error for the district court to into done deny mr lodge the a trial on his personal injury claim against the united states in the court below in the state court in the federal court missed a lot of people's alternatively pro se and represented by counsel at the time of the dismissal below his his then counsel on had determined that she was going to withdraw and i think that it's contributed to a somewhat lack of clarity in the record  below it's a personal injury case sure the panel is aware of the facts briefly the appellant was injured while at the united states air force memorial in a vampyr of two thousand and six for purposes of this appeal i don't think there is any dispute that the united states was in control of the parking lot and furthermore had assumed responsibility for the lighting in that parking lot there should be no dispute based on the standard that the court should have applied below that the lights were not working on the night of the incident furthermore there is no disputing that that for purposes of jurisdiction under the federal tort claims act here we have a situation where the merits of the case are completely intertwined with the issue of jurisdiction the court below ruled that virginia's recreational use statute therefore that in order to prevail on his claim under virginia law mr lotfy was required to demonstrate gross negligence we've briefed the issue of the application of the rich in your recreational use statute i'm not going to go into it here i think it's covered adequately in our briefs for purposes of this argument though i will assume that mr lotfy needed to have enough evidence in front of judge triangle below so that in order to show that a reasonable juror could have found that the united states was grossly negligent in connection with their maintenance of the lighting the court below dismissed for lack of subject matter jurisdiction did not take any action to either repair the lighting or provide some type of warning to users of that parking lot for many months but it seems reduce tension between frazier and chapman is that in chapman they ma virginia supreme court said that a deliberate decision not to act is important evidence of gross negligence but by no means did it say that it was a requirement in order to show gross negligence and in fact in chapman one of the reasons that the court of appeal of the dismissal below is the court felt that there was not sufficient evidence from which a jury could determine that the defendant knew of the hazard and failed to take action the court said that rejected that argument because the jury would have to speculate as to whether or not there was actual knowledge here there was actual knowledge and we know that from m declaration he says that he says a few things he says number one that it was the responsibility of the united states to maintain the lighting in that parking lot he says that he looked at  computer record and based on that computer record there was only one notification that the lights were not working let me let me rephrase that he says he says another thing he says  that and this is in in the record at the joint appendix at page one thirty four that the pentagon force protection agency is responsible for monitoring the lights in that parking lot and according to mr carter would have been quote immediately aware of lights malfunctioning event goes on to say that based on the computer records there was only one recording of an intent to maine to undertake repairs and that occurred in october of two thousand and seven we know from the testimony of the plaintiffs which was submitted by affidavit and which for purposes of the motion below and today the evidence as to the light on call eighteen is that it provided some light to that area of the parking lot that the plaintiff was injured in however mr lotfy testified that there was no lighting whatsoever was providing sufficient light to the parking lot but respectfully what i believe the tamil then you're referring to is mr carter's conclusion based on his roof view of one page of these computer records referred to as the maximo records that he believed that that indicated that the lights were repaired on that very same day however as was pointed out below and as we pointed out in our papers that particular document shows that the incident was not closed and i'm reading from the joint appendix at page one fifty seven the incident was not closed until march of two thousand seven furthermore and we also discussed this in our brief the joint appendix and on page eight thirty eight thirty one there is evidence that a contract to replace some lamps  was was it was authorized on october twenty eighth two thousand and six the day after the maximo records indicate that there was a malfunction in the lighting that particular work was not completed again until i believe june of two thousand and seven and yet again according to mr quarter day and day out the pentagon force protection service is immediately aware that these lights aren't working i believe that this evidence taken together and applying the correct standard which takes all of the allegations of mr lott for use true and resolves all inferences in his favor a reasonable juror could conclude that if the united states knows day and day out week after week month after month that there is not adequate lighting in this parking lot that that is sufficient to create a jury question as to gross negligence and therefore even if this court should agree the judge judge trenka got the application of the virginia recreational use statute correct that this case should have the court should have looked more closely at the in consistencies in mr carter's declaration he was left with the person he was definitely an interested person and there's no question that in some respects he there was a proper foundation for his testimony however with respect to these maximo computer records which is the only source of his testimony that these lights were reported i