and was struck by the government is not to blame for those injuries as i said these are all three of the causation issue yes walked into the pa no finding that they would have done anything differently and that's the key point that we have sized in our opening brief the evidence is only self serving testimony by the individuals themselves that's happens especially in negligence as if that is the biggest condition of the government feels to warn them they're liable for the consequences that a prostitute result without regard to whether it's actually shown that the public would  the hell itself didn't cause muslim to do anything to hurt him instead they were intervening causes him walking into the past his friends speeding and having their judgment impaired at those those intervening causes then the question becomes whether the the individual walk into the path and the other intervening cause is that the injury was caused not by his own actions with respect to the asserted danger but instead another's actions and those others actions are consideration that's reflected in the testimony of town and i think apple camp as well that the trail was designed for users of varying abilities so the forest service wanted to ensure that it was that it was available for the recreational use not just by experts like muscle minutes friends but also for beginners and families who started as these public lands so that that after all is one of the social factors that influenced the government's decisions now it does seem to it does seem to me that your question gets at was the safety the only factor and i don't think it was after all there are lots of you can you can always make something safer but the decisions that the government  decisions let me back up back up for just a minute because i don't think that accurately reflects what the discretionary functionalities has asked in this case and here the issue is whether the government properly set out to identify known because the fans are accident as well so let's let's take for a moment that the warning process is protected by discretion function after all the district judge recognized that it was for example doing it only the daytime doing it thirty five those were discretionary decisions the  within two weeks after that accident occurred and of course negligence has nothing to do with the discretionary function analysis and there's nothing in the record or in common sense that would suggest that the government has either a mandatory duty or  mandatory duty the answer is no was it grounded in policy considerations whether they were going to put up the sign immediately after an accident i think it was because after all the more signs you have the more likely it is that they're going to be ignored there's evidence in the record and it follow this the united states wants to argue that the absence of the sign had nothing to do with crime musselman getting off his sled but why does he get off his sled he wasn't doing that because he wanted to offer hot chocolate to his friends or anything like that or to help the other guy who'd had a rougher time and the court found that the persons on the snowmobile would have approached they feel differently to the claims department and work with the claims department before they ever finish their report and that was based on the fact that people were complaining about the absence of a sign so again the whole concept that there is no proof that a sign would as much as i think tom and i don't want to see this code to be certified i understand that that may be what this court has to do i do think that judge white did address the three points that you that you make them or i should say that the montana that those standards of those statutes eliminated the negligence standard and they they they set that out and i've quoted it repeatedly in the briefs where it is clear that that is their concern that it eliminate or at least judge will i would have to issue new findings because we went into this trial without objection frankly from the united states knowing that we were dealing with the montana snowmobile statute and that we were dealing with a negligent stand statute and we had case if that were changed you probably both sides will probably have to take another trial i think and that is probably one of the reasons i included in our brief the fact that the united states didn't object of the government's position every which way they want to do it is this back in one thousand nine hundred three we had a warning process and by god that's good enough for us no matter what happens on this trail since that time we can trail was thirty five miles per hour they did that based on riding the trail based on the geometry of the trail turns the climbs everything else they determined that thirty five miles an hour was the speed which an average prudent writer could safely negotiate the trail they then set up their warning system that they would ride the system at thirty five and if anything came up a drop in the trail turned whatever it may that forced them to drop their speed to twenty five they would then mark that as a hazard fine that the court found that we didn't we don't like the system we fight against it but the court ruled so that was their discretion to number one choose a warning system in the manner they did it was also discretionary we live with that but then the porch they should say that the government changed everything they went in in one thousand nine hundred sixty and slap forty five mile an hour speed limit on this trail system which was already there was already of policy in place that said thirty plus miles per hour riders feet and they did so for no reason other the safe speed that the government had already determined was the same speed for this trail system so in a discretionary function analysis they violated their own warning system in other