[00:00:01] Speaker 02: We wanna welcome everyone to our argument calendar this morning in Honolulu. [00:00:05] Speaker 02: It's a privilege to be hearing cases here in Hawaii. [00:00:10] Speaker 02: We have several matters that were submitted on the briefs, Hay versus Bondi, Reyes versus Selig, United States versus Galvan, Bonta v. Hayashi. [00:00:19] Speaker 02: Those matters are submitted and we'll turn to the first case on the argument calendar, Chang versus United States. [00:00:34] Speaker 04: Good morning, Council. [00:00:37] Speaker 04: I am Bruce Berline. [00:00:39] Speaker 04: Oh, excuse me. [00:00:41] Speaker 04: Let me start over. [00:00:43] Speaker 04: My name is Bruce Berline. [00:00:44] Speaker 04: I represent Mr. Chang. [00:00:46] Speaker 04: I would like to reserve three minutes for rebuttal, please. [00:00:51] Speaker 04: This case is about the application of the discretionary function exception to the Federal Tort Claims Act. [00:00:58] Speaker 04: which is admittedly by this court and even the Supreme Court, a seemingly difficult doctrine to apply consistently throughout the various opinions. [00:01:11] Speaker 04: When evaluating the DFE, the discretionary function exception, as it affects [00:01:17] Speaker 04: The FTCA is to be construed liberally while the DFE is to be construed narrowly. [00:01:29] Speaker 04: This is important because of the intricacies involved in the application of the DFE as it affects the trial court's jurisdiction. [00:01:42] Speaker 04: In this case, Mr. Chang was playing with his children at American Memorial Park, a national park located in Saipan in the Commonwealth of the Northern Marriott Islands. [00:01:55] Speaker 04: It's a fairly large park. [00:01:58] Speaker 04: The important thing to understand here is this case deals with a very small part of the park. [00:02:05] Speaker 04: a grassy field that is flat, used by people to play ultimate frisbee, touch football, kickball, even fly kites. [00:02:20] Speaker 02: It's a man-made lawn, if you will. [00:02:22] Speaker 02: It's not a natural lawn? [00:02:24] Speaker 02: It is. [00:02:26] Speaker 04: You can see by the pictures, but it's [00:02:30] Speaker 04: We're definitely a tropical island, so it's a pretty flat grassy field that requires mowing and maintenance. [00:02:39] Speaker 04: It's kind of surrounded by sidewalks, but it's generally flat. [00:02:46] Speaker 02: What does the record show that people use it for, like sports or other games? [00:02:50] Speaker 04: Yeah, I think there's a declaration with Miss Alberti that, and I think the parties agree that it's multi-purpose. [00:03:00] Speaker 04: Sports, family picnics, kids, and there were pictures of even some activities for cultural events and stuff like that. [00:03:12] Speaker 00: Council was this field cleared by the government or was it always existing there and they just thought let's just go ahead and use it for that since there's no trees obstructing in the middle. [00:03:23] Speaker 04: I've been there 20 plus years. [00:03:26] Speaker 04: I played Ultimate Frisbee on it. [00:03:28] Speaker 04: It's been there a very long time. [00:03:29] Speaker 04: It's been remodeled a little bit. [00:03:32] Speaker 00: How so? [00:03:34] Speaker 04: Good question. [00:03:35] Speaker 04: The field has always been there. [00:03:37] Speaker 04: There was a parking lot that came in to kind of the side. [00:03:41] Speaker 04: They paved it and put some lights there. [00:03:46] Speaker 04: It's not the playing surface is flat. [00:03:50] Speaker 04: There is some hills that go up. [00:03:53] Speaker 04: And of course you don't really play on that. [00:03:56] Speaker 04: And there are undulations. [00:04:00] Speaker 04: It's not like a football field. [00:04:02] Speaker 04: It's not like flat like a soccer field. [00:04:04] Speaker 04: But you can't play sports on it. [00:04:06] Speaker 00: Let me ask you this, Council. [00:04:07] Speaker 00: In your opinion, then, is the government liable for any injury caused by a natural occurrence in the flat area? [00:04:17] Speaker 04: Well, and certainly in Mr. Chang's case, I believe so because the DFE, I mean, if that's what we're dealing with, if you're referring to does the DFE apply, it just doesn't apply in this case because Mr. Tagawa had marching orders by the park to say, go, Moet, [00:04:46] Speaker 04: Inspect it. [00:04:47] Speaker 04: If you see something, fill it. [00:04:50] Speaker 04: They call it