side save some time for rebuttal we don't have a case here for you and if we unduly harass you with questions we might sort of wink at the time restrictions the microphones are for recording that amplification so keep your voice up ok tha soto's compete in attention to where he was driving was not foreseeable and for this reason the city is entitle to judgment notwithstanding the verdict alternatively the cities entitle t j n l because section three one rule for the tort immunity act says the city from liability for failing to initially provide traffic traffic control devices and that's precisely what the jury's verdict attempts to do in this case on  to where he was driving was not foreseeable as a matter of law the jury didn't agree with their contention that it you know when the jury was presented with with four specific theories of viability and i was thinking about the cigarettes or another one who looking at a billboard or listening to or singing along with music on the radio isn't that part of what is expected unfortunately of most drivers as a matter of law he reached for a pack of cigarettes and slipped off his lap it's not like he was clipping his toenails i mean why this strikes me anyway as sort of garden variety in attention you could come up with fifty s simple ways of being inattentive in a car the seems like it's one of the more simple and casual one something slips from your lap and wasn't tensional acts such as dialing your telephone or texting  or you know any of the other things that people try to do when they multitask unfortunately while we operate motor vehicles if if this is on the side of unforeseeable behavior car and he reached down to pick them up and he physically reached down so far that only the top of his forehead was visible through history will he this project the underneath the dashboard and that is that spread it was doesn't mean that it was instinctive in this case the oil but i mean the arguments that you made a trial and the arguments that you make in front of us here as they relate to his conduct make it seem like this is the most unforgettable intentional conduct that a driver could ever engage him and all we're talking about is the scene traffic coming out of your peers to the right see something feel something goes off left in this instinct is to do something that doesn't seem to be as horrific intentional and you know i'm forseeable is what you might claim respectfully i disagree and the cases of illustrate what type of  negligent enough that it's unforeseeable for example in the no danger case that that was a pothole case the court concluded that as a matter of law it was not foreseeable that it driver would seek to avoid a pothole by driving into the wrong lane of traffic that that negligence was and percival similarly in this case even though that was a duty case that the analysis focused on force it foreseeability there as well the court c workers had set up safety cones around their vehicles they had strobe plates on their on the top of their trucks mr certainly never saw any of that when he approached it before the accident happened and that indicates that he was so i to where he was going and that degree of that degree of negligence is not forseeable as a matter of law in the few cases where any intervening act of negligence is deemed foreseeable typically there isn't a direct link between the defendant's conduct and the third party's negligence so for example in the bentley case that was a case involving a city that failed to clear foliage that had obscured by traffic sign at it at an intersection and a driver in that case negligently failed to recognize the presence of that intersection so there was driver negligence the court there said that that driver negligence was foreseeable because there was a direct link between the failure to recognize the intersection and the failure to warn of the presence at that intersection similarly in the leak case the c t a negligently fail warn of the presence of a third rail and the descendant in that case negligently fail to realize that the third rail was there so again there's a direct link between the third party's negligence and the defendant's kind of is it foreseeable to a motoris that the city would have a system set up with barricades and flagman and then they would go to lunch and take all that with them and leave the road situation and otherwise like it was foreseeable is that well you  in this case in fact there's there's no evidence that edge driver x exercising just reasonable care would not have been able to return to his or her proper traffic lane there is testimony that other cars used the wrong lane to avoid the partial obstruction on the walkie ave and there's there's you have it is day one had any difficulty returning to their listening isn't that part of the problem though that there was no guidance to the cars coming from the other direction either so all of a sudden so coming out from underneath a by a doctor from dark to light cars coming at him and they weren't being directed away from cars that were being diverted into their lane by the city by the trucks that were parked  of was reporting so from both directions it was a problem well your honor that's the way you described the accident is how it happened however the conduct that needs to be focused on is the way the asker sort reacted to this situation and there are other cases where drivers have argued believing faced with confusing situations for example in the quintana and in the kirk cases both of those involved in operative traffic light in those cases the drivers saw that the traffic lights were not working and they drove through the intersections anyway and cause an accident with so is there was a there was an expectation that especially following the other are that it preceded mr soto's that that this was the way you were supposed to react to being confronted with the partial or  blockage of the south east bound lanes and so when you when you highlight the fact that other people negotiated this without having a problem we don't really know how many of them were confronted with an automobile coming directly at them in the same line as we as the record indicates occurred mr so that's true your honor and it but the key conduct here issue that was not foreseeable was the way that mr soto handled the situation that was in front of him and when he was confronted with a car approaching him when he was in the wrong lane of travel he responded by taking his eyes can clearly off the road to bend down to the floor of this car to pick up a pack of cigarettes there was a question by trial counsel for the