receipts and other information concerning the demise of karalee she had been on the premises of wal mart consistently for over a two and a half days if you count the twenty four hours so there are about remained in the parking lot before  that somebody there didn't do something or that there are some excuse or reason why our pleadings were deficient so fashion they could present or that i was in the court they did not what they didn't stand was to make assertions in pleadings at the trial court took at least to some extent as fact based on the opinion that you're oh and one of the this is incredibly important here because if we if we look at the issue of the paraphernalia issue on the town that used in hosty the participant sprays the before you get down into particular three but i want your best one for best one first the law go a premises liability yes or ok but this incident occurs in the parking lot on the wal mart premises and it occurs in all  wal mart premises here maybe in the parking lot from the time she gets there at ten thirty on sunday night until she dies in that same parking lot i'm fifty hours later and the only place she goes other than the parking lot is inside the wal mart there's nothing wrong with the property i know that's right in the lot of case judges a case where there's a group of bikers in a group of right you know the case right a group of surfer charity people and that escalates over time until there's a fight reasonably result in harm or injury the property only had the opportunity to prevent or lessen the damage it did not be said that's exactly what we have here the second case and that line is the el cheapo case which is but books that i'm sorry there's nothing inherently defective or the cans themselves who aren't the situation that was premises library on safe i don't see how the model applies to your intoxicating or dangerous all the chemicals but almost nine or ten over a twenty seven hour period valving maybe sixty is me sixty cans to buy people who observe my client with feces urine vomit and hair appearing naked in the store reporting seizures reporting that she doesn't know where she is and that the person interviewed her said she didn't seem to know where she was and instead of doing anything at all to to either stop her from buying further intoxicants or calling someone to say we have somebody in our store that's happening good and appears to be mentally ill they just sell or some more dusting until she takes enough that ends up taking your life so that's it l chico's very very poignant because silicates the texas supreme court was presented with the issue well what it is just a person who who is over served was just a drunk abuse injure and supreme court texas has the duty exists comparative responsibility also exists so you may not make it home but you're entirely your day in court what postal chico case stands for the proposition and duty or searching the reason i ask that is it looked to me like the supreme court has said that chico superceded it's been preempted and the best recourse is to go to texas legislature and say if these aerosol cans are as dangerous as alcohol you need to have a an equivalent statute but there but you know you see both parties have cited national convenience that under texas law vendors just do not seem to have a duty to observe the purchaser and if that's as solid a bright line rule then there wouldn't be an alkie call type duty writes up we assert that's not a bright line there's a of abuse of inhaling intoxication all the earmarks are there the warnings on the cancer being displayed for these people in lifetime of this woman who is clearly not in the right mind and they continue to give are things that they're prohibited by law  on there are certain circumstances if the only basis for the employee's conduct is the role of employee easy that is within the course and scope of it is something different than that then it's not force and scope and so  we look at the course of conduct here when we look at chapter forty five which which which makes it criminal to provide paraphernalia to someone who was abusing inhalants and we have in this so that would be an individual liability circumstance some of these other things i think would be within the course and scope but i think both are involved on the facts of this case significantly the four eighty five cause of action against the individual employees the district they say a towel and maybe some others we don't really know post the dismissal in this record we know that there were four tunnels on three different occasions and  but again that's thrown in in the mix of sort of an evidentiary lacking on the part of the plant and here we're in the position of trying to satisfy wal mart in the district court about evidentiary issues when our main pleading w to serve evidence and we can find out what happened and so if we look at the state of review that this court has established for the circumstance which only makes sense because the plaintiff is before the court without the opportunity to actually get the evidence and here especially true because wal mart had exclusive possession of the evans my client's daughter don so we have any we were able to gather some evidence from police reports them from news media absent support but wal mart had all the evidence and so we planned as best we could if walmart wish to say that our plea for insufficient from a factual basis they had the ability to do that and they chose not to do that and i think this court's a take notice of that evidence that was given adults and the rules the same it's not wrong to give somebody a gun but if you give somebody a gun that you know it has incompetent or material mentally unbalanced or a child then you're going to be responsible something bad happens and so the idea of giving someone a police officer who specially sultana woman and these chattel that was provided there was a gun was a gun a badge and a hank us which are the usual cushion it's of a police officer would necessarily simply giving someone those things would create liability but if you know that the person that you're giving the child to is incompetent or good ones are a lot different than they are judge they are very different except that in the current in this century the idea were talking about the issues were about guns and alcohol but this particular product is known to be dangerous as prescribed by the health and safety and the people who sell it or for having to sell minors in the warnings on suggest your theory of liability that the you're claiming don't lago