why the district court's ruling should be reversed and the case rendered st the district court's ruling that mandatory army indio deregulations were aspirational and mere guidance was legally wrong when the fact through his lands of incorrect legal rulings incorrect conclusions resulted sucking the district court misapplied texas foreseeability law additional court looked only at what was actually known by the family advocacy risk assess after the seven day deadline it passed and not under texas law it would reasonably should have been known had they followed the regulations rd the district court or honestly concluded that the army's duty to the neighbors was based on the neighbor reliance on the military on the night of the shootings rather than the fact that the neighbors were foreseeable victims of domestic violence rampage of specialist gift a and were actually injured during the course of their rampage each of these three incorrect legal rulings those are the army told dog if unequivocally in writing that if she had to leave home she should go stay with close friends and only if she couldn't stay with close close friends should she go to a shelter or seek help unequivocally that it was her mandatory duty that she didn't do it she did not ensure safe housing in dong if it was not in safe housing the night that she was killed one of the military doesn't of authority had to tell us of you know require w civilians going to move my understanding is they discussed alternative housing and that of those those opportunities once taken up your own of the record shows that the paper that was given to dawn give by the only person to discuss it with dawn turner williams a victim advocate specifically says that she should go stay with close friends whatever ms williams said to dawn privateers separately that wasn't written down by the way or sent to the family you program the fact that it was written down she should stay with close friends is actually negligent of what she said was true that dawn shouldn't go there that the army simply offering or giving the the number of a shelter williams where she said in court that she talked to dawn about there being programs for army assistants to move however she did not take dawn to where she ever read or she had to go tell her how to get this help or help or get id so she could get some of that help dawn's main problem when she came to the military for help was that she did not have her i d s those are gone missing her i d s are credit cards for money mostly the i d s she's a canadian citizen and that was what she asked the military initially for help with that's what the command said they would help with and everything flowed from that with living with the friends i think you didn't let them oppose the military can't it's up to her alternately as much as a point of course the military can abductor a spouse and tell her she has to go somewhere what the spouse did here in the is an undertaking cause of action is the spouse relied on the military for help when she came to the military for help and or a lot on them they specifically told her in writing ms williams told in writing if she had to leave to go stay with close friends and that's exactly what she did she had to leave when specialist gift was what out for his no contact order or left then she went to stay with those close friends in other words while it couldn't force her to go somewhere else where they told her to go was actually negligen we see their mandatory because they use mandatory language they state that the following must be completed within twenty four hours of a report that's a spouse abuse assessment that never happened for dawn the following must be completed within seventy two hours the child to be successful in a most important one within seven days are receiving reports of abuse the social worker will query every collateral organization involved in the case and obtain any pertinent information the negligence in this case  are is there is a whole system set up by the military where disparate sources of information the command what they know and what's good in the s i or the serious incident report the victim advocate report what's in the two  care hotline report what the commanders know what the sergeants know all those risk factors are supposed to get to one person who is a train risk assessor which in this case was going to inform that didn't happen as pows have been in seven days these regulations use the word must shall and will the army knew how to make make regulations that were discretionary in fact the army used the word discretion in three places and six and also use should and may in other places but here it said must what happened here was that no assessment of specialist give was made until nine days and the session never got it the mandatory the commanding general policy letter three is the nd mandatory order that states that when there's been a report of abuse any soldier involved in the abuse not that is the aggressor but am involved in h to get immediate uninterrupted recommended treatment he got no treatment whatsoever nothing was recommended in this case had he been given some treatment within seven days during that period when there was no contact or when information was supposed to be found that would have significantly decrease the risk instead he was sent back out into a very volatile situation having had no treatment whatsoever and that is frankly negligence they did not follow their own mandatory god lines the rd is assume you're right that these are mandatory guidelines and not just aspirational of deadlines what's your evidence of causation in other words that if if the military had met the deadlines that this horrible events one and have happened because it does seem that the flavor i get from the trial court's ruling in a lot of the record is that this was a you know you know no one saw  look dangerman the problems but no one saw that this type of danger was was likely to occur your honor kendra williams the victim advocate testified in court that she saw the danger she saw the risk of serious in there to dong if that was not reported not to the family advocacy program there the risk factors that were there and so if