city asked of the plaintiff actually when talking about the fact that the city's workers are supposed to be out for a half hour lunch break they phone enough some documents to make it look like they're only going for a half hour but in fact they were gone live longer than that and the question was lunch rules are meant to be broken aren't they mr martin only you remember that yes or no wouldn't the same be true for the rules of the road that it's sort of there meant to be broken people go through red lights every day people you know take their eyes off the road women apply makeup people small coffee on themselves these these things rules of the road are meant to be physically blocking the access to the work area you've got flagman author and then everybody takes a powder and goes to lunch that sounds a lot more negligent and somebody being confronted with traffic when they had a very right and reaching for station or to turn on and we should lifers this was a sustained period of time when he was not looking at the road and that is so far outside of what the city could have expected of a driver when  confronted with this kind of it situation or expert gary cooper that testified that there was all of three and a half seconds that he had to react to this to do what he did all of this taking place within three and a half about you know we're sure absolutely the jury was presented with four different theories of liability we don't know specifically which theory or theories the jury relied on while reaching i specially on air with respect to the section three one zero four issue it is immaterial because each of the four issues that was presented to the jury each of the four theories implicates traffic control devices in it consistently argued that whatever traffic control devices the city at one time did provide the should have provided more that whatever they provided was  inadequate so almost all of the plaintiff's evidence regarding traffic control devices came through the testimony of their expert but i think they're saying that they should the all the traffic safety should have gone out to lunch didn't come close to what he thought was necessary he talked about the permit that was that they pulled for talked about the manual on uniform traffic control devices and the city department of transportation all of these different things which clearly the  city didn't even get nearly close enough to comply with those but the stuff that the city had in place when its people were out there before they all went for a long lunch they have clearly could have had an impact on making things safer could it perhaps your honor decision to take away device is also in the united center section three one zero four but you're leaving that the dangerous situation still there at least some kind of a hole has been put in the paper a couple workers are out there and disputed testimony but there was testimony that the ram home driver or operator got there before the accident happened and was already begun his work and the barricades and the flag when you know the is the foreman of this case testified that in his judgment when his men were not in the street doing work that the traffic control devices that were at one point provided were no longer necessary what about the manhole cover being  happen they had no date they had no way of knowing whether that manhole was going to be open or closed during the time that they were out at lunch with their extended lunch i suppose that's true your honor at the s p c workers though did have their own dreier believed at the time he made his decision that the the safety measures that were in place at one point he was expecting another city worker the ram home driver at some point his only one was at the he was i'm not i'm a lot fuzzy about exactly what he thought when he thought the ram motor i was going to get there but he certainly called program her driver and he knew that was coming he knew they were all going to lunch he didn't know when the rameau driver was going to get there the grandma driver is a city employee wouldn't logic tell you that some city damage prevention should be easier when the ram home tribe or is there even even excluding mr martin only well your honor it could very well be that in retrospect applies because we have in you know just in this case been a case where involving construction projects we have often in fast changing situations where workers are present at one time but not at another and it different times different traffic control measures are required ok but don't the two power ceases the city department of transportation the m u t d c policies say riled this construction is going on these are the measures that must be in place so doesn't that impact on your whole immunity argument you're saying that notwithstanding those two policies that come into play whenever you're cutting into a street we can just say willy nilly we're not going to pay attention to traffic safety devices when we go to lunch even though the policy say as long as there's construction going on out in you they're coming back into the ammo driver was going to be there and at least some of the workers knew whether mr dwyer knew or not that the s b c guy was still there so i don't see how the two policies don't interfere with your immunity argument well you're immediate or section three one zero four is absolute and it applies even where regulations are statutes statutes are not complied with so even that assuming that there is the noncompliance that you talked about immunity still applies in this case what did the permit require the city to do in terms of maintaining vehicular traffic while the work was going it was fairly open ended yury i think it you know what words wasn't to close the road down there were no right or going right and left it left discretion to the foreman of the project to ease his best judgment to maintain  and the foreman for the project was a man who testified several times that he didn't recall being at the job site there until after the accident happened right that was his recollection yes but he also testified that when his men were there before launching he instructed them to barricade and put the flag  had this or i would have had these trucks in place i would have had people in the street i think he was referring to his with his general practice was and so whether he was there or not by his recollection that's the case that was cited in the ep we brief and how you would argue that we were not bound by the governmental enter insurance exchange versus judge when they talk about the no passing zone ye being of the change after