was prematurely decided at the summary judgment stage the petitioner mr dunne would like countless others do every day encountered self service inventory at menards that he attempted to navigate mr dunn did just that it's undisputed in the record he was able to successfully retrieve the bundles of insulation that he had purchased without physically touching or disturbing any of the other inventory in the area mr dunn did it in his deposition that in the process of retrieving the insulation he noticed that there was another stack of insulation he said was sixteen feet tall that was leaning and mr dunn did what many people would have done in the same situation he examined the area he spent several minutes checking it out to make sure that he was safe enough that he could retrieve the other insulation that was in front of his leaning stack without disturbing it mr dunn was a small project manager at columbia college kaga so he was particularly adept it being around building materials and building sites safety so mr dunn told his son eric who is with him at day to be conscious of the c twelve ninety one and we're here to tell this court that we believe that there is most certainly an issue of fact that does exist about whether or not the stack was open obvious and we'd ask this court to let a jury properly determine whether or not mr actions are reasonable disport their position or three arguments they would like to present of the court the first argument the most important argument is that the open obvious doctor it does not apply because mr dunn never apprehended the inherent danger of the leaning stack of insulation second argument is that even if this court found that the stack was open obviously still owed mr dunn a duty to provide safe premises and finally the third argument is that the district court improperly struck some portions of mr dunn's affidavit that he submitted on upon summary judgment as of the first argument regarding open obvious essentially the court determined that since mr dunn encountered the stack and he saw the stack there was no reason to determine whether or not the stack was inherently dangerous we believe that this collapse is the element of open i'm sorry of obvious into the element of open the court did this because the court said that there was no dispute about the physical nature or condition of the leaning stack thus making this a question of law in illinois the cases where there is no dispute about the physical condition generally fall into very limited categories quite often most common example is somebody diving into a body of water or other things like moving freight trains have been found to be types of physical conditions where there's no dispute about the nature and in all those cases there's also the element that each of the plaintiffs physically encountered the thing that caused them harm mr dunn made a conscious effort not to encounter the leaning stack that eventually fell on him he was a proxy ten feet away from the stack when it tipped over he was with his son they were trying to buy insulation to insulate their houses january he did everything this power to steer clear of the stack after determine that it was safe provided he didn't bump into it or tip it over the physical nature of the stack we believe is still in dispute and the reasons we believe it's still in this dispute is are because to begin with mr dunn's interpretation of the stack was that it was safe he interpreted to be safe to proceed around the stack he didn't think there was a danger of it tipping over absent bumping into it his son who was also there also testified that he didn't think it was imminently going to collapse he thought that if they bumped into it or touched it it could have collapsed but they both made an effort to not do so in the record walked through the the warehouse on three occasions to look for safety checks and he said when he saw a photograph of another leading stack that we presented that was there on that day he said if that's the way the sec was leaning then i would menards considers that safe and that's been historically the purview of a jury under the restatement a condition is obvious in illinois where a plaintive not only has knowledge of the existence of the condition like mr dunn did but also an appreciation of the specific danger it involves mr district court cited tells us that quote where reasonable person can draw divergent inferences from undisputed facts summary judgment should be denied the record contains numerous undisputed facts that demonstrate that mr dunn did not recognize the danger  r dunn was honest in his deposition he said you know i saw that i was leaving and i saw that it was it was a stack straight and i saw that it was unstable he even admitted that he saw that but he also talked about how he examined it and he determined based on his instead the court found that the undisputed evidence allowed for only one conclusion to get there the court cites two bellamy and illinois state case but bellamy which relied on a variety of other illinois state cases tells us the determination of whether edition is open and obvious has been consistently held the question of fact in the bill me case emphasizes that it's it's a two part analysis there's a recognition of the condition but there's also an apprehension of what danger the condition offers  necessary to require to satisfy defendant's duty is something that is generally left to try or fact the court we think wrongly took away took this germination away from the jury and we ask that this this court return that to the  jury additionally it's our contention that even if this court finds that it was open obvious menard still had a duty to protect against the harm that led to mr dunn's injuries if you find open obviously doesn't do away with the duty now the in the bay area next to it who did mr dunn didn't see and they didn't see mr dunn but they say that they told the manager on duty that they heard a stack collapse so maybe there was some some sort of work being done that led to a bumping into where the stack was located right since gravity is constant was there any wind in the warehouse not that anyone testified to obviously no earthquake that knew no sir so something somebody must touch it somebody must have touched it and mr donnegan and if it's not the ass and if there was no menards employee in the same bag who we don't know what the menards employees in the bay over were doing because we requested their names in menards unable to produce them they may have been using a forklift they may have knew exactly how it was stepped i see that my time is up in terms of like a reserve five minutes that's ok thank you secondly the district court's finding that this was an open obvious nature condition as a matter of law third even assuming it wasn't an obvious condition did minard duty despite that condition and fourth plans contention regarding the  interior ruling of the district court with regard to the first issue regarding the question of law we start from the premises of course duty is a question of law but beyond that the courts have ruled that where there is no dispute regarding the physical nature of the condition whether or not their condition is open and obvious as a matter of law and that was confirmed by the united states district court for the northern district and good have been versus targeted two thousand and seventeen case which cited to the bronze illinois supreme court case for the same proposition that open obviously is a matter of law where there's no dispute regarding the physical nature in this case there is no dispute regarding the physical nature of the stack of insulation there only two witnesses to observe the stack and the insulation plaintiff  his son both used the exact same terms and describing the stack of insulation he said was leaning he said it was an event and they said it was unstable so therefore the district court properly found that the parties do not dispute in this case that there was any issue with regard to the physical nature of the condition so having established that this is a matter of law we then turn to the disc court's decision that it was open obvious as