come over and i could have fixed i think it's a page three sixty two he said i could have recorded it so it if the jury decides to believe and not think this is always a problem with five point zero one what you need to do before you get to use it e purpose you know it seems to me is you know just as plausible that they're trying to save it for their own you know practices or or if they ever did get sued that they could show that there w limitations on what kind of notice somebody has to have before they have a duty to preserve it i point this quite simple and they obviously by only disagree with me when mr her husband chen dong husband went to the women at the counter talked about the accident she sent him to the manager he went to the manager and in the course of that he said i mentioned the video that's three days later the same three days that manager gets back to kennedy at the desk and killian case from the seventh circuit in the killian case the question was whether or not the insured had told the insurance company i need to know who the p p o which he never said that he made his wife was in the hospital he made some calls and the majority of the seventh circuit said those calls were enough to put the to put the hospital to put the carry on notice that this is what he was looking for and that's what you should have told him in this circumstance why did mr mercer say that mr truong was talking about the video he surely was not passing the time of day his wife had been injured and it's something it's something that risk i would have knowing it was important to mr gong because keep in mind that when she went upstairs afterwards everybody thought was s i have for you is putting aside the notice issue that you're bringing up here there are notices something where is the evidence and what is it that we should rely upon if we were to reverse the trial court as to actual or constructive our position hope i've made it clear is that we have we have produced evidence so that a jury hearing this case and difficult as it might be i'm not saying this is the best case i've ever had for the plaintiff i know that even if your nobody knew if there was anything worse she fell and the quote was make the call it was going to allow the jury to say well if there was water here and some testimony to the head mop that was enough to infer to imply that she fell on some water in this case i think i hope we've eliminated the fact that this could be tracked in water if it's not tracked in water then it's not a natural accumulation at the testimony if it is and i know with it i know it's not the most i've ever had the testimony is she stood on a mat outside she said it's not she said it's not what there's a canopy over had her in the key and she came back in and she walked over another matter they said there was so much water on her she was that's where it had to come from  i submit that a jury would find that you can't get enough water on your shoes walk to work hard and get it all over the floor to the extent that her husband said it was that's the critical thing they think well there's no evidence that before this happened they were out there mapping like nothing to see look at the weather we've been having here so i things like this you walk through the big buildings downtown with a marble floors and they've got the runners they've got people mapping and they've got the hazard columns right there there is no evidence of that if it were  proven if i've raised the question of fact about whether it's right if if she if that right if there was not from her shoes then where was it from there wasn't any water from my perspective there was no water to track y them that something the size of a sick nobody asked them what size was sake i understand it all came in on my shoes and it can't be it had to come from someplace else i don't know where but we have because of the something usual fax now i would get somebody sitting in a task another witness who says if that person could look they could see a dime a twenty feet week it must have been there some time before and she had apple in full opportunity to see it so is it your position and i can honestly discern from the br is it your position that testimony that there was water the size of the sink whatever saying we're talking that they have is what should have survived the trial court with enough constructive know this they have there wasn't a natural accumulation yet that's correct because to get that much water on the floor i apologize for not making beckler to get that much water for the us i think he did make clear that there was some testimony my question is what is it about their testimony that should lead this court all that water you know with their own shears i would simply stand in front of a jury and say with a very straight face you can have them which water in your shoes you can i use the example when you come home at night you can get water for you can't cover an area  it can't happen if it can happen then they had to come from someplace else and if it came from someplace else the person of the best could see it boy it was something put there by an employee i don't know which we'll never know or maybe other people trade and maybe somebody well i think the same problem occurs tha if the other people track if the other people were tracking water in the same two questions how did they get so much in one spot and keep in mind that the woman i think that said my job was to make sure that was mine if there was any water there at all if she we even got rid of the dog prints the dog we don't want dog prints that's what she said that means that if somebody else was tracking of water presumably she would have cleaned it up i guess i understand we're looking at circumstantial evidence but i think i said as one of those three things would put a jury in our corner because they might well say well maybe that video did show somebody dropping something good to the to lobby where people want to be in the this water in that volume whatever the problem was it was there after she fell and after you know she got water on her coat in the rest of this isn't they had enough just to get it to the jury now and here's the reason why you have to begin at the beginning four people were in that lobby before she even went out the door all four of them including the plaintiff including her husband said there was nothing on the floor nothing so it's four to one is that is what is real there is i'm just talking about before her fall there's nothing on the floor including miss rang her cell she walked on the way out she walked exactly over the spot that she later fell and she testified there's nothing on the floor she gets outside it's on that day that she felt what she testified to at her deposition was that she had to do so because there was a canopy that it couldn't have gotten wet but that's pure speculation on her part we've shown that she had no basis for saying so there is no counter testimony that that map was dry but when she comes back