and to draw all justifiable inferences in favor of the plaintiff counsel before we go any further regardless of how this case is resolved please accept the  court alluded to this involved a tragic incident involving the death of a young man and the reason we are here is to enforce the rules because the district court did not follow those rules in its ruling on the summary judgment motion the district board jumped to a conclusion that this was a high speed chase and then analyzed the case under the well established law including the being the crown chalk case and the county of sacramento versus was what did he do wrong because it seemed that the theory below primarily was that his vehicle and impacted the motorcycle and then your expert knowledge that there wasn't evidence of that so what is the theory of viability here well the expert and i i described this in the briefs the expert our expert made a statement that could be interpreted which was interpreted by the court i believe and correctly stating that that he didn't find evidence of an impact that is not the same as the proposition that there may have been an impact and what evidence is there to support the proposition that there was an impact there is the evidence of the statement definition of cloth in his deposition that when he was ascending the slope he lost sight of the edge of the slope and he could only see blue sky there was circumstantial apennines terms of him well there is circumstantial evidence as stated in the reply  agree as his vehicle ascended the hill behind the motorcycle and that is supported by the death investigation report that his vehicle forced the motorcycle off of the top of the precipice and that is also supported by the scientific evidence presented by the two experts primarily the plaintiffs expert which shows that the motorcycle did not go airborne off of the slow but that it essentially rolled or fell down the slope that it's it velocity upon leaving the top of the slope was very low in the order of five miles to ten miles per hour so that is consistent with the circumstantial evidence that the officer ascended the slow after the motorcycle and i know there is the evidence from the woman who was in her office across the street who i believe couldn't really see anything but that is consistent with the officers vehicle ascending the slope and forcing the motorcycle off of the top of the slow and that would not necessarily result in physical evidence to the motorcycle that would be indicative of a physical collision even choosing your words carefully and i think for good reason but an argument that says the evidence is consistent with or not inconsistent with isn't evidence sufficient to support a verdict and the question here becomes what evidence was the upon which a reasonable jury could reach the conclusion to enter a verdict in favor of your client on this crime i gotta say it's it's bits and pieces but i don't see anything that knits them together to make any kind of crime a facie case and if you don't have a problem a face a case entry of summary judgment in favor of defendants appropriate so tell me why it is i should be persuaded that in fact the officer did force the deceit and because the top of the hill well one thing your honor as the officers the officer makes varying statements and for example in his interview which took place on the same day which was december th he describes the scenario and he states that the motorcycle he believed was traveling about forty miles per hour at the base of the hill as testified to by our expert officer attempting to create a narrative that is different from what really happened because the motorcycle a different impression maybe he's doing deliberately maybe he's not all you have is is a testimony that his estimate as to what a rate of speed was at the bottom of the hill which logically is not going to be the same as the rate of speed at the top of the hill differs from what the experts talking about i don't see how that proves an impact yes i understand it was difficult if there is not evidence to support a verdict that says there was an impact there there is summary judgment well the evidence simply is that if you if you start with what i call the scientific evidence and you look at the impact of the motorcycle on the down slope of the hill and then where the motorcycle ended up that leads you to the conclusion that the motorcycle was traveling very slowly relatively ok so i know that i'll accept that as a factual proposition but that may simply tell me that as you go up the hill the motorcycle slows down but because you can't see clearly what's ahead doesn't come to a stop and so goes off the top at a five to ten miles per hour speed that doesn't tell me anything about whether there was contact between the officers car and the motorcycle and the argument is that was actually traveling up the hill at the same time that the motorcycle was and that he couldn't see anything because of the fact that he was driving s u v s which is his the position of his body was several feet off of the ground and because the slope was about twenty seven dollars degrees as he is looking which he admitted in his deposition he could not see anything well he did say he could not see anything he's talking about seeing blue sky he's also talking about seeing horizon out the side of us is go to the front he's not saying i couldn't see an object in front of me that i'm striking because the ground is below that if there's a motorcycle in front of him there's no reason to think he can't see that because of the slope because both the truck and the motorcycle are going to be on the same slope so you really can't infer from his testimony something that says i can't see a motorcycle in front of me he's not talking about an object in front of me i believe because he cannot see the horizon so if you put the motorcycle sticks above the horizon if you're going up a hill even if you can't see the horizon indeed the rental car i've got this week my wife complains that she can't even see the hood of the car but if there's an object a car a truck a motorcycle in front of us