[00:00:00] Speaker 02: Good morning. [00:00:01] Speaker 00: Good morning, Your Honors. [00:00:04] Speaker 00: My name is Hannah Stone. [00:00:06] Speaker 00: I represent Plaintiff Stacey Kaiser. [00:00:10] Speaker 00: If I may reserve two minutes. [00:00:13] Speaker 00: Thank you. [00:00:15] Speaker 00: Your Honors, this is not a case about a landlord unaware of danger. [00:00:20] Speaker 00: It is about the federal government which adopted strict rules to protect people from dangerous dogs on its animals and then chose to ignore them. [00:00:29] Speaker 00: That failure led to a brutal attack. [00:00:32] Speaker 00: The district court excused the government's inactions under Montana law. [00:00:37] Speaker 00: But where the federal government owns the property, creates safety rules, and then fails to follow them, it cannot escape responsibility, either under Montana law or the Federal Tort Claims Act. [00:00:54] Speaker 00: By way of background, this case stems from a brutal dog attack that occurred on November 7th, 2019. [00:01:02] Speaker 00: Plaintiff Catherine Stacey Kaiser was out on a walk along a public road. [00:01:08] Speaker 00: A pit bull owned by a defendant. [00:01:10] Speaker 02: I think we know the facts. [00:01:11] Speaker 02: We're familiar with those. [00:01:13] Speaker 02: As I understand it from the briefs and the district court decision, it seems that you have sort of two [00:01:23] Speaker 02: types of arguments. [00:01:24] Speaker 02: One is that Mr. Jackson, who owned the dog, was himself negligent and that the government is vicariously liable through him. [00:01:36] Speaker 02: Another is that there was essentially negligence as a landlord. [00:01:42] Speaker 02: Maybe to start with the second one, because the district court, which addressed this one in a little more detail, said there hasn't been a showing [00:01:50] Speaker 02: that the government was new of or consented to Mr. Jackson, the tenant, having a vicious dog in the house. [00:01:58] Speaker 02: So why was that wrong? [00:02:01] Speaker 00: Thank you, Your Honor. [00:02:01] Speaker 00: And we did have four issues, and you highlighted two of them, which is respond yet superior and the second, premises liability, which I'm happy to address. [00:02:11] Speaker 00: Yes, you are correct. [00:02:12] Speaker 00: The district court did conclude that the government could not be held responsible under premises liability as a landlord. [00:02:21] Speaker 00: But it is our position that because the BIA contained a housing policy which expressly [00:02:30] Speaker 00: held expressly warned that tenants in government-owned housing could not possess not only vicious animals, but specifically pit bulls. [00:02:44] Speaker 02: How does that show they knew he had the dog? [00:02:48] Speaker 00: Correct and so your honor that goes back to so the going back to Montana law under premises liability and it's the two-part test under the restatement second of torts 379a the lessor at the time of the lease content consented to such activity or knew that would be carried on again the government knew that tenants may possess animals as expressed in their own written policies [00:03:14] Speaker 00: But with respect to the owning of a pit bull, Montana law and the restatement holds that the lesser knew or had reason to know that it would unavoidably involve such an unreasonable risk or that special precautions necessary to safety would not be taken. [00:03:35] Speaker 00: Here, the government acknowledges that pit bull dogs create an unavoidable risk, a safety issue, which is why they prohibited them in the housing. [00:03:46] Speaker 02: I think everybody would know that at some level. [00:03:49] Speaker 02: I just don't see how this really resolves the issue on this side of the case in terms of why the government knew or consented to Mr. Jackson having this vicious dog in his house. [00:04:02] Speaker 02: Maybe they might have known he had a dog. [00:04:04] Speaker 02: It's not apparent that they knew [00:04:06] Speaker 02: that the government knew it was a dangerous dog. [00:04:09] Speaker 00: And that again goes back to premises liability and what a landlord is responsible for with respect to their tenants. [00:04:16] Speaker 00: And I believe that under Limberhand, which is a Montana case, a land owner has a duty to inspect their property in warn of dangerous conditions. [00:04:30] Speaker 00: Again, that's a duty imposed under Montana law. [00:04:33] Speaker 00: Here, the evidence, and this was a determination on summary judgment, but the evidence of record notes that the government did not inspect the government housing provided to Mr. Jackson, which was directly contradictory to their own written policies. [00:04:50] Speaker 