the court counsel conrad courage on behalf of appellant i'd like to reserve three minutes of my time for a bottle please the question in this case is whether a comment from a coach to the  appellant to an inference strong enough to get the case to a jury we believe it does before i explain why i want to emphasize something very important that is our sole appeal here is on the state created danger cause of action under forty two u s c nine hundred eighty three we are not appealing the title nine cause of action nor the other branch of our one thousand nine hundred three claim  unfortunate think what happened is that this they created danger was our strongest cause of action the trial court the trial court did not have a great deal of regard for other causes of action and i'm afraid what happened was this one got thrown out with the with the bath elements of the state created danger cause of action don't it doesn't address respond the out superior it's whether the board acting through its administrators has created this danger the board itself can't create the danger you know a president of the school board on a wednesday night meeting is not going to tell the assailant here to go take care of this in the weight room the board acts through its  employees but the union take the depositions of the board members to find out if they even had any knowledge of these things know the knowledge of the administration i mean we took the position of the superintendent of the assistant principal of the coaches all that knowledge is imputed to the board why why if there's no evidence that the board had had knowledge much less acquiesced or prove these things and you haven't presented any evidence here about that well again your honor this is not an issue on appeal as far as i know judge rose did not dismiss it on those grounds and the appellee has not brief that there are only three elements that we have to look at port elements you have to satisfy to have potential moen nail liability we do have to look at that even if the parties have been deficient in their arguments in their brief some  ok let me on page twenty one of our brief we laid out the three elements of the state created danger cause of action under doe versus big walnut and i'll save time by not going through that but then we site under again big walnut appellant must show that quote the official must both be aware of facts from which the inference could be drawn etc so the focus is on the official and here jason  but there's no where and i lived with this record for three years there's no where in this record where the board says we are not liable for jason suka affirmative act they know  glee thought it didn't act the probably thought it didn't have to say that because it's so well established that responding to theory or liability is not be a plaque to ho created danger three elements number one an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party number two a special danger to the plaintiff were in the state actions place the plaintiff specifically at risk as distinguished from risk that affects the public at large and three the state knew or should have known that its actions specifically endangered the plaintiff and again then you go down in the same case that list those three rules with respect to governmental liability as opposed to a fish kills and for purposes of these questions i'm willing to see that you have presented evidence sufficient to go to a jury what must be the contention that that theory modifies all the normal rules for government a liability let me direct this your honor let me direct you to this court's opinion of just three weeks ago on which chief judge cole was was on the panel styles vs granger county tennessee case number fifteen fifty four thirty eight a sexual harassment and bullying case arising out of a school environment no where in there was respond yet sapir your used as a defense particularly on the state created danger case a cause of action and under it in that case what the what the court's plaintiffs also argue that defendants and defendants in that case include administrators teachers all these school employees  the defendants increased the risk vs would be exposed to violence from other students by failing to enforce the law failing to enforce school policy in this case the the court found for the school board not on respond out largely today and then there's the second hoop monella and what menow has made clear and style doesn't seek to change that paradigm at all it's just very consistent with supreme court case law and pas precedent from the circuit i don't see how style gives you any extra support that you would otherwise have that's just my well my view the only thing i can say is i'm not aware of any case law that says that the school board can use respond at superior or to insulate itself from the act of jason soak up in this case under the state created danger cause of action i'm not aware that if i'm wrong i'm wrong but i'm not aware of that do you think you have to  show some greater connection then in terms of what the school board did or did not do that this board acted or failed to act in the face of very clear information that it was quote from the case the ultimate question in determining whether an affirmative state action increased danger to an individual is whether what the individual was safer before the state action than after it that's under the state created exception in the record that the board members have a policy or practice the gave rise to the events that your lives in your complaint if you mean the five he did not let a director at a particular school right at the high school correct i mean if they're easy evidence whatever they would tell you this policy out that particular school or the atmosphere yes these boys testified that this conduct was going on in junior high but we're not just talking about a teacher or a maintenance person we're talking about administrators if the board doesn't act if a school district a school board doesn't act through its administrators i don't know how there's ever any accountability for a school board well i mean the board  negligent or not know with a little more about what was going on in the school but that didn't work either i know because they well true true but there's well listening to the discussion on the modell claim has kind of made me when i looked at this last night again i read my brief with respect to the mono selection that i included in the brief and i realized that in the reply employee there was a scant reference to the inaction theory in the briefing that was raised by the appellant in his brief sort of in passing which is what prompted the mono section in our brief  certainly i don't believe that this is an issue that the appellate or the apple has walked away from in any in any respect  that comment by itself did not raise any issue for trial based on the undisputed facts in the record and those undisputed facts never really been fully addressed or explained by the p n it's undisputed that no coach no baseball coach as sick as the judge rose found ever condoned or encouraged physical violence with the students it's further undisputed  that one of the perpetrators here the one that says that coach souk up made the comment to him did not understand it to be he didn't understand what the comment meant but he also fully understood that no coaches that he had ever encountered in the school district had ever condoned or encouraged physical violence so the question is how can that be an inference as the appellant argues that it was some sort of an order of an assault on the appellant given those undisputed the judge was correctly found it wasn't of evidence in the record that he did take here and there's plenty of evidence in the record that things were typically taken care of in the manner that they lot of indication that school officials knew about it correct i would disagree with that characterization and i guess i'll take a step back and look at what the assault the alleged assault was in this  case it's an alleged sexual assault and the record is devoid of any prior