words they failed to properly implement the warning system as they had already decided upon so for the government to argue yeah but it wasn't a hazard at the thirty five mile an hour warning system that's fine but it was the government who changed properly implement the policy and they did and there was no social basis for doing it they did it simply because the park had a similar forty five mile an hour speed limit and there was no reason to stop arguing they didn't know about the hazard well they did know about the hazard they knew about this hazard prior to this accident first of all it had already been slated for removal that tells you something number two they have the parents are a cancer accident was known minor blip on the radar screen this was people traveling that thirty five to forty miles per hour at night returning from the same situation they approached this trail th bottom and they couldn't see it they didn't see it until they got there and fortunately mr panzers the seat was actually ripped by the blade of the grower you know that's we're talking about one foot prevented  there was a problem here they immediately conducted tests of their own professional writers approaching this craft and they did a video of it and it's thirty five mph ten miles below the speed limit the skis go into the air which our expert said you don't have any control when your skis are in the air at forty five mph the whole machine's lives you are completely in the air you are completely out of control now the government argue that well we did it on a video therefore you can do it safely it's not hazardous and you know that's that's crazy because not in the court made extensive fine so about that and said yeah that's fine if you know it's there and it's broad daylight and you've done thirty five forty forty five that's a whole different story than people who are from out of state who have never ridden this thing before and they go flying off at forty five miles per hour i mean the number one th weinberger was fairly intoxicated nobody could argue against that extremely equivocal about kalahari and every other word you're going to hear out of the government's mouth and we heard it at trial this drunken speeding drunken speeding that was the whole emphasis  you have to infer with the other writers his position was even if there was some amount of alcohol given the a reaction time that you can't even see this hill one hundred yards away and if you're traveling forty five miles an hour i don't care don't go running to the forest service to report people who have accidents you know they tumble you don't muffin have accidents for people you don't hit other ones like they did here or hit a groom or most of the roof you have any after this that would occur that doesn't mean they necessarily want to go contact the forest service and tell them we're talking about accidents by the four of them or that are actually accident reports by the forest service themselves traffic they put their own voice out there somebody smacks it and the navy says well we have our own system in place and under that system we don't feel we have a warning well this was not known hazard this was a hazard it was placed there by the knee and this is in the ninth circuit made very clear now you have to you have to report that i mean you have to sign and summers that whole line of cases say the same thing in this case the government had  known hazard the panzer accident was it was absolutely proof that this was a dangerous condition especially with the new speed limit of forty five miles per hour because the government itself  ated in pounds or in the investigation was the speed limit speed of thirty five to forty that's ten to fifteen mile or it's five to ten miles below the speed limit too fast for this hill number one and number two visibility if you can't see a monstrous machine like a groomer at the bottom of this hill until you are there and that's confirmed by the government's own independent test after the fact so the government have this notice about this hill they had the notice that forty five's too fast they had noticed that you can see they had noticed that an individual was nearly killed going over this one foot to the left in pounds or would have been smashed and yet in the face of all that and then there was the face of everything else they knew about right or expectancies straight groom stretches of trail nighttime writing all the things that the court indicated they had actual knowledge of an apply a clearly erroneous standard to the to judge will always findings of proximate cause and judge will boy i did find that a sign would have changed the expectancies of these writers soul the fact that back to the other point i would make is the government provided absolutely no zero testimony to the contrary so if the argument is well there's not enough evidence to satisfy what there is evidence there's evidence there to satisfy that the lack of signing did proximately caused this accident it is the lack of signing or the fact or the lack of removing the hill that caused musselman to get off this lead in the first place there's no other explanation for it i will move past the montana standard of care because it sounds like the court is going to deal with that one in its own way and briefly touch our cross appeal i think the briefs by both sides are pretty fulford pretty complete with it was so it's a different theory and frankly i don't know it's a tough case and i don't see that where you have two people out hunting and two individuals well here's why each other but there's no indication they were racing each other what you have is individuals who happened to be on the trail at the same time when the accident occurred and they're both going over the speed limit and that's why i listed five six or seven cases around the not it is i don't think it suffices