make please a court your honors on behalf of the city of understand what i would like to impress upon the court today is the issues that are outlined in our brief i would like to reserve two minutes rebuttal as necessary read several other sets of priests and associate of memory is a little easier than initial recall so we could probably benefit from some reminders of the fact but don't feel you don't have ordinances that would be determine whether the failure to comply either with the curbside placement or the alley placement would result nevertheless and i garbage  well with respect to the issue the residents of evanston are required to place their album their garbage cans in an in a manner such that the city can access them such the garbage removal can be effectuated but is there a specific reference to the alleyway as one likely spot your honour's with respect to the alleys if the property line orders an alley it's suggested it's not required i alley property i thought it was a combination it it's then the wording as you read through the ordinances is a little nonspecific but i think that in this it does it also mentions in the instances a part way also part ways and curbside and curbside this condition them certain location of the property aware just as far as i'm concerned at least for the moment subject to what your opponents will say that we might presume that primitive does not mean intended exactly your honor with respect to how do you ordinance in terms of shedding light in clarifying how bad a slice of the black letter it's simply not as clear as it might otherwise be the situation remains though is that with respect to garbage picked up there are permitted uses access to the alley along the line for as in the case of discuss steam to dispose of or trash such if the trash will then be picked up by the city ok i'm also going to see if we can to some degree of commitment to the question as to whether this is an issue of law or an issue of fact or a mixed issue are if for example an ordinance said we want you to use the fact that ten other officials are going to testify to alternative uses and so on is not going to make a difference but in some instances perhaps individual testimony is going to be a factor if not the dispositive factor but those that also get decided by the judge or is that a question i think that these issues were considered in the other alley cases cited in our brief colin thomas necessarily look to the testimony and deciding of those particular plaintiffs in those cases and found that no duty that the  factual issues in the interpretation of the contract which are nevertheless going to be decided by a judge on the other hand there are certain issues involving the establishment of a duty under a contract that may be relegated to a jury is that in something that you've focused yes and i think you need look at the thomas case there was a specific statement in there by the cicero supervisor that said issue the foreseeability of the injury if we're talking about a safe harbor the magnitude of imposing the burden upon a city hall but then we treat the city simply if we're talking about the duty assigned from essentially dead they will say well it sometimes will be with asphalt fillings are telling sometimes you'll be able with loose line stone sensually it's a situation where it's it's a determination it's a discretionary determination by the public works department what material work bass and also with the understanding your honour's that these unpaid dallies are going to through weather conditions and traffic use degrade and that's why they any specific evidence of intent in the record outside the fact that mr crabtree said look we want our residents to be able to place the cans in an area where we can access them because obviously y comfortably with that notion as far as i can see is there some sense that the that everyone who has a property like the point here has the right to at least said in a similar situation in that in an alley unless there are signs allowing a truck to one load we're not going to find intent existed there are no signs in the evanston alys there's nothing in the record th to the question of access with the fences higher the fences lower the can drop your car the flower or whatever she had the week that she was carrying over the fence or through the fence or whether they could park on the concrete my mind resistance to that is to the extent that one would run differentiate between a parked automobile and the right that the supreme court as sanction then the lines of cases that say that parker's are intended users of the roadway in so far as getting to and from their car was instead of the curb there is a private driveway accessing the house that they're visiting on their own house you think that's going to make a difference once they determine that street south fail a ball  or somewhere else in the circumstances might conceivably raise an issue of contributory fault maybe but not duty well but i think it's appropriate to implicate the duty issue when you also consider as your honour's some of your honor student in montana case the cost of imposing a burden upon a municipality to maintain areas with no maintenance but there was no hesitancy to do that with regard to curbside arky if what you're going to offer a tenant is the alley way for his garbage and becomes a higher up in the horizon well yours i would respectfully submit that if the expense factor is going to be taken into account that's the provenance of the legislature and it would need to speak to the you going to repeat that and that's obviously signs saying please make sure that your access your garbage in the alley way would be issue of intent must be measured from the the city's perspective but you also need to consider the fact that the plaintiff in the record testified along with her companion that it was their decision where to cite