counsel my name is joseph ryan and i represent the plaintiff helen terry jayco whom i will refer to as the plaintiffs at its core the issue before the panel today is whether there is a genuine issue of material fact as to is the noble this includes the review of the orders striking the affidavit of carl chenoweth because those affidavits were stricken in conjunction with the most motion for summary judgment i think a little background information on the way the case proceeded through the trial court will assist the panel today so let me start there in october of two thousand and eighteen the plaintiffs disclose carl chenowith is an f three witness mr chenowith reviewed the available materials and pined at the potholes on which the plaintiff was injured was likely formed invisible two to three weeks before the plane is injury why is that important this is important because marcelli the defendant's roadway commissioner testified that he inspected the area clean his injury six days before the injury therefore if the defect on which the plaintiff was injured was present during the ladies inspection the defendant had actual or constructive notice not at issue in this case is whether the roadway was in a reasonably safe condition as required under the sections of the toward immunity act mr shelley testified that the roadway as depicted in the photograph taken after the injury was and i quote in need of repair and constituted a safety hazard for those using the roadway those photographs were authenticated by supreme court will you want in its motion to strike china with affidavit their friend and argued that all of the materials referenced in the affidavit in china was attached investigative report were not attached to the affidavit and therefore that documents the sense alleged were missing specifically shirley's entire deposition anciently entire roadway diary during the argument on the motion to strike the trial court made some comments that had disagreed with the defendants reading  the robot acts in the face of cases and the trial court stated that the allegedly missing materials were elsewhere in the records and specifically the trial court mentioned that those materials were made part of the statement of material facts strike next on october th of one thousand dollars the trial court struck the affidavit which it previously found sufficient under one hundred and one dollars not for the alleged failure to attach documents rather because it now found the affidavit to be speculative next on december th the trial court granted sir my judgment finding even when viewing all of the evidence in the light most favorable to the plaintiff that there was no evidence whatsoever as to notice with that background i'd like to start with why there is a genuine issue of fact as to odious even without channelers affidavit we know that mr shill inspected the area just six days before the injury we also know the roadway was not in a reasonably safe condition at the time of the injury therefore the issue in this case is simply whether there is sufficient evidence of actual or constructive notice to allow this case to proceed to adjourn jury first the photographs the photographs alone show that it was more probably true that not that the roadway was not in a reasonably safe condition during snow lee's april th two thousand and sixteen inspection the three cases cited in plainest opening three stand very strongly for the proposition that in certain circumstances a photograph alone can create an issue of fact as to notice i'd be happy to discuss the specifics of those cases by the as i am pressed for time suffice to say that a picture is worth a one thousand words and in some cases those words can speak to not this is one of those cases however the court does not have to look at the photographs alone as there is additional evidence from which a jury could in for notice the loose gravel should surely the sole individual who inspects the roadway fill potholes testified that he sometimes use news gravel to fill large potholes is roadway diary noted that he passed the general vicinity of the injury in the weeks before the injury now he didn't recall exactly where he passed or the size or the nature of the potholes he passed that week but he does recall and he noted in his diary that he passed that general vicinity the week before the injury the fact that the photos show loose gravel in and around a large plaintiff was injured coupled with chillies testimony that he and he alone would sometimes use gravel to fill large holes and then he patch that area in the week before the injury is a textbook example of circumstantial evidence the jury could the potholes are caused by moisture and there was no moisture from the time was surely inspection through the time of the injury is certainly more probably true than not the blow out of the roadway depicted in the photographs could not have occurred in the days essence that china was opinion is that the weather conditions which were warm and dry in the six days between should at least inspection of planets injury did not support the formation of the deteriorating roadway as depicted in photographs chenowith goes traffic patterns as well as the loose gravel the weather conditions which the affidavit mentions breaks down a little bit says that the average high temperature was fifty eight dollars average low temperature of about freezing at thirty six dollars and importantly that there was no rain events  affidavit consisted not of conclusions of law one of facts admissible and evidence the fact that the weather conditions did not support the formation of the pothole in the six days prior to the injury is not a legal conclusion such as the affidavit under oath the affidavit also attaches his c v which shows that he is a civil engineer with over forty years experience and is licensed in six different states the trial court erred by shreiking in ruling otherwise and so your time is up you'll have an opportunity to make rebuttal at this juncture justice jorgensen do you have any questions i guess my question is that well i think it becomes speculative one is not based on anything right so if if a witness testifies that a car ran a red light and somebody asked well did you see the car run the red light and witness says no and then  question would be well heidi how do you know the carver ran the red light with this as well i