imperfections. [00:04:52] Speaker 04: Holes, dips, whatever. [00:04:54] Speaker 04: They were instructed to fill it with soil or rocks or a combination to keep it flat so people can continue to play on it. [00:05:04] Speaker 04: So in that aspect, if there is a hole, it's because Mr. Togawa failed [00:05:13] Speaker 04: to do his duty, to do what he was instructed and trained to do. [00:05:21] Speaker 02: This report obviously had a different perspective. [00:05:25] Speaker 02: Yes. [00:05:25] Speaker 02: That it was about the design of the park and rather than the implementation. [00:05:30] Speaker 02: So how do you respond to that? [00:05:31] Speaker 02: Yes. [00:05:34] Speaker 04: The design, in my mind, is when [00:05:42] Speaker 04: The people in the know, in the power, maybe Ms. [00:05:45] Speaker 04: Alberti said, Mr. Tagawa, we're going to train you on how to inspect the grassy field and fill it [00:05:57] Speaker 04: fill the imperfections that you find. [00:06:00] Speaker 04: That's the design. [00:06:03] Speaker 04: That's where the DFE comes in. [00:06:06] Speaker 04: That's where they have discretion. [00:06:08] Speaker 04: You can decide whatever you want to do for the park. [00:06:13] Speaker 04: You wanna maintain it? [00:06:14] Speaker 04: Great. [00:06:15] Speaker 04: You don't wanna maintain it? [00:06:17] Speaker 04: That's fine too. [00:06:19] Speaker 04: But once you tell somebody or you decide on a plan [00:06:24] Speaker 04: And the case law of this circuit is pretty clear that once the policy is in place, then the DFE doesn't apply to the implication of it. [00:06:37] Speaker 04: I believe that's Turbush. [00:06:40] Speaker 04: And Meyer versus US. [00:06:53] Speaker 04: The court, this court stated that implementation of a course of action is not a discretionary function. [00:07:01] Speaker 04: The decision to, in Turbush, the decision to adopt safety precautions may be based in policy considerations, but the implementation of those precautions is not. [00:07:16] Speaker 04: Basically, a failure to do what has already been decided to be done is not protected by the DFE. [00:07:27] Speaker 04: And that's one of the big problems in the government's case here. [00:07:35] Speaker 04: I guess, and I mean, you can find that in a case called Wisnett versus United States, 403rd 1177. [00:07:44] Speaker 04: The design of a course of governmental action is shielded by the discretionary function exception. [00:07:52] Speaker 04: The implementation of that course of action is not. [00:07:57] Speaker 02: Here's what the district court said on this point. [00:08:00] Speaker 02: It says the court finds that even though AMP employees do undertake inspection of the grassy AMP areas, how they choose to do so, how often, and the standard to which they choose to keep the grassy areas still does not fall under the design implementation distinction because these decisions necessarily require decisions based on public policy concerns. [00:08:24] Speaker 02: So I take it you disagree with that. [00:08:25] Speaker 04: I do, I do. [00:08:27] Speaker 04: We have to, I think we're all aware that it's the government's burden. [00:08:32] Speaker 04: Once the plaintiff's complaint is shown to, and this is always a difficult standard, but to allege facts in a way that do not fall within the DFE, then you're, that's the plaintiff showing basically. [00:08:52] Speaker 04: Then it flips to the government to prove [00:08:56] Speaker 04: that the DFE applies. [00:08:59] Speaker 04: In other words, that somebody has to make a choice, and that choice involves policies and the balancing of policies. [00:09:14] Speaker 04: You know, Tagawa said, go mow the lawn. [00:09:17] Speaker 04: There is no discretion whatsoever. [00:09:20] Speaker 04: Mow the lawn and inspect for imperfections. [00:09:24] Speaker 04: And if you find them, fill them with rock and soil. [00:09:28] Speaker 04: There's no evidence that the government's brought [00:09:32] Speaker 04: to show that there's any discretion by Mr. Tagawa whatsoever. [00:09:38] Speaker 04: Maybe he has some discretion about, you know, 80% rock and 20% soil, but not even Mr. Tagawa says in his declaration that he had any kind of discretion. [00:09:52] Speaker 04: He had to fill that thing, that imperfection, with rock, soil, or some combination of [00:10:00] Speaker 02: What does the record show about how deep the hole was? [00:10:03] Speaker 04: I'm sorry, your honor. [00:10:05] Speaker 02: What does