is that it shows that i have a burden but only other hand and assess where the court grants summary judgment as i did in this case we think the odds go up but just a little bit and so i want to talk about broadly the issues that we have in this case we have a ten plus volume appendix so i can go cite everything i'm limited in time so let me broadly talk about the issues that we have here and so the central to all of the  ruling have to cover more you can leave some for your brief if you want to prior ties thank you that's up to you thank your honor and i'm going to do that your honor and so central to all of the rulings of the court and we have house respect for the district judge but we think she erred and finding that the alarm sounded and the issue whether or not a timely sound in the circumstances of this case let me point to four things and i'm not trying to be exclusive  recitation of the of the evidence that creates fact questions but these are for that come to mind one definite even to jennifer grey she was there in the apartment next door she testified her affidavit she could have heard the fire alarm would have heard the fire alarm did not hear the fire alarm when did she take the sleeping pills well i don't know that the record shows i thought that was in one of the briefs well i did see she said she had trouble sleeping and i took a pill but but she woke up and the time that she woke up was five thirty she called that's a non eleven well i know but when with was she was she sleeping when the arm went on well i don't but you have you have the burden to have to to have have something you can't fight something with nothing well we do have something we have heard testimony that she could live here the children next door and that she didn't hear the alarm that that would have should have gone out for the court all of what besides her affidavit well we have the testimony of mr singleton he was there christmas of two thousand and eleven and that and so he testified that there was a smoke came from cooking and the alarm didn't go all that's a fact that we think and contradicted there's nothing in the record to challenge that then we think oh mr tate our expert he testified in his affidavit as likely that it did not go all for under the circumstances then we also have what we think is a fundamental error of the court to counsel you mentioned dr tait but the way i read dr taitz testimony is that essentially it's almost a circular which is that nobody w copper nobody appeared to escape so therefore the smoke alarm must not have gone off and in my reading that i mean that's basically there's not a lot more to it than that well he did come and examined the device and he did come and do some forensic work in that regard i would not think that as a limited just to a circular reasoning because i didn't wake up therefore didn't go off think it was more than that but i act case side to the record to pages but i would respectfully say that mr tate did opine on and reflected in the record more than what your question suggests ok but i can't go to depending i think it's on the record and i don't want to try to misconstrue the record your honor but that's my understanding let's go by by defendant's what what how is the alarm question relevant to one or more of the defendants well the all of them the fall of the time but let's talk about the city now  would this if you're right about this issue which defendants were improperly granted summary judge well i think the housing authority i think the manufacture and i think to some extent the city and the firemen but well the firefighters breach of duty proximately caused well that how we know that the mother was awake in fighting the fire and at least one of the children and one of the children was with her so either she how does whether the alarm could be heard by by miscreate from outside the the unit affect that proximate cause ruling well i think the you were talking about the saying a design defect or a saying a manufacturing defect well i think it's a we think the manufacturing defect and design what's your evidence of manufacturing defect you probably need an expert well we think we had dr russell as an expert as qualified and mr tait that would be he was talking about design not manufacturing i think the fact that it didn't that it didn't sound and all the other evidence we have indicates that a proper sound lot would have made a proper alarm would have sounded and it didn't in this case and i'm not suggesting that that's sufficient alone but i think all the evidence that we have indicates you agree with me that i couldn't find anything in the briefs that told me whether you allege design manufacturing the fact well the that we examined the devices self and and so they found that this was not an appropriate device that's a design and i understand why i want to know manufacturing because it's case law distinguishes that between the two and how you go of them well i think the fact that it didn't sound and all the evidence we have that it should have sounded would show that there's some problem with the device itself isn't that like a race i conclusion that it did it did not say on and it did not timely sound that's another issue that we have in the appeal that we'll talk about just a moment but i hope i've responded to it in korea and so qualified experts that have testified given testimony in the their effort david's and we think the contrary evidence only issue of the experts would be sufficient to establish a fact question in this case though that's another element that i suggest is why we have a fact question that supports our position of the manufacturer cited two cases and we think those and we've explained those the garcia case out of that and i know the court said i don't