nine one one circumstances to those at issue here and there are the texas supreme court unanimously articulated the following rule thus the use of property that simply hinders or delays treatment does not actually cause the injury and does not constitute a proximate cause of the injury the texas supreme court statement and the plaintiff's theory of causation in sanchez could not have been any more clear here like sanchez plaintiffs are not allege that to knoebels telecommunications equipment actually caused any physical trauma to brandon alex only that it malfunctioned to hinder plaintiffs from time receiving medical assistance from an independently cause physical trauma this year like sanchez dismissal as a matter of law is required under the s subsequent briefing however the district court somewhat backtracked and permitted to mobile to certify this issued to the court in that narrow issue is why we're here today to decide whether the district court erred in ignoring the sanchez statement as merely dicta there are two reasons that the district court did air the honors first statement was not dictum far from it it was necessary to the result it was alternatively sufficient to the result in synch has and it appeared at the end of the texas supreme court long explication of the governing rules of laws in texas second even if it were somehow dictum the district court was not free to disregard it the statement was clearly considered it was deliberately made and therefore at the very least it was judicial dictum deserving of deference from the district court sitting in diversity below and therefore wholly apart from the doctrine of judicial dictum because it was a recent clear in unanimous on buying decision from the texas supreme court the district court was not free to disregard it under the principles of yours either of those two reasons are sufficient to require reversal of the district court taken together we believe the insurmountable here unless your honour's prefer that i address a particular issue i will take it to broad reasons and questions before the court can turn the first question is did the district court err in disregarding the synch as statement as dicta we believe there are three reasons why the answer to that question is yes first the necessity of the scientists statement to explain the result not that criteria has been satisfied here and there are several reasons why plaintiff's attempts to have fade the presidential status and the district court ruling that this was dicked fail here in ca and chose the texas supreme court found in a recent decision one that we had come down right before we had argued the cook  case another nine one one dispute involving the city of dallas and my client t mobile and much of p c s in synch as the texas supreme court found that the alleged malfunction delayed potentially lifesaving assistance to mr sanchez in yet still concluded in the context of the rule ninety one a case that as a matter of law that the mouth functioned at the telephone system could not be a proximate cause of mr sanchez's death in other words the texas supreme court found that but for the mouth function the responders would have reached mr sanchez in time to save his life and also that as a matter of law that was not enough to establish proximate cause the only way to explain this result is in the hasten that injury cannot be as a matter of law proximate cause you cannot meet the first element that is required to overcome mobile's immunity in this case and therefore it was a necessary part of the sanchez statement apart from the simple hindering or delaying assistance the if you remove the same  the court's decision they could not have found both that the malfunction prevented lifesaving assistance and that as a matter of law the malfunction could not there there was an alleged connection but not a connection to the nine one one p subsystem there was in this case medical assistance that was provided it was  delayed in the suit his case there was actually no medical assistance of providing the ones that are wrong apartment i know but in this case did the babysitter keep calling back and not be able to connect to push it on hold for forty minutes what procedurally what happened to your equipment the allegations are that she hung up and called bach several times and continued to go into a loop of being on hold and that there was not a message that was coming from the city of dallas p subsystem that said stay on the line do not hang up so i don't do that each time she called doc because of the city of dallas system she was put at the end of the line so does that mean that there was no one to answer the call arduous that the call never went through the call did go through but it was not you have to know where was the person who's supposed to answer the phone that is the city of dallas nine one one  system led to a delay and we see the medical assistance that was different they went to their own apartment they didn't know there were two calls this is a situation where no one no not one one person was actually in and they provide the connection to the piece up they do this and across the nation on a daily basis this is just one part of the system but the system on the city of dallas side has been reported piece up system has been working and is up and running on we're not aware of this from our perspective any other issues with simpson also was a twelfth be motion to dismiss so whether or not there's a there was a malfunction with some t mobile equipment software anything else has neither been admitted nor did not  if it's some category of victor the one that probably needs to be deferred to by the district court question we just certify this question to the texas supreme court well we would first object to any buspar certification to the texas supreme court but it's not appropriate in that we can do it we could do it without a record and from the party that is true your honor however it doesn't meet the requirements of a request for turret certification to the texas supreme court because in the cases that the certification is proper the texas supreme court has not spoken on the must be followed by the district court the district court city diversity did not have the ability to disregard in a context similar to this the proximate cause ruling under nine one one  that that statement was dictum that did not need to be followed the only instance of dictum that did not have to be followed by the district court was over dictum and this is does not fall in that particular there's been absolutely no case or authority cited by of the plaintiffs that would put it in that category and therefore the district court had to follow it even if it were dictum we don't believe it is and because it with our requests for certification and to this court has been no argument that it falls within the non binding type of dictum because it was sufficient to repeat reach the result even if it were not is a court in this appeal plans ask that the court not allow t mobile to upset the legislative compromise that was reached when the texas legislature has passed two statutes the the first tat texas when they were considering the texas health and safety code such as seven