ways in the sense that he had let me let me pull out if i may he his particular position was he was in a supervisory  position i believe that he had and he indicates that he has familiarity with the general functioning and the general responsibilities of the various the various agencies involved and the divisions of the of the army involved or the air force excuse me however when he gets into the nitty gritty of what these particular documents say i don't believe he had sufficient foundation for that testimony and i believe that given this court's preference or this inclination to see litigants forfeit arguments because they're not raised with particularity below i do believe that notwithstanding the issues that mr lotfy was having with his attorneys he did sufficiently raise these particular issues because he particularly identifies the documents attached to mr carter's declaration two conclusions and this is really the meat of judge training is decision first there's no evidence before the court at this time that supports plaintiff's speculation that the lights illuminating the parking lot at issue were out for prolonged period of time prior to plaintiff's injury with all due respect your honor given that mr carter has said that that if there was a report of an outage or if the lights were out it would have been discovered immediately and it would have been in these maximal records and if he only found one report and that was a month prior to the incident and if the plaintiff on the date he was injured testified that the lights were out there is a reasonable inf that the lights were out for weeks prior to his incident furthermore he says there is no evidence the united states knew of such an ongoing problem and made a deliberate decision not to address the issue before plaintiffs fall i think that's correct in the sense that there was no testimony of of the the type that we saw in the fraser case however again mr carter says that immediately day and day out there would have been notice of this on going problem the you agreed that evidence to go to a jury on gross negligence where is shielded from premises law built as long as the land owner charges no free to engage in sightseeing yabbering or any other reasonable use on his land and the landowner has not engaged in gross negligence fee was doing constitutes sightseeing and sightseeing is the only verb in the litany of verbs in the definition of recreational use which could apply in this situation he was going to be going to the air force memorial in order to discuss with his with his i believe it was his nephew but in any event it was it was a young man who was with him to discuss american values i think as we discuss in our brief the gene case which looks to whether or not the protection from anything other than gross negligence was a primary motivator to the landowner for opening up to the public i believe that that is the right analysis and i i don't believe that the the air force i don't believe it could be said that the reason the air force opened up this memorial to the general public was because it it was not sightseeing because he was quote presenting money or much portray united states values to his young relative at the time of his injury and because a memorial is a particularly inspirational monument yes you know he had to show that to his  area simply for purposes of viewing it and i think that his purpose in being there was more than that just i mean your honor and it may have been more than that and you're out of your time but you can answer whatever question i may please the court your honors this quarter from the district court application of the region the recreation the statute to opponents have to see a claim and his dismissal of his claim because he cannot demonstrate the gross negligence required for liability under that statu argument there the government's position is that the recreation of statute obviously does apply to his claims that he was sightseeing on that night his arguments to the contrary are frankly just without merit in the present case accordingly he was required to demonstrate gross negligence at the district court the district court determined that under the fraser standard applied to the language from frazier and determined that he could not demonstrate gross negligence even accepting as true his version of events that night the court accepted as true his version of the lights were out that night that he couldn't establish gross negligence because he could not show how long those lights had indeed been out it has to be noted that subsequently he moved for relief from that dismiss and during that relief he did attack the car declaration now in ruling on that motion for relief the court essentially disregarded the carter declaration and took his version again his version of events as true that the lights were out and that they were out as of october when the maxima records indicated that there was a problem the court unless determined there was not a tribal issue of gross negligence because all he had established was that the lights were out for a couple of weeks and that that the government had taken some action to recognise that deficiency and indeed taken actions to rectify that deficiency just that it hadn't it hadn't happened as quickly as he would have liked and either adventure on or with or without the card declaration he cannot establish gross negligence because he cannot he cannot show that there was a deliberate choice not to take some action as required by city of lynchburg or even out of the fraser and chapman standards he can't show a complete utter disregard because of anything all the records demonstrate is that the government recognise there was there were problems and attempted to fix accordingly or honor the dish of court correctly determined during it in two different orders that he could not establish the gross negligence required for liability model will in light of another phrase or your honor and that case a young boy