sexual assaults going on within the school district that anybody much less the school board had knowledge of so with respect to that i would say absolutely no there is no evidence in the record that would suggest that the school knew that something of that nature was was running rampant in the school district in fact the record proves the exact opposite and w i'm clear so i know there's something in the record about students engaging in i don't know if i would call it horseplay because it's probably more than horseplay that involve  at least touching of students and i would just say you know private areas and i think there was a term that was use or some other term that was used and certainly students were aware of it is the record clear that there were no teachers or school officials who had no idea that this is inappropriate or you know  this this ball tapping as it's been described i've never expected to ever be discussing this type of stuff at this level in front of a panel of judges but i was trying not to raise the term i think i'll be an adult well we'll talk about it it was very delicate but there it's an important concept to understand so well i'll talk about in some detail with respect to the ball tapping it's something different from ball tapping is pretty much what it sounds like it's teenage boys hitting each other in the testicles and you curiously i won't take too much of an aside on this but on e s p n dot com last week i saw an article about a major league baseball player animal ruesch who had retired because the chicago white sox wouldn't let his his son his young son go into the the locker room anymore so he walked away from his contract and retired and there's a there was a in reading says there's no other workplace where you walk in and guys are slapping each other in the nuts and saying the stuff they do so apparently i mean i was kind of under the notion that this ball tapping was something that happened with adolescents but apparently well ok and that i was going to get to that judge there was a period of time in one of the junior high schools where i think and i wasn't at that particular deposition but i think the tone may have been kind  of exaggerating a bit but he said that it was running rampant ball tampering was running rampant within this particular school so the school took measures to avoid to eliminate that they made announcements on the public address system they disciplined people who were doing it and the record actually shows it decreased that school correct it was in a junior high not in the the actual high school i don't believe that was the test i think it was the junior high below but the school took effective steps to address that and the record actually shows that these for the frequency of this ball tapping decreased based on what the school had at taken action to do and certainly there's a policy in place the prohibit such behavior and conduct from students so there is no policy that said go right ahead and do what they do it in major league baseball go ahead and do it whatever you want there's nothing like that here so the concept of ball tapping i think is separate from the concept of bitching and the the ball tapping issue i detail on this business other than it's a separate act than ball tapping the record establish that that was kind of a new phenomenon that was just starting to occur in the high school so that's not something that was running rampant for years this is right and i guess that's a separate point they were aware of the ball tapping they did something about it it decreased appellant actually argued before judge rose that because the school was so effective in dealing with all tapping because that was something different but in any event yes the record shows that the ball happened was addressed view ching was just starting when the school became aware of it which all the the record clearly shows that the school was not aware of this new act until this incident but when they became aware of it and they took action and it was actually reported as a sexual assault and these individuals were led out of the school in handcuffs they were arrested and charged in juvenile court and the record again shows that duchin became practically nonexistent is the term that was used to describe it after that action was taken so again the record is showing i mean number one kids are going to be kids kids are going to do stuff that's stupid and inappropriate it's going to happen and there's nothing we can do about that but the record shows when the school does the school that's policies to prohibit that but you can't monitor students twenty four hours a day every place that they're out in the schools something's going to happen outside of their knowledge which by the way the record conclusively shows that too because the students who were deposed all said to a person that they knew the school frowned upon that conduct and didn't allow it and so what did they do they did it when the teachers and the coaches when nobody was around they did it which again how would the school know that was going on if they were witnessing it and when they did witness that they did something about begin and the law the law does seem to be clear and recognize that no school board would ever have a policy that says go ahead and do this so there's an interaction theory that has been  i mean there's there's four elements to it and one of the elements is clearly let well number one i think all the elements are not satisfied here but the  one the first one the the existence of a clear and persistent pattern of abuse in the school there's no pattern of sexual abuse in the school so that clearly is not satisfied here i mean we can split hairs over the ball tapping in but as far as sexual assaults the record is devoid of anything like that and thousands of pages of documents were produced in discovery i was i was looking i was checking when i was sitting back there over sixty five hundred pages were produced by by the board of discovery dealing with all sorts of disciplinary requests and actions taken over the bit the past ten years we jump through all the says they were trying to do it for sexual purposes and in fact the students who were deposed in this case were asked those very questions and of course they said no  that's a fair question your honor and i'm not i don't mean to imply the board had knowledge of any of it one way or another the records that i'm saying that were produced in discovery and different were from individual schools various discipline was there discipline handed out for ball tapping in junior high i guess i mean there was the board have knowledge that was happening one way or another there's no evidence in the record that says that and there was a concession made that in fact there is nothing in the record that says the board  i see my time is just about up if there's any other questions i'm happy to address them otherwise i'll submit on the brief all right thank you thank you runners  thank you i believe i've cleared up my confusion i hope i can articulate this to the court in our brief beginning on page twenty two we have one paragraph regarding mono and i'm not sure why it's in there i think it's in there it relates to the inaction theory explicitly says in the in the second line after the mono quote in order to prove this in action theory we do not have an actual theory on this appeal we are only going with the affirmative act under the state created danger policy i apologize for that confusion i went back and i looked at the court's decision the court beginning  page seventeen addresses mono again on the following page eighteen the court is explicit plaintiff's argument is based on an inaction theory that was a cause of action we have abandoned for this appeal we brought that in the trial court that's not the basis for our appeal here whether your complaint in there or not it would be you next on the part of dying that is my position that is definitely my position and in enough i'm wrong i'm sure he'll tell me in the in the opinion but that is my position and i have nothing further less the court as questions