00: It was also contradictory to Mr. Jackson's prior tenancy years earlier [00:04:56] Speaker 00: in government-owned housing where annual reviews were conducted. [00:05:00] Speaker 02: Let's go to the respondent superior piece of this. [00:05:05] Speaker 03: Before you leave that, let me just ask a hypothetical to see how far your argument goes. [00:05:10] Speaker 03: Let's assume it's out of the BIA context and it's a BLM lease of a cabin. [00:05:18] Speaker 03: which occurs in Montana, as you know. [00:05:21] Speaker 03: And with similar restrictions, would your argument still apply for a pit bull that occurred on that property? [00:05:28] Speaker 00: Thank you, Justice Thomas. [00:05:29] Speaker 00: Yes. [00:05:30] Speaker 00: I believe it would, again, look at what the terms of the lease were in your hypothetical situation. [00:05:36] Speaker 00: If the landowner, in that case, the BLM, believed that certain conduct created an unreasonable risk of harms to potential [00:05:47] Speaker 00: occupants trespassers and Forbid that type of activity from taking place on government housing visa via lease Then yes, I think that it does extend to the owner of the land under the hypothetical to BLM to exercise that control and also to prohibit that activity Does that answer your yes? [00:06:08] Speaker 04: Thank you go ahead before my colleague goes forward I'm [00:06:12] Speaker 04: To me, the lutes or luts, however you want to say it, case is a big deal on your side. [00:06:18] Speaker 04: As you know, the government claims that that case is distinguishable. [00:06:23] Speaker 04: You, I gather, do not. [00:06:24] Speaker 04: Why does this case apply and help you? [00:06:28] Speaker 04: Why is the government wrong that it is distinguishable? [00:06:32] Speaker 00: Thank you, Justice Smith. [00:06:34] Speaker 00: Yes, Lutz, I will go with Lutz if that is all right with you. [00:06:38] Speaker 00: Whatever, whatever. [00:06:39] Speaker 00: Yeah, so it's our position. [00:06:40] Speaker 00: So in making its decision, the district court relied on Lutz and specifically carved out the exception because it was military housing. [00:06:50] Speaker 00: And it does intermix with the Respondia Superior argument as Justice Press raised. [00:06:57] Speaker 00: But I think that Lutz is helpful to Kaiser [00:07:01] Speaker 00: because again we have [00:07:04] Speaker 00: factors which, if applied consistently to the Jackson tenancy, parallel with this factual scenario. [00:07:15] Speaker 00: In the lower court's decision, he carved out that exception because he said because it was military and the service member was always in the quote, line of duty, that was not applicable. [00:07:28] Speaker 00: However, when you actually review the finding in Lutz, [00:07:32] Speaker 00: and looked at the factors that are analyzed, there are three factors that I think are parallel. [00:07:40] Speaker 00: Those are that, A, number one, the federal employee lives in federally provided housing, consistent with the facts that we have here. [00:07:47] Speaker 00: In LUTs, we also have that the federal employee is obligated to maintain the federally provided housing by complying with certain rules or regulations. [00:07:57] Speaker 00: That's where the district court drew a distinction from military housing as opposed to what happened in the Jackson situation. [00:08:03] Speaker 00: But we disagree with that. [00:08:05] Speaker 00: In LUTs, there was a base regulation which pertained to the control of animals. [00:08:12] Speaker 00: Here, the BIA housing handbook, as I've already noted and is bold and highlighted in our briefing, has that specific regulation, which includes regulations or requirements for not only controlling animals [00:08:27] Speaker 00: but also prohibits pit bulls. [00:08:29] Speaker 00: But the third factor, inlets, that I think is again supportive of Kaiser's position, which was not considered by the district court, was that the federal employee is subject to discipline if they fail to follow those policies. [00:08:43] Speaker 00: Inlets, because it was a military employee, he was subject to military, quote, discipline. [00:08:49] Speaker 00: Here, however, [00:08:51] Speaker 00: Jackson, as a federal employee, was also subject to discipline when he maintained the pit bull. [00:08:57] Speaker 00: He was evicted from his housing, specifically by the government, because they did not provide a reason, but it was because he was sued under the Federal Tort Claims Act. [00:09:07] Speaker 00: So he was subject to discipline, evicted from his housing, and had to go find new housing where he had to pay rent. [00:09:13] Speaker 00: So it would be our position, Justice Smith, that Lutz is helpful and not