good morning your owners would you like me to begin yes your name is james bond guests and i am the attorney for richard barry who is the appellant in this case and we're asking that you reverse the district court  order granting summary judgment against barry the basis of the primary base is it not the entire basis of the of the district court's ruling was  that barry knew of the condition on the floor that caused him to fall in the court seemed to rely entirely on one piece of evidence that i'll talk about that i'll argue is ambiguous and confusing at best and disregarded other evidence that was unequivocal and indicating that barry did not know of the condition prior to  statement that was taken at some point after the accident of course after the accident but the corpse stated it was immediately after the accident which which is definitely not true because this statement goes on to talk about medical treatment that barry received after the accident it's actually dated zero the statement is dated thirteen two thousand and seventeen s i'm not sure what date it was actually taken originally i thought it was january of the following year and any rate it was not immediately after the accident and the statement is as i said it's confusing  there are it's about three pages that paragraph the nd paragraph is the one that's relevant where the where the court inferred that barry actually knew about the water on the floor  but actually if you read the statement if you read that paragraph in its entirety it's not clear when he when he's referring to you when he stated that i was going towards some flowers that are extremely beautiful and i unexpectedly unexpectedly began losing control of my footing resulting in my footing slipping and no longer contacting the floor under myself i quickly and uncontrollably fell backwards down toward the floor i intentionally grabbed the handle of the shopping basket which i was using with both hands and a tent to gain some control at least lessen the impact of the fall i instead pulled the shopping basket back on myself during the fall i apologize for causing problems and this is was aboard apologize for causing problems and then in parentheses i was unaware that the complete floor lighting was extremely well that was standing water to me the floors appeared to be just have i did not realize how wet the floor laying was at that's on until i noticed while sitting in the chair provided that my entire backside clothing was completely wet and so i didn't and this is important i did not report this trouble and doesn't realize at that point that there was so much water on the floor that caused the fall and that's why i noted that he also indicates in that statement i did not report that helps of this observation to the manager gent can i ask is the record show what the flooring was i mean if it was on finished concrete rough concrete it's one thing if we're talking about some kind of artificial you know when he caught my mother would have called that lawyer will know him but anyway so the question is seriously any information in this record about what the water was besides the fact that it was a floor the only thing in the end the record your honor it i believe is the two photographs that were that were presented as evidence by the helli which which will which should indicate what the floor looks like and why the answer your question but i don't think there's an actual description that it's concrete it's  looks to me like it's the garden section of the store and it looks to me like it was there was concrete and supreme court that says when their condition is open in obvious to invitee is not a question of fact it's an object if determination if that's the case if it is if we determine from the only and had like an orderly appearance it wasn't just water on the floor i don't know i couldn't find any case law stating that just water on the floor in and of itself would be open obvious and open on his condition as far as what there is no case and that says this is open obvious this is not open an obvious answer is a question i know that in those in those cases that have been cited it was a lot more than just you arguing that the material dispute a fact is should say aren't you arguing that the material dispute a fact is between your client's incident statement which we've already referred to  don't think was addressed by the court at all which was that deposition sworn deposition testimony well we're in the storm and the court rely on it a dispute of fact that's created by the party itself himself point it would be a question for the fact finder of the judge i think it would be a bench trial or the jury to decide which to put put more weight on the two statements and again one of which is ambiguous and open  her interpretation and then you've got the sworn testimony where he's asked quite simple a were you aware of the water prior to fall and and the answer  testify that he even been there many times in knew that the eight he knew that they watered sometimes because they got plants and flowers he'd never seen water on the floor because you can water plants with how can water on the floor and on this particular day he did not and this is it's really what he did not see them watering in the area where he fell so he had no reason to believe that there was water on the floor d and again he stated unequivocal is is solely that you got the two photographs which which i believe it's hard to really see and my opinion how much water is there it looks like there sunlight on the on the ground kind of reflects it's difficult for me to say and then there's barry's testimony that his clothes were soaking wet once he was sitting in the chair that they provided don't which would indicate that it was at least th appellee i'd like to start by pointing out as this court probably already now has an there's several this th circuit cases that say the port can affirm on any basis that was argued that was pleaded and briefed to the district court and not just on one issue that the court may have focused on in the opinion and we believe there's a number of of reasons that the  report's opinion should be affirms just to give a roadmap we think that the reasons that the should be affirmed are because the summary judgment evidence establishes the matter of law that the of the water on the board it did realize that was their nd we believe the evidence as a maryland showed that he appreciated the risk that the water would be on the floor rd we we do believe that the water on the floor was open and obvious copies i believe even in the paper copies it's very clear to see that you can see the water on the floor it does appear to be a concrete floor and then when you look at the electronic photos you can see it even clearer than on the  they're printed off and so we believe that those photographs provide evidence that this was an open obvious condition and texas it's also clear that there's no duty for a landowner to warn of a condition that's open and obvious in addition further evidence in the record that the condition was open in obvious is that  and statement so there's as you've heard there's argument on both sides about what that statement means and whether or not it's in the us but even if you were to read the statement by the interpretation  then what he's saying is when he's sitting there now he can see that it's not just change it dampens a lot of it's a lot of water so his own statement regardless of the timing of when he makes that observation is evidence that the condition was open an lisbon that own a start by pointing out we believe that there is a disconnect between what was argued to the district courts and the evidence that was presented to this report and now the arguments there remain the court of appeals and the evidence is being relied on in the court of appeals so during the summary judgment phase lowe's put on summary judgment evidence