duty rule have to discuss these concepts because frankly that's the basis on which the trial judge rendered his opinion and his decision to deny the hudsons the opportunity not only to recover damages but even the opportunity to tell a jury of their peers about their story about a month ago i lost a civil jury trial  you all may not have experienced that i'm sure better trial attorneys than i am but it's a painful experience that hurts leave scars a very hard thing to do but in retrospect i can say this  client in that case had the opportunity to tell a story he had the opportunity to present that to a jury of his peers and let them judge his behavior and judge difference between these folks at this point then having  afforded that opportunity sometimes people just need the opportunity to be able to say this was wrong what happened this should never happen and it should never happen to anyone else there is a benefit to that alone i think it should be very very extreme circumstances before someone was denied the opportunity to present their case to them i think the case will backs that up and the public duty rule is fascinating i wasn't even aware of the extent of the public duty rule in the cases to support me against until i had this case and i was imagining if your fifteen year old son came to you and said dad do you tell say oh ok well that's that's beautiful that's clean that's concise it's a brief it's clear who could not understand it so then imagine your son in the case will bad i legally driving his car across town and he spaces out the ad and blows through a red light and gets me and hurts me and that means i can't recover right because i'm an individual it's not public at r the football game last week coach jones was really angry and in the locker room he pushed billy into the lock which really heart broke is wrong and the coach got fired we've been hearing rumors that  well sun as i told you in the past for every rule there often is an exception for the public duty rule we have something called special exception the special exception doc so beliefs so your son says well so so that i could recover into the special exception exception docking to the public good rule and billy would recover under the special exception doctrine for the public good well actually son no you couldn't because neither you nor billy were under the control of the police officer or the other school at the time well what is the rule how do i know whether someone can recover or not however if the basic rule is that there's no duty to avoid injuring your client through the use of this jetting process so it's where does the public duty rule how does the public duty rule come into play there so precisely what you've indicated in fact i after reading all these decisions agree completely with justice freiman twenty years ago he wrote it out it doesn't belong here  you can't reconcile the cases with one another anymore public duty rule needs to go away it's done someone might say on the bench but wait you can't be rude the public duty rules what if in springfield someone sues a police officer when they got injured crime area because they didn't patrol that enough we've got to be able to protect the city the police department and so on well that's covered by the toward immunity there is no justifiable reason for recognizing the public duty rule so i appreciate your comment i don't think it applies here well and the reason i'm saying i don't think it lives right that i have a concern doubt as to whether this isn't then i think the public good rules elements of the traditional now yes or yes or and we highlighted that in our brief that the first and foremost with respect to the duty to warn predominantly  there are disputes between the parties obviously it's highlighted in the briefs regarding exactly what happened in this previous episode whether it was a gurgling or whether water was blown out of the toilet significance that should have in terms of notice for the water superintendent and crews that are applying this twelve hundred pounds of square inch sheer water pressure in these lines again i indicated in my brief i believe that say it an issue for the jury to determine whether they should have been on notice for that or not but clearly this was more than just a happenstance light not many thing really serious happened in that case as much as the defense would like us to believe that it was blown out of the toilet this would have to blow out of the toilet over someone's legs to be noticed it would have to blow out five feet like it did on my car to be noticed i think that in particular is an area that we're getting into what the jury should be deciding in that regard the four items when determining duty itself i think the application and the ward case are the defining in this area i think you know it's interesting a lot of argument by the defense that well this wasn't sufficient to provide notice of this one other episode that occurred before they do this about twelve times a year and this was the only time it ha sprinkler disagreed he said when you stop and you think about this is it reasonably foreseeable that this could happen with someone carrying a large mirror or something large that might block their vision out the front door hitting this will clearly a reasonable person could determine that they should have foreseen that that could happen same here is a reasonably foreseeable that if it's happened before they know water's can be how this how this happened what caused it well the simple simplistic answer is that we know it was caused by the injection of the high pressure hoses into the line we don't have an expert saying well it's because of a problem there was a blockage in the main line with it was a blockage in the lateral line there's a lot of time spent by the defense in their brief an argument indicating well there's something wrong  with absolutely no evidence that none of it is a reasonable inference that the blockage was just patched plenty of slime and when twelve hundred pounds of pressure water pressure hits that blockage and take the path of least resistance