case number one seven dash five five four three susan durham vs state of gus no slab at all or arguments not to exceed fifteen minutes per side mr casey lot for the p i'm casey lot i represent susan durham and her three children who are the wrongful death beneficiaries of christopher durham in this case a district court held that susan durham is complaint did not accuse gus losable and the firefighter who was driving fire truck in this case of conduct which could properly be characterized as arbitrary or conscious shocking in the constitutional sense in doing so the district court declared that the seventh circuit cases of heel versus shelby and the tenth circuit case of green versus post were persuasive in holding a sensually that in order to prove conscious shocking behavior susan durham was required to show that local been intended to harm her husband christopher durham and respectfully your honour's i believe that's a misstatement of the law the leading case on the standard of culpability in substandard due process cases based only executive action is county of sacramento versus lewis  united states supreme court case from one nine hundred ninety eight in that case a boy that was killed in a high speed car chase with a sheriff's deputy or the family of the boy brought an action against the sheriff's deputy and other law enforcement officers  entities in that case the u s supreme court said that intent is not always required but that the middle states of culpability such as recklessness gross negligence and deliberate indifference may or may not be conscious shocking depending on the context but it is conscious shocking is the standard correct correct your honor and so can i just ask you so the facts here are that he crossed the cent line it with any was speeding in a non emergency situation right yes your innocence i mean doesn't that happen every day in america why is that conscious shock well i think in a broader context your honor this was a very narrow road a rule road that was so narrow that it didn't even have center lines and he knows he's in a non emergency situation they brady yoden said we have the situation under control they didn't need him at the scene he had an opportunity to deliberate about not only the route he would take but the method and manner in which he would have his lights on and i don't believe so your own that has not been established through discovery but we don't think so when you say there was no no center line that's correct  road what was the speed limit my recollection is thirty five and how fast was he going your honor i don't want to mislead the court i don't recall off the top of my head but it was excessive can you give us a ballpark of  excessive ok it's not alleged in the complaint your honor it is in the record somewhere but my recollection is almost double ok but was this was this summary judgment complaint does say is that he was operating at an excessive rate of speed and he does have an independent now to quote i'm sorry your clients have an independent not equipped state ramey correct they did sue in state court there were supplemental jurisdiction and they didn't exercise it so those are in state court that's correct those claims were remanded to state court and you can recover in state court i don't think adequate is is a fair statement but yes we can recover under the tennessee governmental act why not adequate explain that to me just briefly well i'm sure you know where i'm going with this your honor but there's a three hundred thousand dollars hard cap under the tort claims act in tennessee in tennessee because of the wisdom of the government of tennessee ye you're on your honor in the county of sacramento versus lewis case which is the case from the u s supreme court that is most directly on point with the issues in this case the court there held that these acts in the middle that are something more th negligence in the area of gross negligence or recklessness but they're something less than intent to harm those are called the middle states of culpability and they said when courts are considering whether those middle states of culpability should amount to conscious shocking behavior under section nine hundred eighty three the court should consider whether the defendants had an opportunity to deliberate and i think the most telling quote from that  is where the court said quote when such extended opportunities to do better are team with protracted failures to even care indifference is truly shocking and i think that's the very definition of deliber cross even though you like the cross a center right let's get right a line maybe i put that and i'm sorry i just i guess i see the trouble i have is i see it every day so i wonder how it's conscience shock that makes sense explain to me why it's something more than what we see every day absolutely your honor that that's fair and this court has held that in those middle ground situations in hunt versus sycamore that there are three factors that the court should consider whether determining that the type of conduct that you described is conscious shocking and i think an application of those factors leads to to the conclusion that it was conscious shocking under the circumstances up one of the hunt factors is the voluntariness of the relationship between the government and the plaintiff especially where the plaintiff was involuntary in voluntarily in government custody or was he voluntarily a government employee here are the see it was not in government custody and he had no voluntary or involuntary relationship with hardin county or this governmental entity the second hunt factor is whether the executive actor was required to act in haste or had time for deliberation and i think the time for deliberation is what makes this so conscious shocking is that they radioed in they said we have it under control it's not an emergency situation we don't need you here he had time to think about his route he had time to deliberate about how he would drive he's in a very heavy loaded water truck and that's something that you don't see every day sure people go faster than they should on streets every day but not in a heavily fully loaded water truck on a narrow rule road like this he knew there was no way that he could keep that large woud heavily loaded prior truck on his side of the road especially at the rate of speed that he was traveling he knew it he had an opportunity to deliberate about it and he recklessly disregarded that risk to everyone say the third one factor is whether the government actor was pursuing a legitimate governmental purpose and again he was not they radioed and said they had the situation under control it was not an emergency situation he had there was no need for him to be driving in the manner that he was driving the district court i think tellingly and the defendants in their brief don't even address the hunt factors that this court said should be addressed in every middle ground case and we respectfully request that this court at least address those factors why isn't this just negligence i mean that's that's what it sounds like to me i mean this is a right all those factors i understand what you you have to do and you're trying to do and you don't take this a criticism but if i'm just i add those factors up and i say that's an ordinary negligence case i think it amounts to more than that your honor i'm certainly