know why we had a case so i mean they arrived when it was too late to stand but that's but that was we don't we don't know that it was too late to the person did all that he couldn't determine the time of death what's the evidence positive evidence affirmative evidence that any of the five were alive when the firefighters arrived well we don't have any evidence as to when they wanted to call the death occurred but we know it was between the time that mr singleton was on the phone with her about two thirty until they came and went in the apartment which was around six after the firefighters came and they looked and went into the apartment well who even speculated they were don't mean to minimize this was a tragic tragic circumstance but i want to understand your claim against the firefighters my understanding in terms of your evidence your positive evidence of what happened here is that the firefighters you know were t really in their duties that that basically they're having you know they were smiling they're laughing they were talking to one on one another and that therefore they must not have been doing their job is that the basic theory behind that that the claim well plus the they  came and didn't do a thorough enough search and that's the result maybe because of what you described as their attitude they're described by mrs jennifer gray she is the one that interacted with them as primarily the evidence we have as to the city and the record but it's beyond just beyond look for example she said they were played with a toy in the floor is beyond that it's what they didn't do in terms of surgeon we know now the far was were still living at the time the fire fighters arrive i don't think we'd have to have a fact question as to whether or not your lab when the firefighters arrived why why and how how can you when how can the jury find the fire right fighters cause the death well the issue we have is whether or not there's any evidence judges not whether or not i will convince the jury or the district judge was not and they have said we didn't need evidence i don't i don't say we don't need evidence judge that's a do think we have evidence that would justify what was well what do you tell me is that they might have a live well i did not concede that we don't have the corner could not establish the time of death and we don't have anybody other than jennifer gray who was there close in proximity she didn't testify that they were alive and so i don't think i can just say to your honor here's the evidence that would point to that there were lab at the time the firefighters whether paragraphs sixty seven and sixty of the amended complaint sufficiently led to the issue of whether the alarm may have gone off to lead or not sufficiently the court held that that was did they did because we responded to it they did raise it in the brief i believe but but that doesn't mean that how did you argue that if you if you look if you look in the record you'll see that there was no you had the opportunity to respond to that with all their expert and then all of the other issues that we have i have five minutes left so let me just make a couple of points that my co counsel would have made had we divided the time ms campbell obviously here to address any questions that you may have but we are here to respectfully request that you affirm the district court's ruling as the plaintiff an appellant that has no and will never have sufficient evidence to prove defect or causation to dance to your question in terms of whether sixty seven and sixty eight were sufficiently pled what what the plaintiffs the appellants are asking you to do is to provide a torsion tortuous reading of the complaint to construe adequate and audible to mean timely or untimely it was adequate warning it does sixty seven but if you look at paragraph thirty six it says clearly the allegation is the alarm did not not did not timely sound or sounded late it says in thirty six it did not sound and then and there counts against us in paragraph thirty one thirty one they say that we had a duty to provide alarm that would sound and then in one thirty three it says we breached that duty because we provided an alarm that would not sound in the presence of smoke i hope that answers your question in terms of what we know what we know from the undisputed facts in the complaint is that not identify a time of death that's what we know what we don't know is even more profound we don't know where ms beavers was when she learned of the fire was she in the kitchen when it ignited was she in her bedroom when it she did she learn of the fire how did she learn of the fire what was the progression of the fire when she learned of it what did she do upon learning of the fire did she immediately fight it or did she take some time to fight it how long did she fight it how much time w judgment purposes i would disagree especially disagree your honor the the my point is we don't have conclusive evidence of all these different issues well then go go have a trial where you're honored as as the district court found in order to find for the plaintiff the jury must do more than speculate there must be substantial evidence beyond a mere probability and i don't think any of the evidence gets past that mere probability it's similar to the winner i'll bet you we could we could spend a half hour in the library and find a ton of fire cases where reconstructionists could only go so far and what was left was drawing inferences and probabilities out of what what obviously did happen here and i think that that you would start with the case of warner which is the western district was constant case that we cited in our brief which is almost a similar case than that what we have here was a case against the smoke alarm in