[00:00:00] Speaker 00:
We'll take 24-3122 Baker versus Browns.

[00:00:04] Speaker 00:
May it please the court.

[00:00:05] Speaker 00:
I'm Jonathan Sternberg, and I represent the appellant Kathy Baker.

[00:00:09] Speaker 00:
And I do want to thank the court for allowing us to present a moral argument this morning.

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And unlike the previous cases the court heard, I'm going to attempt to do three minutes of rebuttal, but we'll see how that goes.

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This case is not about whether a step measured two or three inches.

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Kansas law has never reduced negligence to the simple fact of a ruler.

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Instead, the rule in Kansas always has been that when reasonable minds can differ on whether a defect is foreseeably dangerous, the jury decides.

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The district court here erred by declaring that the step that injured my client, Ms.

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Baker, was a non-actionable slight defect as a matter of law because there were two genuine disputes of material fact

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that preclude application of that doctrine.

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First, whether the step itself was foreseeably dangerous, and second, whether bronze, the defendant's own actions in painting everything but the step, created the hazard.

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Kansas courts have recognized this slight defect doctrine since the 1930s.

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We outline the history in our brief.

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But it's always been narrow, narrowly construed, and it's never been applied as a mathematical formula.

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In fact, in the Barnett-Holtzgraf case in 2000,

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The Kansas Court of Appeals squarely held that it's not a bright line test, it is not a mathematical formula, and instead each case depends on its own facts.

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In the McCollister case in 1956, the Kansas Supreme Court divided these defects into three groups.

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First, ones that, even viewing the facts in the light most favorable to the plaintiff, are completely slight and non-actionable, that there is no foreseeable danger.

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Second, those that are obviously dangerous and actionable.

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And then there's the middle category, where reasonable minds can differ.

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And the Kansas Supreme Court said those go to the jury.

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And in the Lyon case in 1992, the Kansas Supreme Court also confirmed that the jury can be instructed on this, that if the defendant wants to argue this is a slight defect and they're viewing the facts in a light most favorable to the plaintiff, it could be construed as foreseeably dangerous or actionable in other ways, the jury can be instructed to determine whether they believe it's a slight defect under the law.

[00:02:22] Speaker 00:
In the McAllister case,

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The Kansas Supreme Court, applying this, rejected summary judgment, and I recognize it's 1956, but more recently, in 2021, in the Walters case, the Federal District of Kansas also did the same.

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In both cases, the courts held that the small defects there, and both were small defects, under the circumstances, presented jury questions.

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On this record, with these facts, that's the category we're in here.

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The step Ms.

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Baker struck on Brahms' property

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was between two and a quarter and three and a quarter inches in height.

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Studies show that, and it was 2.8 inches at the middle, and that's where it's alleged that my client struck it.

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Studies show, from our expert, that average foot clearance, and in their industry they knew this, that the cities in their own codes knew this, is about an inch and a half.

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So this is more than enough to trip a person using ordinary care, but that's not all.

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If that were all, I probably wouldn't be here, but that isn't all.

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Here, the step blended visually.

[00:03:27] Speaker 00:
It was the same color, the same texture, no cues to warn pedestrians, and applicable international safety standards, codes, including the code adopted by the city of Hutchinson, Kansas, where this occurred, state that adjoining walkways have to be flush, and if they can't be flush for some reason, they have to be marked with paint or other visual markings.

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In bronze, the defendant knew this.

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Their own insurance adjuster, Ms.

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Bateman,

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testified that they paint curbs and steps bright yellow precisely to prevent injuries, that their incident reports ask whether the thing that was struck was painted, and they knew that this reduces risk.

[00:04:07] Speaker 00:
Now at this location, crucially, and this is something the district court really didn't delve into, although we argued it in opposition to summary judgment, and they don't mention it in their reply, at this location, Brahms painted every single curb

[00:04:22] Speaker 00:
every single edge except this one bright yellow.

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Ms.

[00:04:27] Speaker 00:
Baker, my client, was walking straight toward the entrance of the Brahms location at Hutchinson at this walkway when her toes struck what she said, quote, was the little curb I didn't see.

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She fractured her leg, she required surgery, she endured a very difficult recovery, and our expert explained that on these facts, this was unreasonably dangerous and it made sense that a person using ordinary care

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wouldn't have seen this step because bronze didn't word about it.