st starting with mr barr deposition testimony that he visited this lawn and garden area all the time he testified that he generally knew that they watered in the lawn and garden area before that day in question and he also testified that he saw lowe's employees watering in the lawn and garden area on the morning of the incident or he says not in the exact area where he fel he says i was unaware that the complete floor was extremely wet with standing water to me the floors appeared to be just stale i did not realize how wet the floor was at that time until i noticed while sitting in the chair provided that my entire backside clothing was completely wet and soaked and so we believe the way that that is worded only leads to one reasonable interpretation and that he's talking about what he perceived did not even address the written statement he much less tried to proffer some alternative interpretation of the statement he never references the written statement at all in his response to the mission for summary judgment so this is all new argument  court of appeals that somehow the district court misread that statement or it could have been interpreted differently and so is one of our contentions that that that argument's wave because we don't believe you can bring up new theories or new  issues on appeal that you didn't present to the trial court so that's that's one issue second is the evidence that the appellant relied on in the mission for summary judgment breaking the district court is different now than the evidence that's being relied on in this part of feels it's all in the record but i want to kind of point this out in the summary judgment phase in the trial court appellants and this is the record on the pill that whole exchange is it says and you were aware of that prior to following correct answer no ma'am i was not aware that where i felt i was not aware that they were watering in that area question and i just want to make sure we're communicating correctly answer yes ma'am question at the time you fell you didn't know at that time they were watering in that area correct answer that is correct question but you had seen them prior to follow up prior to following answer yes ma'am i'm sorry if i appear to be difficult so that cited testimony in the district court only shows that he didn't actually see them watering in that and eighty seven and it is citing his deposition page forty four line twenty four through page forty five line five and when you read that portion it's all about his cane has nothing to do with whether or not he saw or perceive water in the lane so during the mission for summary judgment briefing they did not present any evidence in support of their claim that he did not see of the water other than those two portions now they did cite page fifty one dollars through nine of his deposition which is the part they're relying on now in this court of appeals to try to create a fact issue but in the district court they didn't  that for the proposition that he didn't see the water instead they cite that for the proposition that and i'm quoting it is an unreasonable risk of harm to have water on the floor of a store particularly in such a large amount that it would soak someone's clothing if they fall and land in it in quote now while that may seem like a technicality what i'm arguing i really don't believe it is because impracticality when a district judge when he just that issue and so and so we don't think it's proper so now in the court of appeals side to different evidence and they were citing to the trial court for that reason burris even if even if that evidence is a conclusion here between his written statements the photos the fact that he admits he saw them watering in another portion of wanting garden area that day we believe that the evidence conclusively shows that he actually knew of the water or at least appreciated the risk and that the chill crest case that we cite talks about you don't have to actually know it's there if you know that it's likely to be disregard self serving testimony given by a party when it's in contradiction to the other evidence and the court doesn't believe that it raises a genuine issue of material fact and so we believe that applies  fall caused the injuries of which mr barrett's complain the evidence shows that there were many previous tng injuries prayer back surgeries herbal terminal diabetes and he was already walking with a  cane at the time of the instance and under that under the political case law you were required to have medical testimony saying that within a reasonable medical probability the incident caused the injuries depositions those one of the doctors that was deposed so it was four lines of testimony and here's what it said question now i want to ask you dr where the injuries that i'm sorry what the condition that you diagnosed mr berry was it consistent with injuries sustained in the fall and the answer is yes so the only evidence in the record at all regarding her as a nation is one doctor saying that they were smith versus lady's landry's crab shack which is the texas court of appeals case out of houston and that case the doctor testified it was it was a case about food poisoning essentially and the food that many foods can be a carrier for such bacteria that different bacteria have different you base in periods before a person begins to experience symptoms that starting to experience symptoms with them five hours of a meal and getting sick enough to be admitted to a hospital within about ten hours a mill would be in reasonable medical probability be consistent with food borne food poisoning and then the most common time period in which symptoms of foodborne esther and sure itis normally manifest as within twenty four hours and it can be a special couple hours and although it's possible that the plate of had food poisoning from some other source th food poisoning was more likely that she had food poisoning searing the clinic it was more likely that she had done it from this restaurant and even in that case the poor appeals on that was insufficient evidence of causation because there was no statement by a doctor that within within a reasonable medical probability the condition was actually caused by the eating the food at the restaurant here we have way less than that here all we have is that the injuries could be consistent with a fall and so we think on that the she argued that we did not argue to the court to the district court and our response of motion for summary judgment that barry did not see the water i did make that argument i drop to that response  and i did argue to the court that he did not see the water i did cite the record from his deposition where barry stated that he did not see fell there was water on the floor all the time they had to wear special shoes there was also some sort of chemical d that was often on the floor that made it slippery and they were told that the floors the very completely different from these facts where  where we've got a store that's open to customers of all walks of life some with disabilities and obviously nobody is required to wear special shoes or anything this floor is not supposed to be slippery  and and so i think it's easily distinguishable and then finally i will address causation even though the district court did not address it at all it just didn't it didn't get to that but th common knowledge and experience can make the connection between an event and injuries which for example a car accident causing back injuries and in this case a slip and fall accident causing injuries now they can you know perhaps argue at trial that some some conditions might not be as stablished without sufficient expert opinion but not certainly not all of the damages so for that reason that we've asked that the summary judgment not be upheld by that issue alone and i'd be happy to take any other address any other questions a court might