one is that the most important issue in this case is that we are not talking actually about a foreign substance here we're talking about a hazardous condition and under a case involving a hazardous condition the case law that we have cited indicates that no notice is required because the because menards in this case already knew about the hazardous conditions so the issues of actual notice and constructive notice dissolve the second issue that i'd like to bring up and like to discuss is judge kendall's ruling in the coffee case which was within the last year and in that case judge kendall distinguishes as a party case the donahoe case with the coffee case since her ruling on the district court judge kendall i believe was appointed by designation to hear to hear a case and a case that she actually wrote the op in an interesting coincidence of fact this is a party case that was relied on heavily by judge rowland really is not applicable to this instant case it had to do with a foreign substance on the case that had to do  with with water on the floor which is something that could evaporated was a temporary condition and in fact all the cases that we've been cited by menards have to do with temporary conditions what we're talking about in this case is a planter that was a that was built it's a very large planter sixteen feet long eight feet wide three and a half feet tall that is right beside the exit at menards store where mrs p trustee left just before she fell approximately fifty feet from the exit the planter is filled is big enough to accommodate a tree and a bush the top of it is filled with river rock river rock is in fact a product that they sell in the store in this particular little round river or us i mean round but but her curves curl yes judge but there but the testimony is that the river rock is is in very shape sometimes it is that is that what makes them dangerous the fact that if you step on it you know it may scoot out from under your foot yes they roll and that's precisely what happened in this case is  stepped on the on the rock and she rolled her foot fell down and really the essence of an arts case was the fact that the supervisors if he walks around all the time and he never  it saw the rock yes judge right and that's very similar to it to the just go case that was cited in our brief because they recognized that there was a hazardous condition in this river rock so they're always patrolling the further there's a separate exit for the store for people that are getting large items like a big river ox now they have to use that platform probably that cart thing yes because of the weight because of the weight of the rocks that would be right so there was a regular in the summer it was a regular inspection was it at six am and ten am or six a or ten am or my understanding is that there are regular inspections i believe the testimony is that mr kraus who's the store manager gets there in the morning he makes an inspection and the other people in the store when they come into the into the store from their cars take a look at the parking lot to see if there's anything there just in the morning the but is there some afternoon i believe it's an ongoing process it just it is in the jesco case that was mentioned with the pizza that was fine when they about the issue about the method but it's the method that is dangerous and in this case we're saying that it's the planter that is trading this hazard and i think it's the inference there there was a  trotsky stepped on is in fact a rock that came from the plant or that was there how does it come from the planter i mean it doesn't jump out of itself so this is the kids pick them up and throw them around it's a possibility because they're there one of the the assistant manager the front manager testified rodriguez testified that they had she had seen children and playing in the in the planters and they do have to replenish it from time employees under his direction and effects read reviews testified that when the landscapers comped to do whatever they do with the admen are they if necessary they replenish it so the rock is going somewhere and it's reasonable to assume that it's going on the parking lot and it's also reasonable those i think the foreseeability it's easy to first see that an accident like this is speech trustees action is going to happen it's just a matter of time and it did and that's what and we're saying that there is that there is an inference that miss that reasonable inference that mrs pugh trustees step down in fact when these river rocks and that we should at least be able to take this case to a jury and let them make the final determination as to liability and of course the extent of likely have to have another replacement done down the road she has a permit disability she can't lift more than ten pounds when it wasn't what was the nature of the injury she fell down on her right elbow and  she broke the radio contact on the album she had to have a they initially tried to put in a some sort of a device that would allow her elbow the work that didn't that didn't make it they had to put in ligaments the ligaments  that that did not work they punctured her long as or as a result of putting the ligaments and when she wanted to have to see the doctor about the punctured lung the contraption that had been put in popped and it and she had to go in for a complete replacement part of the replacement that was put n became infected so the whole replacement had to be removed she had infection was gone and they had to have another replacement so how old she was sixty three  is posing ahead however there is no evidence that at any time there was ever any reports or complaints of rocks in the parking lot of rocks falling from this plant or of people tripping or slipping as a result of rocks or having an incident regarding the planter either because they fell into the planter or what have you with regard to your honor's question with regard to the rocks going somewhere the t estimony from mr prouse was that in the spring after the wonderful chicago winters that we all endure the planter would generally look like it needed to be replaced and replenished as did most of the greenery around the menard store area because there is settling that can occur so therefore there has been actually no testimony that the planter was at any point over filled as council remarks in his brief nor has there been any testimony that the rocks rectally falling out of the planter all that we know is that mrs petroski her husband came to menard they bought some items from an art they exited the minority the planter according to the various witnesses testimony is fifty to  hundred twenty five feet away from where she ultimately fell she and her husband were walking on their way to their parked vehicle they were in the driving lane of traffic and she fell after she fell she straightened her leg and she saw two rocks on the ground her husband picked up those rocks so no one else saw them on the ground prior to her incident at all or after her incident there was a gentleman named the gal guzman who was loading drywall in his vehicle he estimated that mrs petroski was approximately four to five feet from him at the time that she fell he didn't see her fall per se but saw the motion of someone falling and turned to see what had happened he said that he specifically uses this minard store because it is caps so clean and because they keep it up so much he saw and no rocks on the floor and his explanation for how these two rocks could have come to be on the driving lane was perhaps they fell from a