paralyzed as a result of a basically a trap on the road in just seventy national park basically the situation is such that in the paper set forth th negligent design of the road as to the negligent maintenance it's clear under the decision a leisure case that there's no discretion for the government to maintain the hot when you're looking at defective design which is the main claim that we that we see set forth in our complaint basically it's subject to their claiming that this is subject to discretionary immunity first and foremost i think that it fails on the first ponk because there is a standard set forth that specifically say that a road with this site distance simply have to have a slower speed the standard set forth in  policy in favor of having unsafe feet unsafe speed it's basically that the cause of this accident the testimony of our expert was that if the speed limit would have been twenty or twenty five miles an hour mr soldano would have had sufficient time to stop in this area where there's a blind her where at the site distance is insufficient to stop there's no countervailing public policy argument where you said it's mandated  distance exactly it says the plans for the construction of the road it sets forth here state that the radius for the center line of the road is three hundred eighty eight point four five feet the radius is consistent with the thirty five mile per hour design speed as adopted in one thousand nine hundred four dition of the park road standards provided that the site distance meets or exceeds two hundred twenty five feet the minimum stopping site allowed for thirty five mile per hour design as as it s forth here the nearer the nearly vertical upward side slope for the westerly road direction significantly reduces the site distance however two hundred eighty feet based on the caltrans highway design charts which are set forth that ex thirteen twenty two through twenty four basically the simple fact is that under the park road standards one hundred eighty four dition the maximum speed for this road simply  was unsafe and it was mandated and even if it wasn't mandated slowing down the speed simply is not the type of public policy decision that should be subject to discretionary are the claim what the should've been a warning sign setting forth the turn such as the one the van was making on the road into the vista point should not be made at this location even though they're technically legal under california law having a vehicle make the turn places the danger of exactly what happened somebody coming out of the tunnel coming up upon a vehicle stopped in the road and having to swerve to avoid that vehicle this is a national park and i think the jurisprudence is that in national parks there is at least to some aspects even relating to safety there are some discretion particularly with placement of signs so what  might expect out on the open highways or or on a curvy mountain road outside a national park may be different would you agree with that i absolutely agree so does the service then have some discretion formally a road that was one for scenic driving but has really become a road for a highway running through the park and i think in light of the changing nature of the road that the sign placement is simply simply a matter of safety and it's not a it's not a discretionary active simply no warnings about this that there's less warning that there's less there's less warnings in a in a state party than in the federal park and there isn't the regular road i think they could simply solve this by putting one warning at this specific spot well what about the other spots i mean you're seeing that spot you're focused on a spot but we don't know when you're some of the how many spots there are that could be said to present some form of hauser correct the argument of the government is that we have the discretion not to fix this road not to lower the speed limit not to post any signs to create to leave the stranger a situation without any warning whatsoever to people on the road or to lower the speed limit to a safe level because the because there is this there are these vaguer standards in the park roads manual and i think  the question that comes back to whether or not basically whether or not the whether or not the standards set forth in the park road standards as to the minimum which in the mix in some cases may not be attainable when it is attainable a situation like this by simply lowering the speed limit does the government have the duty to do that i submit that i think it does  park in addition to the park road standard books produced by the by the government in discovery in this matter sets forth the park roads are the type that are designed to be thrown driven at a leisurely pace  with enjoyment throughout the park simply lowering the screen them into a safe speed considering the conditions the conditions of the road seems like there's no countervailing public policy against it  additionally the road  this isn't a situation where like in the to use where they set up a road with redwood barriers which is more for beauty this isn't a situation where any beauty would be harmed by simply lowering the speed to safe in reasonable level turning back to the defective warning issue looking at the i also think that in the in the warning issue season that jammed we've got jam coming down from san francisco i get jammed in los angeles and i can get jammed in sacramento but you know it's all relative how many no evidence in the rest of that year has been cope it was a commuter road road is in yosemite it may get jammed during the summer but during the rest of the year it's lightly traveled or whatever what is the rapid volume on this road according to the government's own study it uses a high speed highway would like to bring up if it's alright with the court is the lack of evidence on the maintenance issue regarding the condition of the road on the date that the accident occurred  is well aware the standard undersell attacks not to she's done anderson vs liberty lobby is clear that once the government puts forth some evidence the burden then shifts to the other side to produce as evidence  and i would submit that they have not submitted any evidence concerning the condition of the roadway in terms of maintenance on the date in question is signed part of me and i don't agree that signage is part of maintenance i don't think that student any of the court cases on signage have referred to signage as a maintenance issue i am aware of a very recent decision by this court over seven years which concerns  speed limits on a snowmobile section snowmobile area in snowmobiles that are probably go sixty miles an hour or more right interesting i had no idea that snowmobile could travel quite so rapidly but in that case the court interesting lee enough did address speed limits and specifically stated that setting of speed limits is subject to discretion that there holding or was  we do require park service to give propre of attention to safety and it would seem that you don't have to rebuild the road you can have it as windy as you want but that in regard to safety do you not