both of you will be or he split your time correct very well you may see duty to exercise ordinary care when he undertook mowing the yard made sense of his property and of the city owned parkway and i would specifically argue that he had a duty when mowat not to allow grass clippings a covered even dangerous depression in the to show appropriation to be found in its head cut the grass on the parkway as well and also shovel some of these like that off here it's similar in that it did not only cut the grass on the city's property he also picked up  oxford definition is hidden or i suspected danger difficult the merriam webster definition would be a danger or problem that is hidden or not obvious at first here i would say if depression was hidden it was defendant city also argues that it's a perfect tort unity act for several reasons one being that there is no actual or constructive notice first i would remind your honour's that the issue of whether toward immunity applies determined on a case by case basis as to what each single one was but there's never been any other points of any of these so that would be just my assumption that the other one were not as deep as this particular  establishes the existence of the condition and its character of not being reasonably safe would not have been discovered by an inspection system that was reasonably adequate considering the practicality  basins by their nature could become dangerous and i think that it's logical to think that after forty two years of cash basin or frankly any other city implement for that matter would not leave inspection i would also  community which i cited briefly which further defines the act and states that notice of facts which would be which would put a reasonably prudent person on inquiry render the authorities chargeable with knowledge of any facts might be discovered by a reasonable established for a condition has existed for such a length of time that authorities exercising reasonable care and diligence i've known of it moreover were no genuine issue of material fact regarding notices this says me summary judgment is warranted and here i do think there are genuine issues of material fact the summary judgments not appropriate furthermore i would say the city contends that immunity is appropriate here as the decision not to implement an inspection system of the oil and chip catch basins was sorry citi is saying that their testimony points that this was not a discretionary decision however then this cruzan expressly testified that such a decision regarding city policy would be made by someone higher than him specifically he testified that such a decision would be made by city administrator whole thus it was not discretionary unique to him and the decision that would not be covered by the toward unity act now on to the city mr drew hole would be the one that would make that discretionary decision he testified that there had been no discussion of whether such an inspection process would be put into effect that's our argument that since there was no discretionary decision made to not implement inspection system credibility of witnesses in awarding summary judgment to the city the overarching theme in the briefs that were submitted was that because of the trial court's purported errors in that car in that regard you must reverse and we heard a little bit of that today as well at the beginning of counsel's argument but the alleged improper weighing of evidence and assessing credibility of witnesses is not the crux of the appeal counsel's acknowledged we're here on to novo review and now such it's the end result that's being scrutinized not the trial court specific analysis i do want to point out the trial court denied having weighed the testimony of the evidence and were making credibility determinations among witnesses i would submit to the court that the trial court actually granted summary judgment to the city based on the lack of competing conflicting evidence and plaintiff lacks evidence on several points in this case and some of your questions touched upon this that she needs to pin a duty of care on the city with respect to this particular catch piece and lead chief among those evidentiary voids are there is no evidence absolutely zero to support plaintiff's theory that this catch basin lid was seen in the ground over time no evidence at all no evidence to support that the condition of the catch be saying at the time of her accident was different from when it was originally installed there is no evidence to combat donna screws on four man of the street department for the city his testimony day catch basin lids sit significantly below ground and some sit as much as six to eight inches below ground we also have no evidence that combats the city administrators testimony that this particular cache piece saying resemble it was unremarkable it resembled all the other oil and ship catch basins in town that are adjacent to oil and  nothing of the sort here in this record so given that there is no place for reasonable divergent inferences with respect to whether or not this storm sewer catch basin lid constituted a recognize in our briefs that i mean just how he has a duty to maintain its property and a reasonably safe condition the genesis of that duties common law as we know when that principles codified in section three one or two of the that particular provision have stated that i mean this pilot whose duty is limited to not maintaining with respect to parkway conditions not maintaining anything in the nature of a trap snare or a pitfall but i mean  says that one way or another that is what this says that defines how there's no testimony saying this is excessive and i'm not an expert nat regard but we're missing nat here that's one of the eviden but i do want to say because we've heard a lot about ten point five six inches if you keep hearing that ok that measurement comes from plaintiffs she had two affidavits in response to our summary judgment motion but the measurement rose from the lid to the top of the grass and the trial court here very intelligently recognized that if they it's the measurement we're talking about it's the