properly or not appropriately applied by the district court. [00:09:23] Speaker 02: Does this, in your view, turn on the circumstances by which Jackson was living in the house? [00:09:33] Speaker 02: Here he was living in the house for free. [00:09:35] Speaker 02: There's record evidence that indicates that he was doing so on the understanding that he would be improving the house or maintaining it, preventing it from falling into disrepair, or it sounds like he was already in some degree of disrepair and he was making it better. [00:09:50] Speaker 02: Are those facts relevant, or would you be prevailing even without those facts? [00:09:58] Speaker 00: I think that those are relevant when you examine how Jackson came to reside in the housing. [00:10:07] Speaker 00: He was allowed to live there because he was a government employee. [00:10:10] Speaker 00: It was government-provided housing and did so in exchange for the upkeep of the property. [00:10:16] Speaker 00: So I do think that that does play into both the premises. [00:10:19] Speaker 02: But what if he just was living there and paying rent? [00:10:22] Speaker 02: Would this be the same case from a respondeat superior standpoint? [00:10:26] Speaker 02: In what sense would the dog be incidental to the scope of his employment if he was just living there? [00:10:32] Speaker 00: So I'm going to take away from this liability and follow your direction on respondeat superior. [00:10:37] Speaker 00: Yes, correct. [00:10:38] Speaker 00: I think that with respect to respondeat superior, the fact that he was living in government housing free of charge and maintaining that property at the benefit of the government is an important fact. [00:10:51] Speaker 00: When we look at the case from respond yet superior case and if I may address respond yet superior because This court specifically has addressed this type of situation in Montana Very very recently with the LB versus United States decision, and I think that that case is very Relevant when we consider the facts of Jackson of course LB is a very Different set of facts in which a tribal officer [00:11:20] Speaker 00: responded to reports of a DUI and ended up in a sexual assault situation with a woman who then sued the tribal officer. [00:11:33] Speaker 00: The district court in that case determined that Respania Superior under Montana law did not apply because the act of sexual assault was not in the course and scope of activity that the employee was authorized to do. [00:11:48] Speaker 00: That court [00:11:49] Speaker 00: determined that decision on summary judgment. [00:11:52] Speaker 00: It came to the Ninth Circuit. [00:11:54] Speaker 00: The Ninth Circuit certified a question to the Montana Supreme Court asking whether, specifically, a tribal officer who [00:12:05] Speaker 00: has sexual activity while working for the government can be, can hold the government responsible under respond yet superior. [00:12:13] Speaker 00: And the Montana Supreme Court said yes, it can. [00:12:16] Speaker 00: That's a factual determination. [00:12:18] Speaker 00: It came back to the Ninth Circuit. [00:12:19] Speaker 00: The Ninth Circuit sent it back down to the Montana District Court. [00:12:23] Speaker 00: District Court again decided in favor of the government. [00:12:28] Speaker 00: Plaintiff appealed. [00:12:29] Speaker 00: That case came back to the Ninth Circuit. [00:12:33] Speaker 00: The Ninth Circuit again decided that the judge, partially because that judge had decided the underlying criminal case, but sent it back down for a bench trial. [00:12:44] Speaker 00: LB was decided on February 25th of 2025. [00:12:48] Speaker 00: In that case, Judge Donald Malloy from the bench ruled [00:12:53] Speaker 00: that yes, the government was responsible, under-respond yet superior, after a one-day bench trial, a fact finding to determine that he was within the course and scope. [00:13:03] Speaker 00: And so I think that a similar result should occur here. [00:13:07] Speaker 00: Rather than deciding the case on summary judgment, this case has specific facts which viewed in the light most favorable to Ms. [00:13:18] Speaker 00: Kaiser [00:13:19] Speaker 00: summary judgment should have been denied. [00:13:22] Speaker 00: And as we learned from LB and also the Lutz case, the Respogna Superior question is much more nuanced and much more flexible and amiable than was decided here by the district court. [00:13:40] Speaker 00: The act is whether to determine whether the actor was in the course and scope of employment, the court has to decide whether it was the act was expressly or implicitly authorized here, you know, whether having the dog was expressly or implicitly authorized or [00:14:01] Speaker 00: And the