[00:04:55] Speaker 04:
Well, Kansas law sets out various factors that the courts are supposed to consider when looking at this issue, which is considered a threshold issue for the court to make.

[00:05:06] Speaker 04:
Whether that's right or wrong isn't really up to us, but they continue to do this post-comparative negligence, and so here we are.

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And the district court pretty much followed those factors to a T.

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And it appears, I mean, in terms of going through them, procedurally, and also it appears that the facts are not disputed.

[00:05:29] Speaker 04:
I understand you're disputing the outcome and the district court's view of these facts, but the facts themselves appear not to be disputed.

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Is that right?

[00:05:40] Speaker 00:
I don't agree with that.

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I don't agree with a couple of premises that Your Honor just stated.

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First, I don't agree that the district court went through the entire analysis.

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The district court didn't,

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What did it miss?

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Sure, excepting at the outset that slight defect in Kansas is not a mathematical formula.

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They say in page seven of the brief that it is, but it's not.

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Then you can have slight defects, you can have things that are less than three inches, two inches, whatever they are, that are actionable.

[00:06:06] Speaker 04:
Depending on the circumstances.

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Depending on the circumstances, great.

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The first question is whether viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could find that despite the height of this wedge,

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staff, whatever we call it, that it is foreseeably dangerous.

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And in McCollister and in Walters, the courts held that things that were small, three inches or three and a half inches deep in McCollister, and it was less than the height of a foot, a person's, a human's foot in Walters,

[00:06:42] Speaker 00:
were foreseeably dangerous because of other reasons.

[00:06:46] Speaker 04:
Well, wasn't that a creation case, McCollister, where the danger was created?

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No, Your Honor.

[00:06:53] Speaker 04:
That's a getter case, right?

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So McCollister is the one where there's a sidewalk and a street and there's a hole that's three inches deep, which is created by over time, but it was in dark.

[00:07:05] Speaker 04:
And three feet wide.

[00:07:07] Speaker 00:
Yes, that's correct.

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Three feet wide.

[00:07:09] Speaker 00:
This is a three foot wide ledge.

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I mean the ledge is three feet wide too.

[00:07:12] Speaker 04:
Okay, well this was a three and a half foot wide hole which is quite a lot different.

[00:07:18] Speaker 00:
I appreciate that but the point in it... Quite a lot different.

[00:07:21] Speaker 04:
Well, what I was going to is there's various factors the court is to take into account and those include how long the defect existed, whether any pedestrians have been injured.

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They hadn't because of this defect other than your client.

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lighting conditions.

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It was bright daytime.

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It wasn't in McCullister.

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The relative size of the defect, we have a 2.8 inch sidewalk defect, which various sidewalk defects of that nature have been found to be within the slight defect rule.

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So I guess I'm wondering where in that analysis of those

[00:08:03] Speaker 04:
factors that the court has over and over and over again applied, did the district court fail here?

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So the failure is to analyze whether, despite those issues, there's also evidence that this was a foreseeable danger.

[00:08:18] Speaker 04:
So in Walters... Isn't that secondary?

[00:08:20] Speaker 04:
I thought that first you go through these factors and that essentially helps you determine whether this is foreseeable.

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If there had been, for instance,

[00:08:32] Speaker 04:
other complaints about this.

[00:08:34] Speaker 04:
If it was a large defect, if it was a, if you know that people will be traversing this in the dark without any lights, those make it foreseeable, and that's how the court looks at that.

[00:08:46] Speaker 00:
So I think the things that, I don't agree that Kansas works quite that way, and I know Your Honor was a long-time Kansas judge, although I know you weren't on any of these cases that the parties are citing, but in Barnett-Holggrath,

[00:08:59] Speaker 00:
I think the Kansas Court of Appeals goes through a really cool analysis where they look at all the other states that do this too, and there are only a handful, Illinois and Ohio, and they say, all right, when you apply those factors that Your Honor was just mentioning, at the outset, that's to determine whether we can apply this light defect rule at all.

[00:09:18] Speaker 00:
Then as a secondary consideration, you go to, all right, given all of that, is there also evidence from which a reasonable juror could find that this is unreasonably dangerous?

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And here there was.

[00:09:29] Speaker 04:
And in those cases, aren't they looking at things like danger creation, which you talk about here?

[00:09:35] Speaker 00:
That's our second point.

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So there are two reasons that the slight defect, or even if something could qualify as a slight defect, wouldn't apply.