seven one zero five three you had a different set of pardons different set of parties with interests before the texas legislature was at that time that they stripped immunity for gross negligence recklessness and intentional conduct by providers of telecommunications services involved in nine one one developments of software involved in nine one one and manufactures of equipment two entirely different statutes two entirely different parties of interest here in this case it involves more than just property here just as clement as you were discussing about whether there was a connection it was a software issue where that's not tangible personal property that that would apply if you're looking at the tort claims that that's software that's intangible property the same with the services there are services required by contract by f c c statu again has nothing to do with the use of property statute in the texas tort claims act the technology on it did not work there was no connection the t mobile software never worked and t mobile was aware of that jani us whether there was any discovery there was publicly available discovery we had information from the dallas morning news about the software that didn't work t mobile had as we had information from the city council they had reported to t mobile that the software didn't work the dallas mayor again is a publicly available reports and again we're talking a software not property there's no reading a sanchez that would preclude us from bringing claims against t mobile for their faulty services the faulty software sanchez just doesn't apply a t mobile is trying to conflate proximate cause and its use of government property to try to craft a new roof for itself that's not appropriate not proper for this court is not appropriate for for the district court and district court properly recognize that that's not what was intended that's why the district court in the district court never backtracked the court decided that that she would allow the parties to try to certify the question so that the case can proceed and i want to point the court in this is in our brief but a recent case by the tech supreme court's harris county and i in that case it makes clear that analyzing use of property about a government in a t is inappropriate for a private claim against a private company in analyzing the negligent claim the court said in a different case these allegations could have some relevance to a claim against a private employer but harris county is not a private employer so saying that the same claims that we're making here the claims would have relevance against a private employer the district court gave several examples of texas supreme court cases that reject the mobile's contention that's in the record in the court's order record it three ninety six bustamante a do sic versus state colombani medical versus hold and in that case in the whole case there was a failure to provide services and a failure to advise customers of the lack of technology or the lack of services as what happened here they did not involve advise our clients that there was a lack of capability capability that every other phone manufacturer had this with a t mobile specific problem there are other manufacturers who provide the same type of services to the city dallas t mobile was the only one who failed theirs in the complaint we list twenty three errors and omissions about t mobile against publicly available information you look at in the record  for nineteen to twenty we listed all of the things that t mobile didn't do as it relates to their services again nothing to do with property as discussed in sanjay's their software again nothing to do with sanchez t mobile had an outage they had had previous outings you honor that it affected over fifty million people again it's in the record in the complaint at page four twelve paragraph sixteen t mobile had been fined seventeen and a half million dollars for the same type outages in other places they knew about the outages because they had been publicly reported this all occurred before the death of mr alex that one on nine one one outages right they were  did they were fined seven a half million dollars for nine one one outages and they knew about these were cross country eight in other locations but it was a same type of outage a nine one one outage and then they knew yawners about the specific type outages the specific type software issues they knew about this in fact it had caused a nother death before it caused mr alex's death and the mayor of dallas again he got on t v he had died from the specific type of issues now if if the court were to apply the some new rule call hinders or delayed simply hinders or delay is clear that even property even if you focus just on property it can do more than simply hinder or delay there can be a direct cause from it there can be the simply delay there can be hastened or exacerbates and that the cases exacerbated by t mobile's action so therefore it's actionable but here it totally precluded the t mobile connection never worked after over forty minutes it was never a or to the city of dallas again isn't all the twins over that problem only with regard to nine one one call yes and only t mobile nine one one calls are so so the same phone was used to call the grandmother in this case a wrecked our rent but again the only thing that wasn't working was as you point out the nine one one but otherwise if you know that you get in the same she's here in the same things on the phone  so the call of the baby sitter was never aware that there was no connection that she had not made a real connection she's thinking that eventually someone a live person is going to trick up as far as whether the statement again the claim survives because they're outside of whatever analysis the court looks at if it applies the sanchez case but it but even if the court were to look at whether it's dict is clearly dick but it wasn't necessary to the result if you look at not not just the location of where the statement appears but you look at the analysis that the court made in sanchez you'll see that that they looked at all kinds of factors  serve as a proximate cause of in service a park because they can make that analysis had this court in the clip case did the same thing so the other cases that were first to so there there hasn't been a case that absolute rule that as long as all they do is hinder or delays someone's access to medical treatment they do not have liability that is what they are stating the stanchest statement me personally whether it's dicto or not i think it's clear that the stanchest statement does not stand for that proposition if it did the results would be absurd think of it this way if an e m f provider was called out to provide an ambulance ride to a patient having a heart attack they picked up the patient rather than proceeding to the e r they decided to stop for a sandwich and go on a detour they would clearly ha liability even though technically all they've done is hindered or delayed the treatment so t mobile in failing to connect the call is doing exactly what any m s provider would be doing if they stopped for a sandwich rather than delivering the patient to the e r there's