morning we will before we call first case i do want to advise the attorneys that judge justice to the letter is the third panel member on this case he has been recuperating from some minor surgery so he will not be here today however he is the third panel member he will be able to listen to the arguments and have access to the record it is obviously so with that we will call the first case fifteen minutes to argue and from thence doubt you may stave off some time for your republic they'd like to do that all right error in analyzing the facts and the law and i'd like to provide some clarity to this area of the law i think are facts but i think what's good for the court today are facts of first impression i mean there's a lot of cases dealing with fall within the concept legal concept of an intended and permitted user and if i may i'd like to direct the court or just highlight a couple important facts i mean as the court knows from the record miss harden my client each of them testified there was snow on the ground each of them believed they were within the crosswalk now let's stop right there is their subjective belief something we're looking at or are we looking at intent of the municipality their subjective beliefs are relevant evidence the subjective intent of the city is not the standard there's an objective standard right place isn't what is it are we really looking at what they thought as opposed to what the city the municipality intended as far as an intended or permitted use or i believe the court needs to look at both according to case law shot that is one now what they really said would you cite that would tell us to look oppressed that specific pact as being to positive right but i do think it's an at it's a fact for the jury to consider but i think there's other factors and i could probably if i go into those maybe answer the court's concerns what we know first of all let me just back up as we all know the common law poses a duty on the city and every property owner to maintain its property in a reasonably safe condition in light of the reasonably foreseeable uses user  intended and permitted use of language comes in is that the local public entity has a duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of the ordinary care people and here's the language comes in whom the entity intended and permitted to use that property in a manner in which and at such times as it was reasonably foreseeable that it would be used and i would cite the court to the marshal conditions matter that he it was reasonably foreseeable that when the city sidewalk was covered with the mud that he would enter this way and it fell into a depressed area that in so that's our supreme court and actually for purpose duty correct all right and under this idea of duty there's a number of factors that go into that question correct yes and one of them is the  in this particular case if we were to agree with you about this position then there would be a burden with there not of the city to make certain that every single time there is a dusting of snow that the trucks must be out there plowing every single cross walk in the city to ensure that these intended users can safely traverse the  would be certainly an exception if we consider this under a crosswalk theory will get the young mark but under a marked cross walk theory one of the things we would have to consider is whether or not that every crosswalk would become this hazard that has to be resolved so that the intended users are able to safely cross let me answer question this way your honor the city may well have that duty but that's not the duty at issue today what happened here we know from the witness ron binion is that the city placed this large metal plate at this intersection this wasn't just someone slipping and falling on sno outside of an intersection now isn't that a completely different scenario and aren't you suggesting something else that you've never raised before about the plate or you say it's a dangerous condition or something else we're supposed to be looking at no that as we have come to learn correct are which have the hole the size of a grapefruit in it and and this is where the facts all of the facts under summary judgment are relevant because of the snow according to the plaintiff an pedestrian move with the flow or is there a requirement that they wait for the availability of the crosswalk you know most people don't know that they're not covered so to speak if they walk outside the cross walk where they're standing really and so but the point is does a pedestrian get to go wherever they want york are they supposed to wait until there is room inference not the city as to what that means i think it's a reasonable inference that the snow made the lines invisible therefore the law says and it reverts to the legal question what then becomes the cross are the roadway and intersection included within the connections of the lateral lines of the sidewalks and opposite sides of the highway measured from the curbs we wanted in the absence of curbs from the edges of the tram traversable roadway and in the conclusion and i think you know that's an argument they can make to the jury but i think that is purely a question of fair but more importantly it's not just that they're at the supreme court has said and even the statute excuse me the supreme court has interpreted the statute that in the absence of winds you are going to look to other indicators and those lines are not to dispositive would another indicator be an area where there isn't an obvious plate because of some kind of a problem don't you think death sort of and it goes against what you're saying no because and on the day in question there was not an obvious play to the slate was covered with snow and that's the undisputed evidence that it was covered with snow  lines or that she was crossing over the plates that is her testimony on the day in question it whenever she was deposed she was presented with a picture of the intersection on a sunny clear day and they walked her through and she's like well and that's why i say we've learned that the pla outside of the lines but that said one other question yes if if you had a case or could you direct us to a case where the courts have ever taken a mark dramatically you know we were to say that even though it's undisputed that there's a ross walk in this case we're going to now as a matter of a lot of old it be should be decided unmarked cross well certainly this case there would be the first time a review in court made that decision certain right because we do have unique facts but this is the case of the invisible lines on the day in question so then what when you have invisible lines and here's where the means when we know the courts have interpreted and i think we can put this together logically and fairly when you have an intended and permitted use or one clearly when someone's within the lines you know that if there are no lines the courts direct us to look at other markings and also custom and this is why i submit the pedestrian traffic is relevant she was in the middle of this group waited until the call that what might be another major leap into an area on