the record show about how deep this hole was? [00:10:08] Speaker 04: One foot. [00:10:10] Speaker 02: Were there other holes like that on the grassy area or was that the only one? [00:10:15] Speaker 04: Well, according to the government, they didn't have any record of any other holes. [00:10:22] Speaker 04: And I don't have any information of any other holes, at least in the record. [00:10:27] Speaker 00: Council, you were stating earlier about discretion and who has it and who doesn't. [00:10:33] Speaker 00: Does Tagawa have discretion to determine what is an imperfection? [00:10:36] Speaker 00: How is imperfection defined? [00:10:40] Speaker 00: You're outside, you're in nature. [00:10:42] Speaker 00: Is this a hole that was dug by a gopher? [00:10:45] Speaker 00: I mean, how do you define imperfection? [00:10:47] Speaker 04: Great question. [00:10:48] Speaker 04: And the government has given us zero knowledge, zero information on that. [00:10:53] Speaker 04: What is a imperfection? [00:10:55] Speaker 04: In my mind, it's a hole. [00:10:57] Speaker 04: It's something that affects the playing quality, the ability to allow people to enjoy what the purpose of the field was. [00:11:07] Speaker 04: Go play on it in a safe manner, right? [00:11:10] Speaker 04: So in my mind, a hole, one foot, needs to be filled with rock or soil. [00:11:17] Speaker 00: Would a three inch hole need to be filled? [00:11:20] Speaker 04: I think it would be, given the purpose of the field, yes. [00:11:25] Speaker 04: Now we don't know what Mr. Tagawa is thinking, because all he put in his two page declaration was, I've been mowing lawns since I was 13, and I was trained to inspect, [00:11:41] Speaker 04: And if I find something, mark it and fill it. [00:11:44] Speaker 00: What was the purpose of the field and who stated that purpose? [00:11:48] Speaker 04: I believe in Miss Alberti or one of the decorations, I don't know if it's the purpose, but everybody agrees it's kind of a multi-purpose field that's used for people to play, for recreation, picnics. [00:12:08] Speaker 04: I don't think they limit it in any way other than here's the field. [00:12:15] Speaker 04: Go enjoy it. [00:12:16] Speaker 04: I mean, because it's flat and it's grassy, people do those kind of things on it. [00:12:21] Speaker 04: They play sports, fly kites, drive vehicles on it, picnic on it. [00:12:32] Speaker 03: And you're not claiming in this case that Mr. Takao had notice of the imperfection, correct? [00:12:38] Speaker 04: No, that's correct. [00:12:46] Speaker 04: Again, once, just flipping back real quick. [00:12:53] Speaker 04: So there's two problems. [00:12:55] Speaker 04: The one is lack of discretion. [00:12:59] Speaker 04: The other big problem is routine maintenance does not sustain the DFE. [00:13:08] Speaker 04: If you are talking routine maintenance like we are having here, the DFE does not apply. [00:13:17] Speaker 04: That is in turbush again. [00:13:22] Speaker 04: Matters of routine maintenance are not protected by the discretionary function exception because they generally do not involve policy weighing actions or decisions. [00:13:32] Speaker 04: And that is absolutely clear with Mr. Tagawa. [00:13:36] Speaker 04: He did not balance any [00:13:39] Speaker 04: policy considerations whatsoever, at least not by his declaration or Ms. [00:13:45] Speaker 04: Alberti's declaration. [00:13:47] Speaker 04: That's kind of the death knell for DFE. [00:13:49] Speaker 04: You must do that. [00:13:50] Speaker 04: There must be a choice and you must balance policy. [00:14:04] Speaker 02: You want to save any time for rebuttal? [00:14:06] Speaker 02: Yes, I would. [00:14:07] Speaker 02: Thank you. [00:14:16] Speaker 02: Mr. Schwab, good morning. [00:14:18] Speaker 01: Good morning and good morning and half a day, your honors. [00:14:21] Speaker 01: May it please the court. [00:14:22] Speaker 01: I am Michael Schwab here on behalf of the United States and I'm here today representing the National Park Services American Memorial Park in Saipan in the Northern Marianas Islands. [00:14:36] Speaker 01: If I could, I'd like to focus your honors on two issues today, two facts. [00:14:42] Speaker 01: Number one is a whole quote. [00:14:45] Speaker 01: not visible to a normal person using reasonable care. [00:14:51] Speaker 01: Number two, [00:14:53] Speaker 01: the judge below worked diligently to consider other facts and theories and still found discretionary function to