county was negligent in requiring mr de luna when he was an inmate to wear shoes that were too small negligence as we all know consists of four main elements duty breach injury and causation on this record the following points are undisputed first the county had a duty to provide suitable clothing to prisoners second the county provided shoes to mr de luna that were too small and third after the county provided too small shoes to mr de luna a blister developed on mr dillon his foot that became an open sore that became a severe infection that put mr dylan on the hospital on the way you state the question do they have to be way too small i'm basing it on the whip i think in in went whether it's too big or too small the bottom line is you know i don't know an account of this question as it says clown shoes you know what i'm referring to does it have to be way too small no your honor i don't be a little bit too s his foot the district court however a lie did this reality through an analysis that stands in direct conflict with over centuries worth of minnesota law in particular i'm referring to the district court's analysis of breach causation and immunity and i'll take each of those elements in turn with respect to breach what the district court said was the county did not breach its duty of care to mr dillon a because it is not objectively reasonable to expect an inmate to contract a mercer and faction by wearing shoes that are too small for less than twenty four hours to work be looking at the wrong consequence was in the consequence actually the blister enough the staph infection that's correct your honor in this case and this kind of goes to an even preceding point which is that for  not an aspect of breach it's an aspect of duty you determine whether or not it's foreseeable that particular conduct would cause an injury and based on that you determine whether a duty does or does not exist here the district court acknowledged there is a duty both of general care and under the statute to provide suitable clothing at that point you determine whether the duty was breached you don't ask whether it was forseeable that a particular injury might occur and then determine there was no breach because in the court's view that the injury was not for and on that score the minnesota law is clear when you've got a statute in play to violate the statute is to deviate from the standard of care owed to another now if this court is concerned about the issue of foreseeability it need only look all the way back to eight hundred ninety six to what the minnesota supreme court said in christiansen vs chicago in which it said that the law is that if the act is one which the party ought in the or exercise of ordinary care to have anticipated was liable to result in injury to others then he is liable for any injury proximately resulting from it although he could not have anticipated the particular injury which did happen and a more modern articulation of that by the minnesota supreme court in the  eleven is the test is not whether the precise nature and manner of the plaintiff's injury was forseeable but whether the possibility of an accident was clear to the person of ordinary prudence as anyone who has worn shoes that are too small knows foreseeable that that will cause an abrasion on the skin cause a blister and then lead to the consequences that occurred in this particular instance and even if the court for see ability was not part of proximate cause in minnesota it is not your honor unless you just retreated to the foreseeable i know in talking about foreseeability i was only referring to if the court were to indulge the district or its analysis with respect to duty but foreseeability is absolutely not a part of the proximate cause in counsel the sole minnesota law right that's correct ok i know the wind case course thoroughly what's the next because it's unpublished and it's court appeals case for the minnesota supreme court what's your closest case terms of just a stablish ing how far robust minnesota is and in speaking to the issue of negligence in christianson what happened was you had two railroad cars that were traveling in the same direction one faster than the other and when you have two cars that are traveling the same direction at that time the customary duty was there had to be a certain distance between those two cars that distance was not observed by the lead driver now what happened had case was it wasn't an instance of the two car impacting one another as one might expect it was the case of an individual in the lead car looking back and seeing this car rushing at them getting dizzy and falling off the tracks into the path of the second car and that's not something you would naturally expect to happen but the court said in this instance we have a duty in place that these cars have to be at a certain distance that duty was not followed and although the way in which the injury ultimately mature here is not one that might naturally be expected nevertheless under minnesota law as long as the injury followed from an unbroken series of events that's all that matters and here we have an unbroken series of events from two small pair of shoes causing a blister from the bli becoming an open sore from the open sore developing and it's because you're really in an unbroken series of events here aren't there several potential intervening causes he cleaned out a hog confinement unit refused to receive treatment it seems to me there may be some intervening potential cause well that speaking to those points i think that it's fair to say that the county argues that there are intervening causes but there are disputed material issues of disputed fact in the record on that point for example if you look at appendix page twenty nine regarding the issue of whether mr de luna refuse medical treatment mr de luna in his deposition disputes that