now say that now we're going to be looking at the costume and decide to get it that what evidence wait let with i'm sorry if they're in the record to suggest that at this particular intersection that it is the custom for large of people to walk outside the cross walk and that we should consider that your honor i don't think that's the question that it's a custom that large crowds of people walk outside the process on the day in question we had a group of commuters in the morning at eight o'clock waiting legally patiently recently to cross the intersection we're not talking about the occasional outlier we've all seen the guy jumping around the median or somebody jaywalking across the street you have a group of people acting reasonably trying to see the lines you know have all the people who have absolutely no idea you know why they're supposed to be in the cross well that might be making this kind of olive because there's winds and you know they see the walk sign in and then they cross prospect there was no cone which imo one intersection i'm not talking about everyone and perhaps a duty exists but that's another case in this case there's a hazard the city admits there it knew it was there we're talking about the whole size of a grapefruit my client and other pedestrians thought they were crossing the process they were not cheap there's no evidence they were jaywalking there's no evidence they resisting around there is no evidence that they were not trying to walk as the reason group does every single day within the confines of a cross walk when you can't see the lines you look at you you go in a straight fashion and the group perceived it she was in the middle of the group these are you know this whole argument  i'm thinking so is there reasonable foreseeability that when you have a condition such as the one case a light dusting elf diminishes the visibility cross walk there's a there's a probability you also have to look at you know the the burden that would be impoverished if we're going to open the door in this one the bird in this case was de minimus again we're talking about wonder section where they placed a plate a large plate with a large hole the city was uniquely charged with knowing it but listen it sells every winter in chicago we all know that and the actually the forecasts are better when you have their hazardous conditions yet they are intersection you make and the signs the other markings the customs the manifestations of use and i think even on this day under these conditions with this hazard they put there yes it was reasonably foreseeable that the fear over to the left or to the right and this plate was close enough to those lines that it was reasonably foreseeable that commuters are going to cross over that so you take some precautions because public safety is the concern that's why we have these respect for sure whether that spot is intended to be used in the way it was and intended to be used at such times as was reasonably foreseeable and i think the courts are presented with a mix question of fact and law which is perhaps the difficulty i think a jury is required to make some calls on these facts whether it was reasonably foreseeable that that plane i think it just tells us that you know you have permitted users but then the if you made a play and choice are a necessary choice well this this was clearly an unnecessary choice there's absolutely no reason why people have to be moving in you know with a dish of twenty thirty then are we going to use the sidewalk as the lateral lines the sidewalks and lateral lines are one indicator according to the court's other visible markings they say the walk don't walk signs are you sidewalk lines the same as the crosswalk lines or do you even know we don't know that from this record your honor all right so there's a question of fact we do know it and i and again i must  respectfully urge the court that the record does not support a conclusion as a matter of law that she just made a bad choice the evidence is she thought she was in the cross walk she could not see the lines to run quite supports that and then there of lines because because of the snow we go to the unmarked case and there we get the explanation that you have to look so are you a good position that this is strictly unmarked case i believe it is an and so there's multiple factors that a jury can look to to to determine whether the plaintiff was an intended and permitted user trying to cross the street with a cross walk upright and i think the facts support that conclusion you're going to have some time for good morning why don't you start by talking about the metal plate what would your honor like people can you respond to these comments that on this particular date we have a that's covered with snow up but in addition next to that crosswalk we have a metal plate and there's every indication that she stepped on a metal plate and  city street isn't the parkway aren't those cases don't they also discussed the intended permitted use or concept they certainly do and so you would just say well it's a parkway forget about it don't even listen or concern yourself with what's written in the marshall to sit in the factory so if that's correct don't concern yourself with what is going on all right and you tell me how are the debtors so different when we're talking about intended permitted use in a park way versus across from my understanding of that basis and it's been a while since i read it but my understanding that cases it was mud on the side of the city had to maintain the sidewalk too because people on sidewalks are intended for mid users side there was mud on the sidewalk forcing the person off the sidewalk into the parkway and under those circumstances with mud on the sidewalk  forced into the crossfire she she was she could be could easily have walked across with in the cross walk walk so he was in the far way he was on the sidewalk he was doing what he was supposed to do walking on the sidewalk when he was forced off the sidewalk because of the condition of the mud that that's my dear don't you mean i can't yes i understand ok here we have a person who is not forced off the crosswalk but is arguing that because of the snow and the invisibility of the crosswalk that now we don't really have a marked crosswalk we have an unmarked crossfire letter argument today and that it has to do with whether or not a person is between the curb one and the in the building in the end the building or not the property line and her affidavit that she submitted don't establish that the lack of any information in her have to say well i think that's right and of course we have cases like williams the manchester decided by the illinois supreme court of switch of the jane decided by the illinois and the illinois case if the burden to prove the duty has the burden to prove that she was an intended and permitted user to do that she needed to show that when she stepped into the office walk into the street she was with in well let me ask you this can it be argued reasonably that when there is snow and that cross walk is no longer marked because it's not  understanding because it wasn't this kind of a very unique situation