the garbage cans and they think that goes to permissive use your honor and no one is i mean no one is disputing on behalf of the city that she's a permit well these are all frankly the aspect of permissive few swoons would go down a little easier if you were going to use the alley as a place to paint a portrait but i you really a permissive user of the alley if your alternative is to retain your garbage and violate countless think with respect to the issues you know review you certainly can consider the issue on the merits itself but i think it's also instructive just to note that the trial court's reasoning was somehow short circuited in a lot of ways and i think that this issue of intent really must also consider mr crabtree it was up to the plaintiff where to cite the cans and mr crabtree clearly testified that he do not maintain alleys for purposes of pedes using them as walkways but we do not permit that we do not think maintain them for purposes of trash pickup we access the cans we empty the cans but we don't maintain them we don't require a dam such that people can discretion in their balancing their needs of the public works department in addressing issues that crop up which is another reason why mr crabtree should have been a tile discretionary unity for his discretionary  well with respect to this case i believe he testified that the regrading program was going to be in effect during calendar year two thousand and four that had occurred in years past us and that really ministerial every every couple of  recall from the record i believe he testified that in the public works department it was a supervisor had been a supervisor for eight years as of two thousand and four that there were two individuals above him in the hierarchy and there were twenty four individuals below him either subordinate or reporting to him and i would respectfully submit that you look at the totality of the factors that he he was the supervisor in a public course apartment not the paving department he had many other duties and many other responsibilities that he had to discharge so i would submit that his actions in determining what galleys had to be recreated what materials had to go out the assignment of crews in families in those competing interests that's those are things that were already considered by this position that even if one no true would apply as the court term and namely that the plaintiff was an intended user that the defense of that being a discretionary act would still have to be allies yes yes i think that you either course well see that's where it got a little unclear in the in the trial proceedings but i think that this should have gone should have survived it would be the striking of it and the jury's entitle to consider that as a also tie did it possible contribute there and again what would be right act here in all in this cause of action would be the discretionary one that would invoke the immunity for the decision by mr crabtree on which alys had to be recreated at what time and with what funds and men and that is an issue that again goes to the scars person who loses a softball to you but i'm throwing it out s first if you have a person who has to look at the map and say ok crew number one you have to go to this quadrant of the city and fill in x number of potholes that is sorry he here's the problem is it isn't the village fathers who make the decision with families or was crabtree who made you kid that's a fact i don't think there's anything in the record that tells us either way crabtree had a general recollection but he specifically could not recall whether it was his general right like i believe he testified that as of march two thousand and four it was either scheduled to be regraded and it was going to be recreated on or about the for july fourth parade but i don't believe you had a specific recollection of if in fact that had been done that calendar year and what what was the timeframe of this accident i believe the dat determination policy hot or position involving the exercise of discretion is extended to severely correct and with that comes the immunity to the principle that the burden to prove what's the city's burden but that was stricken wasn't it you didn't have the right to proceed on that correct for whether was this a fact with just a fact it was very mixed to be accepted as true which would include your firm is that it for now i hope yes yes thank you thank you you'll have some time for  when you have a photograph and i'm not sure if any of our blowups got into the record but i do have a photograph that shows that was entered into evidence in his you want to look at i have a very short to get to the neighbor's house by walking on the street he may do so but if he gets hit by a car he better have a zone insurance correct or he steps in a pothole there is no duty to maintain their property i think that there was clear in illinois user because of the indications of that and ok and the only one week we have documented is is this case involving the person that has to get out from their car when they're allowed to park on the streak right but that's referred to as an exception and imette case they talk about indicators would you say that the indication of intent here is clearly the statute absolutely is there anything else nothing more then th say i don't know what i do have is the record from mr graham tree and this is very important because as it pertained to betsy she didn't have the ability to put her hands along the alleyway property alley line by seven o'clock in the morning correct and it was in violation of the order and subject to twenty five dollars to a five hundred dollars fine and there what do you mean it was subject to what he was in says if it wasn't there by seven o'clock was subject to the violation of the garbage ordinance which was twenty five dollars a day up to five hundred dollar what i mean if