second factor I think is most important, consistent with LB and consistent with the facts here, whether it was incidental to an expressly or implicitly authorized act. [00:14:14] Speaker 00: Here, the tenancy by Jackson was incidental and explicitly authorized. [00:14:21] Speaker 00: And his decision to have a dog and the government's failure to remove that dog from the premises or to advise him of such yields that the government could be held responsible for him under Respondia Superior. [00:14:38] Speaker 00: I have 30 seconds left. [00:14:39] Speaker 02: Do you want to save some time for rebuttal? [00:14:41] Speaker 02: We'll put two minutes on the clock when you come back. [00:14:42] Speaker 00: Thank you so much. [00:14:43] Speaker 00: I appreciate it. [00:14:44] Speaker 02: Thank you, Ms. [00:14:44] Speaker 02: Stone. [00:14:52] Speaker 01: May it please the court. [00:14:52] Speaker 01: Good morning, Your Honors. [00:14:53] Speaker 01: My name is John Newman. [00:14:54] Speaker 01: I'm an Assistant U.S. [00:14:55] Speaker 01: Attorney with the District of Montana, and I represent the United States in this case. [00:15:00] Speaker 01: I agree, Judge Bress, with the two buckets you mentioned at the outset, the vicarious liability and premises liability buckets we have going on here. [00:15:09] Speaker 01: Does the court have a preference on which one I address first? [00:15:12] Speaker 01: I would suggest to respond to it superior. [00:15:15] Speaker 01: Okay, perfect. [00:15:15] Speaker 01: All right, well, before I get into the LB test, which my co-counsel discussed a moment ago, I want to read the description for Mr. Jackson's position as an irrigation systems maintenance worker with the Flathead Indian Irrigation Project. [00:15:31] Speaker 01: And the reason I want to do that is because I think it's helpful for marking the boundary between what's within and outside [00:15:39] Speaker 01: the scope of his employment. [00:15:40] Speaker 01: And that's important because we're talking about authorized acts under LB. [00:15:45] Speaker 01: So the position description gives an idea what constitute authorized acts with respect to his job. [00:15:52] Speaker 01: This description is at SER 5. [00:15:55] Speaker 01: So Mr. Jackson was expected to utilize knowledge and skill in carpentry, concrete, and masonry to repair and replace irrigation structures, including checks, drops, headgates. [00:16:07] Speaker 01: It goes on to describe the specifics of an irrigation system. [00:16:11] Speaker 02: I mean, there's really no question that the dog had nothing to do with his main job of running, working the irrigation systems. [00:16:20] Speaker 02: I guess the issue, though, is [00:16:22] Speaker 02: the circumstances by which he was living in the house, and whether there was some part of his job that was actually about fixing the house, and that the dog was then incidental to that. [00:16:35] Speaker 02: That seems to be what the whole case would turn on. [00:16:38] Speaker 01: I agree, Judge. [00:16:39] Speaker 01: The dog had absolutely nothing to do with his job. [00:16:42] Speaker 01: And as far as the circumstances that he came to be living in that house, [00:16:46] Speaker 01: So when he took the job in 2015, he asked to live in that house because he knew about it. [00:16:52] Speaker 01: He had lived there back in 2009. [00:16:53] Speaker 01: And the BIA said, the house is available. [00:16:58] Speaker 01: Sure, you can live in it. [00:17:00] Speaker 01: And it was Mr. Jackson that decided to fix it up because the house was completely uninhabitable at the time. [00:17:05] Speaker 01: But there was never a quid pro quo where the BIA said, [00:17:10] Speaker 02: you can live here if you repair the house is that not at least genuinely disputed though because i mean he his testimony my understanding was if i improve the home i could stay there so that's why i did a lot of work to it [00:17:23] Speaker 01: Well, and so immediately prior to that part of the testimony, he talks about how the BIA owned a few other houses within the Flathead Reservation, and that all of those houses were essentially falling to the ground. [00:17:36] Speaker 01: And so when he says, my understanding was I could live in it if I fix it, it wasn't that someone at the BIA said you can live in it if you fix it. [00:17:45] Speaker 01: Somebody at the BIA said you can live in it. [00:17:48] Speaker 01: And his understanding was so long as it doesn't fall to the ground, I'm permitted to live in it. [00:17:53] Speaker 01: And that's not genuinely disputed. [00:17:54] Speaker 01: He never testifies that someone at the BIA said, so long as you fix it up, you can stay there. [00:18:00] Speaker 04: He decided to do