actually no question that the babysitter was in a worse position because of t mobile's defective nine one one technology then they would have been and had there been a different carrier like a t m t or even no nine one one service at all furthermore t mobile could have sent a simple message that said please be aware we have sometimes one outages please contact your local fire department your e m t that's nearest to you or proceed to police department something like that but they didn't do any of that and that's why we're here and that's what makes this piece so different from sanchez kelly and cooke each of those cases involve substantial attenuation each of those cases involved a call where someone was connected to nine one one each of those cases involved first responders actually arriving at the location in question in this case but not really going to the wrong apartment no incident as they had the exact or you on but not the other i'm your honor if i'm not mistaken but when the first responders and sanchez went to the scene they knew matthew sanchez's apartment that's essentially all the location information you can ask for a telecom entity to provide and this goes into furnishing a condition essentially to mobile or in the interest case i don't know if it's still in this interest case the carrier connected the call to nine one one and at that point dispatchers and or the has made mistakes that simply furnished a condition rather than actually causing the harm or injury whereas here the injury was actually caused by the time wasted while on nine one one fruitlessly hoping that the call would be apply but i believe that even if it does apply it doesn't stand for the proposition t mobile asks it to part because first mr pitman very correctly pointed out that the stanchest case the originates in a completely different stop to the texas claims act that stopped it's not raised here that's dutch it's not discussed here judge lynn did find there were some similarities in facts and found it very prudent to consider what the sanchez case stood for what's and what's not it it clearly juggling clearly did not think that sanchez stood for the proposition that there's an absolute bar to hinder or delay claims that that is clear and if she did concede that of course this case would fall into that into that mix but at the same time for any or even the texas supreme court to overstep with the texas legislature has clearly articulated as the tests and the circumstances in which not one provider should have immunity as the result of a careful legislative process even if that's what the texas supreme court did it would have clearly overstepped its bounds and would be applying completely  completely different test that that has no basis in law i do want to speak a little bit more about the technical defects we spoke a bit about the connection and the lack of connectivity i think one of the main distinctions between our argument argument advanced by t mobile is that miss the baby sitter was placed on what's called a phantom hold so she never was conducted she never spoke to someone she never had any reason to believe that she would be that she wouldn't be given aid soon so that's one of the factual distinctions i think is critical and then the what if she actually i'm continuing to ring that's my understanding it was continuing to ring it and there are three separate calls each one longer than the last the first call at five fifty five last at approximately one minute the second call a minute or two later lost in nine minutes and the call lasted nearly thirty minutes all throughout this time she could have been making efforts to render aid or otherwise assist in finding a different a different method  so she could've used her phone to call the grandmother after call her she did use your phone to call the grandmother because between call two and call three thirty one kept on hold for forty minutes that was the total of forty minutes that she spent on and finally i do want to to indicate that the i don't believe that certification is necessary at this time because i do think that the results that would occur if we interpret  that t mobile is stating are still absurd that they are plainly not what was intended and there's there's no real need to to worry about that issue in this case too because in this case there isn't an attenuator sion the way there was and sanchez kill was a very direct link between the conduct of t mobile and feeling to connect the call and the inability of the baby sitter to supply help to brandon alex in a timely manner essentially t mobile is attempting to create its own rule even though the texas legislature has clearly articulated the situations in which nine one service providers should have immunity and they're actually extensive they're completely immune from ordinary negligence so to expand  take i have never been able to think of a situation where if they hinder or delay analysis as applied they would have liability and t mobile has yet to offer and and i believe that the texas legislature would have never interacted a statute such as seven seven one point zero five three of the health and safety code if they did not intend for mobile carriers to have liability in certain limited situations such as the non one mustn't working pro some some people may have known if they followed very very close detail the dallas morning news i mean it's not something that was necessarily on the front pages something that we as they try news know about because we've research ship it i lived in das at the stick with the statute which the texas legislature ha think your honor all of the arguments that we just heard from plaintiffs counsel are arguments where they're trying to say that scinto does does not apply here did not have to be followed by the district court then it was dispositive that's the issue on certification for appeal otherwise the district court would not have properly given us a right to file  and this court did not have to entertain the pumice of appeal the issue of application here we argued this issue in the cook case the texas health and safety code as set forth by the texas legislature is to be rewritten that is used the words proximate cause and in doing that  condition of property was somehow a unique in the case law to only apply in the texas tort claims context of governmental immunity that is not true there is a large body of case law that deals with premises liability and passive provision of property condition of property that we have here t mobile simply provided a part of a large system there was a passive use of that property to call the nine one one system in every circumstance and that is what the legislature here was trying to strike a balance of when it set the standard of proximate cause in gross negligence in almost every circumstance where someone is rightfully calling nine one one it will be an emergency or it's an example of  circumstances where the carrier could be liable we haven't seen it and these circumstances we have we didn't see it in scene shows not is what they were  you have not contributed to the circumstance that caused the death when you have not contributed there but it's a mere rescue situation in this is not