effect i don't want to go through cases i just don't i don't understand why you dwell on that point when when the district court had far more concrete analysis that i would have assumed you would be found but i defend everything the district court found starting with defect and then going to and i don't understand your priority this morning let's that's the priorities are to to address the court's concern if there is any as to whether there is any evidence of which you can build to that a jury would do anything other than speculate and i suggest there isn't any what we know addresses the fact that she had time to escape but she chose to whether it was a good two a choice that most people would make or not she chose to try to extinguish the fire and now you're entering some of the questions you said were not were unanswerable right so you know she she chose the smoke alarm is there to provide notice of end of smoke event or a fire that it can't make you leave it can't make you make good or bad decisions she had noticed she she learned of the fire and she attempted to extinguish it but the notice could've come too late suppose that their theory is right and that the for getting the pleading issue is dr russell dr russell similar out he was excluded in the johnson case didn't address the fact he avoids the facts his opinion is that in a smoldering fire to be relevant to have probative value here there has to be excuse me evidence of it and there is none here people to determine why the fire with fire for the determination was that it lacked oxygen after a while  and once the oxygen left the the fire went out i don't there's no evidence that she successfully extinguished the fire if that's your question in terms of  and you look for a pop a pattern of smoke that has been tested but i call double blind where the analyst didn't know if which alarms had power versus didn't and which alarm sounded versus didn't and in those that analyses they were one hundred percent they looked at post fire the horns and determined which sounded and which didn't and that's part of the reason why the n f p a got that if there's no further question that it's time for me to turn my speech over to the other your own morning your honor my name is kimberly young and along with will griffin i represent the housing authority at the lease and my clients were in a position of being the landlord for the apartment issue where the fire took place the district court did grant summary judgment in our favor and we are here asking that ruling be affirmed the common thread between the claims made against b r k s the manufacturer and the claims made against my client as the landlord is that both of those claims were based on an allegation that there was some defect in the alarm and that that's why it alternately caused the appellant's damages housing authority did agree to apply with any hud regulations materially affecting health and safety the provision of the head of the hood regulations that the plaintiffs and the housing authority agreed applied was the one found in twenty force the far five point seven zero three and that's the requirement that the housing authority has at least one working smoke alarm in the unit and so when we originally that deposition established that it had in fact sounded and the experts for the appellant were unable to say that it was their opinion that it had failed us down that night so based on that evidence that's why we filed for the summary judgment now in response to that motion the appellate did come forward and asked the court to recognize three additional duties and the source of those duties came from the two thousand and seven arkansas fire protection code and so what the court did is she looked at the first two were those duties which was to do monthly inspections on the smoke detector and to replace the smoke detector at ten year intervals and she made the point that the code that was the source of those duties actually had not come into effect until a year after this lea so it appears that she had did have a question on whether they would actually ply but for purposes of the motion she did assume that they did apply the only duty that that was raised by the appellants that she rejected was the duty  an alarm in all of the sleeping rooms and she did that because the section of the code where that or that duty arose is in the section that applies to new construction and and shown to be in working order in december before the fire and also in january before the fire that took place the following march and so even though all we do believe the court was correct and holding that that duty did not apply he pointed out that even the plaintiff's expert roger tate was a quizzical on whether that would apply i think his phrasing was it is less than clear whether it would apply since this was not new construction however the you know the purpose behind it whether it's inspections or replacement of the alarm is to ensure that they're still in working condition any evidence of the nature of the inspection was it's one thing to go around and press the test button the see if it sounds another thing to test if it was it will be performing right in a fire it's my understanding that the two and actions that took place were under under the context of a work order the maintenance people are in there to do something else some kind of minor maintenance or repair and it's the practice of the housing authority to push the button and  only ensures that it is connected to power as it should be but it also recreates the the balance or the chemical reaction inside to show that it would actually sound an alarm under the right circumstances under the smoke so even though to get back to your question even though the court declined to apply that duty