whether the district court properly granted summary judgment in favor of the government on mr o'donnell's federal tort claims act and the getting down to the main issue the district court seemed to consider the fact that mr o'donnell wrapped the pressure hose around his foot is creating an issue that was the accident under either a duty or proximate cause analysis was a freakish result or something that was considerably remote to take it out of the trier of fact let me ask you a practical question is  so this because it's a federal tort claims act case this is a bench trial right and in the event that we were to agree with you that there is a genuine issue of material fact here about we win what do we win because we're going back in front of the same i mean if they do if the district judge were defined as a fact as and as a factual issue that there was not proximate cause it would be subject to review for clear and be very difficult for you to overturn that finding right potential i think the markham case is very helpful for us but i agree with you but here's here's why we're i think it's distinguishable first an issue of duty will be found by this court that there was a duty on behalf of the government the district court found there was no duty and i think to do the same still made to be your hardest argument i was just i mean i think this here i think if the if this court reverses and finds that they just report was incorrect and there was a duty that would address the foreseeability argument that these are just record addressed and found that that was so remote that it couldn't there could be no duty i'm not sure from your perspective what difference the photos make well i think to have a complete were on the merits there'd be more information than just the cold record and again we can't guarantee that the just record making i think i can only speak for myself the odd thing was that i was more inclined to think that we should reverse this case until i saw the photos but then it was the government who move perceive a specific injury that actually occurred yeah well i'm not talking about this specific injury the freakish accident as the district courts where wrapped around his ankle and all of that i'm just i'm just thinking i'm from the driver i might think that driving over has is it could damage the hose but i don't think of it as potentially injuring someone far away who's holding it well so i will forego any in any sense talking about probably for me to you or  think i view that as relatively far away or thirty feet ok but but here we have the hose this connected to the truck but also connected to the machine that the plaintiff was using so we have a of risk where a truck driver would have to know that if he runs over these pressures hoses which were the testimony is that they were about a foot off the ground because they're pressurized that it's not only going to going to affect  hoses it's going to affect the person that's that's at the end of the hose well so the gforth courts have said the mere possibility of an event is not the same as foreseeability and the duty requires a probability that something will occur or not a possibility that it will and that's why i returned to my concern that the real probability here would be is more of a damage to the hose not the possibility that someone holding it thirty feet away is going to be injured well again it's your position i understand that our position would be that when it's when it's attached to the person and the person is actually holding that it's a much different than just damaging the hose especially when you're going to drag is that the probability that was that just a possibility would be probability because there could be numb numerous things that could happen to someone if the hose is drug going to that type of injury not that the question of whether someone holding the will be injured in all right but that's but that's again going to for the foreseeable zone of risk they're saying the type of injury is not is not irrelevant now is here is is there is a foreseeable zone of risk created by running over those hoses that could potentially injure someone on the other end of those hoses and our position is yes and our position is is strengthened by the markham case there's two reasons why i consider our position straight and by the market based on the duty element in markham with the fifth circuit the fourth a circuit determined that there was a duty on behalf of the truck driver because the truck driver saw that their workers in the area understood the issue and in even though i didn't see mr mark when he drove through the intersection he was aware there was workers present and the duty element was also explained by the orifice circuit in i think that's of it's very relevant here because what happened factually in markham is even more tenuous and then then what you would allege here what happened in markham was there was a truck that was being driven and there was a cable behind the truck the  morcombe was not holding the cable mr markham was actually directing traffic he had nothing to do with the cable there was another worker there was holding the cable the cable was about twelve eighteen inches off the ground is a question of fact so and opinion could correct that then the answer to that would be that the district court looked at all of the facts and if you don't have any additional facts isn't this a waste of it's reversed but i understand what you're saying this is a potential issue with that but i think the district court didn't mix issues of fact in law but what the district court states on page nine that o'donnell failed to establish parks might causation as a matter of law and that would lead one to saying that the district court might have thought that proximate cause question of law not a question of fact  but your first question is even if we go back what are we what are we going to accomplish again i would consider the fact that if this court determines there is a duty then is takes care of the foreseeabilit record both the duty and proximate cause on the issue of the foreseeability because of the fact that the mr o'donnell put the pressure to look the pressure hose around his foot and they determined that's not something that  good morning it may please the court least that read for the united states of america i have with me a counsel's table alecia well she handled the case in the district court you know when we talk about whether we should be looking at these pictures or objection but when now we have before some motion to supplement the record to include them and does seemed sort of think when you read the depositions they're obviously referring to some photos it does seem the sort of thing in mr hack the mail carriers deposition those pictures were taken after the fact so when you see the pictures you're not seeing definitely anything that the mailman saw when he came to  you other thing about the pictures that becomes clear that position is that the hoses were