this case i mean it's actually unlike any other that i've seen probably seen it you've been doing this for a long time and so have the attorneys not me side i haven't seen this particular fact pattern but that that that we were defending on the ground that she was intended and permitted and she made the contention no i'm with and unmarked crossed that was what she argued both in the circuit court and argued in the opening brief it was incumbent upon her in the circuit court in with evidence that she was actually within a month mark crossflow and she didn't do that she failed to do it because the only evidence in the record pertaining to where she stepped in the street was the evidence that she was with between he walk was she can't she can't prevail now she could prevail anyway because there's absolutely it would be inconsistent with the notion of intended and permitted intended means that what the municipality of manifest that are intended by painting the white line all right but then we have that kind of a little bit of a twist we have a day when there's now and according to her own testimony and this other person the partially obscured her view of the cross walk well no because she heard all the testimony at her deposition when we interrogated her was that snow wasn't a vision problem for her it's only after that after she realized the consequence of that is extremely clear that even if it's it's very very inconvenient for people even if they have to walk a half a mile to get to draw that they have to do that here charging her with the knowledge of the law which we're all charged with no we know that in order to be safe in order to be protected in order to be able to recover from the city if there's anything in that roadway she's got to be with in the mark proscar and remember she she crossed this cross walk every every day several times a week for a whole year and knew that there were cross walk lines it's not a this isn't a case where she didn't know there were cross walk or this is a case where she knew there were cross walk lines that she testified she did and she easily could really looking at what she was thinking is that something that we concern ourselves with in it as far as the immunity provision no because the  what about the conditions that particular day there was a light dusting of snow we've all been out on a light dusting of snow we know that that if you if you look down at the ground you care about where you're looking light dusting of snow does not mean that the lines are obscure but even if it were heavier even if they were well let's take the worst case scenario you have a march and that is are we looking at this under you know the facts of this particular case are we are we looking at it from a more broader view and that that  this type of scenario would op require than a burden of enormous potential for the city to have to do something for every pro goes from into the trailers huge crowds it snows yeah i don't think it's a great leap to say the city new people are going to walk in this place so why is it such a bird if the city whoever put that  dangerous areas outside the mark why that the city has a duty now outside those lines as much as you know the idea of drawing the line this is a difficult we would be there were ruling that if it's really close to the cross walk and if there's some reason to believe that it's obscured the city might be liable then the city would have to expend enormous resources doing two things one going out and ascertaining a course to be sympathetic to the point of of course she was injured and of course it would have been nice in retrospect that for that plate not to have been there but it was there and that it but it's possible that those things are in various places around the city but than the property line and the definition of presented she's outside of the unmarked crossed wall between what would have been to be building line and the property where the ok and the the  thank you your honor so i won't belabor the issues but i'd like to make five brief points of clarification first of all with respect to the amount of snow i know the city has seized on the terminology dusting but if i knew for the work to the facts of record they just twenty seven or twenty eight twenty nine of plaintiffs deposition she testified of the snowing there was a layer of snow it was a covering she said dust across the street so the amount of snow it is in dispute is it's not would she have done everything possible to avoid her injury oh absolutely but what is reasonable at the time she stepped off the bus and i think it is relevant she thought she was within the crosswalk when she stepped off but that's testimony it's a the area that he was an intended and permitted user but intended no doubt we don't have that here we have someone who from the get go is not in with prof walk he's got a metal plate which she knows is outside and he only has to fight it she has seen that and was aware it was outside the us we only know that after the fact we've only developed that evidence and came to their realization after the fact here and i'm sorry the entire plate and crosswalks and the marked lines were covered with snow close quote the picture h five ninety two that they brought in from the sniper's sunny day shows where the plate was located this is what she testified to after the fact however on the same page when she's talking about december one twenty away it does not show the conditions at the time i'll go to page eight pages eight forty four and eight forty six in the record  paragraph by i stepped into the street where the crosswalk lines are located her testimony is not what she thought she's testifying to that she learned after the fact with the subsequent evidence that that wasn't the case  her testimony on that day right but it is it is a fact that she was in the cross walk or is it a fact that she slipped and fell outside the cross walk at the metal plate is there any material question of there about that  days you have to breathe people trying to be a law abiding citizens trying to do the right thing and that's what we have here and i had in my original notes and i would like to direct the court it's in the cases cited in the currys brief section three deaths one hundred three will also answer this question if the entity has created an unreasonably safe condition there's liability so one of two and one all three have to be read in tandem this case is different now so with respect to the duties and whether she should kick you know her boots around and feel down her glove at every intersection of the city advocates that a pedestrian should do they have to get they have no obligation to maintain their own property i mean where is the logic the fairness the equity of that the putting that aside in answering one of your honor's questions about your concerns why couldn't she wait until the throng of the customers were gone and then stay within the line set a presumes she could ever see the curb between whacker drive to the west and the building line for the building on the northeast corner to the east so there is evidence that she was with then those unmarked lines as defined in the