response brief in this court acknowledges that there is no duty on the part of the defendants to provide elevator service but rather they proceed on the theory that there is a duty to provide safe premises to perform a hazardous work the glaring deficiency in the record your honour's and some of the most glaring to fish and see is in the trial course assessment of the plaintiff's proof on the element of proximate cause and of course the plaintiff had the burden on that element the causation findings relied on an x expert's account of what might have happened and they are major shift but ron i witnessed stephanie carter testif and to the extent that there is an eye witness she testified that mr walker was in front of the elevator nope struction to her view that the doors opened and to show also say he was pushing buttons and she's also said he was pushing buttons with one hand and he was i'm sorry your honor that he was talking to her turn to talk to her was pushing buttons turned the door's open he steps into the elevator and immediately goes down immediately falls can i ask you question about one of your first comments you said that the plaintiffs agree there's no duty to have the elevators work that's what the playing a said in their brief that page forty four your honor  there any duty on the authority and it's time for a change to make sure that if they are working that they're kind of shut off or something you're out of the center b is to what he intended users it is to a person who they claim is an intended user which are people who are working on the elevator all right ok you say yes we want to live by certainly is there any duty well didn't they allege something in their complaint about that the there was a duty to keep them from being on reasonably dangerous that you know there are statements like that in the complaint but the but the aren't the allegations that i mean what  but i believe that that that's part of the complaint and the duty that the plaintiffs proceeded on here was the duty allegedly go to an individual who they claim had will was permitted to be working on the elevators but what we have here are your honor i'm in the in the problem that we see yes which is a problem that requires the court to reverse and enter jasmine for the defendant is that we've got the proximate cause element we've got speculation heaped on speculation because once the doors close i don't know what happened mr donnelly the plaintiffs are a bit of extra doesn't know what happened miss carter doesn't know what happened but her testimony is clear yet trial that he immediately goes down so what we hear is her first testimony she she found immediately she hears a noise she thinks that she hears something like the elevator following then a boom and then after that the elevator door opens and then she sees the kid and she couldn't say how long that talk and i think that's an important point to make for the court because the plainest claim in in attempting to bolster the foundation for mr donnelly's testimony that carter testified the elevator doors shut and then instantly opened back up and that's not what she testified at trial  nor what he had in the elevator should she have so here we have mr donnelly's testimony he's an elevator mechanic he's in and meer he's an electrical engineer he's got a bio mechanical engineer he has extensive testimony at trial about proper there were based on photographs but they were what the the point i'd like to make about mr donnelly your honor is he speculates contrary to characters testimony that mr walker and falls over the side of the kid and the physical rabbit instead of the bear that out i mean mr mr walker shoe is located on top of the kid but there is no there's no footprints there's no hand print you know this woman that was the eyewitness yes i know she's not in the same position at all it's a mr walker and it's just you know question i'm asking is there any is really two people are coming into the building that forget about the status of mr fact of life that's what the course test over the course words work and their case that was that was a more urgent situation than what the court just identified because the plaintiff in their case was a resident of the building and he had a medical emergency and the allegation was that the paramedics couldn't get out to bring the woman down fast enough and there was you know several hours delayed because of the  waiters and it was determined there was no duty in that case the i am right does not have a duty to have the elevator running continuously and the court found that it would be as a matter of public policy a bad  it would be against public policy considerations to impose their kind of duty only on more so in this this first victim mr donnelly's testimony though it seems to me very clear on this record that the defendants motion to bar his testimony should have been granted because it was pure speculation as to what happened and on top of their being speculative but didn't own expertise three that his theory was actually is that the plaintiff is an error in saying that he when presented with the possibility of donnelly scenario mr gregory said that it was possible and then when pushed on that he said he didn't agree with it so there was no this concession that's being emphasized did not occur and then back to the plaintiff's experts testimony the basis for the speculation about how does he react in the row and standing on the cross bar and so forth and the answer based on further speculation that mr walker was to the level of a professional what a professional would have done what an elevator heart for a trained elevator helper would have done so we have speculation as to what occurred which is founded on speculation as to his training so and what's even worse and i think fundamentally unfair and not explained it out by the plaintiff in the response if there is that the expert now i know you moved to bar the testimony of the expert that was based on another individual plea taylor said it was based on taylor's account of what we'll  occurred i don't know if that's a proper foundation but even if even if the court assumes that it is the statements by mr donnelly as to the facts or it was known to them that he multiple occasions was responding to attendance requests to get the elevators working is it true that's what given  detective daly we have given stressed moni and we have the givens testimony indicates does that they were aware that he was doing this sort of assistance with the elevator on numerous occasions that many of the head of the issues one of the problems there that she didn't get some testimony got extent but but when you look at the actual testimony and you compare it to the findings if it is more review in the evidence in its entirety