you can see that because it sticks above the horizon it's possible it's possible but it also changes know his testimony they can't see the horizon can't be used to support the proposition so testimony is saying he couldn't see that there was a motorcycle there and that doesn't establish contact anyway because there is no evidence that i found in the record that supports the proposition of contact if you look at the evidence in the light most favorable to the plaintiff know you have to decide whether a reasonable jury could reach that conclusion is their prime aphasia case it doesn't mean accepting guesswork and speculation it means could a reasonable jury reach that conclusion agreed where is the evidence that would support a prime aphasia case here the evidence i would say is that the motorcycle went over the cliff well it's going to go over the cliff either way how does that demonstrate contact i don't know if it was going to go over the cliff either way your honor but yeah evidence is that it did go over the cliff at a very low rate of speed which is completely inconsistent with the testimony of officer snake law that the motorcycle was traveling forty miles per hour at the base of the base of the hill how is that inconsistent well the expert testified that even if the motorcycle were travelling if the motorcycle  travelling forty miles per hour at the base of the hill and he did not have any throttle on the motorcycle that the motorcycle would only be traveling twenty five miles it would be traveling twenty five miles at the top of the hill that is impossible that did not happen if the motorcycle had been traveling twenty five miles at the top of the hill the motorcycle would have landed on the railroad tracks the motorcycle did not land on the railroad tracks the motorcycle landed on the back side of the hill based on the repeated split nd decisions that the sneak last was forced to make in attempting to apprehend fleeing suspect you're there to see that however regardless of your conclusion as to the proper standard to be applied the district court's ruling should be affirmed for two  never provided any evidence that deputy sneak off caused deceit in stuff through any other means plaintiff has not even appealed the district court's finding that there was no evidence of contact and that lack of evidence alone additional court ruling should be affirmed in your analysis and you go no further at the same time we've provided a plethora of evidence to show that there was no contact between these two vehicles there was three accident reconstruction experts all who testified they found no evidence of contact including plaintiff's own accident reconstruction expert who testified to his conclusion that it was most likely that the sea dence motorcycle rolled off the hill upright on its wheels with the seat and a riding position in addition to these experts three witnesses of also testified including independent witness arlene currie who testified that she was watching the incident she saw it to see didn't drive off the hill is own volition in a fluid motion in that there was no possible way there could have been contact between the two vehicles all of this of didn't show that no reasonable jury could conclude that there was contact between the sheriff's s u v and the season's motorcycle moreover properly applied the intent to harm standard and granting summary judgment where you where you say she conceded that point it was in response to the county's attorney's fees motion she stated that there was no physical evidence of contact between the two vehicles i maybe but what about the intent i thought you said she conceded that there was an intent to harm yes and the response to the county's separate statement in support of the summary judgment motion it was agree just conduct sufficient to shock the contemporary conscience here deputy sneak off was simply pursuing a fleeing suspect this is what we would want our officers to do in proving deliberate indifference plaintiff would need to show that the cloth was aware of a substantial risk of severe harm caused by his conduct here it's also undisputed that deputy she caught did not know that the hell came to a drop off shortly after its peak and it's also undisputed  believed plaintiff that deceit and had successfully traversed the hill and was on his way to a clean escape with those facts being undisputed it could not be said that he was aware at all that driving up that hill would in any way pose any risk to the seat and your honour's the facts of this case i agree they're extremely tragic but they're also simple and where elephant there undisputed to see didn't was under the influence of highly toxic levels of cloth acted with deliberate indifference and with that i would ask that you affirm the district court's rulings and if there are no further questions i will yield the balance of my time and submit on the briefs thank you thank you for like to state your honors that the district court's conclusion that the case was frivolous was based on its rony years conclusion that a purpose to harm standard was required here and by the words took place the same day of this incident that mr brewer was not endangering the public that he was continually slowing down and that he was probably looking for a place to that is part of the interview of  he he stated with out without hesitation or qualification that mr brewer was slowing down so therefore the high speed chase that may or may not have been occurring earlier and the reason i say may or may not was because deputies think also stated in his statement that he believed that mr brewer didn't even know that he defended  behind him at some point earlier in the the ride and she got also testified or stated in the statement that he did not believe this was a pursuit so on the those grounds i believe the part of the district court's judgment finding a case for a low should be overturned thank you thank you counsel thank you to both counsel the case just argue get it for a decision by the court that completes our calendar for the morning we are in recess until nine thirty am tomorrow morning