wrong measurement because we don't walk on the top of the grass what i want to know is what's the measurement from the lid to soil level not the top of the grass when we have mr kinney has testified that he left his grass grow four to five inches before he cut say the  hey we might be adding several inches here to the relevant measurement so i would submit to the court that beast on what's in the record we have plaintiff's lawyer who question several witnesses danny cruz on being the premier want if you look at the questioning plaintiff's lawyer adopted a six to eight inch measurement and questioning witnesses she drops six to eight inches my client drops six to eight inches it's repeated all throughout any croissants testimony we have two other witnesses who testified to their estimations of the depth between the lid and soil level mr kinney says it's five to six inches at most and plaintiff's husband says it's eight to nine inches at most so at the end of the day what we have here is six to eight inches at the end of the day because the trial court recognized what plaintiff's giving us is not the relevant measurement that's from the lid to the top of the graphs and i would submit to your honor's that you know in other municipality i'm referring specifically to the mouse and we should have a white sox case in contrast the existence of an open grate and uncovered manhole the x a pitfall that's a trap that's assume we don't have anything of the so work here council was asked about were there any was there any testimony about there being any kind anything wrong with this catch piece and structurally the lid nothing chipped nothing missing nothing broken nothing loose bats plaintiff's testimony her husband echoed all that we do not have a trap a snare or a pitfall here and if the standard is it's hidden wow we've just transformed what's supposed to be a limited duty we've expanded it we're perverting the holding of marshall to hold that to impose a duty of care under these circumstances not to mention as has also been brought up as the sea afternoon act he actually sent by its function in this particular catch basin it has to be depressed in ground to drain water it has to be so there are allegations in this complaint that we had a duty to grade the area to make it level well if we do that the catch basins absolutely slips rather than constituting an unreasonably dangerous condition that differential between the soil and the lid is something that prevents an unreasonably dangerous condition from occurring in residential flooding roadway flooding so that you know with respect to duty your customary conditions can not serv to constructive notice because i think that's an equally valid point on which this particular summary judgment ruling can be affirmed there is the absolutely no evidence that there was ever a complaint or a service call service request to come out city and do something about this catch be sent we have to also be there are no known claims of anyone stepping into this catch basin and injuring themselves in forty some odd years  existed out there so you know i have to ask we have to focus on the particular de fact that's being alleged and that's this notion of even though there's no evidence to support it gradual subsidence how is that something that's how is that something we're going to be able to see and then there's no evidence from anyone no testimony about how long that phenomenon was occurring when it started when it stopped how long's this condition been out there on the parkway zero weapon it's nine so based upon that you don't even if you were to find there's a duty running from the city to the plaintiff which is that you shouldn't but if you were i believe that it's that for this particular kind of catch basin we rely on a citizen complaint to prompt us to go out and and do something make a repair necessary and the reason for that is the configuration of this kind of catch basin versus your curving gutter actually signs which are more modern design new were streets and the testimony of record is that those catch basins cost more easily so the decision gets made hey if we if we if we gotta clean these off we're going to go for those because they cost whereas the grass surrounding the others keeps them free of debris and that is a discretionary policy determination that i would submit qualifies for immunity not nor did he appropriate appropriate it were control the result purposes procreation or control requires an affirmative conduct or act on mr king's part which prevents the public v of the of the tenant the landlord in our case here we don't have an invite so that's the status of of the plane of this completely different secondly the smith case involve the matter  manner so for those reasons i do not believe that smith lives furthermore the question smith was very limited i'm just going to quote from the decision the court says central inquiry in this case is whether a landlord owed that plaintiff testified at her deposition that she stepped on leaves and what she assumed was grass because the grass was high that's her that's her testimony on page three twenty four three point five ok thank you is there any if it if it did say ten point five six inches below the grass level there could still that easily be once grass there because of the depression sitting he also stated there was no testimony regarding that however there was testimony that he did point out  deposition of this miss hollenbeck and i there was also not favored that she submitted that she later went back to see where she entered yourself and that there was a cut clumps of grass didn't catch it now as far as the city of to briefed previously discussed that there's no standard for what permissible for a catch basin however as counsel pointed out she said that and i knew that there was something in the in the record but i can recall if you asked dentist present testif that usually these patients that six to eight inches below the surface and i would suggest that ten point five six inches is not six to eight inches there is testimony that it was deeper than sixty eight inches from two from the point and from