but what you have is you've got some action taken by them on the part of the innocent quality and then i know that over here in this household something that happens but you don't have any evidence is under the complete control of the city the plaintiffs know nothing about the plaintiff know nothing about when they do it how they do it or that this kind of incident could even occur prior to that occurring  you know is there an obligation to say well we have established that there's no question that the cause of this poor woman's experience was that there was a blockage two feet up in the main line just past their lateral line causing the water back flow and and shoot up into to their bathroom i don't think that that's necessary i think that the a jury is allowed to conclude make reasonable inferences and certainly as i said here it's almost impossible for us to make a determination after the fact that what really occurred and what really happened i will give you this we went through great detail in questioning of the individuals who were operating the equipment to see visioning unusual about what they did on this particular day and time and there's nothing that in their testimony that suggests they did anything different you know we c that but we know that what happened and we know it happened before but not to the degree that it happened and so our primary emphasis here is that at the very least give us more i think it's interesting i think it's credible actually that the water superintendent in this deposition indicated i said how do you prevent this from happening in the future is it going to happen he said yes i don't want to say you don't have to rais was completely within the control of the mouse out and you can only proceed on negligence what conduct you have on the part of the defendant that one identify negligence that they indicated all the time they will post notices on persons doors that we are flushing french the burden and i believe this is a balancing effect in the in the supr declaration of how you determine whether the duty there you balance the burden against the foreseeability or of what may occur what could occur what they know  in this case they could very simply say because they think it takes about an hour and they know when they're going to do it they get sent who would put a notice on each of the four a house we are going to be doing this between three o'clock and four o'clock tomorrow please be aware the there you can put remain out of your office toilet or don't use a facility during that period of time if you have any questions let us know type of thing very ship very easy  simple to do and in this particular days that's all that would have been required to spare this these folks this horrendous experience now you've made it would have prevented the property damage i guess you know and in the bathroom but it could have it would have prevented the horrendous experience that she had and the potential life threatening affection of being circumstances giving rise to that duty to to warn these folks they couldn't possibly know what the city did so that that i've just come on well there's a specific provision in it for your reaction in that you know the duty to inspect the duty to look to inspect public property there's a specific community for that we do have a provision in our complaint that there's a duty that they failed in their duty to inspect my argument is that in this case i'm not necessarily ready to concede that point because i think that duty to inspect we're talking about say a city building that they have a duty to inspect make sure not to fall down on somebody there's an immunity for that i don't think that the that that provision is intended to speak to what we're talking about which is put a camera down there when you know there's a blockage make sure there's nobody right here to inspect that during the process of  in my understanding unit needs are to be strictly construed and nearly so i think our situation is a little bit different for them but it is the duty to warn that is the predominant aspect of our point and honors i would like to first start out by explaining as it is pretty much laid out in the depositions through not only the maintenance workers but the main supervisor ho had any authority whatsoever past you inspecting for constructing or maintaining those lateral as you see i'm not arguing very much about public to you rule i understand it is a controversial doctrine and i will rely on my brief for that with that par however i think it's important to talk about the absence of any facts mr stokes so much wants to believe that he himself knows exactly what happened when a gender system is used and how it can go a wry into someone's house through that as you stated chairs this isn't a residence and the reason for that is and this was not a continuous incident that started with the use of the instr mentality to the ultimate injury it involved the use of the instrument ality water something wrong at the joint between the lateral and the collateral which so lateral and that lateral was in such condition that it allowed us to spew out the toilet now what could have been done with that lateral i don't know it's that falls upon the plain does not fall on on that and it makes no difference whether or not we say well you know it could have been this or it could have been that because we don't even have to get there unless mr stokes and the plaintiffs and prove through facts that it is more likely a result of the use of the jetting system apart from everything else but you didn't move i took my courts class and we went through the do the analysis and i can't remember the name of the case but it didn't involve scales said railroad but the point there was that there is a fine difference been determined that it was the use of the jetting system that caused the water to go up the lateral that had been determined i would have to agree with you there is no such determination but there was no concrete term exactly and then when there is no concrete determination where did hoot who to say fall to who  has the bird the