they'd met these deadlines what would have been done to prevent this danger from from coming to fruition one specialist give her would have been in an immediate uninterrupted mental health counseling to help him deal with the stressors he was undergoing the structures of the divorce the allegations of infidelity separation allegations of financial difficulties he would have been treated that would have significantly decrease or a secondly dong if oh would have been somewhere else aside from two doors down that she would have been h not being at the friend's own when dawn was assessed it was not by the family advocacy program it was assessed by the victim advocate it was a very brief st long interview that was supposed to get up to the risk  main concern at that point was not having ideas not having money and emotional abuse by her spouse she had just had a no contact order and her to get special is given for seven days so for seven days she was feeling like she had some control over the situation and she was going to be helped at that point there was no cries for help out there is testimony on the record from the neighbors that when dawn was told specials given might come home she testified that if you let him go dawn in the past but he would have helped don had she reached out and have to the killings what he did was he came down and got the son referred to as kal and got him back out of the country without any kind of passport that the family would have intervened and would have helped had the army not had gone not relied on the army that would if that's the causation we said to show the foreseeability of risk and proximate cause we can't prove beyond a reasonable doubt something else absolutely would have would have happened we have to show under texas law a substantial factor in this negligence by the military was a substantial factor in creating the situation where specialist given melted down and shot his wife and their neighbors study found no red flags were found the problem with the district court ruling is that the risk assessor didn't look at the information that was out there the standard in texas  hundreds of years has not been what was actually known the standard has always been what reason we should have been if the standard is what was actually known then you're looking at a constant different standard in every negligence case becomes a gross negligence case that is not the standard texas gross negligence is is rare usually what happens is you know a case of the size well what happens is somebody negligently doesn't foresee things that are out there like the m d anderson case which is texas supreme court two thousand and nineteen and m d anderson the doctors didn't predict exactly what was going to happen but they had enough information they should have foreseen the bad outcome and that was considered enough by the texas based on them being foreseeable victims of this crime it is not based on them not calling the police are not there when the shooting started no one says that they should have called the military the shooting started their claims are based on the two weeks injured during the course of the domestic violence rampage but texas law since shortly after paul's graph has been that people killed or hurt inside a a negligent act and there is a commission that with close friends or neighbors and they were in fact neighbors so that is kind of the basis for for your view that they were foreseeable victims of the army's asserted negligence yes and the fact that the army knew that collateral victims of domestic violence are frequently killed that people who keep in house use spouses like in the wilburn case and the woman case which is six or get case law the mother or ex mother in law of i guess the message was passed she was killed in the course of the domestic violence rampage and there was no question that she was not a proper plaintiff as well cited you cited some femi will now thank you ok we'll hear now from the government it please the court jacqueline crystal as for the united states your honor after listening to testimony from twenty three witnesses over the course of a ten day trial the district court made a thorough fact based finding that appellant had failed to establish every single element of their negligent undertaking claim the district court committed no error in this finding let alone a clear error that would be required for rever l for at least three independent reasons this court should affirm the judgment below st the district court correctly found that the army exercised reasonable care with regard to appellant the facts demonstrated that the army followed the mandatory provisions of its regulation and that it did that it took affirmative action after learning of the february th two thousand fifteen incident between specialist keith and misess second the district court held that appellant had failed to establish that they relied on the army or that the army's actions increase their risk of harm as opposed to if the army had taken no action at all rd the district court correctly found that the army was not the proximate cause of this tragic incident the district court of valuated forsee ability in the district court evaluated cause in fact as to foreseeability the district or correctly held that there were no red flags specialist gives i had no record of violent tendencies even in the moments before this tragedy occurred no one st saw that he would become violent in fact even after he was holding a gun marina ellis in talking to her injured mother about who the perpetrator of the crime was heard from her mother that her mother that marina factors the district court found that the united states did not owe a duty to those appellant that were not covered by army regulation six hundred and eight dash eighteen specifically anyone that was not a spouse or a child as that regulations the specifically said that it was for spouses and children of service members in general for the united states with entitled to sovereign immunity with regard to all  other than mrs defend her child now the district court didn't reach the question of whether or not sovereign immunity applied to mrs the fine or child because the court found