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One is that it's unreasonably dangerous at the outset.

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That's like Walters.

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And Walters, one of the things this turned on was that other witnesses testified that they believe this was a danger.

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In that case, it was other people who worked for the defendant.

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In our case, it's an expert witness.

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who went through what the codes are, what the industry standards are, to determine that this is a foreseeable danger.

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I grant that a jury in the end could agree with them, but I think a jury could also agree with us.

[00:10:09] Speaker 00:
And under these circumstances, while it's not exactly the same facts as Walters or McCollister, that first factor is met.

[00:10:17] Speaker 00:
But your honor was mentioning the second part.

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And I think this is really important because the district court certainly didn't get into this at all.

[00:10:23] Speaker 00:
And this is the fact that they painted every single edge except

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this one ledge.

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And if you look at the photographs which are in the briefs, you see yellow along the curbs, yellow along the parking dividers.

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And then there's this one edge, which is this step that my client hit, which does not have any paint at all.

[00:10:44] Speaker 00:
Our expert, Mr. Fenton, confirmed that by painting every edge bright yellow except this, this is an affirmative misleading to pedestrians.

[00:10:54] Speaker 00:
One of our claims in the pretrial order

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is failure to warn, and this is part and parcel of the failure to warn claim.

[00:11:01] Speaker 00:
This is actually kind of the mirror image of the Lyon case from the Kansas Supreme Court in 1992.

[00:11:06] Speaker 00:
In Lyon, you had, it's not clear exactly how high it was originally, but the highest it ever got was three inches.

[00:11:14] Speaker 00:
It was great that the Kansas Turnpike Authority had put in a walkway in one of their rest stops in the Kansas Turnpike.

[00:11:25] Speaker 00:
The Hardees, who was a licensee and owned the restaurant and the rest stop, their employees had painted it black to make it the same color as the walkway itself.

[00:11:41] Speaker 00:
The plaintiffs said, well, I was walking along and I saw it, but I didn't see how high it was because it was painted black.

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And the Kansas Supreme Court said, well, that's the defendant's own negligence in making the hazard that way.

[00:11:55] Speaker 00:
Here it's the opposite.

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Here they painted everything else to warn everyone about the edge of the parking lot, about the rest of the curb, except for this.

[00:12:05] Speaker 00:
And our expert says that, I think pretty common sensically, that an ordinary person using ordinary care, it would blend into them.

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So this is the mirror opposite of lion, but it's the same thing.

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You can't have a slight defect when the hazard here, the failure to warn by doing this,

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is of the defendant's own making.

[00:12:23] Speaker 00:
And the district court didn't go into that at all.

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The district court simply said, well, you just said that they had a duty to paint this, and I find this is a slight defect, so I'm not going to say that they did.

[00:12:33] Speaker 00:
I'll note that in their reply for summary judgment, they didn't even address this at all.

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They barely addressed it in their brief here.

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So even if the court were to disagree with me on the first part that this wasn't foreseeably dangerous, this still was their own negligence that created the problem.

[00:12:49] Speaker 00:
I see that I'm almost out of time and I'd like to reserve some time for rebuttal unless the court has questions.

[00:12:55] Speaker 00:
Thank you, Honors.

[00:13:05] Speaker 01:
Good morning.

[00:13:05] Speaker 01:
May it please the court, Jeremy Taylor for Defendants, Appellees, Bronze, Inc.

[00:13:09] Speaker 01:
and Retail Buildings, Inc.

[00:13:11] Speaker 01:
I'd like to start off

[00:13:13] Speaker 01:
to touch on a little bit of what my friend on the other side was saying about where Brahms painted in the parking lot.

[00:13:21] Speaker 01:
Now, as we've outlined in our briefing, and I'll talk about more, we think the question of the yellow paint is a little bit of a red herring, but I do think it's worth the court taking the time to look at the pictures that we provided and they provided in the briefing and that are in the record and see that

[00:13:42] Speaker 01:
It's not as if every single surface is painted.

[00:13:45] Speaker 01:
What Braun's contractor painted when the parking lot was redone was parking stripes to delineate between where different cars can park and then areas where the parking lot ends and meets the curb.

[00:13:58] Speaker 01:
That's not what we have here.

[00:14:01] Speaker 01:
What we have here is a step that exists between the city of Hutchinson sidewalk and Braun sidewalk.