customer's vehicle from the tire because they were so small they would have fit in the tire rut and since menard sells home improvement items and sells things to contractors it was a possibility as far as he felt to be reasonable that they came from a customer's vehicle so that is why your honor it is our belief that the district court correctly held that this incident and the allegations here and are based on speculation guess and conjecture this case much likes to party or kimbrel is a case where the seminal line of illinois cases where one must present  t an example that it is more likely than not something is caused by x so so the testimony of the manager yes means thank you this plant mr cripps well what was the reason why  inspected because he expects everything on the property that's part of his job his job when he enters the property i should address this my politics for not addressing it sooner when mr kraus arrives at the property if he's not the general manager that day the next person below him the assistant manager will act as of the general manager whoever is acting as the general manager every day when they arrive on the store is first taxed with walking the entire premises parking lot included and making sure that everything is an idea is in its proper place and that there are no tripping slipping falling hazard anywhere he then throughout the day relies upon the menard carry outs and if you're not familiar with the race carry out to the people who are employed to go out and fetch grocery to retrieving these items with making sure that the parking lot is free and clean from debris aside from the manager making the walk every day and the carry else the team members which are what menard calls are employees team members parked at the very back of the parking lot and come into the store they are tasked with when they come into the store and when they exit the store again on their path back and forth to their vehicle checking to make sure that there are no hazards in the parking lot at no time on fell or in fact in the past were there any complaints that someone had reported rocks in the parking lot debris in the parking lot tripping hazards in the parking lot anything of that nature i hope that answers your question and what size you would say that could be in the wheel room what size were these rocks they are they were estimated to be well first of all you actually can hold them both in your hand so if you were to put them in the palm of your hand they will both fit there they have been estimated to be no more than an inch and the record should you wish to go back and review i apologize the photographs of the rock are at document number fifty one page forty if you want to go back and look what the testimony is that the rocks actually fit into the palm of mr petrofsky is he and i told them myself i have no reason to contest that and they are about an inch way if you are a the point the mr guzman was making was if you are driving a van or construction truck they would easily fit within the tread of that tire and then i believe is where judge rowland was relying when she issued her memorandum opinion and correctly found that there are a multitude of possibilities as to where these rocks came from and none of them are more likely than the other in all of these instances the rocks could have come he's even admits that there are multiple ways in which the rocks could have come to be on the ground they could have come to be on the ground because they came from a i'm sorry your honor i'm trying to be as entertaining as i can  the rocks could have come from a customer carrying a bag in which the rocks fell a customer could have taken rocks from the planter itself and walked them to their vehicle a child could have dropped these rocks what i want the courtroom member  this case is built upon one assumption after another first that mrs petroski fell on river rock next that the river rock came from the planter next that the river rock came from the planter because the planter was over filled next that the river rock came from the planter because the planter was overfilled and the rock fell out of the planter now next these activities happened on a frequent and and relatively frequent basis so menards should have known next that this happened on a relatively frequent basis and somehow as you want to point it out these rocks travel fifty to one hundred twenty five feet into the parking lot and we are not talking about a series of rocks or a shovels worth of rocks we're talking about two rocks sitting together on a parking lots or now according to the i will probably mispronounced this case name so i apologize i say her to charge the store with constructive notice upon would place the store with an unfair were quire ment of constantly pretrial and i think that's what we have here we have an issue where there are no prior complaints there is only speculation guess and conjecture as to how these rocks came from if in fact they did this planter and travel to the parking lot and in order to hold menard responsible then  damaged we're not here to debate those issues we're not here to debate her age or her loyalty to her employer we're not here to debate the fact that she has gone through many a many more medical procedures then she should have store it happened in the parking lot with two rocks that there is still a question of fact as to whether they in fact fell as a result of menard's negligence for all of these reasons we believe that the district courts summary judge granting summary j aude judge just a few points i would make all the five cases that we've cited in our priest are all cases where it was a first instance it in each of those cases there had not been a previous problem the testimony as to the  amount of feet from between the incident and where the planner was was anywhere from a hunt from fifteen feet to hundred seventy five feet judge rowland basically weighed the evidence and made an average and came up heard something like an average at about fifty feet and in fact i believe judge roll one was weighing evidence which is not her role in this place and this on a motion for summary judgment and that she must take all of the evidence and a light most favorable to the to the plaint nonmoving party ob the rocks that we're talking about had actually been photoed on the spot on the spot menards came out immediately all this was done within fifteen minutes of the incident it's totally clear as to what happened  according to the geologist that inspected them fit together so that the two rocks were probably as one rock which would have easily cost somebody to roll let me ask you this in terms of refilling the rock planter i should've asked coun was there any evidence other than that like once a year when winter was over and according to her rock sunk into the you know sunk into the planter that had to be replenished then but no other replacements was there any evidence no the replenished not the testimony is that it's replenished routinely it's replenished whenever it looks bare and that would be a determination either that was made by krauss the manager or by somebody that has under him  worker there or also by the landscaping that comes out so that three peat two people testified as to the replenish one of the rock which is done on a regular basis is the replenishment necessary because people are stealing  judge that why exactly the replenish meant it takes place it is i think it is a matter to be taken up by a jury and that's what we're asking for is that this case that the ruling from judge rowland be reversed and that we have