not going to argue with you how to tell but explain to me why i think all of those so i think if all you had was he was speeding are that's a negligence if all you had was he crossed the center line well that's negligence but you have the fact that he's in a fire truck on this very narrow road that a really wide large vehicle that's fully loaded with water it's heavy it's difficult to navigate if you take all that in the complaint it should be your honor i mean maybe not in the way that i just stated it but i would also like to point out your honor that we did ask the district court for an opportunity to amend if they felt that our allegations were insufficient and the district court didn't even address giving us the opportunity to men wait can we go back to that for a second and i'm sorry that i can't remember did you ask the district court for an opportunity to a man before you respond to the motion to dismiss or did you respond i believe it was simultaneously with our response well saying that first of all we believe that the allegations in the complaint are sufficient to pass muster and get us to the discovery stage but if the court were to disagree with that we would like the court to afford us the opportunity to him in that comply and we were afforded that opportunity to indicate how you wanted to amend it or was it just that you would amend if you were given the opportunity your honor i independently recall but i think that we just asked for the opportunity to me and i don't think we got into specific because we think that our our complaint is sufficient but you know we certainly could be more specific with the factual allegations if given the opportunity this may be me so but all i remember is the three facts i said at the beginning but i could be wrong you could have all those others in there you don't have it with you do you that you can check on you know i case basis what the case law says is that what may be conscious shocking gross negligence that may be conscious shocking in one context may not be conscious shocking in another i personally think it's a jury question it's certainly something that should not be decided based on the four corners of the complaint where you would let any gross negligence case go to a jury i'm not saying that your honor but i think we should gross negligence cases should at least be afforded the opportunity to conduct discovery we only know what we've been able to and whatever without the i can't write the dischord has to determine or we have to determine whoever whether gross negligence amounts to caution shocking to let it go correct because that's a question of law really your honor it is i think it's a question blog that's more appropriate for summary judgment and i think most of the cases that are sided by the defense you can see were decided on summary judgment they may have started out as motions to dismiss but the record w supplemented with facts outside for quite a lot of times that's because people don't move to dismiss and or the complaint include sufficient facts and then there decided on summary judgment once those facts are developed that may very well be true your honor but i think based on the four corners of the complaint i don't think you can pick compare these summary judgment cases to a motion to dismiss case i think there are two different standards and thank you and i see your red light is on we've taken you  substantive due process claim why isn't this complaint if you look at paragraph eleven and you look at paragraph twenty two why isn't this enough to establish for purposes  there are no actual real facts that would plead getting into this shocking the conscious of the judges asking what was in the complaint and what we know that was in the complaint is  that the driver was speeding that he was filled to travel in his proper lane that he failed to maintain a proper lookout and was responding to a call i'll be and not an emergency call that has not reach the conscious shocking level as the constitution i mean as a supreme court explained the constitution deals with large concerns of the governors and the governor not does not look in your view could there ever be a fire truck being driven in a way that would be conscience shock and if so what would be different from that hypothetical from this case  this corps even said that the concert shocking there is no exact point on the map we know it's not mere negligence and we know that it tends to go through the intent to harm it is a case by case basis however on the four corners of the document i think the best way to look at it is other cases that have found that it shocks the conscious versus other cases that found that it has not the district court looked at the hill version of the show case and found that it was not conscious shocking in that case it was a police officer he was on duty he thought he was responding to a call it was not an emergency call he was speeding going excessive over the speed limit he drove through a red light striking and killing another driver that the facts that you are outlined other than the driving through a red light were identical to the facts in this case this case says that it was an excessive rate of speed and driving over the over into the  that he did not have a sovereign's of the police officer did not have a sirens on did not have his flashing lights on and did not have his headlights on even though it was after midnight and was that a motion to dismiss that was on a motion to dismiss was a summary judgment is correct and the court looked at that and they looked at it and they said this was the negligence of it there there was a severe injury the outcome was severe however the acts and the intent of the officer was not conscious shocking substantial burden in this case the plaintiffs pled that the officer was not on duty was not responding to a call he was leaving his significant others house driving excessive speeds  ran through at least ten intersections red lights and then finally fatally struck someone and the court looked at that and said you weren't on duty he was driving on city streets at sixty six miles an hour that's correct in the average of the average of sixty six the court action we looked at the officers intent and its conduct prior to the fatal collision and solve that and the complaint alleged that the officer salva white where the fate of strike actually occurred and instead of slowing down consciously pressed the gas to get through the line and he was a ultimately charge of reckless vehicular homicide and that was not alleged in this complaint again this court has followed the supreme court's  the courts look at that and look at the factors of the actual complaint look at the factors of the actual case of the blanket lee state no yes under most of the cases that i've seen the no they're not gross do with either off duty or intoxicated things such as that the things that are agreed just in can be said to arbitrary arbitrary in the constitutional sense agreed that the home versus sycamore factors are the factors that we should lies in looking at those factors that case was a little bit different had to do with the school board placing an individual in in harm's way the government will almost creating harm in this case i don't think there's anything in the sixth circuit actually that actually spot on in this case and i think the district court did