[00:14:07] Speaker 01:
So it's not as if there's some

[00:14:11] Speaker 01:
gap in the paint, and I think to the extent that the court believes the painting issue is important, which I don't think it should, but if you're inclined to do that, I would encourage you to look at the pictures and see, I think those are more instructive than how either council can describe it.

[00:14:31] Speaker 03:
So maybe you can just start with why does the painting not matter?

[00:14:35] Speaker 01:
Great, yeah.

[00:14:36] Speaker 01:
So I think it doesn't matter for two reasons.

[00:14:38] Speaker 01:
First of all,

[00:14:39] Speaker 01:
it's as we've outlined at length in our briefing here and in front of Chief Judge Brooms, it's the question of painting and whether you have to paint the step is an issue of whether there's a failure to warn.

[00:14:56] Speaker 01:
And if a defect is slight or if it's an open and obvious danger or if it's not a dangerous condition, you have no duty to warn about it and you have no duty to paint.

[00:15:05] Speaker 01:
Now that is a response to the initial point

[00:15:09] Speaker 01:
that Ms.

[00:15:10] Speaker 01:
Baker's counsel attempted to make, which was that we should have painted the step that her foot made contact with.

[00:15:19] Speaker 01:
We then get into a little bit of a moving target with both the expert and some of the briefing on how the painting issue matters.

[00:15:26] Speaker 01:
And the second point, and what I'm hearing a lot from counsel today is about

[00:15:34] Speaker 01:
the paintings of other areas of the parking lot somehow being a distraction, and that somehow changing this from a slight defect to something other than a slight defect.

[00:15:45] Speaker 01:
The problem with that, in addition to the mental gymnastics I have to get through to see how that's logical, is that the record doesn't support that that had anything to do with Ms.

[00:15:58] Speaker 01:
Baker's, with the contact Ms.

[00:16:01] Speaker 01:
Baker's foot made with the step.

[00:16:03] Speaker 01:
In her deposition testimony, she mentions in passing that she saw some paint in the parking lot, but she doesn't mention it in the context of indicating that she was confused, that she was misled.

[00:16:16] Speaker 01:
She doesn't say, I was walking to the sidewalk and I looked at the step and I saw there was no paint, so I thought there must not have been a height difference.

[00:16:24] Speaker 01:
The record just does not support that that is the reason that she was

[00:16:30] Speaker 01:
that she made contact with the stat.

[00:16:33] Speaker 01:
Now, counsel is correct that Mr. Fenton mentions this in his expert report, but if you read the piece of his expert report where he talks about painting some areas and not others,

[00:16:47] Speaker 01:
He does it in the context of truly stepping into the shoes of the jury and trying to discuss what a reasonable person would see as they approached.

[00:17:00] Speaker 01:
And that's just not proper testimony for an expert.

[00:17:06] Speaker 02:
Say that again?

[00:17:07] Speaker 02:
What was improper that he said?

[00:17:09] Speaker 01:
That the way Mr. Fenton described, let me grab that.

[00:17:18] Speaker 01:
The only discussion, so my point is not only does Ms.

[00:17:21] Speaker 01:
Baker, does the record not support, as far as Ms.

[00:17:25] Speaker 01:
Baker, this painting distraction, confusion reason being the reason for hers, is that Mr. Fenton's report, the one time it mentions this as a distraction, he does discuss at length about this failure to warn issue and that we should have painted the step, but the only context in which he mentions that

[00:17:45] Speaker 01:
there was confusion about the painting is this, quote, it was reasonable and foreseeable that pedestrians using ordinary care would interpret the absence of the yellow stripe at the sideway walkway joint as indicating the adjacent hazardous conditions being warned of did not exist at that location.

[00:18:04] Speaker 01:
That is either a conclusion a judge needs to make or that's a conclusion the juror needs to make.

[00:18:09] Speaker 01:
That is not a conclusion an expert gets to make.

[00:18:12] Speaker 01:
And so those are the reasons we think that those are the reasons this yellow paint is not an issue.

[00:18:22] Speaker 01:
And as for the issue of foreseeability spoken about by my friend on the other side, I agree, Judge Moritz, that that's an issue that Chief Judge Brooms can address in any order he wants and at any point he wants.

[00:18:37] Speaker 01:
And he did not address it.

[00:18:38] Speaker 01:
He jumped right to the slight defect rule, which was

[00:18:41] Speaker 01:
well within his power, but.