that the trons had failed to establish any of the elements of a negligent undertaking planning accordingly the united states asked this court to affirm the judgment of the district or so i'd like to address some of the things that helen is how to address the st is the guidelines under appendix c of the army regulation six hundred and eight dash eighteen how the district court correctly held that appendix e which is titled guideline is not a mandatory directive but rather investigation of the case that will be presented to the case review committee within thirty days now in making it finding the district court cited to this court's decision in freeman versus united states as an example of a case where or treated more formalized and regulatory deadlines as non mandatory aspirational though the district court committed no error in finding that  those guidelines in appendix c were aspirational next i'd like to talk to you about forsee ability appellants indicate that the correct standard would have been what could have reasonably then the district court correctly used the standard for c ability requires that the injury complained of be if such a general character as might reasonably have been in  and we have this tragic incident what helen's want you to believe is that the incidents that happened on february night retaliate ing she walked away if mrs farmer had read the two hundred and eighty seven hotline report which was in her file at the time she met with specialist effect it would have indicated that don let's the aggressor this farmer that a sixty minute assessment she was a master trained social worker she didn't assessment of specialist isa and found that he was a low risk what is more logical is what d and these murders what that was nobody will ever know but what is clear is that the district court made a thorough fact based finding that these events that happened on february nd were an forseeable even in the moments before they occurred and how do we know that they were an forseeable in the moments before they hurt well when specialist keith is released from it no contact order mrs even goes over to the effect home by herself on two separate occasions and return to the farina home without anything occurring we know that on the night of the incident especially if the hall mrs isa asked if he could come over to the farina home and the freeness said that it was ok he came over once he left and he came back mr farina believing that specialist the phone might have a telling his wife i think that specialist ethan may have the gun did not call the police instead his wife approach specialist geetha and told him that mrs diesel would not be going home with him so even in the moments leading up to this have gotten around the intentional toward exception under a negligent undertaking theory the law is clear that a person's duty to exercise reasonable care and her forming a voluntarily assume duty spouses and children now i want to go back to a couple of other things that base their reliance argument and many of their arguments on the distortion of the facts and that is that mrs williams told donkeys to live with her neighbors that is simply not supported by the record  gus the services available to her they filled out that victim advocate safety plan ms williams gave her the options available to stay at that shelter that the army contracted with for state housing purposes that she discussed with ms gave the option for relocation funds has your honour's have indicated that she never testified that she told ms deefa affirmatively to stay with close friends williams were saw that this event would would occur but that is simply not supported by the record either ms williams did not testify that she foresaw that this particular incident what happened what she testified about is that she had knowledge that certain factors could indicate that filings may occur in the future in reading through ms williams testimony or owners w assessor so if ms williams was not a risk or how could she assess that this risk would occur instead of her testimony indicated that she would ask questions by the appellant about her knowledge of what could occur if certain factors were present and she indicated in the affirmative that she was aware that those things could occur if certain factors were present she made no evaluation about this specific case or what could happen in this specific instance in fact she she really had very minimal facts about what was going on as she details on the report to the family as advocacy program which she testified she faxed over to the a balance indicate also that commanding general policy letter number three requires that as soon as a service member is involved in a domestic incident that they must attend immediate and recommended  treatment that is simply not the case a reading of commanding general policy letter from top to bottom indicates that in the paragraph to the department of social work  its thorough investigation it presents thorough investigation to the case review committee because its review committee determines who is the aggressor in the incident and develops  about the commander ensuring that their soldier attend uninterrupted recommended treatment the nd part of that some paragraph talks about the department of social worker ensuring that the command is aware of the appointment so reading top to bottom with the commanding general policy letter is states is the department of social work through the c r c d recommends treatment and then commanders had better make sure that their soldiers get to that recommended treatment the commanders themselves do not recommend the treatment your honor in closings this was not the case disposed summarily in motions practice rather the district or allow this case to proceed t they listen to testimony from twenty three witnesses the judge listen to testimony from twenty three witnesses there were hundreds of pages of briefing in the judge's opinion he noted that he carefully considered the record made determinations of relevant materiality and credibility of witnesses and ultimately ascertain the progress significance of the evidence presented there is a the give me the best jewel of texas centered