through doesn't she walk over another man of somewhere before she falls church she does but it s she's rocking over that man and she also testified she did not see anything on the floor handler said i was looking at her walking in and the tile floor and i didn't see anything so i was moneys that entirely consistent with what her husband was saying is that we're  well her husband is sank but the keep in mind though when she fell after she fell him there said there was water on the floor from her shoes and he testified her shoes were so damp they were damp all the way up to the seams over the sole fell so they had to be wet from outside so there's undisputed testimony that it was wet the fact that she walked over a man on the inside does not mean that that was enough to remove the that dampness from her shoes w she didn't notice well then say so that they indicate they were wet wet only afterwards after she sat in the seat not after she got up after she was carried over to the seat and her husband didn't notice until they were up in the apartment so we have no idea whether it came from the seat or now but here's the point and say the wabby yeah yes he was he he helped overhaul effect and there is there well i mean i threw it in as an aside and  her speculation that there is a possibility for point is the point is i think this it's fair to say that you know i think we when we were talking with your opponent here there's some speculation it seems that he's engaging in and i think it's fair to say that there's some speculation here on the part of the defense as well well let me address the man inside then we'll get to the puddle itself and husbands test one man inside you you mentioned yourself you've seen the cones inside the building after the mass and the reason is because those maps don't clean off your shoes right you still are wet as you walk was there any testimony that the inside mat was what now could handle or anybody else cover that was there more water there's enough water to create it and her shoes to create that smear that's what handler said is that the stuff it was in the shape of her shoe for and then there was a smear of it y without return to the question that i started with which is how can you reconcile or deal with the testimony from her husband if there was still after she fell enough water on the floor that he described it could i could cover this entire area with just step little dampness so there's enough to cover a saint even just from her shoes and here here's the bottom line your honour's is we have four people all sa it was not wet before she fell it was before she went outside it was not wet when she just before she fell in that spot that she fell and it was damp and her shoes for so except their theory of the jury would have to say well we weren't there we can't get into what the jury would have done because we're talking about the trial court saying and we're supposed to be effectively three judges deciding a summary judgment noble you know they said that there were no questions affected a jury should decide i understand and the reason is because no reasonable juror could could do what they're asking them to do which is disregard the only the testimony of all the witnesses that were there and reaching a direct opposite conclusion from what they sad based on nothing based on piers second lunch not only as to the source of that water but how long it was there and they have to show that we had constructive knowledge one and if it had been wet i would have seen it and then he twisted and said well he should've seen it them but they haven't established the predicate that was there before she fell so what is the jury going to do how can the jury disregard they weren't there this is years later they they would have to disregard all of the testimony of the witnesses that were actually in that room in that lobby and find the exact opposite of what they saw so the only should've known that i can see from your reading the record here is the testimony of her husband that there was you know this then layer of something wet the size of the sink and the defense on the other hand the saying that that is only the scribing what you should cover that exactly that's what i was trying to get to the five point zero one is a jury instructions only for use at the jury trial and the case law that we've cited in the brief is that is usable you can only use that when the party hez control over the witness or the document at the time it's being presented now i would i would i'm not going to argue the case only addresses it's use the trial now on summary judgment but the bottom line is time but five point zero one says that if at the time we should have presented that we have control of it and we don't present it that's when they get their instruction but we didn't have control of it at that time so five point one by its own terms does not apply we've needed the bit you your folks needed the plaintiff to tell because because of your own activities they were trying to say well we have we have a policy to keep those kind of incidents for ourself our policy is that when we why should we care that the plaintiff didn't use the proper articulation and request directly that it be saved or demand or whatever but that's essentially what the spring court said is required in martin versus  conversation three days after the incident between the husband and her spar manager mr donald did not mention the tape we told him about it he didn't know anything about it he didn't know there was even a security camera there and when we told him about it he was asked what did you do then so that's it i didn't do anything i didn't ask i didn't ask for any think of asking for it so there was never even a mention by them we did so there's nothing in that conversation that suggested far or ourselves that we should that they wanted a copy of the videotape you mentioned i mean our policy is for ourselves and our own benefit the policy applies not just to accidents  of which suits may arise but president by elations of our rules criminal and seventh those kind of things so that it is for our own purposes that that policy was created in order to stream court case we cited just the fact that we have that policy doesn't impose a duty on us to preserve evidence for the benefit of the plankton and that's the key is that we had set out to undertake to preserve it for the points of spend if it repeatedly and we did it with cording chart standard procedure which is we call the office we don't call super fine we don't call them the owner and we don't call his scientists who want to live in the building to yes but only like a week before this incident and there's no evidence that we ever undertook the bother of resident in his own apartment or condominium board but nor was there any evidence that mears i was even aware of the guy was living there but responding to us it's not our fault it doesn't impose a duty on us they have to gauge an extraordinary measures yonder undertaking to preserve that