[00:18:43] Speaker 04:
Well, can you explain to me how a judge should, he mentioned a case, and I didn't write it down, and I know they talked about it in the brief, where the Court of Appeals set out this sort of procedural method of applying this slight defect rule, what a court should consider, when it should consider it.

[00:19:04] Speaker 04:
And can you address that?

[00:19:06] Speaker 04:
Because I'm a little confused about the, you know, it looked to me like the courts just

[00:19:11] Speaker 04:
generally take these different factors and they apply them.

[00:19:18] Speaker 04:
And to me, the factors kind of go to foreseeability, but is foreseeability some separate concept that they're supposed to consider?

[00:19:31] Speaker 04:
Along with the creation of the defect point

[00:19:37] Speaker 01:
Yeah, so the creation of the... Well, let me first say I agree.

[00:19:40] Speaker 01:
I think that foreseeability is a part of these factors and is something that's considered as a whole and often, frankly, not explicitly stated by the courts.

[00:19:50] Speaker 01:
But for example, in Chief Judge Broom's opinion, he relied on the uncontroverted facts that

[00:19:56] Speaker 01:
This had been around for years that there had been no prior complaints, no prior injuries, nothing to put bronze on any notice or make it foreseeable to anyone.

[00:20:07] Speaker 04:
Those are the factors that we consider.

[00:20:09] Speaker 01:
Yes, those are the factors.

[00:20:10] Speaker 01:
And I think those ring of foreseeability, even if the word foreseeability is not explicitly used.

[00:20:15] Speaker 01:
Now, the creation issue you mentioned is an exception

[00:20:22] Speaker 01:
And that's an exception to the rule.

[00:20:26] Speaker 01:
And that's what's dealt with in the Lyons case.

[00:20:28] Speaker 01:
And the Lyons case is also discussed and addressed at length by Chief Judge Brooms.

[00:20:34] Speaker 01:
And he was exactly right that the Lyons case does not apply here.

[00:20:39] Speaker 01:
Because I actually agree with my friend on the other side about the Lyons case.

[00:20:44] Speaker 01:
I think it's a mirror image of this case, but in a different way, I think, than he probably sees it.

[00:20:49] Speaker 01:
In Lyons, as he mentioned, the Turnpike Authority installed this grate, and then the restaurant, for some reason, raised it and painted it black.

[00:21:04] Speaker 01:
And the Court of Appeals said, no, you negligently changed the conditions.

[00:21:09] Speaker 01:
and so the slight defect rule doesn't apply.

[00:21:12] Speaker 01:
Here, the last entity that had any opportunity to make a change to the condition of the step existing was the City of Hutchinson.

[00:21:22] Speaker 01:
When the City of Hutchinson redid its sidewalk in the area and did not bring the sidewalk, the panels where the Brahm sidewalk and the City of Hutchinson sidewalk meet, it did not bring them level.

[00:21:36] Speaker 01:
So as Chief Judge Broomes pointed out,

[00:21:39] Speaker 01:
That is an issue, that is not something Brahms had any negligence or active negligence or active role in creating the step as it existed on the day.

[00:21:48] Speaker 01:
Miss Baker had her incident.

[00:21:50] Speaker 01:
It was done by the city of Hutchinson.

[00:21:55] Speaker 03:
So can I just ask you, so you're saying, well you didn't create the sidewalk.

[00:22:00] Speaker 03:
So you can't fit into that exception.

[00:22:04] Speaker 03:
Could any, I mean,

[00:22:07] Speaker 03:
Their claim basically is you could see that that was a danger and you should have painted it yellow.

[00:22:15] Speaker 03:
I mean, isn't that creating?

[00:22:17] Speaker 03:
I mean, you didn't create the sidewalk, but you created the danger.

[00:22:21] Speaker 01:
So, Your Honor, I disagree that we created even the danger.

[00:22:30] Speaker 01:
Well, first of all, we disagree that it's a danger and we moved on summary judgment and Chief Judge Rooms did not address

[00:22:38] Speaker 01:
We moved under, there's no, arguing this is not a dangerous condition, arguing if it was, it was open and obvious, and what he did rule on was the slight defect.

[00:22:46] Speaker 01:
But to answer your question about whether, I apologize, can you repeat your question?