actually moved for by the time the pictures were taken because it's the mail carriers supervisor that takes the pictures so the hoses are then moved because while they're waiting for the ambulance to come mr creighton says i move the hose that i can fit i could finish the job so our concern your honor is that the pictures really la relevance for purposes of summary judgment where were assuming all the facts in the light was favorable to the plaintive it is actually more confusing than it is helpful with our position as a four o three objection i mean it's hard for me to see it is not is irrelevant i mean the fixtures at least show us the size of the hose you know it shows a something about the surroundings whether they were moved or not i'd rather that i mean it does seem to me that it has some relevance it certainly was important for purpose of the deposition to figure out where the people were what the house looked like space staying but all of that comes out in the deposition itself it may be helpful at the trial level but for some recharge moment it's definitely more confusing than it is helpful but the but just to be clear the witnesses did talk about the photographs and the depositions and they were exhibits the deficit to the depositions is that correct i read yes they were your honor but technically they were not made part of the record that the district court considered in the motion exactly and that the chapman case in the summary judgment scenario where we're looking at the facts in the pla light at any rate that the court can't review anything that wasn't before the district court that i agree with with with your honor judge crier that proximate cause is is absolutely going to be case  e here and judge black in this situation where the district court looked at in a summary judgment situation all of the facts as a given i think what the court means when it says that there was no proximate cause as a matter of law the court means i've accepted all of the plaintiff's facts the court states i have accepted all of the plaintiff's facts in looking at those facts in the best in the light most favorable to the plaintiff and then comparing it to the proximate cause law for the state of florida that as a matter of law there is no proximate cause my question underlying my question is  assume you have a duty if you don't have duty as a matter of law we don't go we don't get any lies yes assuming you have a duty then proximate causes a question that everyone would agree that  yes yes and in this case a district court didn't air in the terminating that the incident here while unfortunate was unpredictable in the light of common human experience and in this case under florida law we can't impose liability so we can look at first the threshold issue of legal duty and the question there is what's the general threat of harm that supposed to others by the negligent act and with the negligent act is backing up over these pressurized hoses which were cording to the deposition about three quarters of an inch in radi photo let me let me ask you if it really council so mr o'donnell says it's not just that it was a hose in the road but it was a hose that was being used by a person which was obvious from the fact that there was a truck there and there was a quick m and there was a guy in the driveway with a hose in his hand so let's set aside whether just the hose in the road would've created a duty and and please address that point if i understand the question your honor the mailman said that he saw the hose on the side of the road he saw someone working working forty feet away on the driveway is that you cross with the hose he would you walk right so he saw that he was working with some kind of hose it was it was actually holding on to some sort of surface cleaner which has sort of a stand up handles along a broad base but that surface cleaner yes was attached to the hose easy is walking back at that point he had already according to their facts it's front tires had gone over the hoses at that point he's walking back to the truck and he's just backing these over these hoses if there was no injury no movement no problem back and going over the hoses i don't think it's the natural assumption that there would be in the common human experience any problem going back over the same hoses that he had just driven over the do the district court said that there was no duty partly because there was no record evidence that the act of running over a pressure washing has has ever resulted in the type of harm that o'donnell experienced that seems to me like inserting a fact issue into what we've all agreed is a question of law when there was a fact a statement of facts here made by the plaintiff in which mr kirton said in his experience in his sixteen years of experience this had never happened and he had that is it seems to me that the district court did confuse what kind of injury we're talking about we're talking about the zone of risk for this from the standpoint of duty versus the the particular injury that occurred here which is more to me at least a question of proximate cause and and if you look at it from the duty inquiry that district court seems to have mixed up the proximate cause and duty issue by looking at this particular kind of injury as opposed to running over a hose wouldn't be thought to be creating a risk of harm to you know probable risk of harm to people who are you know it was not first seeable that running ever has in the street would catch the bottom of that vehicle in this case of mail truck causing it to tighten around o'donnell's ankle you know he's then talking about this particular type of injury as opposed to just a general risk of harm to people who hold or are working with the us ok i understand your court's concern the foreseeability issue is a much more specific and narrow analysis and i got  proximate cause right and i in the district court mix it up right now i think the judge the district court was was correct as you're on to point out he did start with the supposition that what's the general threat of harm and the general to of common human experience was the hose it would be damaged but the court went on to also discuss isn't for seal ability factor that needs to be discussed even when you're talking about a general threat here is the factor that we think is completely outside of the what might be an auto zone of risk to two people who are working with the has it be there might be a variety of kinds of injuries that they would suffer c concept of what was a general threat and he repeatedly said that he thought the general threat would have been the damage to those itself that the driver was on notice that pressure washing was occurring in the drive and  we realize that there is an intervening act as the court has emphasized that is completely improbable the intervening act the we're back to the proximate cause analysis which is a question  law yes your honor exhibit were a trial exactly exactly so that there are new genuine issues of