recovery against the owner or who would be the owner of the swimming pool and what are the circumstances change when the owner of the swimming pool or whoever is in control chooses to put somebody there to supervise him to instruct in the this piece of weight lifting equipment they were disciplined for their testimony from my client and the other girls there were in her group did they use this piece of weight lifting equipment a couple times a week whenever they were doing your lower body workout and when you were done with the regular routine were i think standing by itself it's willful why it is that it was recognized that this was a dangerous piece of weight lifting equipment mr over testimony was i never told these children how to use the equipment and he said negligence i believe is evidence of will or what ok thank you was if there is no duty then there can be no liability i believe we saw fully set forth our argument on that point first our motion for summary judgment and then in our appellate brief and i don't plan on really arguing that too much court isn't limited to the bases that judge and all set for and while i agree with that i want to expand it and say that generally what what the judge had found was that are trying to act did not rise to a level of is are there any facts tending to show that either defendant displayed an utter indifference to or conscious disregard for the safety of lindsey there simply are no such thing and he said i don't recall that has been switched now both been in the briefs and then here at oral argument two he told them he didn't tell all he didn't tell them how to use the of what we're talking about a ca which i just want to make that point to the core that what he said was i don't recall he has taught a number of call a number of these classes over the years and  that's our explanation is that he didn't recall specifically telling them in this case in this class but oh this is something that he has done previously and it's something that is you can look at what i cited in our  six which was the date of the accident the health fitness classes have been taught at street or township high school for several years the class was taught and continues to be taught several periods each school day by teachers prior to the day of the accident there street or council high school students had completed the health and fitness class without incident mr there's been some allegation here about mr overstrain mr oberg as a bachelor's degree in exercise science and sport with an emphasis on secondary education he's been teaching at the high school since the fall of two thousand and two are still he's been teaching this at this school teaching these courses for possible for years prior to the  teaches several health and fitness classes each semester they can praise machine was not one of the listed exercises for the lower body workout routine nor was it one of the listed exercises for the upper body workout know the words it was not designated for use as part of the class at the beginning of each to master mystery hour provided instructions to each class on the important that was going to be  at the start of class each day mr elder gave the class instructions about what they would be doing that day during the class period mr albert circulated around the way supervising the students providing instructions indeed answering the sometimes imposing punishment by requiring them to do pushups it's important here that mr albert never witnessed lindsay using the kaffirs machine what his expectations were for students in health and fitness class i think perhaps the most important undisputed fact here is the testimony of lindsay rock rock herself she under is whether there is any evidence tending to show an utter indifference to or conscious disregard for the safety of lindsey by the defendants in this case and i respectfully submit that their views no such evidence is a statement made by mr al her and a misunderstanding that statement by lindsey specific only mr albert testified that he told with last quote and this is from his deposition testimony quote to keep busy with the workout you've interpreted as meaning she could use a cap raise machine and lower body workout again mr albert never instructed the students to use a half raise machine and mr al her elbow supervisor class never because questions were about this class specifically in going back to my point here about his misunderstanding or his miscommunication a miscommunication in this suppose a miscommunication  you're exactly right i mean let's take a let's take a shot citing and not stated that they are they've been trained on certain pieces of equipment to use power when that and they're not given the i would say that yes that a piece of equipment a power piece of power equipment like a piece of weight lifting equipment is an open and obvious has or is something that the saw that they haven't been taught if they didn't have to you're anything about a table saw a fourteen or fifteen year old student should be able to look at a table saw and say this is a has or you know i should operated or  i think the supervisor or i think that the teacher has a duty to have to supervise and this supervision in this case specifically was provided and i'm at a local and just trying to test your theory that there is no you this is the school could have a waiver and the school could not could say we're not going to use this for regular purposes we're just to instruct to supervise to do the things that a teacher is required to do the teacher did that in this case ok so you're conceding the reason i'm conceding that they're dead the