this why does that not doom your community argument because that case involved the erroneous placement of it of a single traffic control device and that device with the centerline of that road this is not any rony its placement case this is a case where traffic control devices just were not provided at all and so for that reason  traffic control device in place until they were finished with the job as as necessary according to in the judgment job of the formerly say as necessary with removing them for lunch but that was that appear t removed responsibility for the city i simply want to emphasize and a point i would like to start with council's own suggestion of what happened counsel said this was not a situation where somebody or somebody reached for a radio station and i would agree with that and that's the distinction here if if the court thinks that there's some doubt about whether or not mr saltus conduct was foreseeable or not foreseeable i would ask the court to keep in mind that it was not self directed or intentional conduct his con was rather and think the reaction to something the best example i could think of and it may sound silly but i've heard of it happening your child in the backseat screams when you turn around or when your dog jumps in your lap things you don't anticipate they're going to distract you and in this situation there is also contrary to what counsel was suggesting there was a link between that and the city's conduct because it was the city's conduct in putting mr s he happened to be the person who looked up saw a car coming at him georgists whelan and the rest of it as he said had happened i think his face was very quickly split second i believe he used the term split second on a five short a period of time in the last two sentences i talk to this court when you start to think about the time that all occurred it was truly a very split second situation with respect to t the question about three of whether or not the city can i you that it was i mean here i points were i hopefully made clear in the brief one is simply that under the general verdict rule or the two issue rule we have a situation one of the charges to the jury was that they have struck to the roadway and they did that by taking a hole in the roadway and leaving it without doing what the permit set the permit said if you dig a hole you have to you know level it or cover it with a steel plate when you leave they left  obstruct the roadway and that's what caused the accident that has nothing to do with with the other elements that three dash one of ford discusses and because the court cannot know whether the jury faced it's  case is not that much different than the dealing case the court may recall in dillon one of the charges that went to the jury was had to do with negligent insertion of a catheter and the defendant said that charge never should have gone to the jury because the statute of limitations had run in this affirm and the same should be true here with respect to the question of whether or not the statue can apply anyway this was a works on with flaggers and barricades meeting the truck when they started their construction that morning it stayed that way all day mr dreier agreed the work started it had something the morning did not entail three forty five the back hall was actually working there i understand cities are going to be well we have a right to take these things down we go to lunch even if the court thought that was proper or that was a right the evidence is that the work did not stop when they went to lunch the backhoe operator apparently came later even though he testified contrary hastie said i wasn't and yet you have two witnesses who saw the back of not only mr santiago but heat the city brought out from our expert mr cannon that mr or originally said my way was blocked by a yellow back hall and it makes sense in a way because if you recall the back hall operator said i'm not part of the job these things are expensive we have to move them around so i sort of come and go during the day so so that the work was going on and the road was still blocked the testimony of the evidence was that one of the trucks was still blocking the roadway it was mr meyer now he said it was a lane and a half out so they've left and obstructed condition and in the first line of  the city said mr sort of was driving it works on i would think that would pretty much close out the question of whether or not this was or was not a continuing project and if it's a continuing project then there isn't any additional and usually putting up the signs they put up barricades that put up the wrong side but they did put the i list the court has some further questions we would rest on a brief for any remaining argument that we have thank you just a few points your honor on this issue of instinct and whether mr starr is reaching down for the cigarettes with an active instinct and therefore more foreseeable me or more or more foreseeable yes sorry perhaps it was it would be instinctive to look at the cigarettes and needy perhaps to want to go down reach for them but the actual active basically bending down so far that his head is under the dashboard that's that's no longer instinct to run or in the same way that perhaps when someone receives a text message while driving it's instinct to want to respond right away but the actual negligence b believe that there was no such direct link here again comparing this case to believe case in the bentley case both of those cases involved in everything failure to warn and the intervening is is strong enough for the city based on the purposeful you know behavior of this driver and the careful work of the city for us as a question first impression to rule that way i do think  enough your honor i respectfully don't think that this would be an issue or a question of first impression this court and the supreme court have have often addressed cases involving driver negligence i mean i know but there's there aren't that many cases where a defendant asked the jury blame somebody else is the sole proxy because the jury says no and then it comes up and the courts as you know we're not going to when i go on there i think it would be a remarkably addressed the court will indulge me i'll just read the federal instruction out loud that this city quote blocked the southeast bound traffic lanes on the walkie avenue forcing southeast down traffic to drive into the undivided northwest traffic lanes in quote that there were undivided is the essential one in there because the only way that the city could have rendered the street undivided is through traffic control devices