a matter of law and that of course is determined under only law by an object of standard and the district court properly ruled that a reasonable person in mr dunn's position with his knowledge and observations would have found that this was an open and obvious condition because it was leaning because it was uneven and because it was  stable now the district court's decision and of course from reasonable person standpoint that the nature of the objects that are leaning in uneven and unstable is that they tend to fall in with respect to the district court's decisions the reasonable person standard the district court relied upon the rebus case the camp case the wilfong case and reavis this was a situation where there was dr walt the plaintiff went into a home case this court decided and found that there was an unsecured palestine a tractor trailer and that the driver knew that there was a possibility that that load had shifted during transport when the driver opened the trailer door it should have been open obvious to the plaintiff that that load that pellet may have shifted you know in the wilfong case was a case where the plaintiff was crossing a construction site over a number of different routes on the construction site and the court found that the the rou case the court did not focus on the single condition at issue for instance in the wilfong case the court said that the issue was not whether the particular rut the plan of stepped in was an open and obvious danger but the fact that he was crossing a construction site with a number of rights some of which may depress and cause injury and that in their court and rebus took the same position at it wasn't simply the dr all in the house it was the open in obvious danger of walking through a house under construction now the the court again correctly pointed out that testimony and also the testimony that both plaintiff and his son not only noted those conditions but said those conditions were obvious and in addition to that the district court relied upon that was belied by mr dunn's actions in fact warned his son to stay away from the leaning stack he said we looked at it for five minutes trying to figure out if we could taint stacks of insulation off the ground by staying out of the way of the leaning stack in case it should fall so i the reasonable ness of the foreseeability of the injury the likelihood of the injury the magnitude of guarding against the injury and the consequences of placing that burden on the defendant and with regard to the two issues the reasonable foreseeability in the likelihood only cases are clear that where a condition is open and add b s it decreases the reasonable foreseeability and decreases the likelihood of the injury and with regard to the third in the fourth factors the magnitude of the burden and the consequences of imposing that burden the district court correctly found in the situation would be an onerous burden on minard and would require expending significant resources from an hour to have employees station constantly in a warehouse to watch over oversee their customers and that finding is entirely consistent with the klber vs farm and fleet illinois case where the court came to the same decision regarding the magnitude of the burden and kleiber was a situation where the customer and after where or how similar to menards stepped on a pallet and was injured in the court said that the magnitude of that burden would be onerous would be a great burden to require firemen fleet to have employees stationed outside oversee the customer's interactions with the merchandise in the courts the district court's decision and that again is consistent in goodman vs target the northern district case that i mentioned in two thousand and seventeen case the court found that it would be an oner us great burden on target to require them to constantly monitor customers interactions with merchandise within the store and in fact went on to say that the consequences would be so broad that if in fact target was unable to adequately police customers and their interactions with merchandise it may affect the entire way that they sell merchandise and i think that recognition by the district court and goodman and the district court here in the dunn case is in fact that there are a large number of self service warehouse type retail operations that depend on buying merchandise and bowl storing it in full and in those situations it's very common for customers that come upon maybe live something in a stack and if we require that they not stack merchandise in that manner and we didn't allow self service customers that that would have a significant impact on how these retailers business and the camp monitor its employees to make sure that they don't undertake and engage in encounter risk that should be known and obvious lastly with respect to the district court's evidentiary ruling that courses need to be reviewed an and that of course was a ruling that barred some of the statements within the affidavit and that the district court ruling was correct because what plan to try to do was basically obviate some of the admissions that he had made in his deposition regarding his observations it and more importantly it's not material in any event as to the changes that plaintiff made in his deposition testimony because ultimately the issue of open obvious is an objective standard and the fact that plan concerns one where the other when he changes affidavit as to what he thought or what he thought on different occasions is not material to the issue of whether it was an object of lee open and obvious condition thank you y so i don't know how it happened but i believe that the actual stacks of insulation separated the area in the in the warehouse from one area to the other in regards to this being an issue of law government case in the bronze case in the government case it was an eleven year old who was riding a skateboard in target in the bronx cases an eighty year old woman who tripped over a tree root who she testified she saw on a regular basis and thought it was an accident waiting to happen here the difference here is that mr dunn saw the wing stack in in his opinion is interpretation was it wasn't going to fall if he didn't bump into it ten feet away from it when it fel in regards to the open now obviously says they were sighted the rebus case the camp case and will phone case in each of those cases there is an element of of physical encounter vole of the volition on the part of the point of the physically encounter in the should've expected there at that stat could have all fallen and hurt her the plaintiff in the camp case of the plaintiff in that case opened a door that she knew there was danger behind and the danger fell or a pallet felon or and then the w was going to pick up to the stack it's several feet in front of it he was able to get in between it to examine the leak stack there's testimony to that so he had to pass this he had to pass had to pass the stack that fell guess and determine that it was leaning in a way that was ok as long as he didn't bump into it this case we don't think this is a difficult issue we think that this is an issue that should be different decided by a jury we think that mr dunn would did what many other people would have done in the same circumstances he saw a potential hazard but determine that it was only hazard if he took further actions and so he avoided taking those actions and we think that whether or not he's you know  several occasions that day three three times that in fact so what actually we think happened here is either kyle kraus checked the warehouse and he saw the danger and left it alone or cross checked the warehouse that wasn't dangerous but some mover came in move this this twenty foot tall heavy stack of insulation somehow or the third scenario which is we think the most likely kyle cross checked the stack and saw the same thing that larry dunn saw that it wasn't it does but they're also at opposite ends of the warehouse mr dunn testify that neither him nor his son saw the warning signs you know they're just posted in two places at opposite ends of a very large warehouse i see that my time is up thank you