fell through a gap and he fell down eight hundred feet into the orchestra pit and that case there was that there was an ordinance which required the city to take some action to keep that from happening they lights were out and the government recognized that the lights were out the government took some action to rectify that situation as plaintiff himself conceded that there was a contract that they they contracted in an effort to wreck to prepare the only thing  took his his story at face value that the lights were out that night and they had been out for two weeks prior to that yes your lies about a law for that because there's no other there is no disregard of the for gross negligence your honor in the cases cited to either a complete and utter disregard of a hazardous condition can be perceived as gross negligence or are not in the alternative a deliberate decision not to address the issue not to address the issue because the issue is recognized and they contracted and are on the case because the because the government recognized and recorded that lights were out even in even without the card declaration it shows that they recognized the recorded lights were out and law your honor even again that there was not a complete utter disregard for that's for that condition and that there was no deliberate action taken they didn't recognize there was that there was that condition existed and then decide not to take action and did the contrary are they if they recognize the decision that a condition exists that they decided to take action and additionally they can't demonstrate a complete utter disregard of the hazaras can do because again the lights were recorded that the lights were out record in the maximo system the council opposing counsel points out the fact that there is evidence in the joint appendix that that they contracted although there is no evidence of what lights they did contract for that they contracted for lights to be repaired in the parking lot and i don't believe that that under other set of the circumstances that demonstrates a complete and utter disregard for hazardous condition as required by the law or the alternative a deliberate decision not to address a hazardous condition fact so despite the fact that he not once used the phrase twelve b one or contested expressly contested the district court's application even if his dispute issues of fact all that demonstrates is that the district court he was given an opportunity to dispute issues of fact and the district court then took those disputed issues of fact into consideration indeed your honor if if if application of twelve a one was in error such error was harmless because the is  conceded and both his appellate brief and his request for relief when he at the blow court the order turned or whether there was a tribal issue of gross negligence and the district court determined there was no trial issue of gross negligence that the district court employed appellant obviously does not have to demonstrate gross negligence hell it simply has to show that resolving all inferences in his favor and to view we need evidence in the light favorable to the appellant that a reasonable juror could conclude under virginia law that there was gross negligence these let me just address two points deliberate action by the lynchburg case which we cited or brief again was a situation where there was a malfunctioning gate and the gate was configured in such a way that unfortunately a child wound up hanging herself when the gate swung past the boardwalk and she had her head court and that little area that that is a relatively it's not a entirely foreseeable event ok but here we do have a very foreseeable event as judge gregory pointed out and moreover even if we assume that the that the government took some action by setting in motion the process to have these lights repaired that doesn't answer the question as to whether they willfully continue to ignore the situation simply setting in motion a con the ability the the process to have a contract let there were many other things that the government could have and should have done and on a daily basis did not do and again remember they're immediately told when lights are not are not functioning her mr carter for instance these were this particular lot work was ten spaces of hundreds in that area and it would have been a simple matter while the government was waiting for these lights to be repaired to simply direct people to park his in his affidavit that if there if the lights had been out it would have been immediately noticed and reported and if it had been immediately noticed and reported it would have been recorded in those maximo records however we are taking the plaint testimony is true the lights were out on the day that he was injured and there is no other report in the maximo records furthermore again if one looks at the particular record that about which he frankly your honor speculates he doesn't he doesn't explain how he knows what it means and he doesn't explain what it means but those that document in and of itself and again your honor will find the relevant documentation on at pages one fifty seven and eight thirty to eight thirty one of the joint appendix that he's basing his his conclusion that these lights were repaired the very same day in fact according to him some some ten minutes after it was initially reported because next to that because there's an entry next to the work comp but he never says what the work comp means the document otherwise says that this particular item was not closed until march twenty first of two thousand and seven so given the fact that there are these inherent contradictions in his evidence i believe it was error for the court to conclude that no inference could be drawn in favor of missed lotfi from the quarter declaration and it's attachments and under those circumstances it was er deny mr lotfy a trial if panel doesn't have any other questions i'm i think i'm about done thank you very much