bar this claim. [00:15:03] Speaker 01: The court worked through it, the court demonstrated it, looking at other things that could have been considered. [00:15:08] Speaker 01: For instance, the fact that no one found a hole and the picture that was shown by the plaintiff didn't look like a hole, the court went on and said, well, what if it's an undulation? [00:15:18] Speaker 01: What if it's a defect in the subsoil? [00:15:23] Speaker 01: The court considered all of that and still eliminated it under the discretionary clause. [00:15:29] Speaker 01: The court demonstrated it, explored it, but they did not use the word that we all wanted to hear, which is the amendment. [00:15:39] Speaker 01: The court didn't say amendment. [00:15:42] Speaker 01: One of the questions before the court is, when a judge does all the work they're supposed to do to look at alternatives before they dismiss, does the label matter? [00:15:54] Speaker 01: So turning to the whole, a visible whole. [00:15:59] Speaker 01: a not visible hole to a normal person using reasonable care. [00:16:04] Speaker 01: That's a quote from the plaintiff's administrative claim. [00:16:07] Speaker 01: An administrative claim informs the government as to what they're up against, what they're being claimed against for negligence. [00:16:15] Speaker 01: That's of course in the Form 95, which was submitted by the plaintiff. [00:16:20] Speaker 01: It's required to be submitted within two years, otherwise they lose their claim. [00:16:28] Speaker 00: Council, what do you make of Council on the other side's position that routine maintenance doesn't give rise to the DFE? [00:16:37] Speaker 01: There's nothing routine about a hole that cannot be seen by a normal person using reasonable care. [00:16:45] Speaker 01: The standard they're trying to hold us to, Mr. Alba, is a normal person using reasonable care. [00:16:50] Speaker 01: They want an extra standard, something above and beyond, something that would get down on the hands and knees maybe and look for hidden holes, things that aren't visible. [00:17:01] Speaker 01: We're not providing a putting green here, and we're not providing astroturf. [00:17:06] Speaker 01: We're providing a natural setting that's exposed to multiple uses, that's open to people at all times, that has erosion, that has animals, that might have different types of grass that might rot or have different levels. [00:17:21] Speaker 01: That, I think, is not your reasonable person would not see the hole that the plaintiff claims in this case. [00:17:30] Speaker 00: Is the reason that they couldn't see the hole because the maintenance wasn't being done? [00:17:35] Speaker 01: That's not alleged and there's no possible fact of that. [00:17:39] Speaker 01: In fact, the facts were exactly the opposite that were presented to the court. [00:17:43] Speaker 01: And of course, keep in mind that the court and all the parties in this are very familiar with this park and this grassy area. [00:17:49] Speaker 01: It's the center of this community. [00:17:51] Speaker 01: A lot of events occur there. [00:17:52] Speaker 01: If you look at the excerpts of record at 52, plaintiff's counsel talks about spending time there with his family. [00:17:58] Speaker 01: Everyone's familiar with it. [00:18:00] Speaker 01: And the policy of the Park Service is to send out Mr. Tagawa and people like him and use their discretion. [00:18:07] Speaker 01: What needs to be fixed? [00:18:08] Speaker 01: What needs to be done? [00:18:09] Speaker 01: But it has to be visible. [00:18:11] Speaker 02: But well, hold on a second here, just to back up. [00:18:12] Speaker 02: I mean, the visibility issue, it seems from the administrative claim, there's more Mr. Chang saying, explaining why it was that he fell in the hole, that he didn't avoid it. [00:18:22] Speaker 02: So I'm not sure that answers the question of whether Mr. Tagawa should have noticed the hole, given his duty to routinely maintain it. [00:18:32] Speaker 02: But I guess that leads to the broader question of why wasn't this, I mean, he says in his declaration, he routinely maintains the field. [00:18:39] Speaker 02: Maybe it was reasonable not to maintain this particular whole for some factual reason, but that in what sense was this discretionary? [00:18:47] Speaker 01: Well, look at this further. [00:18:48] Speaker 01: He's never found that hole. [00:18:50] Speaker 01: That hole's never been found. [00:18:51] Speaker 01: So what would