have to give some attention to how fast the car should be allowed to crack that area absolutely i agree that safety is one of the factors that need to be considered under the discretionary function analysis obviously the first prong is mandatory duty i think here we can all agree there is not a mandatory duty to setting a problem i'm not sure that no council agrees with that because he cited the park service standards so why is it that before that knowledge became available to us i would submit that that's correct there are other considerations regarding the setting of the speed limits that in addition to safety first of all this is a very long road in the park this isn't short to interview transportation and you're in the valley this is over thirty miles long and that is contained in the record how long the road is it's contained in this study the historic engineering study which is exhibit a to the shields declaration which they have in your talks about the length of the road it is a long road secondly it does have significant amount of traffic during certain times of the year not as significant as the urban parkway in culp but significant nonetheless if we have a speed limit of twenty five on a road that's thirty or more miles on it well wait a minute wait a minute how many highways blueline highways have you gone through that reduce speed limit and then increase speed limits or where ever it's appropriate we're not talking about one speed limit for the entire thirty miles but the road is extremely windy there are many many seen it was right to slow to to i've driven through the sequoia slow  to twenty five blind curve or sharp curve ball a little weekly signs that as you enter you know somebody or you enter the sequoia national park which is just south plenty of sign on dangerous intersection so why aren't we properly focused on with or there was some policy or some mandate with three guard to a situation that occurs on the thirty mile road you're suggesting that coming out of a tunnel into a blind curve created by them will take the vegetation out of the created by a granite wall to the right as i understand it where you have come around a blind curve and there's a stopping point perhaps what would be viewed as a natural view point and there's no consideration given to the mine per hour w even if on your assumption that the nineteen eighty four standard would so if this were being built today you'd have to have a lower speed limit but you don't have to because it's already there first i'm not saying that that's what the park road standards say even if you take out the vegetation i do not agree that the park road standards say that turn has to be a twenty five miles an hour i do not concede that point because i don't think that that's what the park road standard say to begin on page eighty four in the excerpts of record and the exorcists of the very very end of the standard i'm sorry i don't have the page citation for that but it is at the end and i would not agree that it sets that it has to be twenty five miles per hour also while and he said it was a minute this was a road he had travelled over twenty times so it wasn't something he was had never seen before it's not that he didn't know that curves were on the road or were there for sensed maybe a different issue i agree that's a factual mph i'm trying to understand reading through the panoply of cases that go from you can have a cage that says it's ok for the park service not to put a sign on a bridge that's dangerous if you know where you might fall off the bridge but it's ok not to put an error you must put a sign by a waterfall i mean you know that we've got cases going all over the map ok and it's complex in the case of the recognize the discretionary function exception to be kind of loosely goosey to do with one hand on a take away ok so just boil it down here we have a situation where there is a windy road tunnels viewpoints heavy traffic light traffic depending on what time of season what time of day whatever and generally a mountain winding road has got hazards inherent in it so why what's the policy that lies behind setting a speed limit you're going to decide where to put the road you can decide you're going to intrude upon nature by building this road you're going to decide to make it two lanes or three lanes or whatever the park service decides balancing competing interests of what kind of usage what kind of intrusion on nature and the like but having done that having built the road what is the policy about involved in deciding that it should be a thirty five mile an hour speed limit which objective evidence would say is too high real assume that there is evidence that that subjectively too high a speed for the segment of the road that issue as opposed to the thirty five that the park service the sides to put on it and setting aside over sums the statement that that would obviously be a matter of policy what is the some policy which suggests the speed limits are part of the responsibility the question is what policy choices are being made one as you've already discussed and as council has brought up before this is a road that carries heavy loads of traffic certain times of year other times it may not there are issues of congestion you samedi valley is subject to lots of pollution now due to increased road traffic the slower cars go the more they're going to emit that's a policy decision in hansing visitor enjoyment driving twenty five miles an hour for a long period of time may not so much enhanced visitor enjoyment yes it's pretty and they may be missing some some of the view but the valley also beautiful and people tend to want to get there so the park manager is balancing those considerations as well including the number the amount of risk how much of a risk is it in overton they did studies and they had worn to the road at a certain speed  see evidence in the record about accidents in this area the evidence on accidents in my opinion isn't admissible evidence it's contained in that declaration by an expert that was done in an report und contacted by the part of park service yes on all the roads and you some of the park by the way not just this road and we don't have copies of those studies they're not part of the record it's just a hearsay statement by the expert in this case excerpts of record one sixty one and he discusses the reports on excerpts of record one sixty two and what he's discussing in the record is the national park service contract with jimmy horn an associate to prepare a traffic engineering study and it says it has an accident density of ten accidents per mile on the whole road which is hi accidie roadway segment the report didn't recommend any specific improvements there now another study by robert pect yes also says it's a high accident road statement and it did not recommend any specific improvements and the reason i bring the nat up is to me that distinguishes it from some of the cases in which specific improvements were recommended and the park service didn't follow such as somers arguably such is over and which would show that something had been recommended and to me that goes into the design