you don't have your garbage out by seven i thought the penalty is that you don't get picked up when she what does she have to pay for  kish if she doesn't have it out by seven she's in violation of the ordinance subject in her to what i'm just saying what the ordinance says justice is that is if she doesn't comply with this the ordinance yes she is liable or subject to a fine of twenty five dollars a day to five hundred up for your lives and from its final portion of the ordinance i think we can avoid spending more time than we need if the two of you i take it are eminent gentlemen and on speaking terms get together submit a copy of whatever ordinance material you want to this court within that just because he's fourth on the totem pole yeah i remember the testimony policies done by the mayors and the alderman policy the policies for the city better yet what was missing was a thing about the streets in the alleys that are fil i didn't hear you on the streets these rallies that are gravel are you saying that if the decisions about when they get graded that everything is really coming from up at the top and no one has it no one else has anything to say about that there's no discretion at all well then i think you still need the second prong inherent before you can find that the immunity is triggering and you're saying that there's no question in this case that these alleys and whether they're rated every policy but not at the level of mr crabtree our policy was made it a different level mr crabtree just implemented from the city manager on down going out there and grading it through the alleys and by the way the unpaved alleys in the city of evanston are small percentage of the paying down this is not the fault of the alleys in evanston it's a small amount all right so there is some decision making going on which ones we actually ate and which ones we he's really a non entity crabtree had nothing to do with it who did that would be the policymakers which would be the mayor and the all the men and then that program is simply implemented according to what's in the record as mr crabtree testified to by the city manager down to the director down to the supervisor or down to the superintendent down to him so let's listen really prepared to present it  ones ok the policy decisions really come and tell me if i'm wrong you know you did you start off with the with the alderman the alderman make a policy and they give it through the  city manager the city manager operates that day to day after a shooting of the city of edison correct and he also has discretion what he does which one comes first which ones come second ok certainly not a guy in public works  pickup spot should heck carry with that the same implication invitation at pick up from an alley a pick up from the car or carry if i understand your question properly concern now because the ordinance said if you're adjacent to the alley that's where you have to put it if you don't have an alley then you can put it in the parking well if you don't have an alley and you put it in the parkway  to determine in these global types of situations whether the city are the municipality has a duty to repairing it has to go off and inspect each house basically to determine whether with respect to that house it should send a repair crew or not it doesn't seem very practical ball if if otherwise well if the city of evidence is going  then look to see do you have your own private driveway or you parked on the curb with your reasoning leads you to say that if in fact you could have brought your car up to your driveway that you're not in that that  you don't or anyone below owner is not an intended user i don't think that the vet the duties here are determined and back specific a basis on an ad ho house by house and i agree that duty is triggered by having betsy goodstein be allowed to get access her garbage cans are legally place would you generalize if you were giving us the bright line would you be prepared this back any time there is a necessity there is an invitation statutory our legislative man day it to make to utilize a property in a certain manner that that would be and i would say yes i would agree with that well that's what you have in this case right other than that don't have anything else do you i have two things and one is the statute or the ordinance yes and then the other is the same indication that a protest ring crossing an alley from one sidewalk to the other has no signs in that case it's custom and practice and the custom in practice here is the second indication not always controlling i think that the ordinance is more controlling but this is what's there necessity in the walking from the sidewalk to the other side i mean you have to go somewhere right correct i mean that that's how it is right if that's if the council but you might want to have some up in thirty seconds or whatever you need to i'll let you go there were three issues on appeal the first one was whether judge washington committed here by finding is a matter of want the duty in this case i don't believe that that was incorrect and believe that the question of whether that's he was intended in permitted use or is a question of one for the judge decide and the fact that he got it  right at some point was the important thing i don't believe that the discretionary immunity was improperly struck and there's nothing in the record that would have set up this particular employee as having any sort of policy to this question most importantly in terms of permitted given the stance given the fact of this custom in practice and the location that this is in the alley betty was in the safe harbor she had not more to  by going further she was on the way i think it's axiomatic that if the law in this state says that a person has a safe harbor to the garbage can that she's intended and permitted in that safe harbor and i also believe that we're not