to the parent whether it's supported by the manifest i agree that the court can look at the record and determine whether the record as a full supports the judgment but  testifying to having some information about walker or operating the arabs later that there's not there's no testimony that he was permitted to do it in fact she told him not to in fact iles that he was told on numerous occasions to be doing anything with the elevators she testified that she would expect to the day that he did was it the day he died when he came in and was asking for compensation he did their best that's what the testimony was that was that same day that was the same day ok and that was crap rated by dick said but and the other part of this was again and in the corner seem to you would almost have thought that wilson was the star witness in this trial but wilson had been barred by the motion of the plaintiffs so we have this  buying this witness and yet his testimony is such as say his testimony forms the foundation for or that we truly believe is speculation about this training and he knows what he's doing and he knows he's going to hold on to the broken all these other things speculation about his training in the speculation about what happened well is it really speculation when there's evidence in the record that miss ivins acknowledged that he was not that they were permitting him to do this but they were certainly aware that on numerous occasions he did functioning as a service operator sorts but that's not much but that's i think that's overstating the testimony if if you'll allow me to say that your honor yes and it wasn't and that this again  is sort of the fundamental problem with the conclusions that everybody leapt to with the the account of britain's testimony which was wilson said had said to terry taylor another elevator helper well and this and this also happened years after the fact yeah i showed him how to do some things on the elevator and we work together sometimes it doesn't say to me a thing about training now i don't know but something's our coverage so bad so it's at the end that's the there enough in the record to suggest at least that when the doors opened the kid wasn't there and so that he stepped into a hole or certainly with maybe the cap was a few feet the one other elevator case with the c h h or and the employee who was actually hired in that case to do work on elevator how would you distinguish that case well that's the martin case yes case was  or when the elevator starts to malfunction he's there he's not he put some he's not putting himself like mr walker did in a position of pyrrho unnecessarily he's on top of this thing and it starts to jerk and he can't is trying to right the ship basically and then you know so the question was was there a duty and it turned on duty and in that case that there it was determined there was it was the duty there and did the duty that  identified was to i'm not going to i don't want to overstate your honor there but there was a duty to provide a brook place for this person who was permitted to be there but that's not  opinion it seems to me that she made clear she made her assessment of damages that the tribe where it made its assessment of damages assessed damages as the being one point five million and there's no there's no discussion then that she rejected there but that's not right that's i don't think that that's a fair presumption based on what set forth in this in this opinion in this memorandum opinion because of the because of the fact that the way she describes the damages and the other part of the us that i think  may explain that error by the court and it's i believe it's going to manifest weight of the evidence to reach their conclusion of zero percentage is that there was an argument that the plaintiff made that  we've also taken the position they had based on mr walker stares as a trespasser that further error is demonstrated by the record that it's further against the manifest weight of the evidence and that the the record not support the conclusion that there was will format misconduct i see my time is up wish certainly your theory is is basically that there was no evidence to support th is that and that the evidence of negligence that may be that it could be evidence of negligence your honor but it does not answer the question what caused mr walker to fall well if if there cases that we cited in our brief i believe that the verdant case is a very recent case that that addresses the issue of a dangerous of record where there's testimony that there is a danger present in an area where someone fell and for whatever reason nobody can say what occurred that certainly also is true of the leather case that we test that we cited in our reply brief where there your motion to bar him that i did not have a proper base the scripture and he didn't have a proper foundation he was it was pure speculation that's what i position was and that's what our position is and i don't believe that there's any case there's no case that i'm aware of that says if you can identify a slippery substance on top of an elevator care or in an area where premises but you don't know what caused a person to fall then therefore you can you can that he felt because one of his shoes was still there one was the other one was it and it was it it was i think found at the bottom of the elevator so is there a reasonable inference perhaps that he fell because both of his shoes were no longer and i think what was what's happening or what potentially would happen here is is the court would create a precedent holding landlords responsible for dangerous conduct of their tenants and we would ask the court f of the the elevator car to operate this car or car tap inspection station they would step into the area by the by strokes and stabilize themselves and then they would step down and operate this this inspection station the photographs in his case and the testimony from mr downing family clearly explain that there was oil in the area twenty four and work your way through you'll see the oil in the area and you'll see how it explains what happened here once mr walker stepped into the elevator now what's a  for that particular finding and i'm aware of the basis for the court's conclusion that it was a de facto employee yes but what is there some kind of authority that you would suggest to us in terms of approving out or permitting this notion about a de facto employee wide i'd suggest any any case law that that's out there that would support the notion that if somebody is doing performing a task which somebody else was required to perform and you know that he's performing that test and you permit that person to continue and to continuously perform that task because as the trial judge indicated in this case it