versus implementation distinction of of the exception in some ways when you ask for speed limits were designed in some ways it is a design more than a maintenance issue to me and i think council agree with that as well so there's no specific data about the number of accidents on the road and even these independent people that use so many values paid to study their roads didn't recommend any specific changes be made to the road or to the speed limit in those report are questions for me no not right now ok i would submit that since you're focusing pretty much on the speed limit i'm not going to waste a lot of time talking about the other issues i would submit that the maintenance issue  covered by the teletext argument there is no admissible evidence regarding the condition of the roadway on the date in question that the discretionary function exception clearly applies to the design of big oak flat road and the standards as adopted in the eighty's and even sixty eight there are some park road standards a sixty eight would not apply to this road there have been no rehabilitation reconstruction projects completed or even begun on this road which is by the way in the national registry of historic places so it would take a lot to change the road i don't think or any of us who didn't seem to duty was to change the road i think you're suggesting that the duty was to change the speed limit and my response to that would be that it is up to the park manager taking into account all of the factors that go into running a national park that would decide whether or not the park you cited the congestion and pollution i haven't heard any other consideration that would go into the  only two entrances to the park therefore it would necessarily encompass visitor access and being in the records as to whether they are responsible ranger or whoever had done thought these all these things through and said well it's more important to keep the gesture down we'll have a few active dems but that's ok i would submit that under so there were not required to actually have evidence that we engaged in a policy it's whether or not the decision to be made is subject to a policy analysis so then you could just bring up all of the reasons which might post possibly affect policy decisions not not required that anybody really of considered him i don't think that that's what's required by by the supreme court precedent i do not agree that it's required that you show we actually engaged in policy weighing in fact i would submit that go not it's an area that we're supposed to stay out of all those cases talk about sort of what was going on what the end there was a rationale for why it was going on to justify that it contained some policy element so what's the evidence other than you're just insane we can pick from the christmas tree that has all sorts of policy applications in a national park how does that translate down to speed limits you know where's the policy there you're saying well access but you know and that's my reaction to access is that's true and one accident will will create a back log all the way to the entrance to the park if you have spinning out of control or having accidents on a blind curve that sort of you know access sort of seems to cancel itself out but there's no evidence in the record about the number of accidents or how many accidents or exactly where on the statement of roadway the accidents have occurred that's true but it just you know commonsense there had to be a certain amount of common sense applied to the discrete decision that's being challenged to and if we narrow it all down to the speed limit and i think we're entitled to consider what policy choices reasonably could be involved in your say and you've given us the worst when you're giving us the reasons and i think that's a good articulation of reasons and i would also like to make the point which i know the court very well aware that the purpose of the exception is to avoid court managing part second guessing and what exactly and once you start setting speed limits here perhaps another road on the other entrance to the park perhaps this court or another court with think that maybe that speed limit is wrong because there's a few more accidents there because of this extreme improvable i think this is not the case i mean i think given the fact that even in the snowmobile case one could make a determination on the to stay out that's what's at issue here is not that you're necessarily going to be the government's necessarily be held liable but they're going to have to defend it under normal tort standards and i would submit that if this court goes  has never gone that far in this analysis on all of the other cases the park service has actually either taken a step to do something to change something and then hasn't done it or hasn't followed their established safety guidelines or set a speed limit then changed the road completely and kept the speed limit at forty five now what you're saying is we're doing nothing but we can decide eighty and they admitted the this park road standards were put into effect later but they were not saying redesign the road but if the if the park road standards say that this speed limit for this type of turn should be twenty five miles or over just it exactly say that the i don't find in the parks and as they say it must be it says that's a an objective but the  the manual itself or the park standards so says this is not mandated on them to recognize is that the park conditions are going to be variable so are you are is that your argument that the park standard is an absolute mandate much like the in the polio vaccine case that the national institutes of health could not had no discretion whatsoever they were mandated that they had to check the live vaccine before they could issue out so what you're saying that that's what we should assume here i'm saying that when it is practical as it is in this case the government should have to live up to that standard lowering the speed limit the government should simply should be held to the standards they set forth in their own manual ok and so you said practical now what if what if the response of the government is as it is is that they have to make some decisions to decide whether they should slow the speed down to a crawl of twenty five miles an hour which is like a school zone on a on a fairly busy highway in this particular section do you disagree with councils argument that there congestion and pollution and visitor accessibility are factors that they have to take into account i believe i understand that those are factors they would have to take into account but i think those factors are simply overcome by the fact that this road was unsafe they put an unsafe road out there in the design of the of the of the way it was that the simply was an insufficient time to slow it i think in this combined with the fact that they provided no warning up of this danger of this blind curve and didn't slow standards of polio vaccines be under the law these are these are not these are not grand public policy questions this is building a safe road for the citizens of the united states