[00:22:55] Speaker 03:
Yeah, well, I mean, you're essentially saying you can't fall within the exception because you did not create the danger, which is what is required.

[00:23:07] Speaker 03:
But, so you say we didn't create the danger because we had nothing to do with the sidewalk.

[00:23:14] Speaker 03:
That was done before, right?

[00:23:16] Speaker 03:
Or that was done by the city.

[00:23:17] Speaker 03:
We didn't do anything with regard to the sidewalk.

[00:23:21] Speaker 03:
But I think the argument is maybe you didn't create the sidewalk, but you did create the danger because you saw the sidewalk and its unevenness and you didn't paint it.

[00:23:37] Speaker 01:
Yeah, Your Honor, and to be clear, the sidewalk where she struck her foot was a Brahms sidewalk panel.

[00:23:47] Speaker 01:
It was the city of Hutchinson, so I don't want to be... Okay, so you did create the sidewalk.

[00:23:53] Speaker 01:
Yeah, but the quote unquote danger, which we don't agree is a danger, is

[00:23:58] Speaker 01:
the fact that there is a height difference between the two, and that is what the city of Hutchinson did not address when it redid the sidewalk most recently, was bringing them level.

[00:24:07] Speaker 01:
But I don't agree that we had no reason to know that this was something we should have warned about.

[00:24:17] Speaker 01:
This had been around for years, and there was no reason for Brahms to think there was any danger.

[00:24:22] Speaker 01:
It's a step.

[00:24:24] Speaker 01:
It's a change between two walking elevations.

[00:24:28] Speaker 03:
Well, and I understand that argument too, but I mean, does that prevent you from falling in the create the danger exception?

[00:24:35] Speaker 01:
That we chose not to pay.

[00:24:40] Speaker 01:
I think that's not what the create the danger exception addresses.

[00:24:45] Speaker 01:
I think if

[00:24:47] Speaker 01:
If the court believes that we should have painted the sidewalk, I think the court first as a threshold matter has to find that this is more than a slight defect or this is not a slight defect and just doesn't fit in that.

[00:25:00] Speaker 01:
I don't think whether or not... Well, listen, I'm sorry.

[00:25:04] Speaker 03:
I thought create a danger was an exception to the slight defect, right?

[00:25:08] Speaker 03:
So you're saying you have to find a slight defect first

[00:25:15] Speaker 01:
So if you're asking whether creating a danger, whether by failing to paint, we created a danger, we, I don't, the danger, the creation of the danger exception has to be negligent.

[00:25:35] Speaker 01:
It's not just an act, it has to actually be negligent, and that's what the Lyons case stands for.

[00:25:41] Speaker 01:
So then if we've,

[00:25:43] Speaker 01:
decided there's a slight defect, or if we want to skip that step and go to the exception to analyze it first, we first then have to stand and think, as Brahms, was it unreasonable to not paint the step with all the information they had, and the information they had was that this was plainly a change in elevation, it's plainly visible, as you can see from the photos in the record, plainly visible are, by the way, words that

[00:26:13] Speaker 02:
Let me stop you there.

[00:26:16] Speaker 02:
My understanding was the exception argument was you didn't have to paint the step yellow but you painted everything else yellow.

[00:26:28] Speaker 02:
That created a danger because it distracted people or gave people comfort that they shouldn't have had.

[00:26:37] Speaker 02:
And that was the creation of danger.

[00:26:39] Speaker 02:
It wasn't the failure to paint the step itself.

[00:26:43] Speaker 02:
It was the fact that you painted these other lines and didn't paint the step.

[00:26:48] Speaker 02:
And your response earlier was, there's no evidence that that distraction affected the injury in this case.

[00:26:57] Speaker 01:
That's correct.

[00:26:57] Speaker 02:
And you're getting into some sort of, it's getting too complicated for me, I guess is what I'm saying.

[00:27:04] Speaker 01:
That's correct, Your Honor.

[00:27:04] Speaker 02:
You stated it better than I did.

[00:27:05] Speaker 02:
Thank you.

[00:27:06] Speaker 04:
Yeah, I thought your argument was really causation.

[00:27:11] Speaker 02:
And painting the yellow lines in the parking lot didn't cause the accident.

[00:27:16] Speaker 01:
Correct.

[00:27:17] Speaker 01:
Yes, that's true.

[00:27:18] Speaker 01:
There's no support on the record for that being what actually caused her incident.