was convenient for me of the owner of the property and the management company to to do so i'd suggest that would be the type of authority i would be looking for this is a specific clearly a situation where it's based on the record of mr walker actually accessing the top of the of the elevator and performing this task moving a stock elevator for the tenants in the residence something that an employee testimony that supports proximate cause but there is a yes i think you start out with with mr donnelly who pieces things together but you look at what he relied upon well did he rely upon something that normally courts would permit i mean it is one thing to allow an expert testified based on information provided by another but here we have information being provided by a witness  testified terry taylor did talk and what mr taylor say about this to wilson but he said he testified that mr wilson indicated that tough he that mr walker worked with him on the elevators and that he showed him some things to do with  i think you would look to the testimony of the experts in this case pixley mr danley and he indicated that that is one of the very first things if not the first thing that somebody betted elevator helper learns to do to get onto it if so they can move the key absolutely absolutely and as he did that and he said it's i think his testimony was that it's the first item of maintenance bed elevator helper learns he in fact he said he wanted to when he was a student he wasn't even duty old to somebody intended and permitted to access the very top of the elevator and i think the martin case supports that notion because in in march i do he was found in a duty that was told in that case but that permitted to do it and being allowed to do it if he wanted this is the same as intent no it isn't it isn't the same but i think that this goes beyond permitted when you allow somebody to continuously do this and you know he's doing it you the continuously do it and you do it because it's a matter of convenience for you yet you also know that what case would you suggest we could allocate as this to where you have someone that if it's been testified to that they were aware he was doing this because they had plants that he was doing this and they continue to leave the elevators running up and down or whatever even not running but that someone would perform a tag i cannot point to a case where you tip something you'd like to suggest are there any cases where that that you could say would support the idea of what occurred here with this person who was continually you know bringing people up and down of his he is clearly serving as a helper to the mr wilson of the the evidence that he served as a helper to mr wilson and there's evidence that as a trial court s world's greatest of shoes work boots have prevented slipping here and he said no so then evidence though of some contributory fault well i think you're i think you need help for and you're using shoes that are i mean no i think i think what that is similar to is the presentation that was made in the thirteenth case where this expert came in with an affidavit pointing to a number of the facts but never linking the defects in that staircase to what actually happened here nobody linked the shoes that he was wearing the footwear to what happened here although nobody they say still linked those kinds of shoes to why causation you have to show how it how it that it's implicate in in this case what caused the injuries in this case the mr mr walker could have been wearing shorts and he could have been criticised wearing shorts but you still need to link and connect the wearing of the of the shorts to the actual injury think that's the defendant's for in this case well i understand but i think that you could certainly for that this isn't the typical type of shoe that a helper or worker or elevator person is going to when you don't look where you're going he was looking right into the elevator because stephanie curtis testimony was he was looking right into the elevator he was not looking away from the elevator there rexburg and based on his opinion hard part of his opinion  stephanie well stephanie cutter saying that mr walker was personally looking at him and answered further that if he was looking at where he was going he would have stopped and not gone into up a shaft well well what evidence is there left well first of all he he called miss carter up to the third floor i mean i would think his expletive would indicate that there wasn't a cap there there was testimony about him i using an expletive and yell out his expletive if he was falling down the elevator or would he be if he if he was slipping on the surface as mr danley indicated from the physical evidence in this case and from where of the person accessing the car would normally step if he was slipping wouldn't have been more consistent with slipping and falling down an empty elevator shaft plus there's no evidence whatsoever that the that the elevator was on the first floor at the time that mr walker was on the third floor the only evidence in this case of the of the other it elevator being on the first floor is testimony from the shell dixon when she got down there and she got down there after this is this this woman d walk from the third floor up to the seventh floor told her what happened and then this miss dixon walked down proceeded to walk out every floor yelling out clarence walker's name until she got down to the first floor if  the duty was to provide a safe place for this this person to be who is to just one if he's a trespasser does he have any right to be at the top of the cab or does he only have the right to be going into a car will he have the right to be on top of the key i mean would you say that everybody in the building now would have the right to step into an open elevator shaft no and so  just go there for a moment why is there a duty there is a duty because it's known that he will be up there it's it's repeatedly he will be up there now if we're taking him as a no c ha and r m c had any idea that oil had accumulated whereas the knowledge for that one and only true that is the accumulation it took months for the oil to accumulate up in the machine  going up and checking to see if the oil is flowing over the trip to the right well doesn't the evidence kind of suggest almost the opposite because apparently mr walker was going on top of the car suggest there really was no accumulation of oil so if he'd been doing this without any incident isn't that certainly a reasonable inference no it isn't because there is no evidence as to when he was on the top of the car prior to this particular incident well i thought he said there's evidence that he was constantly doing this right but there's no specific evidence of when he was