premises liability at least is a very is one of the most powerful ones whereby there be no reason to distinguish any hardware store in texas any hardware store that sells glue or an intoxicant face is liability if the person buying it from them is sufficiently impaired there's a cool word in it duty to not sell it and that's a premises liability theory or it's is not the mere selling of intoxicants that we believe generates liability it is the selling intoxicant to someone that you absolutely know ok is abusing it is going to hurt himself and that would be like selling a gun to someone says i really  were able to remove it and there was no real question that it was a removable auction they with regard had they chosen there is in fact a procedure under texas law to take a pretty seat deposition they can simply ask for depositions after we moved the case they then tried to join wal mart's employees to defeat diversity and get back to state court th in because this was done the attempt to join them was done after the removal will fourteen forty seven and hangs and comes into play where the court has the discretion to allow the jointer or  not allow the joinder of parties that will defeat diversity applying those factors court to not rely soley on futility as a matter of applying those factors been stead look at all the circumstances including the fact that the pla fs join these using doing these individual employees stating in their plea and they don't know for sure they're even the ones involved in order to effectively  defeat diversity and they also looked at the types of claims that were being made against them and whether those are viable claims we have breached that these are not public claims against the individual employees because if there was a cause of action for selling the dust off improperly that would only be done in their role as employees and there's a great deal oily only will be liable for an act they take within the course the scope of their employment they are not liable where the council points to something where we've said well we may make a distinction where they're outside of course and cup employment that would if they say if there was some fact there were no facts that alleged in within the pleadings that would satisfy it wo that the individual employees had actual knowledge that the towels that were being purchased were going to be used as paraphernalia if that was the case there at least be an argument i believe that they knew they were as far as i'm aware your honor i believe each sale is made by different employing and if you look at record you'd asked for a schedule there's not a schedule but on page three twenty one and three twenty two of the record in our disclosure there of each individual employee that had interaction with the deceased and a description of what that interaction is as it described the time williams at the garden center there are there are separate receipts within the records that do give time and there are times within the plaintiff's petition where they do provide different time periods when she was supposed to gone in the store not allowing the joinder of the three individual employees and as the two manufacturers the as in the plans had no good faith basis to see the two individuals manufacture they did in fact is a third manufacturer of who is the manufacturer of the product has not come up with in the course of these proceedings court also properly rule there is no independent cause of action against the individual employees of the court properly dismisses claims as well and therefore hour or two tensions rose that the management of the bar at this hotel knew about creating a dangerous condition to third part that was basis for protection in actual premises liability the premises condition less specifically the tensions that rose between these two groups of people there's nothing in it analogous to this case there is no dangerous condition that is analogous in this case this was the acts of both karalee williams and they're making allegations about the actions of walmart employees but contradictory about whether the legislature acted simultaneously a couple days later when a weak el chico was no longer the law and in fact the court put forth a statutory scheme about dram shop liability in the dram shops a special case in this is an issue that has been an issue in all courts for a long time about what liability for parties that are specifically in purposely serve alcohol which its purpose is to be an intoxic and that's why they're sued selling it what liability they should have in the texas legislature chose to put in a specific statutory scheme here this is a product that has a noose and it just happens to be there are a lot of products that are subject to that as this court point out airplane glue nitric oxide if you want to make whipped cream anything on that right but when i pointed that out and they've also relied on the morning case which he was describing right at the end of his argument which you didn't distinguish in your brief so i believe he did address morning how do you distinguish the morning involves a case where a police officer gave a gun to his son isn't straight it negligent cases that at least discuss them this indicates none of the cases they say actually go against the cases that specifically say that there is no liability for a seller of goods under three when they're talking about the police officers general negligence ordinary negligence and that and they're looking at the language of the court is if the plaintiffs can show officer who was aware of reckless tendencies then they can show a corresponding duty to act  negligence arising out of the sale of a weapon to a man with a history of mental problems who later uses the gun to commit suicide i isn't that almost exactly what we've got here i'm not quite sure where they're getting the sale part of that because idea that a seller of goods can be liable koncz and it goes flies in the face of all of the cases that we have cited under three ninety that makes this distinction between me the more i dug the less clear i was that al chico is a complete dead end it seems like it keeps surfacing in these extreme cases where a demented person purchases a gun purchases seller so even when you look at national conveniences citing you seem to know these cases very well so it's citing the kennedy decision in one thousand nine hundred four approvingly but in la fleur in kennedy they seemed to be talking and quoting from three ninety as to sell or liability yes or well so i understood your point correctly there are