it take to find that hole? [00:18:53] Speaker 01: Something beyond a person using reasonable care. [00:18:57] Speaker 01: Get it down on your hands and knees, find an expert. [00:19:00] Speaker 01: Again, like you would do for, say, a putting green, or you would do where you lay AstroTurf. [00:19:05] Speaker 01: Make sure it's perfectly flat under its surface. [00:19:08] Speaker 01: So he's asking for something below the surface. [00:19:11] Speaker 01: And that's not what the Park Service provides. [00:19:14] Speaker 01: There's over 400 parks in our national system, and you offer grass that is exposed. [00:19:21] Speaker 01: It's part of the experience. [00:19:23] Speaker 01: And there can be, as the Court acknowledged, there can be variations under the surface. [00:19:28] Speaker 01: And if those variations come to the attention of a normal person using reasonable care who is maintaining that area, they will fill that hole, or they will fix it, or they may even put up a sign saying, hey, there's a lot of holes here. [00:19:42] Speaker 01: But that's not the case here. [00:19:44] Speaker 02: Is this a purely natural area? [00:19:47] Speaker 02: In other words, some of our national park cases involve a trail or some other undisturbed area and an accident that happens on that. [00:19:56] Speaker 02: Is this essentially a manmade [00:19:59] Speaker 02: or a natural, how do you describe it in those terms? [00:20:02] Speaker 01: It's left in its natural state, mowed and maintained, but it's originally, you know, Saipan went through World War II, everything there has been at one point or another, bulldozed, flattened, or fixed, and I think the park is the same. [00:20:21] Speaker 01: Somebody set up that park, it's, [00:20:24] Speaker 01: quite a few acres and that particular area is probably at some point flattened out or made the way it is. [00:20:32] Speaker 03: But I gather it was not done so as part of the park design. [00:20:39] Speaker 01: It was done so as part of the park design. [00:20:41] Speaker 01: The park design has areas of grass. [00:20:44] Speaker 03: No, no, but I mean it wasn't bulldozed as a matter of park design. [00:20:48] Speaker 03: You just, as I understand the facts, and you can correct me if I'm wrong, this is just a grassy area that was left in the state that was found, right? [00:20:59] Speaker 01: I can't say that for sure, because I wasn't there at the beginning of the park service. [00:21:02] Speaker 01: But I'll say as long as anyone's memory, it's just been there. [00:21:06] Speaker 01: It's been in its natural state, offered to the public at all hours, used for events, and well maintained. [00:21:14] Speaker 02: Does that answer your question? [00:21:17] Speaker 03: No, go ahead. [00:21:19] Speaker 02: I guess I'm still unsure where you see the line between routine maintenance and something else, because the claim here is that the hole was a foot deep. [00:21:28] Speaker 02: and I don't think people expect in walking in a grassy area to encounter a one foot deep hole, it would seem like the kind of thing if the Park Service was aware of it that they would want to fix it. [00:21:38] Speaker 02: So why wasn't this just possibly negligence in the routine care of the grass? [00:21:45] Speaker 01: Because a hole not visible to a normal person using reasonable care, you'd be asking the park service to start employing or using people that go beyond normal people and that go beyond reasonable care. [00:21:58] Speaker 01: You'd be asking for something like a survey, someone to go over and maybe push with their hands or use a stick or some sort of other thing to look for non-visible defects below the surface of the grass. [00:22:11] Speaker 01: And that's a level that I don't think we can require in a tort action. [00:22:15] Speaker 01: I think that's the point where you start to interfere with the discretionary function of the park service and what they're trying to offer. [00:22:23] Speaker 01: And I think it's interfering with the discretion of Mr. Tagwa, who's there to do good maintenance as a normal person using reasonable care. [00:22:35] Speaker 02: Yeah, I guess I just am questioning whether this is sort of assuming the answer to the case, because his position is that when imperfections are discovered, [00:22:44] Speaker 02: He he deals with them. [00:22:45] Speaker 02: This was an imperfection He didn't deal with it and there's a question as to whether that's reasonable or not But why isn't