he says i don't recall ever refusing medical treatment now the county says and puts forth documents indicating that he did refuse but that's a material issue of fact for a jury to decide about wearing the shoes i thought he agreed he wore in a different pair shoes right in the middle of all this well it may well be the case that he for some period of time while he was on this sentence or program was wearing a different pair of shoes but it does not obviate the fact that he did wear the pair of shoes that of two small shoes that the jail gave him initially and that his contention based on this record is that caused a blister in fact if you look at appendix page twenty seven of his deposition  and this is in describing the injury to one of his correctional officers he says as i was walking in from s t s one of the guards they strip search us so he noticed my fork and he asked what happened and i was like well they gave me a two small pair of crocs and this is the outcome of it so his testimony is that the injury the blister on his foot was the result of the two small pair of shoes that he was given and whether there were intervening causes or perhaps an alternative defense that could be raised by the county those are issues of fact to be decided by a jury not to be determined on summary judge well lest we had a minnesota case there some missouri cases we've had in a media coach bielsa civil war in missouri so therefore they're sometimes they have a lot of cases that are close  're certainly a lot of cases on the books to be sure especially when it comes to negligence but i think that that then speaks to the bottom line importance of the principles that are at stake here and the ultimate principle at least when it comes to summary juge judgment to ensure both that fact disputes are decided by juries and to ensure that the facts in the record are read in the light most favorable to the nonmoving party so it's not to say that the county cannot marshal facts on its side to argue that it wasn't negligent  or that there wasn't causation but it is to say that those facts on a summary judgment standard aren't are given the weight in terms of how the record is read what is given the weight are the facts in the light most favorable to mr de luna so brief y moving on from breach to causation and this speaks to the point that you were mentioning a moment ago judge process in regards to the issue of causation i think the key here is recognizing that the facts have to be read to mr dylan as a favor and the district court got it exactly opposite by starting with the counties expert and the county's expert in terms of the passage that cited in the district court opinion he doesn't say well i physically examined the defendant knight made a medical determination on this instead what he's where he can track and mr dylan a contends otherwise and his deposition testimony establishes a logical common sense series of events and also in the record to the extent that the court has any doubts about this you have in the record infection training that was provided at the marconi jail and if you look at appendix page one ninety nine or appendix page two of five in both of those instances you have power point slides or informational material being provided to jail  which they're being told that open sores on an individual's body can lead to a merson faction so there is more than enough evidence in the record here to go to a jury to make a determination whether it wants to believe the county's expert or the more common sense explanation provided by mr dillon counsel doesn't he have to show under minnesota law beyond conjecture that this was a substantial factor in him contract what he met that standard i believe he has your honor based on both the record evidence and on what he's obligated to provide at summary judgment and what he's obligated provided summary judgment is a straightforward factual explanation of what occurred in terms of the blister the curtain is on his foot following to an open sore following to  an infection and he provided that information and certainly his doctors the doctors who treated him would be prepared to testify a trial to that issue as well on that note your honor i notice that i'm into my rebuttal time and i'd like to reserve the remainder of my time very well thank you it please the court my name is jason hive lee company with my colleague andrew wolf and we represent the defendant applebee's in this case i want to touch on a couple of things and i guess right out of the chute i want to say that there was no mention by counsel regarding official immunity and i think that's one of the one of the important parts of this case that needs to be addressed and there was a brief mention of went and in in using went and trying to apply that to this case as your honor mentioned there was a discussion about clown shoes in the  case this case is not about shoes that are giant shoes or children shoes this is a case about shoes that are too tight and yes mr dillon it can say that but he is not going to be able to testify at trial that his too tight shoes caused him to have certain symptoms and it was a direct result of what he did and then ultimately it turned into mercy counsel why was the duty to provide suitable clothing not a ministerial duty given that there's a statutory requirement in that it's a rather simple and straightforward requirement i think that one of the things is that there's a requirement for suitable clothing but there's also i'm not an opportunity to provide perfect fitting clothing if you want a perfect fitting shoes there isn't a budget for that i think the best thing to look at is that his right foot was just fine so he's wearing these crocs that are supposedly unsuitable and that his that no one could ever imagine putting him in these crocs and that he obviously would contract some kind of whether