some that for better or worse use a little bit of loose language of el chico in some of these earlier cases but i think the later cases in the cases that where it is actually part of the whole scene of the cases do not go there under attack as all right line rule seller can look someone who's naked in front of them soiling herself and sell them it's an adult not a minor and we don't have paraphernalia they can give them an item that just the foreseeability is near certain as to risk of sell well i might disagree on the first still see ability because in additional employees would not have change you can even close the trial court properly found that three employees could not be liable in their employment and therefore that does not give rise to individual liability for them only liability because they are employees of wal mart and i'm actually in this case don't have the cases off the top my head but this within scope of work or not individual could be but in those cases for the parallel tort to exist the rest to be a separate duties for example using your driving example individuals never their example would be they sufficiently pled that they gave for towels they at least must have known giving towels with sixty bottles of cares of this air aerosol thing that she was going to use it to hot and therefore they sufficiently pled a civil tort analogue to the forty five criminal statute well first and foremost the civil tort for the paraphernalia requires not knew or should have known it requires actual knowledge and they pled no facts  rise to actual knowledge second of it the product would be abuse in effect the first the in fact they did the exact opposite because within their  tile for other purposes she wrapped it around her waist to use it to clean up that if anything shows that there is no actual knowledge of misuse second they are only selling this product within as opposed to a driver who drives has a separate d d in the state of texas to use reasonable care while driving no matter what circumstance someone who works for a store for example that there is  so we've discussed all she can so in again with regard to chapter forty five the thing that i think is most telling about chapter forty five is and why again there is no breach of the criminal statute platt because there is no statute nothing in the statute that prohibits selling to an adult under any circumstance that in the legislature had every opportunity to write it like that instead they chose this and shop act the only time they stepped in or to texas and texas done a pro gun sales to i'm unaware of any law that texas well i don't know the answer that question or whether they have preempted liability issues on gun sales at this time if i were to guess i'd say yes but i don't have the answer i would expect but what they did do here is create  specific statutory scheme where they said there is no liability for sir there's no criminal liability for self with no adult therefore there should be no basis to give rise to a civil liability for sell to adult in fact there's one thing that's we haven't talked about is even with regard to the sale to a minor there is a defense to that if the product has a a a bitter end or something in it that makes some someone sick and it's not in the record but that is the case here so we have a separate issue there where the skit the statute takes into consideration even with a sale to a minor that if the product has these know it based on his description i don't have but i don't think smith vs school is controversial as far as i understand what he cited for it was the proposition that  under the dram shop act an individual even if it's the person who's intoxicated and gets in a solo wreck they can still sue the dram shop and that i don't dispute that but i don't think that is otherwise  issue here now whether that would be something that they put in a statutory scheme in bar involving inhalants would be something i think would be up to the legislature played sufficiently as it is but in answer to the court's question initially i think that we would expand on our pleadings of the chapter forty five liability the district court found that that was a viable claim  when they knew that they were going to be used by karalee to inhale the duster so we played it i don't know why they say we didn't plead it on the other different words that it's page seven of our petition and it's clear it's clear as i can big so based on that i will expand on that to try to satisfy what i believe is this records almost evidence requirement where we pled these people did these things based on what we had  them that's developing and can cause harm and kim can can stop it or are limited i would sort of expand on that for the trial court because i think it's incredibly incredibly  the the court and del lago was very clear to say we're not creating some broad scope of liability here what we're saying is that the premises owner becomes aware of a dangerous condition on the premises and here the condition was people were if a reasonable person is aware of a condition that can cause injury they have a duty to to lessen the injury if they have the power to do that basically and all the three ninety six and three ninety case you cite or all those ilk we do not say that the sale the liability we say if you sell something or provides of the to a third party that you know that is going to be used to harm themselves or others that you have a duty to do that and that's exactly what we have here i'd also tell the court in texas is that those who pursue a common plunder sign commit or sect actually take part in it or further it by cooperation early and aiding the wrongdoer are liable for the tortious act we think that's just another expression of how texas would look at this from a duty stampa point where we're not saying that they're exactly in line but the analysis it takes a court says is looking at this particular set of circumstances and here we believe that they are streaming in a rage and since it's hard it boggles the mind really to see twenty seven heavily on the floor case to respond to that notion that if he went out and shot somebody that texas is pretty clear that they don't have any liability i think that's wrong judge i think that that care description of lafleur is wrong i think this court's really a moron is better right where right is that the court then looks at texas law and says there was no duty on the ammunition case but the court analyze it did they use reasonable care which tells you that they did they said there's no evidence that they didn't use