think is it i feel that that's speculation but at the witness says well the driver told me he ran a red light or i watched a video of you know the car running the red light that's not speculation so as long as the testimony is based on something i don't believe it's speculation now in this case you know mr chenowith phrase the affidavit as he phrased it but what we have here is a situation where the affidavit is only speaking as to notice and because we know that no shilly inspected the area depending on how you count the days five or six days before the injury all the affidavit have to speak to is whether or not it is more probably true than not that that possible that we know it was unreasonably dangerous predated that inspection and he says looking at the weather evidence whether it's or snow during that period and therefore the potholes must have predated the the inspection so i don't think it's speculation because it is based on you know one his review of the photographs but to which was limited opinion as to just this single issue of notice is his opinion was based on his review of the photographs as well as the other evidence i think it's officially stated to establish the limited purpose which jorgensen's observation it is true in the affidavits of if they should have been you know considered that chenoweth made certain observations made observations about  the development of a pothole on a chip concealed road lamine why i can speculate why weather would impact the development of a pothole or why traffic would  would have to come out and say that moisture causes potholes in his affidavit if that's already found elsewhere in the record you know i don't motion for summary judgment i think that all of the  materials that are properly made part of the record need to be considered and in this case we have the defendant shuli saying that moisture causes potholes moisture and traffic so this child wouldn't need to re say that in his affidavit  i don't think so in light of the fact that we have that testimony elsewhere certainly it can be viewed in conjunction with one another and you know common sense will tell you that you know whether  your expert's opinion that there was no other possible cause or probable cause for the holes well  i think it did you know we certainly don't have any other testimony information as to you know what else would have caused the state of reasonably safe condition and therefore regardless of what caused the defect if the defect was there during the inspection you know this case needs to proceed to a jury trial  what exactly caused the pothole but he is pining that it was there you know seven days before the injury based on his review of the photographs and the weather conditions or that it's more probably true than not that it was there seven days before the injury based on the deteriorating state of the roadway in the in the photographs as well as as the weather conditions so as long as we have in some enough as long as we have evidence of notice i think the jury needs to get to consider that and of course the defense can you know that's an argument that the defense can make that that somebody could it came by with the sledgehammer on the friday before the accident and dug a hole in the pile i mean if that's an argument they want to make certainly they can but the issue that try to speaks with and really the only issue in the case is whether or not the defendant had notice and i submit you know that there's enough evidence to submit that question to the finder of fact in this case a jury you if you use the word notice several times and to clarify are you talking about notice the the evidence at the actual notice would be circumstantial and that would be the loose gravel in the whole knoll issue he testified that he is the he's the only guy he's the only guy that does anything with these these these roadways he inspects some he maintains them he fills the potholes he didn't have any help doing that so he's the guy that does this he said sometimes he uses loose gravel to fill in large potholes testified specifically he used sometimes used gravel to fill in large holes loose gravel potholes and they're created does the gravel float upward into the sky or does it get moved off the roadway by some means other than just staying there so my point to you is the fact that there is a pothole there and if it's recent then it seems reasonable to conclude that unless somebody came along and swept the gravel away because it's pea gravel with oil that the remnants of gravel would or could very easily be the  surface that was destroyed and is ready remaining there because it hasn't been pushed off the road well i would say that you know it is certainly that's an argument that the defense can make  the jury can make a determination and i would say two things number one when you have a roadway that is breaking up in a large you know we're not talking about a small pot hole we're talking about a large puddle a large pot hole forms i don't think that gravel breaks up into small pieces that depicted in the photographs you know right away that happens over time additionally when you have a roadway i think it depends on the type of pothole we're talking about certainly some potholes open up and some of the loose remnants which isn't necessarily loose gravel it can be bigger chunks and pieces of roadway some of that stuff can fall down into you know the lack of a better term the ditch but certainly in the photographs we have very small pieces of loose gravel we don't have these big that type of material to fill in large pot holes and then we see this at the end that is circumstantial evidence from which a jury could make the inference that he placed that loose gravel in the pile and therefore obviously would have had notice of the condition there certainly arguments any time you have circumstantial evidence there's arguments that can be weighed made both ways and i believe strongly that those arguments need to be considered by the finder of fact that doesn't answer your question please let me know and i'll try to do better well it was an answer obviously  i was a prosecutor for a time and i used to prosecute overweight trucks and i was led to believe that the reason why ordinances and statutes were passed relative to overweight trucks was because if the truck is overweight it tends to destroy the surface that it's going