that just a factual question as opposed to an issue that precludes liability altogether? [00:22:58] Speaker 01: Your honor used the key word discovered [00:23:00] Speaker 01: Never been discovered, hasn't been discovered since. [00:23:03] Speaker 01: Nobody's found this hole. [00:23:05] Speaker 01: And at one point, the plaintiff took a picture of something and showed it to the court and it doesn't look like a hole. [00:23:11] Speaker 01: That's okay. [00:23:12] Speaker 01: The court went ahead and assumed there was a hole there anyway, but a non-visible hole. [00:23:17] Speaker 01: A non-visible hole from a normal person using reasonable care. [00:23:22] Speaker 01: Does that answer the question, Your Honor? [00:23:25] Speaker 02: No, I understand your position. [00:23:27] Speaker 01: So we're not talking about normal maintenance. [00:23:29] Speaker 01: We're not talking about routine maintenance. [00:23:31] Speaker 01: That was admitted. [00:23:31] Speaker 01: That was, I think, submitted by the United States in this case. [00:23:37] Speaker 01: So we're talking about something that goes beyond that. [00:23:40] Speaker 01: And I think when you go beyond that, when you're expecting something [00:23:44] Speaker 01: I'm not sure I'd have to speculate maybe getting down on your hands and knees and checking underneath the grass or using some sort of device that could tell you if there are defects below the grass. [00:23:54] Speaker 01: I don't think that can be required of the United States and the basis of this claim is a hole not visible to a normal person using reasonable care. [00:24:08] Speaker 02: Yeah, I'm not sure that I agree that the district court operated under those assumptions. [00:24:11] Speaker 02: It seems that the district court more took the plaintiff's allegations in the complaint, accepted them as true. [00:24:17] Speaker 02: Absolutely. [00:24:18] Speaker 02: And I'm not sure that the plaintiff's characterization in the complaint is the same as you lay it out in terms of the invisibility or lack of detection, the ability to detect the hole. [00:24:33] Speaker 01: Does your honor doubt that he said in his administrative claim that this was a hole that was I've read I've read the claim I've read the claim but it's here on a motion to dismiss right it's here on a 12b6 mm-hmm so it [00:24:47] Speaker 01: a hole that is not visible, that's established. [00:24:50] Speaker 01: We're not talking about something that was open and notorious, something that could have been seen by a normal person. [00:24:57] Speaker 01: So that is the basis of this case. [00:24:59] Speaker 01: And I think that's where both the court and the United States have a dilemma here, trying to understand, struggling to say, how can this survive a summary or a dismissal? [00:25:11] Speaker 01: And the court did struggle with that. [00:25:12] Speaker 01: The court took as true that there's a hole there. [00:25:16] Speaker 01: The court even went outside the complaint and said, what if there's just undulations, imperfections? [00:25:24] Speaker 01: And the court still said it would interfere with the discretionary function. [00:25:31] Speaker 01: Did I fully answer your question, Your Honor? [00:25:34] Speaker 02: No, I understand your position. [00:25:35] Speaker 02: Thank you. [00:25:39] Speaker 01: Well, Your Honor, again, [00:25:51] Speaker 01: Again, I want the court to concentrate on the fact that there's a hole not visible to a normal person using reasonable care as the basis for why the United States is alleged to be negligent here. [00:26:03] Speaker 01: And then I also want the court to concentrate on the fact that the judge worked diligently to consider other facts and theories and still found that the discretionary function barred this claim. [00:26:15] Speaker 01: Thank you, Your Honors. [00:26:16] Speaker 02: Thank you. [00:26:22] Speaker 02: We'll hear a rebuttal. [00:26:31] Speaker 04: Thank you. [00:26:34] Speaker 04: The point about why we're here is this is about the application of DFE, the discretionary function exception to the Federal Court Claims Act. [00:26:50] Speaker 04: We're not here for negligence yet. [00:26:54] Speaker 04: What the government must do when it comes up here is explain to the court how Mr. Tagawa had discretion. [00:27:08] Speaker 04: What choices did he have? [00:27:10] Speaker 04: And in addition to those choices, did he [00:27:15] Speaker 04: balance policy of the park somehow. [00:27:20] Speaker 