material fact because we've accepted them at this particular juncture true if we went as as the mr kryten pointed out the owner of the pressure washing company himself this is never happened in his sixteen years as you just don't put your ankle in pressurized hoses and that he would never do it so we have an intervening act that is not only improbable in our common human experience but also to the experience of someone who has been working with pressure hoses for the past sixteen years so it is even less likely to  negligence case in florida a state negligence case but we have a situation where under the federal tort claims act the court becomes a trier of fact so if reasonable people could disagree we still have the court the court's judgment in of in the federal tort claims act case which would be the judgment that we would have again even at the end of the trial you don't think it's possible if we were to tell the district court there was a duty here that the disregard might have a different view on proximate cause you know those are two separate analyses understand they're separate arouses but they both involve an element of foreseeability  they do but the element of foreseeability with proximate causes a lot more specific as as we've discussed it's if we do look at that point at the narrow scope the specific facts it occurred and i don't see how in this particular case that would make a difference the court was aware of these facts even in his legal duty analysis and even more so in the proximate cause analysis it's the intervening act that was so improbable that takes this case out of the usual  norm this case is more comparable to a situation where the driver had run into a pole an electric pole and be in the broward palm beach medical imaging case the imaging company who ran for radiological equipment that was affected by the loss of electricity attempted to say that there was some cars involved doesn't help as much because the driver didn't know that the imaging center was even there and that it had stuff in it i mean in this case the driver knew where what was going on was right there and could tell what was going on situation the connection between the hose on the ground and the man forty feet away that could have caused such an accident in south florida it's our common experience that pressure hoses are on the ground pressure washing is a regular activity in a parking garage that you make park in it's not uncommon to see a pressure hose laying on the ground so for a driver in south florida this is part of our normal experience  driver could have driven even more aggressively could have just hit the gas and peeled off and that would have been a problem because there's no duty there is a duty because still there is a threat a threat of harm but i mean the threat of harm to a person well there's always a threat of harm to a person if you're peeling off and driving quickly i don't see that that would have made a difference in the pressure hose scenarios is what i would say but i don't think that reckless driving under any circumstances would reading from from five or four and when the court found there was a duty they said certainly the power company the defendant is entitled to give the fact finder all available evidence about intervening causes precautions taken against the risk the fact the no similar injuries occurred in the past and comparative negligence among other matters meeting the supreme court says you can consider those as fact issues they're not dispositive and they're not something that th are considers a matter of all their fact issues similar incidents intervening causes are nothing that you can consider as a matter of law so councils and correct saying that would be an intervening cause would be an issue of law it's certainly not going back though because i know there's an issue of duty i think it's it's more the players position it's more than just running over the hoses it's running over the hoses which created a chain of events including that it is improbable that you run over hoses were were not just on the ground they were they were up a foot foot and a half would cause the anybody at the end of the hose to be to be dragged so there's more than just the hoses being damage it's that there's going to be a drag means it's not just run over those is going backwards there's testimony that the driver took off in an address an aggressive manner so that's the zone of risk that we're addressing not just running over hoses and damaging hoses it's creating a chain of events by aggressively running over the hoses which would would because they were so high would catch onto the truck which would cause the hoses to be dragged and that's our position here and again i'd like to i can maybe i just don't understand but it seems like everybody's getting proximate cause and getting mixed up the district court and counsel on both sides i mean to me that if we're talking about the zone of rest for duty purposes what we're really talking about is the risk of injury to people who are using those not the particular type of entry not that it has to do with backing up over it or or whether someone's going to get their ankle her whether or even whether they're going to fall down there could be any number of injuries to a person he goes right and the question is is when when you think about running over the hose where they're backing over it whatever is the is the zone of risk a risk to the person using their home or is it just limited to the damage to the hose itself and we're getting mixed up with this particular plaintiff's injury which is more of a question and it seems to me a question of fact and proper and proximate cause and it is known of risk and duty you understand where i'm coming from and it's our position that under very quickly i understand what you're saying about where we see all i think florida law is also on the same and the same principle that a driver of a vehicle is as it as a lookout duty and make sure that he understands it contingencies around him but again in  i think that that what is important in markham as in here is that and again i might be mixing duty in proximate cause i think that happens a lot with with these cases is that mr markham wasn't even holding a cable and when the driver went through it somehow wrapped around him causing his eventually death and the government said that that's something that's too remote in the district court and the appellate court reversed saying no it's just record in these federal tort claims act but it's not absolute and i think would be unfair to say well doesn't make a difference they've already made a decision district court just like appellate courts can change their minds at any time so this is really an issue of was there any it was there is a matter of law no duty or no proximate cause and if there is not if if there's reasonable interpretations that get materials as a fact it should go be fact before the district court judge you can make their make a no decision but it