over and the i don't think the affidavit covers correct me if i'm  you are absolutely correct in that the affidavit does not touch upon that what i would say is kind of reiterate what i what i said earlier in the affidavit only speaks to notice because that was the issue before the court now his investigative report actually does that a little bit is investigative report is obviously a much broader report and what that says is to the east and the west of where this occurred there was no damage to indicate there was any large trucks or farm equipment or anything like that which damaged the roadway meaning that you know had that type of heavy machinery or truck  this this roadway that there would have been damage to the north and south so that is something that is covered in his investigative report is investigative report is still part of the statement of material facts required when when judgment or prove the case in the affidavit we're simply trying to show that there's enough evidence of notice to get this case to a jury right so your point is well taken but i think that's a point that needs to be fe out at trial as the affidavit spoke to the only issue raised by the motion for summary judgment which was no thank you i have no further questions does anybody else have any questions i do not think you i do not thank you thank you mr ryan you'll have an opportunity to make rebuttal thank  i represent all the township in the case as plaintiff counsel reviewed as i'm sure you've read in the brief the procedural history in this case is pretty complicated in fairly convoluted but ultimately plans counsel and i do agree that the if you that actually has to be decided in this case the fundamental issue on which this case turns is whether all the township had actually all or constructive notice of the pothole that richard drain co struck with his motorcycle on april th two thousand and sixteen there is one count remaining pending it is a straightforward claim of negligence and in order for the plane to have to survive summary judgment in this case she has to clean demonstrate evidence of duty breech case the part of the one of the elements of proving notice where one of the elements of three want to go to that the plaintiff has the burden to prove it is notice whether that the actual or constructive notice and under three  notice oh that alleged pothole on nichols road on april th two thousand and sixteen then as a matter of law under section three want to the township had no duty to the plaintiff and all the township is entitled to summary judgment the only fact evidence offered by any witness in this case as to the age of that pothole was partially the highway commissioner for all the township on april th five days before the subject accident he did his weekly road check and he testified that the pothole was not there at his deposition he was specifically asked a question that the potholes noted by mr there is no other fact witness testimony as to how long that pothole existed before richard janko hit it on april the th the only evidence in this case offered by the plaintiff as to the age of that pothole was the opinion haven't from his two hundred and thirteen at three retain expert witness carl chenowith who offered a version of the same opinion in three consecutive affidavit that he thought that pot hole was denied the st motion to strike the st affidavit and denied summary judgment march of two thousand and nineteen and the plaintive never the last decided to file that nd affidavit even though it wasn't required  subsequently when the trial court vacated its march th two thousand and nineteen order the plaintiffs elected to withdraw the st affidavit so even though the trial court said order by the court bay keeping the earlier order was never the last what ultimately the trial court reviewed and proceeded on when it made its decision on summary judgment so i think that leaves kind of three primary issues here one does the nd affidavit satisfy the strict requirements of row one hundred and ninety one a and it does not to the trial court appropriately exercise its discretion to deny the plaintiff leave to file a rd of the davit and it dead and three absent is there any evidence that creates a question of fact whether all the township had actual or constructive notice of the subject hole such to conclusion how long that pothole or potholes i guess were likely formed invisible two to three weeks prior to april th two thousand and sixteen and then four paragraphs of fats none of which are actually admissible  opinion is not based on actually either it's not based on bart's testimony it's not based on the information contained in the roadway diary we set forth in our brief why mr china with is cannot rely on the information in the roadway diary because that is the definition here say but even if he could rely on the information in the roadway diary abse the day after the occurrence but mr surely didn't record the average temperatures for the week he recorded daily temperature the other or the more significant problem though is that there's nothing in that opinion that says why it had to why it formed in an earlier week why it could not have formed in the week testimony about the likelihood of heavy truck traffic with spring planting going across that roadway and which could have formed that hot hole in as little as a few hours to a few days manilow he can't do that he cannot in this case the plaintiff cannot defeat summary judgment by simply offering speculation about what could happen in the face of an rebutted eyewitness testimony about what did happen and i believe as one of the justices noted there's just no traveler had the discretion to deny leave to file that affidavit robideau makes that very clear but even apart from that the trial court didn't actually absolutely deny the  notice regardless of the fact that the only testimony is a revote it no your honor there is not a question about notice because the only evidence as to the age of that  check on april th two thousand and sixteen his testimony was very clear the potholes in the photographs taken by richard janko the day after the accident did not exist on april  and that has to be reckoned with and it cannot be a summary judgment cannot be defeated by conjecture gas or speculation and absent the affidavit  channel with there is no evidence as to the age of those potholes and