it. [00:18:04] Speaker 04: That's a disputed fact, because he understood it one way. [00:18:06] Speaker 04: The government understands it a different way. [00:18:08] Speaker 04: Isn't that the very kind of thing that a prior effect would need to analyze? [00:18:12] Speaker 04: They may not believe Mr. Jackson, but it's at least a disputed fact, is it not? [00:18:17] Speaker 01: Well, I think even if you were to consider it, [00:18:19] Speaker 01: a disputed fact, it's not a material fact because his. [00:18:23] Speaker 04: It goes to the very heart of this. [00:18:27] Speaker 04: If there's no, basically, if there's no connection, there's no authorization for him to be there as a trespasser. [00:18:34] Speaker 04: We got a whole different case. [00:18:35] Speaker 01: Well, but in order to determine the connection, we need to look at what the acts that Mr. Jackson was authorized to perform pursuant to the job that he was hired to do, which is irrigation systems maintenance worker. [00:18:47] Speaker 02: Well, I guess that's the issue here. [00:18:48] Speaker 02: I think you're assuming that's the scope of the job, but the scope of the job could be irrigation systems worker and somebody who lives on our property and fixes it. [00:18:57] Speaker 01: There is no indication that the scope of his job as an irrigation systems maintenance worker expanded when he went to go live in that house. [00:19:07] Speaker 01: And so the analogy that I've thought of here is like if you lease a premises and part of the lease agreement, a term of the lease agreement is that you shovel the walkway. [00:19:14] Speaker 01: You don't become an employee of the landlord every time you shovel. [00:19:17] Speaker 01: that those two things are completely separate. [00:19:19] Speaker 01: That's a condition of your tenancy, whereas your job is something completely different. [00:19:24] Speaker 02: I mean, that may be in your hypothetical. [00:19:26] Speaker 02: It's just that what he was doing here is seemingly a little different than just shoveling the snow. [00:19:31] Speaker 02: He's not paying rent at all. [00:19:33] Speaker 02: And he seems to be saying, I had the understanding that I could live there if I did this work on it. [00:19:38] Speaker 02: I guess the question I would have for you then is if that, let's just assume for a second that that point is genuinely disputed, where does the analysis go from there in terms of do you have a position as to why, even if that's true, you would still win. [00:19:51] Speaker 02: If it's a genuine material dispute of fact as to whether his work at the BIA included maintaining the house, does this then need to go back or do you have other arguments as to why you should prevail? [00:20:07] Speaker 01: I think if it's genuinely disputed whether his living at the house was within the scope of his employment and the decisions that he made when he was at the house to maintain it, if that's within the scope of employment, which I just obviously you know I don't agree with at all, I think at that point, yeah, that might be. [00:20:30] Speaker 01: I think I'd have to concede that that might be a basis to send it back. [00:20:34] Speaker 01: But I don't think that by accepting that living arrangement, that became part of his employment. [00:20:41] Speaker 01: So he had to be a federal employee to live in this government furnished housing, but he didn't need to live in the government furnished housing to be a federal employee. [00:20:52] Speaker 01: So he wasn't judged as an employee by the way in which he maintained the house. [00:20:58] Speaker 04: And he could have... But he lived there for free. [00:21:01] Speaker 04: who lived there for free, and his contention, whether or not you agree with it, was that he could do that as long as he fixed it up. [00:21:11] Speaker 04: And he probably thought, well, you know, I'm not in a dangerous area. [00:21:13] Speaker 04: I need somebody to help protect me. [00:21:15] Speaker 04: I got a dog. [00:21:17] Speaker 01: Sure. [00:21:17] Speaker 01: Well, that's his rental agreement. [00:21:20] Speaker 01: And it just so happens that his landlord is his employer. [00:21:23] Speaker 01: Just because he has, even assuming that that was a term of the rental agreement, was that he would fix the place up sort of as a consideration for living there. [00:21:34] Speaker 01: It's happenstance that it's his employer who is also his landlord. [00:21:38] Speaker 01: His job is a completely separate thing from that. [00:21:41] Speaker 01: And the position description that I just read indicates that. [00:21:44] Speaker 01: It doesn't say that Mr. Jackson's job also involves repairing and maintaining other BIA structures. [00:21:51] Speaker 01: It's all about