it's actual life believe but i think well what they did in one instance would it not if we agreed with here people here well i guess would be the same as a case where there's a hole in the gutter i mean why should somebody twenty four hour days melting water falling off that road and landing that's not part of the bending mother nature nothing to do with it once that's over also mother nature nothing to do with the fact that there's no got around you know mother nature did that with that cumulation you directed the water this building directed the water right in front of a vending machine or people are invited to come and buy a soda so no it's not unusual for people age and and what if the water what if the sidewalk were wet and moving his feet somehow he trips there's oil on the ground nothing happens he's slipped on ice coming from the gutter on all those weather conditions that's the most reasonable explanation and that's what circumstantial evidence and that's wh and the media thing to do at that time was focus on a necklace for cover reasons one is consistent with the judge's ruling and it was there was nothing new that was presented at the end of the trial same case the same argument and i didn't want to give two sets of instructions that are consistent we want to we want to have this set back or trials with can answer these questions we're talking about these factual issues and if you decide that this is not an appropriate case for negligence instruction then we should go back and try it with a direction to do it under the premises liability the motivation with the motion i understand your motivation it's your motion the judge granted it yeah well we say cases where i mean the key thing is is to this fundamental motion to dismiss is different the motion to dismiss prior trials different from the director's assessment of the case once all the evidence is has been presented as we are most dismissals after the trial  death from the plaintiff's own testimony he said it was above freezing at the time of the accident he never saw any ice in the area where he fell and as you point out it's their burden of proof it's not our burden to out the dubious nature of that testimony to begin well it's not helpful unless you are then in your brief arguing to us that this really was incorrect and here's why objection to point out that i guess that that was preserved if i had chosen to do that to point out the devious nature for you of that testimony it points out nothing at all ok i mean it would be an interesting observation if in point part of your brief you want me to list that he's objections you made that were overruled were even were incorrectly overruled and that this evidence that was presented should have been properly considered true from your head nonetheless you can still affirm on any basis in the record for what we can but there was no the veltman of the arguments that these things were properly done i would develop them further by saying that speculative apply because was built before the ordinance was passed yes and there of this part of the objection is there was the entire ordinance was not placed into evidence there was a fragment of the  before him so that they can create a nuisance here for the void and what about it the answer is we don't know because the plaintiff didn't put that into the record to help us establish whether this was pertinent or not wording of the statute it says maintain not placed or hung a new you know they say it's like if you've got them i mean we don't even know if it's a public safety concern or if it's a valu was above freezing so water's going to be flowing because it's above freezing yet how can we have ice in there now mr walters urges that the only logical conclusion from that is that it's  silly the space beneath the actual roof it would be the same temperature it's not good and the same as the outside in the air so there's no heat source within the laundromat that's causing anything to melt and run off so what about what about that i mean were sued for ice he also testified that the pavement looked wet and he also testified that he never saw eyes in that area but for some reason it was slippery his ice or necessity in your judgment for him to prevail as opposed to just it's water dripped through the roof and there was it was wet where the machine was where the point of so i think it i well you know we see signs on the highways is british freezes before the roadway and all the rest of this right where point where it's maybe above freezing but not  towards sustaining their burden of proof but we're left to guess is that his hormones and milk cause birth you know there's all this stuff you know some people think yes some people  then i didn't face the exact confusion that comes about when you allow each theory to go and i don't think it's proper and that was my main second point beyond factually not proving legally i think it was wrong of judge to indicate early i think it's wrong for him not to smith's the simple negligence count earlier because i think that under the supreme court this is told us time again the natural accumulation so if it's simple for element negligence that doesn't include the element of knowledge it doesn't include the element of a natural accumulation and  and i don't know that it's basically you would be creating a duty a common like duty if you would rule that way that all buildings have and i don't think that's i couldn't find a case that spoke on that there was one well my motion to dismiss and then to not and i can't remember it seems to me every visit that it's another point that was denied so i understand as the court pointed out that that was his rationale in dismissing it element that's within it you in the exercise of reasonable care should have known of both the defect and its danger and two that the accumulation of ice and snow is unnatural so those two items would be omitted  what those logical inferences were i disagree that there were any logical inferences that support well he says there was water dripping from the building it was other condition there that was slippery somebody had spilt antifreeze there from there are before perhaps it would be the slippery for an e m t as it was for him so it's your position  the place so it had to have focused on the ice issue with what's what's stunning to me though is that there seems to be some question about how this ice that you bring to this is such a common occurrence you know happened ten million times in this city in the last point to establish that ice was present as far as i slip therefore it must be impressed i don't have a photograph that's why i have to rely on circumstantial evidence but i'm i'm stunned that anybody would say this is not a reasonable conclusion having spent what happens so and the and the ordinance we're not arguing the ordinance requires of gutters be put on the building all of the public policy issue here if you decide