it's redness or my foot is swelling i have an injury could i get a bigger pair of shoes they provided a pair of crocs that were bigger than what the size was the actually wears there has to be that discretion there has to be that opportunity for the correctional officer to pivot and say i'm going to give you a bigger shoe than what you normally wear because i have that discretion to do this logs is not a clown shoes well and there are limits if they're if they wanted him to wear giant size eighteen shoes that were massively too large i would also argue that in the one case and i was involved in that the issue wasn't just she was provided with clown shoes it was that the way the jail was set up the only way to get to court for her hearing was to walk out of the jail up steps of a one thousand nine hundred scored house and on the way back down the stairs was when she fell because of the shoes in this case we don't have that he could have been given a size twenty two crock and he was sent to a cell and then he went to bed there's no requirement that he wear those crocs on the record in fact to the contrary he's allowed to wear his own shoes on s t s so for them to argue that there's going to be some way they can distinguish a trial that it was the crux that he was issued and perhaps never really wore he certainly didn't run a marathon and i can understand if that was the argument given crocs made him run a couple of miles or a marathon that's different he was required to do anything except for turn to a cell which is what he did you can see me that there are a lot of facts disputing this case and this is not right for some reject i think honestly what i'm replying to is they're moving target and that this started out from the very beginning that this was a mercy case and there was no question about that and then what we believe happened is once they started to actually research the issue of mersa and that it was not according to their complaint something that just thrives in jails i've been to a lot of jails in the my professional capacity of course and in looking at those jails they're clean and if their argument is that they are not clean and that there are a that they breed mercy they must have googled that indetermined that's not the case because they abandoned that claim along with a number of others our expert our medical expert is providing an opinion based on p reviewed materials and based on what the record the record will show about mercy and about the symptoms that he had and if they want to dispute that that ship has sailed at every opportunity to hire an expert or to p doctor or to talk to someone who actually knows about mercy and they chose not to they didn't even offer a google search term showing that they had come up with well if you have a blister that could become ursa i understand training materials talk about that but i think the bigger issue is let's go all the way back to these symptoms our expert says that mercy is an infection and if you look at the symptoms in the way it manifests itself redness blisters losing all of these kinds of things that can happen when you have mercy as our expert indicated more likely than not he at mercy before he ever came close to these but this particular pair of crocs they have no evidence to disprove that then if we want to cherry pick a symptom they've selected a blister so what is it about the blister that is a danger if we want to plug that back into what the district court said the district court said it wasn't forseeable that giving that these tight shoes would turn into mercy we would argue that that's the same case if you plug the blister in there where if you plug using in there or if you plug redness into that that formula so mr de luna has redness that's on his foot and and then he's provided this pair of crocs why are we talking about redness ok i'll ask you the same question as the other side this is minnesota law we're looking for a minnesota case we'd really like it to be by the minnesota supreme court and look a lot like this when we were not  case we were unable to find anything except of a solid case but then that focuses more on the issue of whether this is an official immunity case and i think that if we're if if that's where we're headed if we can't find anything that specifically speaks on the issue of  a pair of shoes issued in jail unsuitable because it's one size too small two sizes too small three sizes too small i think that that's such a gray area that then the bigger issue becomes what was done once the individual receive dylan is counsel is argued is that mercy doesn't matter and consequential perhaps if the jury were to just come to that conclusion naturally well that's not how a jury trial works and they can't just stand up in opening arguments and say you're going to find out that could come from any source and that it really it's really bad in jails if they don't offer a medical expert to say that then that information should be struck from the record they're not going to have that opportunity to reach that conclusion so we go back to this is  the eight hundred ninety six christianson case it would be forseeable too small shoes causes redness causes blister and he at least cites that case to suggest that then anything that naturally flows from that faction into the open wound should be forseeable i think there's a couple of things about that first of all christianson was an official immunity case and we still have that that we can hang our hat on in this and the other argument foreseeability right if we go back to foreseeability i think we also run into the discretionary problem on your official well i think that the bigger issue than for talking about forsee ability then we're looking at whether it was a danger that was objective we reasonable to expect and i don't see any case law that supports that if you apply that