it's not appropriate to hand the jury photographs and ask them to speculate how long those potholes seem like to or frankly under a general premises liability analysis of constructive notice part of that is to demonstrate evidence as to the plate and the plate has the burden to do it demonstrate evidence how in this case everybody agrees that parts nearly was out there on april th so to the extent there plaintiff is trying to do anything the question is if that pothole existed on april th he had actual should believe the unrebutted testimony and that is not the trial court's job in a motion for summary judgment to weigh the credibility of a witness in this case the plaintiff has the burden to demonstrate notice they failed to do that and it was if this was a constructive notice case yes and the plaintiff has failed to demonstrate any evidence of that you know argue any cases about it so that issue is waived i would argue for purposes of appeal i have nothing else thank you justice brennan do you have any questions based on how your discussion with justice jorgenson i do not thank you again the issue of constructive notice if there was constructive notice was there any discussion as to a reasonable period of time in order for the defendant and the highway commissioner ok i have no further question is the panel have any other questions i do not i do not thank you thank you thank you thank you mr shelley mr ryan you have five minutes for  shelley himself testified that had he found the defect in the condition it was on april th on april th he would have went out there immediately and remedied in fact the day  monday or tuesday after this incident and i understand this would be a post remedial measure but it could be offered for the limited purpose of what the penalty is rate so the day after or two days after the plane is shelley went out there and just did just that he repay this area of the road so if he had noticed it on monday plaintiff's injury didn't happen to i believe a saturday he had time could have in fact fix the problem in those intervening days and in fact did so the day after or two days after the injury and he testified that's what he would have done had he discovered not getting entire system but the case cited by the defendant on this issue doesn't apply it has to do with some survival count in the medical medical malpractise case but nevertheless  but he also testified that moisture causes potholes and he testified through his roadway diary and we have the other evidence from rockford area that's  unrebutted he recorded no rain or no snow events during those days so shuli is out there saying well i drove the thirty seven miles the road way i can see it more sure is what causes potholes and then we by the defendant's position i don't believe the case cited by the defendant on this issue stands for the proposition that surely self serving statement can never be challenged but if you accept that the jury or  is always going to be precluded from challenging the veracity of surely s self serving statement that he did not see any defect at the location of the plants injury during that row check during that road check this was is driving thirty seven miles or roadway st thing in the morning at which time he is looking for dead animals debris fall in trees he is not just serving the roadway he's got his eyes on other things there's cars going on a roadway in other directions he's got to be paying attention for that so the fact that he cannot be challenged that he may have missed this pothole  creates a question of fact in and of itself counsel did not mention at all the whether or not the evidence outside of china was affidavit is sufficient to create a question of fact i spoke believe very strongly that it  is in fact that argument has come up and it was actually brought up by defense counsel defense counsel actually stated in the initial motion strikes and maybe pieces of evidence that this pothole predated that april th inspection we're not talking about a case in which you know like the pittman case where the pla show that the pothole was there for many many months we know the shooting was out there on the th the only issue before this panel and the only issue that was decided by the trial court was whether or not there was  evidence of notice of that pot hole being older than six dates and i submit to the panel your time has expired you close please sure thank you evidence of notice of this pothole being in existence for sixty days prior to the injury sufficient to allow a jury to decide this case i do believe the plaintiff her day in court and while there's arguments that can be made on both sides as to that limited issue of notice that issue needs to be decided by the finder of fact thank you it's more than just what you're right well it certainly can be more than just moisture and i think we addressed kind of the traffic matter previously on one of the other justices questions well the point is this as is the highway commissioner never said that that is the so no i don't believe he was ever asked if that was the i don't believe he was ever asked if more surgery is the sole cause in your party if you roll over the area where this accident occurred when he testified he would drive all thirty seven miles of township roadway will he tell you he testified that he did drive all thirty seven miles of township roadway which would have based on his testimony this area ok all right i have no other questions thank you justice brennan do you have any questions i do not thank you really didn't answer justice jargon since a question she asked you did he ever say and you responded saying that he was never asked so would you please be more specific and indicate whether he did or did not say what justice targets and ask you about if the former is a was correct then or your if your answer was correct then should we assume that he voluntarily blurted out the statement or should we conclude that since he was never asked a question that he never answered the nine question and therefore he didn't say it as she  statement added at face value you would need both moisture in traffic thank you i have no further questions are there any other questions from the panel no just mclaren thinking you know thank you thank you the case will be taken under advisement and a disposition rendered in ample time mr clerk you may close out the proceedings