irrigation. [00:21:53] Speaker 01: So it's just essentially a coincidence that he lives in this house that's owned by his employer. [00:22:00] Speaker 01: And I think if you were to look at the position, the BIA didn't offer this house up to rent to any other federal employee. [00:22:09] Speaker 01: The only reason that Jackson, I mentioned this a moment ago, the only reason that Jackson was living there was because he knew about it from a previous time working for the BIA. [00:22:19] Speaker 04: Is there anything in the record that indicates that when Mr. Jackson was in other structures that he had a bulldog or any kind of dog? [00:22:29] Speaker 04: I didn't see anything, but is there anything I can't recall? [00:22:32] Speaker 01: All I know, Your Honor, when he moved into this house in 2015, he didn't have any pets. [00:22:37] Speaker 01: He definitely didn't have this specific dog. [00:22:39] Speaker 01: I don't think he had any pets at all. [00:22:41] Speaker 01: He may have had. [00:22:43] Speaker 01: I honestly can't remember if he had pets in other circumstances. [00:22:46] Speaker 02: On the premises liability, you're opposing counsels pointing us to the policy, the BIA policy against pit bulls and do you think that is sufficient to create a genuine dispute on the premises piece of this? [00:23:01] Speaker 01: No, Your Honor, so the general rule in Montana is that a lessor bears no responsibility for injuries caused by the acts of a tenant once possession is transferred. [00:23:11] Speaker 01: So there's no duty under Montana law for a lessor once possession is transferred. [00:23:17] Speaker 01: The only way that any sort of federal policy manual, federal statute, or that sort of thing would come into play and serve as evidence of the standard of care would be if there was an underlying state law duty. [00:23:28] Speaker 01: And that's the basis of the FTCA, basically. [00:23:31] Speaker 01: an FTC case can't be predicated on a duty that only arises under federal law. [00:23:38] Speaker 01: So because that general rule regarding less or liability is such that there is no duty, and that's under the Napton case under the restatement section 379A, because there's no duty, [00:23:54] Speaker 01: then we don't even get to the federal manuals or that sort of thing that might inform a standard of care if there was that underlying state law duty. [00:24:02] Speaker 02: But the duty would arise when? [00:24:05] Speaker 02: If the government knew or consented to him having the dog? [00:24:08] Speaker 01: That's precisely correct. [00:24:09] Speaker 01: Yeah, and that's part of it. [00:24:10] Speaker 01: So if the first prong, it's a two pronged exception under Section 379A, the first prong would be, and this is an exception to the general rule, [00:24:21] Speaker 01: The first prong would be if the lessor consented to the activity or knew that it was going to occur, so either says go ahead and do it or has some information. [00:24:30] Speaker 01: At the time the parties enter the rental agreement, has some information that this activity is gonna go on. [00:24:37] Speaker 01: And then the second prong of the exception is that the lessor knows or has reason to know, so has actual knowledge that this activity and the standard, I think that the phrasing is, it presents an [00:24:51] Speaker 01: or an unavoidable risk of unre- or it unavoidably creates an unreasonable risk. [00:24:57] Speaker 01: That was the wording from the restatement second 379A. [00:25:01] Speaker 01: So the, yeah, the lessor has to consent or know that something's going to happen and the lessor has to know that this injury causing activity will definitely cause an injury in essence. [00:25:15] Speaker 02: Your opposing counsel seems to be arguing that because [00:25:18] Speaker 02: The government has policies against pit bulls. [00:25:20] Speaker 02: They're knowledgeable that pit bulls can be dangerous, and therefore that would be sufficient. [00:25:26] Speaker 02: I tell you, you disagree with that. [00:25:27] Speaker 01: I do disagree with that. [00:25:28] Speaker 01: And for that, so yeah, I mean, I think if you were to look at the Napton case, the Napton case provides a really good example of the type of information that constitutes knowledge under the had reason to know standard in the second part of that exception. [00:25:42] Speaker 01: So in Napton, the lessor knows that the tenant has two pit bulls, two same type of breed of dog here. [00:25:49] Speaker 01: knows that the tenants have those pit bulls, but the Montana Supreme Court ultimately said that she didn't have reason to know under that second prong of the exception because she didn't know that the dogs were vicious. [00:26:03] Speaker 01: So this idea