plaintiff has a burden of presenting facts to show the present showing the existence of facts sufficient to show that simply hasn't been done here we're not here to any evidence that establishes that my client was negligent yes i can't find any judge and believe you me i have to look if there are allegations within me that's all that there is there are no is that assumes that there is a foreseeable risk of injury merely from the use of suggestive system merely from doing routine maintenance on the sewer system that's not the case we have one incident where a lateral owned and controlled by the owner somehow allowed fire from that jet or system to go up let's take it a step further even in that prior incident there were other residences on that neighborhood neither of those reported for profit with respect to this particular case the plaintiffs were asked specifically well did you check to see whether any of your neighbors that were on that same collateral line that they have any problems with the water come up through their system know so let's say you've got i believe in the number is seven other residences system there was nothing wrong with the lateral the problem occurred at the lateral line level i'm not saying that's what the facts are i'm saying that's the only inference that you can derived from the facts as they have been developed the only other thing that i really want to point out is that there is one immunity that i'm sure that mr stokes doesn't want to talk about and i don't blame him and that's the immunity that is provided community act the an idiot self serving in a position involving the term determination of policy or the exercise of discretion is not liable for any injuries resulting from his act whether or not the village or british farm was to be worn whenever there was routine maintenance being performed on the sewer system is a discretionary decision at that has to be made by the policy makers specifically mr stokes asked the mayor in her deposition why couldn't she warn him she says well because i was afraid it would create a panic now is that a good reason unfortunately for play defense not for you or i to decide because this immunity over and of the other applies to discretionary decisions he even if those decisions are abuse is it fair well it's passed constitutional muster you know that is if the law  so the fact that the mayor maybe terminations that it simply wasn't in the town's best interest to warn them of routine maintenance or the use of that years for that matter if i might deal with that last issue first the mayor testified she wasn't even aware of the prior incident there was no discretion exercised here and there was no policy set because the water superintendent hadn't even told her that this has happened before until after this incident occurred there was no discussion there was no round table how do we deal with this problem going forward it never happened they can't say this is covered by an immunity because they exercise discretion and whether that was the correct decision or not too bad it's immune they never exercised the discretion at all it was never discussed because she didn't know she never knew the waterson were doing it had never told her and never shared it with the the testimony that people will panic is after the fact saying well this is justice of harris's question was there evidence of negligence in terms of the negligence in the application of the sewer jetter itself into the lines we couldn't find any evidence that they did something wrong in how they were doing that it's a different question to say is there no evidence of negligence in failing to warn people when in your own mind you believe that this  happened before and will happen again and there's nothing you can do to prevent it if that's the case that's not glitch that's one reasonable to not tell people this can happen again in fact it will happen not and the negligence is failing to pass that along to people say take your own measures whatever you think whatever you feel is appropriate in your mind here's our experience here's what could  jetting caused the water to go up to the lateral line he would agree with you there was a quote to the discussion about proximate cause versus versus duty and so there's no question here that answer to that is had it been determined that the jetting caused the water to go up to the lateral line he would agree with you that of course the jetting of the sewer lines caused that water to do that the water didn't just explode five feet up five feet out coincidentally while they were outside in that block running twelve hundred p s i i water through the main lines that's that's not there's no question here that that the that that caused a lead to be cause beat the same in the previous incident she came down immediately while they were and he pulled the hose out and she said water blew out of my toilet is the previous case there's no question here of because the only informs now can you say well but was there anything negligent in how they were doing that that's a different question and probably impossible to prove  but you know the again the duty to warn when you know that that can happen seems to me on its face to be clear so the the argument that you know well there's not proof here that the jetting let a caused b is ridiculous of course it caused the that's what in that is commonsense that's reasonable inference that you were you're putting twelve hundred pounds per square inch of water into a confined area i don't think that they asked her that question in her deposition in a duty to walk places is that necessary evidence i don't believe so i don't think there was evidence in the ward case at least it wasn't discussed duty there if this failure to larn issue is addressed in the context of summary judgment doesn't there have to be have a dance if the plaintiff's conduct would have been different or the failure of the war  i honestly don't know the answer to that justice parrish i have i think i would argue that that's a reasonable inference that if somebody is told there's a bomb in them in the in the building