02: The government's focus obviously is on some of the language in the administrative claim and the visibility of the hole, so why don't you address that? [00:27:28] Speaker 04: Yeah, I mean, we haven't done a lot of discovery in this, but there's a picture of [00:27:37] Speaker 04: my client's foot over what looks like a hole. [00:27:41] Speaker 04: He didn't put it in because his ankle was sprained is the explanation. [00:27:48] Speaker 04: But the government in their brief concedes there was a hole. [00:27:52] Speaker 04: Both parties concede there's a hole. [00:27:54] Speaker 04: It's just what is the extent of the visibility on that? [00:27:58] Speaker 04: In my mind, Mr. Tagawa is instructed, mow the lawn on a daily basis, almost, except three days. [00:28:07] Speaker 04: He's mowing that because grass grows and they want to keep it short and they want to make sure that it's flat and any imperfections are filled. [00:28:16] Speaker 03: So. [00:28:17] Speaker 03: Well, that's not precisely true. [00:28:20] Speaker 03: They say if you see an imperfection, take care of it. [00:28:22] Speaker 03: That's a little bit different from conducting a thorough inspection for an imperfection. [00:28:29] Speaker 04: Yeah, and we don't, that's true. [00:28:31] Speaker 03: You know, he was, you know, mowing was his maintenance, if you will. [00:28:36] Speaker 03: If you see something, fix it. [00:28:39] Speaker 03: But there's a little bit of difference between that and say, let's say a schoolyard that's planted and people are inspecting it to make sure the kids aren't falling through everything. [00:28:51] Speaker 03: There's a little bit of a degree of difference in terms of the duty, I think. [00:28:55] Speaker 04: I think that's, again, that falls on the government's failure to fully explain what Mr. Tagawa was instructed. [00:29:05] Speaker 04: What was the policy? [00:29:07] Speaker 04: And then that intertwines with the DFE that says, you have to show some discretion, some choices. [00:29:16] Speaker 04: What were the choices that Mr. Tagawa was made? [00:29:18] Speaker 04: Well, he was only trained to inspect, mark, and fill. [00:29:23] Speaker 04: That's it. [00:29:25] Speaker 03: So what do you make of the declaration of the park superintendent saying, we don't maintain this in a pristine manner? [00:29:33] Speaker 04: Yeah. [00:29:33] Speaker 04: I mean, this field, I think, is almost in a pristine manner. [00:29:37] Speaker 03: Right. [00:29:38] Speaker 03: But the park superintendent says, no, we don't. [00:29:41] Speaker 04: Well, I think we're in a nitpick situation of what pristine means. [00:29:49] Speaker 04: I mean, American Memorial Park, this is a flat part of the field. [00:29:53] Speaker 04: In the old days, they removed big ironwood trees when I was there for the renovation. [00:29:58] Speaker 04: It wasn't a huge renovation, but the rest of it is [00:30:03] Speaker 04: natural, wild. [00:30:05] Speaker 04: There's coastal beaches. [00:30:07] Speaker 04: There's a big area for barbecue. [00:30:09] Speaker 04: Those places aren't maintained. [00:30:14] Speaker 04: A pristine condition is, you know, there's the grass grows over the sidewalk lots. [00:30:21] Speaker 04: It's [00:30:23] Speaker 04: I can't remember the name of the grass, but everybody wants some, because it's like Bermuda. [00:30:27] Speaker 04: And so a pristine condition would be edge the sidewalks, make sure that the hedges that are around the garden or the circle of honor are trimmed, in my mind. [00:30:42] Speaker 04: This is, for lack of a better term, and because the government hasn't told us, near pristine, in my mind. [00:30:49] Speaker 04: It is mowed and made flat through inspection and filling in the imperfections by Mr. Tagawa. [00:30:59] Speaker 02: What has been the discovery in this case as we have the declarations, we have some photographs, what else has happened? [00:31:05] Speaker 04: So if I can step back, Mr. Fitzgerald was the original attorney on this, a friend of mine. [00:31:14] Speaker 04: He did the complaint, he did everything. [00:31:17] Speaker 04: He became ill and at one point I kind of associated in but had very little to do with the case. [00:31:26] Speaker 04: And he did like initial disclosures and there was some formal, informal discovery. [00:31:32] Speaker 02: Have there been depositions or anything like that? [00:31:34] Speaker 04: No, no, no. [00:31:36] Speaker 04: Because at one point there