for the very reason that the intervening cause here of the individual being hit by someone else does raise the need for the additional finding th injured but there is no evidence of muscling got up for the purpose of giving warnings and seeing whether he could help the district court hypothesize to possible reasons that he might have gotten off his snowmobile one was to check on anytime well i think what that would entail would be a guarantee of safety that you could walk onto the trail at any time now remember the court found that musselman had safely negotiated this hill and so he was aware that the hill was  there presumably aware of the challenge as opposed to someone less expert than himself so i think it makes reality then to say that the forest service can be held liable because an individual who knows that he just went over a hill is to offer the flat straight approach and the reason that was done is not because of a concern of safety but instead to move snowmobile traffic away from the right of way of the highway and that's been done consistently throughout the gallop national forest that was that w purpose so the not only is that protected discretionary function it's utterly irrelevant to the safety question it is for those questions are addressed in the transcript let me turn back to discretionary function for a moment because there's been a lot of confusion i think in the district court's findings and in my pond is argument between what's called the design steve at which the warranting ride is performed and the speed limit no one believes in the real world that th limit is a guarantee of safety at all times and all conditions the district court itself found that recognize that the forest service reasonably expected riders to vary their speeds with conditions and that the posting of the uniform speed limit in no way well first of all of the course so it was reasonable for the forest service to rely on drivers taking account of nighttime conditions as well you slow down at night if you're being prudent after all these individuals did not that the prudent writer after all they were over driving their headlights as well the beans of their headlights didn't illuminate far enough in front of them for them to react in time now the fact that the court held that you couldn't see this hill that night d consistent with the course also hamper recognition that at night you need to slow down if these writers had slowed down they would have seen that their headlights suddenly shone on black instead of on white that's what's at issue here in the practical terms now translating that into the legal doctrines of discretionary function or gross negligence or causation move sight of that sometimes and i think it's important to remember that let's translate this into our own real world everyday experience if you're driving on a highway and it's dark or it's foggy or it's raining you don't expect the speed limit to be a guarantor of your safety that's what these plaintiffs are relying on in their continuous references to the speed limit of lived to do in response to that in the two week far there's no mandatory duty so then the question is what should the government have done taking account of whatever factors safety and others that that it so you know we're not challenging the negligence fighting what we're saying is that under the discretionary function now says that hands are accident is irrelevant first of all because it doesn't tell us anything new about the discretionary decisions of the forest service that two week period perception of this natural environment is not being interrupted by a whole bunch of signs out there and also trying to generally minimize the number of signs that the trail users encountered both because it had of medical care you've taken a bunch of people who are institutionalized in california these are street people these are people from all walks of life what about someone who is receiving the absolute best possible care that make a difference he said yes it would make a difference but i don't have that information so i can't give you an opinion on that so we've brought in and brian russell mistreating physician who has tried the st enormous head injury patients and he came in and said that this guy is getting the best possible care and based on this this man there's no reason he shouldn't have a normal life expectancy the point the other point is the government had their expert own same qualifications as dr version they brought and dr stone eminently qualified head injury specialist who came in and testified simply of about the nature of bryant's injuries and judgment lloyd actually said wait don't you want to ask him about life expectancy in the government said no we're not going to do that so yes we think there is a serious problem here and it is it has a very dramatic effect on this poor souls life he's expected to live thirty some years and judge malloy found that it's only twelve point eight and then coupled with the fact that his damages have been reduced by sixty percent there's a very severe effect here and that's not you know that's not a basis for a change in opinion changing the order but certainly the  cases when you've got a settling of the settling defendant it doesn't just mean that you go in and you talk about you know the ultimate liability you can't bring them in period as far as  severally liable couldn't have happened couldn't have that finding unless you considered kalahari as negligence and that's what he did and that may seem like a strange rule that if you look at the list of montana cases starting with the deer cas really gone a long ways with this because they want to encourage people to sell it one of the settle out and get people out of the case and get a result but it's a string of five cases that right along the line just keep pushing the line even further and further