that a generally applicable policy could translate to actual knowledge is undercut by Knappton. [00:26:11] Speaker 04: It needs to be. [00:26:12] Speaker 04: I want to change the subject slightly. [00:26:15] Speaker 04: On the negligence per se, based on respondeat superior, apparently the Lake County Ordinance 861 provides that in quotes, if a dog is determined to be a vicious dog, by law, unfortunately, the owner of the dog may be ticketed for a misdemeanor offense. [00:26:33] Speaker 04: Now it's a public ordinance. [00:26:35] Speaker 04: What role, if any, [00:26:37] Speaker 04: should that play in our analysis of the respondeat superior claim? [00:26:42] Speaker 01: So there were a number of sources of per se liability that the appellant raised in the district court. [00:26:50] Speaker 01: And some of them imposed strict liability, whereas some of them were related to controlling a dog and didn't impose strict liability. [00:27:01] Speaker 01: So to the extent that that [00:27:03] Speaker 01: Lake County ordinance imposes a strict liability on the owner of a vicious dog. [00:27:08] Speaker 01: The United States hasn't waived sovereign immunity for claims sounding in strict liability. [00:27:13] Speaker 02: But why would that impose strict liability when it just says you may be ticketed? [00:27:18] Speaker 01: Your Honor, I apologize. [00:27:19] Speaker 01: I know, as I said, there were a number of sources of per se liability. [00:27:23] Speaker 01: If it's not a strict liability provision that is the source of the per se liability, we go back to that vicarious liability question. [00:27:32] Speaker 01: So Jackson wasn't within the course and scope of his employment with respect to owning the dog. [00:27:36] Speaker 01: So his violation of any statute or ordinance that relates to controlling dogs doesn't transfer to the United States. [00:27:53] Speaker 01: I believe that may be all I have if the court has any further questions. [00:27:58] Speaker 01: We'd ask that you affirm the district court. [00:28:01] Speaker 02: Okay. [00:28:01] Speaker 02: Thank you very much. [00:28:02] Speaker 01: Thank you. [00:28:02] Speaker 01: I appreciate it. [00:28:09] Speaker 00: Thank you briefly, Your Honors. [00:28:11] Speaker 00: Going back to the question on the Lake County ordinance, is [00:28:18] Speaker 00: plaintiff's position that that constitutes negligence per se and that's set forth in the very end of our briefing not strict liability and that if the government is vicariously liable for Mr. Jackson this would constitute negligence per se. [00:28:35] Speaker 00: So that's the purpose of the Lake County statute. [00:28:38] Speaker 00: Two quick points that I wanted to bring up with respect to the prior tenancy I think that this issue is important because there were some questions involving [00:28:48] Speaker 00: whether just living at the property was enough. [00:28:52] Speaker 00: When Jackson lived at the property in 2009, he was required to pay rent. [00:28:58] Speaker 00: When he returned to the property, he was not. [00:29:01] Speaker 00: When he lived at the property in 2009, he had a lease agreement. [00:29:04] Speaker 00: When he returned to the property, [00:29:06] Speaker 00: He did not. [00:29:07] Speaker 00: But I think the fact that he changed or the government changed the terms and condition of his tendency is important because when we look at the Lutz decision, which is again our military base, but in the Lutz decision, the animal that attacked the child [00:29:27] Speaker 00: I was not a service animal. [00:29:28] Speaker 00: Just like in this situation, you know, we can agree that the dog was not really, was not used in Mr. Jackson's work as a ditch rider. [00:29:37] Speaker 03: However... So why does the existence or non-existence of Elise bear on the question of whether he's a lessee and they're a lessor? [00:29:46] Speaker 00: Well, I think that it bears on the position that the government failed to follow its own policies with respect to [00:29:53] Speaker 00: its requirements of tenants in government housing. [00:29:59] Speaker 00: Mr. Jackson testified that he had under the prior lease and then also when he worked for the BIA, I believe it was in Nevada or Arizona, that he was subject to a lease. [00:30:12] Speaker 00: annual inspections and that had he known that there was policies in place that prohibited pit bulls, he would not have acquired this dog. [00:30:23] Speaker 00: And that is testimony of record in the depositions. [00:30:28] Speaker 00: Any further questions? [00:30:31] Speaker 02: Great. [00:30:31] Speaker 02: Thank you very much. [00:30:32] Speaker 02: We thank both counsel for the briefing and argument. [00:30:35] Speaker 02: This case is submitted.