was, [00:31:39] Speaker 04: the government figured out, it's like, I wanna do a motion to dismiss at 12B1. [00:31:46] Speaker 04: I'm like, okay, but then you'll see on the record a lot of stipulations moving the scheduling conference, right? [00:31:53] Speaker 04: And that was done because we were waiting for the motion to dismiss and then we were waiting for the court to rule on the motion to dismiss. [00:32:00] Speaker 04: Nobody wanted to really do discovery or anything until we got a solid answer as to [00:32:08] Speaker 04: if the DFE applied or not, and if we don't have jurisdiction, then that's it. [00:32:13] Speaker 03: You're entitled to discovery as to the jurisdictional aspect. [00:32:17] Speaker 03: Yeah. [00:32:18] Speaker 03: This seems to fall within, purely within that because you're arguing about what he was supposed to do or not supposed to do. [00:32:24] Speaker 03: Yes. [00:32:27] Speaker 03: An informal inspection, not a formal inspection. [00:32:31] Speaker 03: Your argument is that there was a higher standard that was a more formal obligation. [00:32:38] Speaker 03: That seems to be perhaps a factual issue that would bear on the jurisdiction. [00:32:44] Speaker 03: Yeah, and I. I mean, you may have decided not to do it for a variety of reasons. [00:32:49] Speaker 03: I'm just saying, you had the opportunity if you wanted to as to the government. [00:32:54] Speaker 04: Yes, we did. [00:32:55] Speaker 04: And again, I think both parties just wanted to get this resolved before. [00:33:02] Speaker 04: Understand. [00:33:02] Speaker 04: Going into that. [00:33:03] Speaker 04: Understand. [00:33:04] Speaker 04: And frankly, once the motion was filed and I saw Mr. Tagawa's declaration, [00:33:11] Speaker 04: I'm like, they just put themselves out of the DFE. [00:33:17] Speaker 00: Council, I wanted to ask, Mr. Schwab made a big deal about the fact that the hole was not visible. [00:33:24] Speaker 00: Is it a big deal? [00:33:26] Speaker 00: Do we care at this stage? [00:33:27] Speaker 04: Not for the DFE, it's not. [00:33:29] Speaker 04: Why? [00:33:29] Speaker 04: Not for the purpose, we're here. [00:33:31] Speaker 04: It has nothing to do with that. [00:33:34] Speaker 04: The only thing that I need to do as a plaintiff at this stage is, [00:33:39] Speaker 04: Make sure the allegations in the complaint are not clearly within the DFE. [00:33:47] Speaker 04: They're not. [00:33:48] Speaker 04: The allegations are failure to inspect, failure to maintain, failure to warn, admittedly, is a weak, much weaker [00:34:00] Speaker 02: Have you appealed that? [00:34:01] Speaker 02: Hm? [00:34:01] Speaker 02: Have you appealed that, the failure to learn issue? [00:34:04] Speaker 04: No, because it's just, oh, yes. [00:34:09] Speaker 04: And in the brief, we talk about the case Summers, Summers v. US. [00:34:17] Speaker 04: It's an old case, and it talks about [00:34:23] Speaker 04: failure to warn and the fact that in summers this little girl burned her feet on on some hot coal and basically it came down to the people that were in charge of the beach and in charge of the signage didn't know that there were hot coals there at all so the summer's court said well if you didn't know that it existed if you didn't know at all then that you cannot [00:34:52] Speaker 04: have any discretion. [00:34:53] Speaker 04: There can be no policy-based balancing because you didn't know. [00:34:58] Speaker 03: But then you have Childers. [00:35:00] Speaker 04: Yes. [00:35:01] Speaker 03: And Childers, you know, is a failure to Warren case. [00:35:05] Speaker 03: I say, you don't have to. [00:35:07] Speaker 04: I want to be clear. [00:35:08] Speaker 04: I'm sorry. [00:35:08] Speaker 04: I keep bumping. [00:35:09] Speaker 04: Summers in Turbush was, they basically said, look, that is pre, [00:35:20] Speaker 04: I'm sorry, the name of the Supreme Court escapes me. [00:35:23] Speaker 04: Anyway, I have to find it. [00:35:30] Speaker 04: It said, look. [00:35:33] Speaker 02: I'm taking you over your time. [00:35:35] Speaker 02: Yes, I'm sorry. [00:35:35] Speaker 02: I want to just check with my colleagues if they have additional questions for you. [00:35:38] Speaker 02: All right. [00:35:39] Speaker 02: I think we'll conclude the argument since we've gone way over. [00:35:43] Speaker 02: But I want to thank you both for your presentations this morning. [00:35:45] Speaker 02: And this case is submitted. [00:35:47] Speaker 04: Thank you very much.