session all persons having business before the honorable court may now draw on the air and they will be her that say the united states and the honorable court her well good claim to a jury d at trial now in this particular case there are both negligence claims and a claim for strict liability based on a violation of the code of federal regulations and the  tracks safety standards passed in one thousand nine hundred and eighty two graft a notice requirement on to the railroad operating practices regulations interesting leave the railroad operating regulations and i think the real issue in this case stems from the fact understandably the trial work is troubled and it's probably evidence of criminal activity and feeling that there's a lack of the responsible or criminal conduct unrelated to its implements now for the purposes of the regulation and whether or not it's violen that is unaffected by whether or not there's a criminal class reading we have to do is analyze this in terms of causation in other words assuming the act has been violent and it's undisputed it was being intervening clause that cuts off that causal connection and the quick determined in this case it isn't and the the issue that we have with that  can't be used for that and worse testimony from witnesses that indicate it had been used for that in the past so much like the case of lavender against current decided by the united states supreme court in that and on the other hand the rewards contention that the yard was frequented by hopes that someone had criminally attacked him in that case the u s supreme court said you get your day at trial the jury gets to determine negligence per se claim as i understand it your argument is that the railroad violated the regulation and therefore the district court erred in dismissing the claim based on could knowledge or excuse is that right that's correct but if betts correct what you say with then proceed in the district court what elements would  remains to be tried if you're correct if you would then be whether or not the very road can prove a supervening intervening cause or if you're a trial in other words it was that violation the result of criminal act of an intervening rd party was the cause and on that there is conflicting evidence that requires resolution by a jury at trial that in this case we have evidence one that that track was used at times to storming into a way of clinton by union pacific and used with the key that was used to one of two key was a key which many many union pacific employees would have access to so that it's not a mystery what you have to determine is is there enough evidence based on that to allow this to go to trial on the basis that someone using a common key which literally hundreds of red rotors was used to open this lot for some purpose and in addition to that we've got a further negligence claim is a result as a result of that that is to say that you know this track was never used if it was obsolete then the practice is to clamp it so it cannot be will and the practice is also to see that once that track is planned you place a different line as they did after this accident they put it made into a way combination lock on it so someone would have to call someone with a born before that which could be open as it were here would you care to save any time for a bug or you wish to proceed further with please uniformly hold that feel the proviso fall based cause of action that sounds in negligence mr miller argues today that there is no difference between negligence per se which is liability for an  violation of a statutory duty and strict liability which is liability without fault but that's not the watch on the field is not an insurance or worker's compensation statu and as the core just observed the day before the darrelle meant trains safely passed over the switch and union pacific offered evidence to the district court that there was no work order dispatch where further inspection authorized that the statute passed to protect against the harm that is intended or that resulted in the case that we have no dispute that's best not involved in a feeler case that's the current case but here you still have to show a violation of the regulation and you have to show that it's an excuse that suppose the regulation doesn't have the knowledge you alan with eliminating any knowledge requirement or notice requirement i think you have to look at the the language of each individual regulation regulations that have been helped through well statutes that then help to be strict liability for things like the safety of point of fact and the boiler inspection line movement and that is that is it also says that a railroad or an employee  particular regulation to thirteen point five applies to track regulations immunise vote for two hundred and thirteen and not just not just the particular session that that that that requirement from a different subject are a different part of the c f r anyway maybe you've said what you want to say on that but no it's  just it's it's because it's a condition affecting the track this is a later admitted further track regulation and they have to do with it why did they put it in the railroad operating practices instead of under the track regulations you know anything about the to observe every switch twenty four d hours a day here to put it something like this robs you with that i'm familiar with that my question was whether you have any sense of why to eighteen what all of regarding switches was not does that have significance and take it outside of the track safety rules and standards it's later adopted i don't know why it was later d adopted it may be that they found that they violate the regulations one way we did violate the regulation is d that that person that did the act is the one violating the statute absent respond via superior liability and there's absolutely no showing on the facts of this case that the person that was flipping the switch in intentionally to really train was acting in the course of the scope of their employment they were doing the roast the rose obligations and therefore it doesn't go to the supreme court would allow a defense for quick work of a savage two or unquote and i think that's exactly what we have here on the district court i think correctly recognized that even if the person responsible was an employee there's no evidence that person was acting within the course and scope of their employment mr miller's brief doesn't argue that that conclusion is wrong or that any of the district court's rulings on attractions to statements of undisputed material fact were on abuse of discretion and i think at this point those d arguments are waived under this court's precedents in this statement of material back to the undisputed truth back to you p identified  evidence as required by the district in the breast of local rules mr miller did not follow the local d rules d in response and the district court held in its order properly reference material facts in the movement statement are considered minutes unless controverted in the opposing parties motion and this court has backed up district courts on that in the hallway and wrote in a state of no objections raised as a matter require by the local rules the district court does not   of the condition and that's the part tell case to take an agent shot even though there was one that was shot a few weeks before five miles away not critical because it didn't occur the same location  the jury of these feel like cases why do you think that so i think it's not a nice distinction to say that st we have to do something rob i agreed with the that standard is is reach proximate cause of causation standard but it does not read the elements of foreseeability up with your the standard of a general negligence claim and it also does not alter the other elements of a strict liability we don't know why that was open we do not know what equipment may have been placed on that track by a crew and pulled out in the switch not returned to its position however that is enough that was not complied with there is no dispute it was not a line or for mainline track as it was required to be now the union pacific is also arguing well there's no reasonable grounds thing could happen when they knew something could happen because in fact they knew the switch at least they considered to be obsolete mr furze shell had a range for and had a thirty nine dollars work tracking all sitting right next replace that switch with a cracked handle but the sitting a few feet away designed to eliminate any risks associated with this with were the rangers and the other occupants fans we believe  dollars impose the strict liability they are my or however if they are able to prove that there was an intervening act of a criminal record there may have a defense to it but it would be there