to us we do feel that even if the duty were applied  we would still run into the same issue with causation because the inspections for both the inspections before and also the expert testimony and opinions that were formed after the fire all indicate that the smoke alarm was working at the time of the fire was there any evidence that the burns on ms beaver did not reflect an attempt to fight the fire now your honor there is there is not any expert testimony that has addressed the fire she did not have an opportunity to wake in and safeguard the three children who may have been sleeping through the entire tragedy i think that a definitive answer to that question falls into the list of of questions that the district court found were unknown from from the evidence we know well that means there's no firm there's no firm and no affirmative evidence that that she did not have time to protect this if that if the if the three if the three children who may not have heard an alarm or may not have may have not been awakened by  if there was time for the awake parent to get them out of the unit that's different than other ones i think the only circumstantial have been terms approximate causation yes your honor i think those are the circumstantial evidence on that issue and i need to wrap up to leave time but the circumstantial evidence on that issue would be that she did at least have time to make an attempt to put out the fire and to knock the alarm off of the ceiling and so there there have been cases cited in the briefs that indicate the choice of someone in that situation well obviously put in an impossible situation if they make those choices when they could have made the choice to escape to reasons first there's no causal link between the city's actions and the deceit and deaths second even if there is some evidence to establish a causal causal connection there is no constitutional right to adequate fire protection case that was what their claims were their claims of the fourteenth amendment due process clause this is only in one thousand nine hundred three claim against the firefighters yes your honor no have no no state law claim firefighters been different we could have had a shock the conscience i knew made the blanket statement there's no constitutional claim but had you know the firefighter shown up and laughed while people burned or did something outrageous then there would be a claim for a subset of due process but we don't have that right i said well i mean there's no case out there and what the pellets are asking us to do is to expand the special exception and say that they were i mean they were in the custody of the city and so they want it to expand it to say that these fighters actions or inactions simply didn't cause their deaths the fire started moments after a two am phone call nine one one call wasn't made until five forty six a simply point that it wasn't ongoing there was no smoke or fire that could be seen when they did a walkthrough of miscarries apartment they felt high and low on the walls couldn't feel any heat in the walls do a joint with the apartment appellants apartment no hostilities no extreme heat they scanned the attic they saw no visible signs of fire and they completed a perimeter search but the thermal imager and they saw no signs of fire as you know you were asking earlier none of these actions shock the conscience so we don't have a constitutional violation there is no causal connection and as i mentioned earlier there simply is just no constitutional duty to provide adequate fire protection the supreme court and this court have routinely held that there is no right to adequate fire the point is three kids were in the bedroom that's a fact and that's all five or so that and that's all five victims aquino i couldn't hear that was off five victims at that estimated time that's correct so part of the at and the record but there's nothing to the contrary well there's there's nothing and that to the contrary i agree with edges i don't have any of the quarter didn't say anything else of the now that we have a record with well but i go back to what the point you made your honor was that all of what they're talking about the inferences and all can and should be decided by a jury not to judge on summary judgment i go back and quote a rule which is the judge district judge should not determine the credibility we think that was part of what happened off the seal and it was on the floor is on the floor among all the soot and then yet their expert relied upon should is the basic basis for the argument that it was own i thought it was part of your positive case that that there so that on top of the alarm showing that it fell while the fire was still in process well that's with the weed all we know is that there was should it on the floor so it was all around it so it was on top of it and so yet their expert comes and says well had time to go in and wake a sleeping kid well that's an inference for the jury with all due respect that could be decided at the jury trial but judge though doyle is no other dispute that this is a nine year old to old alarm and the record no one disputes that had a ten year life expectancy yet it had to add nine years to old and then also i think that's all the points i'm making i got one minute left i'll yield him back unless you have a question thank you when you said when he said life expectancy you mean the lease required replacement yes up all that not only that but the manufacturer recommended that they do it so that's the housing authority when they come in and see that it's nine years old then that's part of what we think the duty was on a degree much and so forth that's part of the fact question as to the housing authority not i'm not asserting not against the manufacture