up up there prior to that and what the condition of the car top was at that time i think that's that's that's a significant said first of all there was i think a half gallon dripping on under the area where it would be where the guy would be dripping and it migrated it flowed over the drip and it migrated across the floor where there are photographs of the drip am that was overflowing with oil  no i don't believe that there were there photographs showing oil of the dripping there was photo there were photographs you know actually there were there were there were photographs showing the oil that had spread all over the floor in the machine  think it's actually i think it's the probable inference it's a reasonable and profit and the probable inference here i think the all of the other suggested possibilities are improbable and not reasonable and in the  is that you called for the previous elevator service in company do you believe that they supported the decision by the trial court in this case if they helped me in the they provided background information in terms of what a helper would be doing and where a helper would be expected to be i think you know in that sense they supported the trial court's decision that they provided factual background of it and also they indicated what they did as an elevator me ins company to properly maintain this elevator while they were there so i think that helped the court also the court could contrast their performance to the harm that through the performance by mr wilson and any is self styled company which essentially was self did he do you believe that this or how would you suggest this this testimony was say that the the accumulation of the the knowledge that this elevator was breaking down consistently i mean it if there is it's all it's less if this isn't really isn't your theory opposite of it breaking down it's more he got out to the top of why this is something more than just simple negligence lightweight it's it goes it goes to that type of negligence that's characterized as well from want is there how would you characterize the duty is to say stuff and then you're not supposed to be doing that we've hired somebody to do that we've got here you get well soon as the person who should be doing that i think that's the way that they should have done now you know the only evidence that they in fact did that they did something like this was evidence which the trial court found to be not credible evidence and for very good reasons well and then i just want to ask what what should we do with problem if you were the defense lawyer and you argue with contributory negligence this is an eight or nine page decision by the trial court  and as a litigant i would like to see any answer to that i would but the question is based on the evidence that was presented in this case was there any what was there evidence of contributory negligence and if there was  was the child judge required to make a finding with respect to that and i'm not aware of any case that indicates that so as counsel i certainly would like to hear just the fact that it gets you know on top of a cap with samples on might be considered again you've got to link what he's wearing the actually what happened and nobody did that there are theories like that a lot of issues there's evidence of their theory was that the elevator was down in the first floor there was that their theory was not that that than that then he took photographs but i don't believe that he did come in about the way he did comment or he did not he did not i'm sorry do you agree that he didn't agree that this your donnelly's version of the fact appropriate standard that he didn't agree that mr donnelly's version was more likely than not but he didn't say that it is more likely that so i think which i thought was the thrust of your question or anything for nothing further  duties to say stop this would counsel say that's exactly what he has been here given said stop the other part of the says and we have had a lot of discussion about givens testimony being discounted by the trial judge again we have wilson also said that he had told walker stay away from the elevators don't tamper with the elevators so there's they had evidence but what seems to me to to be the most striking thing about the plaintiff's presentation here is the defendant has a burden to prove the absence of prax may cause that that the plaintiff has the burden to prove proximate cause and i think that's where that's where the real fundamental problem is with this case we've got donnelly testifying and he can testify to you know his version of what it was a somebody supposed to do to keep the areas that are running properly he can testify to a standard of care so to speak type of opinions but he's not qualified he no expert is permitted to provide the factual basis for their opinion no expert is permission or permitted to say i know how these things run and this is how vader helpers are supposed to operate this or this is what happened he can't get their testimony he can't provide the own factual basis for his opinion as far as the facts of this occurrence now to the extent that he did that that's not we can draw these inferences based on donnelly's testimony and that doesn't comport with the standard governing circumstantial evidence but there's there's no inferences the defendant isn't allowed if and if you accept that then the defendant certainly is allowed and there were reasonable inferences to be drawn from their testimony and comparative fault you can't have it both ways and in another way that i think it's a very contradictory presentation that really doesn't ring true is to say that the trial court relied on that donnelly relied on and they had brought her was this he had this this expertise and yet he doesn't know anything he doesn't know anything about the top of the elevator that doesn't make any sense at all your h that's just contradictory he if the but the plaintiff saying is true he did have notice and he would be held to that standard but again i feel like as we talk about these issues we're getting a feel from the really and truly in support of they have theory and there's no evidence whatsoever of any previous such incident where somebody was injured with the elevators and there's no evidence that mc or c ha knew about this oil situation that was described by mr donnelly you know and again by the plaintiff's theory if they're worth this problem the plaintiff would he has some responsibility for detecting that as well so the standard and it's a high standard for  to show that the defendants have now or just circumstances or recklessly disregarded them and that the natural and probable consequences of the situation would be an injury and that's there is no where the record doesn't even