argument why the timeline of the seven day time line there is not mandatory it's aspirational and not mandatory your honor the language of the appendix of the guidelines does use terminology such as shall i think that's what you're looking for your honor  it wouldn't have changed the results in this case as i indicated that when we were discussing for c ability one of mrs farmer had learned everything in seven day she actually did the evaluation a business days and consider what if what if she had every single shred of evidence out there within seven days this incident still would not have them forseeable and even if even if we if this court found that those guidelines were mandatory versus aspirational that simply goes to one element of the nitrogen undertaking theory it would only go to reasonable care and there's still several other elements  required to to establish and they just didn't your honor before i chimed in you were kind of talking about how the district court heard from all these witnesses and they were spoken to painstaking and thorough in their findings got one question i have is a true clarify when we're looking at when we're determining whether that seven body timeline is vacillation or mandatory when we're looking at whether the department of defen the facts to the law is reviewed for clear and since this was a bench trial where the judge was able to assess the credibility of all of the witnesses and make a thorough fact finding then to decide that st because it's it's an issue of whether sovereign immunity has been waived or could we just considers some of these other issues he talked about trial findings another old well your honor it as you know the intentional tort exception bars any claim that are related to the employment in a nutshell and so that is why appellant had to plead a theory outside of the and that's that's where we get to the negligent undertaking claim is also an issue with the discretionary function exception because discretionary decisions also on right on  were mandatory and therefore the discretionary function exception would not apply to the mandatory provision of those regulation that is your court did find that a articulate got eighteen had some mandatory and some have to be decided  saying do you think we have to decide the discretionary function exception and intention issue st is that a threshold jurisdictional issue because it goes to whether this all of the conduct being challenged is is something for which the united states waived sovereign immunity only just all a bunch of issues that we can tackle in whatever order we think makes sense i don't think that you have to look at those issues and actually because the district court did find that regulation what mandatory so i don't think that you have to tackle those issues in this way although thank you your honor all right you know schreiber your yeah my good last twelve seconds i'll try to make it up the district court ruled that the discretionary function exception did not apply it also would be intentional tort exception did not apply to don those rulings are not on appeal those are exceptions to the federal tort claims act once the court finds a federal tort claims act applies then those are exceptions that would have to be proved we did not plead any intentional act leave my home i will go cold and close friends i should decide this even if i don't think there will be a next time if i cannot go to the location above then i can go stay with family or families in crisis that's literally what ms williams handed to dong if it says where she should go and if she couldn't go there then she could go to the shelter thanks also the c r c out you heard that term that's a case  committee they meet it's sixty days to terminate whether or not an allegation was substantiated or unsubstantiated the regulation issue that that the government is trying to parse in large part is commanding general policy letter number three which says commanders will ensure that soldiers involved in family ballance attend immediate and uninterrupted recommended treatment the gears and commander care colonel elish stated that to me doesn't mean ten days immediate doesn't mean you wait sixty days until there's a meeting of this full c r c to see whether it's it's true or not you get whoever's involved in treatment i think it's also lens what happens if the court up holds judge his wrist decision and says that seven days doesn't mean seven days that twenty four hours doesn't mean twenty four hours i think what you'll see is that every defendant in the country has a regulated energy can or look back at christians and versus us and say hey we just couldn't staff up we didn't have time because that was the excuse that ms farmer gave she didn't have time when she got this she gave a listing all she would do in normal situation under a normal standard of care investigation which was talk to the soldier twice talk to the spouse or at least write down she couldn't and then go through and look  at the documents the fact that she didn't have time doesn't mean the regulations are wrong it means the army should the staffed up and it means that any other defendant can come in and say hey we just didn't have the staff to do airline maintenance we did have this to have to chicken meat safety we didn't have the staff to see if drugs were were safe and effective i think it's a slippery slope that gets you know hurled over pretty quickly the last thing i'll talk about my last forty five seconds is this idea that dawn voluntarily interacted was specialist give and went to the house voluntarily i think that's a misnomer i think it uses a wrong standard for foreseeability and predictability as well the just the testimony was that one special gift was let out he want he told going to come home twice and she did the time she didn't she was killed far from being voluntary she was compelled to go home because if she didn't she was killed that smacks of blaming the victim and saying she had it com about blaming the victim that she was angry that she did everything listed on the s i r which is under it's our tab number nine the listing of the risk factors if that's all true there's a seriously volatile situation