formula to anything that's happening today with respect to the issuance of jail clothing that is going to say that they're there issuance of a pair of crocs that are slipped on crocs that are a little too tight would be an objective lee a reasonable expectation of a danger and it would be foreseeable that the individual could develop a redness or a blister or eventually mersa so i think in frankly it's because of the lack of minnesota case law that we're kind  of in a gray area here but at the same time i think because there is no case law about that that was specifically direct this court how to handle this issue i think we look back then at the very specific legal claims that were made in the beginning which is the jail was if you had a blister that was just cared for in the jail there wouldn't be any kind of an injury and it would be construed as a danger that could be construed as a breach of their requirement to provide him care and take care of his ne the what the shoes did and the fact that he already has redness and that he's already started to show signs of some kind of an injury it existed before he was provided crocs and if there's a proximate cause issue that's buried in there somewhere we still don't have any evidence that demonstrates that the crocs are responsible for anything else because a soon as he is issued the crocs the very next day they're gone and it isn't until three days later that he develops any kind of a blister so if you want to say that it's a proximate cause there needs to be some evidence other than mr de luna saying they're connected he wore the shoes and he believes that that caused a blister except that that was seventy two hours later that the blister formed so what about all of the things in between in your honor i had mentioned earlier about the hog confinement and the fact that he refused care on the one hand they rely on the medical records to say well you knew that there was something going on but on the other hand when the medical professionals who saw him say he wouldn't even let us look at his foot then they're saying that's their word against mr de luna's he's offered nothing to rebut that and he certainly had every opportunity to receive care and treatment in fact he's he's taken to the mayo clinic for treatment for mercy he's taken to one of the best hospitals in the state to be treated for this injury and the bigger question then becomes how can he connect that brief moment in time where he has tight fitting crocks to something that translates into a danger or an injury something that the court system should be clogged with your honor we would request that the weather got four minutes left but i guess the final thing i would say was yes this court to affirm i want to speak briefly to the immunity issue because i did not speak to it when i was initially up at the podium there is no question that minnesota statute six forty one point one five establishes a ministerial duty it says under minnesota law a min absolute certain an imperative involving merely the execution of a specific duty arising from fixed and designated facts the clothing size of an individual's affixed and designated fact what is suitable to him is what meets that clothing size so bat by itself establishes the minister ariel duty but if a court has any doubts on this point the eighth circuit has said time and again that it is its responsibility to follow the decisions of an intermediate court of appeals when that is the best evidence of how a minnesota state court would address this issue and hear the other side has put forward nothing to establish that went doesn't speak to this issue they have to be sure drawn on in consequential distinctions like for example saying that case was about two big issues rather than t small issues but if you think about it from a commonsense perspective smaller shoes are a bigger problem in terms of suitability then bigger shoes they cause greater problems so there's also a common sense angle to all of this to be considered which is that when you give inmates ill fitting clothing it puts them in danger and it puts other people in danger it risks them in terms of exposure it limits their mobility and it can lead to the kinds of consequences that we see present in this case so this is simply a matter of argue that we have somehow abandoned the issue of whether or not a blister could be the basis for a claim of negligence here that is simply not correct the complaint in various places speaks to the blister and the consequences flowing from it so there's been no abandonment of that claim and then finally while well the well opposing counsel in this case goes out of his way to emphasize this is a case about mercy this is a case about mercy this isn't a case about about a natural problem chain of events flowing from ill fitting shoes that caused a blister on someone's foot and if the court needs a commonsense frame of reference to think about it to the extent we lack the minnesota supreme court authority here think about this as any negligent car accident and imagine the district court to conclude in this case it's not reasonably forseeable the driving twenty miles over the speed limit would cause a merson faction to the injured driver who was taken to the hospital where the infection developed that would make no sense and it would for close relief in many many more cases well beyond this one so to the extent that this case is about negligence and is about the hundred year tradition that minnesota courts have established in terms of how foreseeability works how proximate cause works it's important that those principles be applied consistently in this case as in any other because the limits of liability that articulate in this case will inevitably translate to those other cases for those reasons we think you should reverse the decision below and we thank you for your time