[00:27:22] Speaker 02:
But painting those lines in the parking lot was the creation of something.

[00:27:27] Speaker 02:
You're saying whatever it created, even if it was a danger, it didn't create the accident in this case.

[00:27:34] Speaker 01:
Yes, and I and I don't I don't agree that it create.

[00:27:38] Speaker 04:
I don't agree that it created a danger at all Is the argument that the defect was there already?

[00:27:45] Speaker 04:
I mean unlike these other cases the defect was there Whatever it was the 2.8 inches defect was there So nothing changed that

[00:27:58] Speaker 01:
Yeah, correct.

[00:27:59] Speaker 04:
How it was perceived could have been changed, however, by the painting of the lines.

[00:28:04] Speaker 01:
And the painting, there's nothing in the record to suggest that the painting of the lines was anything new either, that these lines had just recently been painted or anything like that.

[00:28:13] Speaker 01:
That is not, that is not an argument that... Oh really, we don't know when they were painted?

[00:28:19] Speaker 01:
Not that I'm aware in the record, but no, I do not think that is a, that's a recent change either.

[00:28:28] Speaker 01:
Okay.

[00:28:30] Speaker 01:
Thank you.

[00:28:30] Speaker 01:
Thank you.

[00:28:37] Speaker 02:
Council, would you start by responding to that last point?

[00:28:40] Speaker 02:
Is there any evidence of when the painting occurred?

[00:28:42] Speaker 02:
I assumed it was something recent, but I... I think it was too.

[00:28:47] Speaker 00:
So, I think this is taken, this is volume two, page 367,

[00:28:56] Speaker 00:
In 390 to 91, I'd have to actually go and look at the record itself.

[00:28:59] Speaker 00:
This is the citation in my brief, and I believe I took this from our response to their motion for summary judgment that in September 2020, which was actually when this accident occurred, it was shortly before the accident, they had painted all the curves and steps in the parking lot by bright yellow.

[00:29:14] Speaker 00:
I believe that's what's in the record.

[00:29:16] Speaker 00:
And it wasn't repainting them, it was a new painting.

[00:29:19] Speaker 00:
I don't know if that's in the record itself, but it says that they had painted all the curves and steps

[00:29:24] Speaker 00:
in that parking lot that way in September 2020.

[00:29:27] Speaker 04:
So, you know, if they hadn't done any hazard lines, if they'd just done nothing at all, you're suggesting that would have been better?

[00:29:36] Speaker 00:
Under these circumstances, where they're leaving this one part out, possibly, Your Honor, yes.

[00:29:43] Speaker 04:
But you don't really have any evidence that this is, that her perception was changed by these lines.

[00:29:49] Speaker 00:
So, I disagree with that, too.

[00:29:51] Speaker 00:
Okay.

[00:29:52] Speaker 00:
Here it's not just that we take my client's testimony as true, we draw inferences from the old record, the record as a whole in my client's favor.

[00:30:01] Speaker 00:
The expert testified, this is not improper expert testimony, it's standard of care testimony, this is something experts do every day in every kind of case, said that under these circumstances, it is reasonable that a person, it's foreseeable that a person would not see that this step is different.

[00:30:19] Speaker 00:
My client, volume one, page 208, says this is the little curb I didn't see.

[00:30:27] Speaker 00:
She's saying I didn't see it.

[00:30:28] Speaker 00:
And the inference we can draw from the expert saying that an ordinary person exercising ordinary care wouldn't see this.

[00:30:35] Speaker 00:
And my client, who was exercising ordinary care, not seeing it,

[00:30:39] Speaker 00:
is that that's a reason for it.

[00:30:40] Speaker 02:
Yeah, but you mean that the reasons he didn't see it was because of the yellow lines in the parking lot?

[00:30:46] Speaker 00:
I don't know that an ordinary person, Your Honor, would ever be able to say, that's the reason I didn't see it.

[00:30:51] Speaker 02:
Well, you have to prove causation.

[00:30:53] Speaker 00:
Certainly.

[00:30:54] Speaker 00:
And I think the expert's testimony as well, I say I'm out of time, combined with my client's testimony, the jury can draw an inference that this is what caused it, that this is an inference of causation.

[00:31:08] Speaker 00:
But I see I'm out of time, Your Honor.

[00:31:11] Speaker 00:
Thank you very much.

[00:31:11] Speaker 02:
We ask the court to reverse.