a great job of looking elsewhere because it's a case by case basis i think you could look at other cases that look like that that looks so under her and as your opponent laid out the factors the second factor did the government employee have time to reflect and your opponent says yes he did have time to reflect is that analysis the correct way to think about that factor no your honor i don't believe so respectfully i think that one no intent was no facts time no no no i don't believe so because i don't think that it's you can generally just slap an allegation on that he knew that driving fast was dangerous i don't think that reaches the conscious shocking level i think it is the officer right remind me it looked at whether there was an independent an adequate state remedy is that and that's completely correct your honor and that is is there here how do we determine that if we were damp or parrot into this concept  two faces really paired as a procedural due process and that hasn't been alleged right now no i understand but there are some argument that even when analyzing this we should look first if there is an independent now to quit state remedy for your there was an independent remedy and as your opponent said there's a real question whether it's adequate you know that's been left up to the to see stable and to see congress and under the tort liability out there is a cap on damages however that hasn't been challenged and that's good law i mean that is it that is by the book and so your argument is if tennessee sets it it's adequate if i believe what they said it was ten thousand dollars for death of you know or i do  and a three hundred thousand dollars or seven hundred thousand dollars cash out for the main for all the property damage and everything combined and that respectfully is not for this court's been remanded so i don't believe looking at parit want to come back to your question i think this is the essence of when they said not really the holding of the case but saying we would disfavor this from allowing this to go on because we just don't think the fourteenth amendment the drafters wanted the fourteenth amendment to come into our society on this basis ultimately the like a conscience shocking example would be if there was a tape that somehow the pla had obtained where the driver and all the other facts being the same said i'm going to ram that car i'm going to see if i can get him to go off the road and then that accident happens and everything else is the same so that would be conscience shock wouldn't it yeah sure i believe that would be called would it be if if the plaintiff alleged that he swore data in other words he's driving down the road at a high rate of speed minding is in his own lane any  shocking level another case in the fifth circuit that talks about this was a police officer that was coming to a drug bust coming to back him up and it was not an emergency call however in a case like this one where you have both of the drivers die at the scene right or in the accident so they no ability to get any testimony or any even discussion from  that i'm asking you to address is how can you put more in a complaint if if the two drivers are dead without having some kind of discovery  other words as an officer of the court you have to allege things that you know or have reason to believe are true in the complaint later on there is a tennessee bureau something investigation evaluation of what happens maybe there coroner reports and so forth are you saying you should wait to fire complain until you have that information so that and that that information is available without  discovery i'm trying to get at is how do you put things in your complaint if you don't have the benefit of discovery that will satisfy your position as an officer of the court you have to lead what you know however that's why  we didn't get to really talk about the such limitations issue but that's why you get a year into under tennessee law in one thousand a three cases to do your investigation to do your information requests to do other matters and to be conscience simply because he was speeding because because of the speeding he got over to the other line unintentionally while at work and i ask you a follow up to that because the standard is pretty hard right subjectively it's not not  that the state actor knows the danger or rather the point has to demonstrate that the defendant had actual knowledge of the impending harm in consciously basically disregarded how do you do that if people die current claims turning into constitutional claims it's it has to be completely agree just facts and to do that it would it would take the investigation and it would be something so obvious maybe not all the way to the intent to harm and it would be something your honor opposing counsel seems to be urging this court to adopt an intent to harm standard which is essentially what the district court did and respectfully that's not what the supreme court in lewis said we were required to prove  specifically acknowledges that there's middle ground cases and he says well that the courts have made it clear that they don't want these cases turning into constitutional claims there are several examples of car wreck cases that have been held to where the conduct has been so egregious that the courts have held anywhere there's a little cracks is this because like browder was pretty egregious right and some of those other ones were pretty egregious but the two he cites hill and the texas that your honor that's the one from the district of connecticut oh district or ok go ahead and in that case there was a non emergency call the court found that the officer had ample time for reflection about how he would drive and he was just he was speeding and he ran a red line and there was allegedly we speeding ninety five miles an hour right he was but your honor in browder he was only going sixty six or an average of sixty six i praye point eight miles through read through ten red lights and that's pretty excessive and browder that that is excessive but he had is his flashers on which is a fact that we don't have here i want to ask a question relating something more i asked or i think was alluding to this case went forward i know this is not on the record but i'm just what what other evidence is there that you could obtain do you think are did you want all would seek are there any reports that have not been released by the by the corner or anything else that you don't have at this point no your honor the reports are very thin while we have is something from the tennessee highway patrol honestly if it were not for my investigator we wouldn't even know that he was responding to a non emergency call there's only so much that a plane of can be expected to uncover without the benefit of disco so what additional proof would you see if this case goes forward we would like to ask the fire chief about the specifics of his radio announcement exactly what he said regarding how under control the car was whether it was necessary that durham even go to the saying that wasn't recorded you know your honor and we would like to ask about the the route of travel was it necessary for him to drive this large truck on such a narrow winding curvy road would you could look at a map and see right i mean there were alternative routes there were we've done that in a does appear that their w reckless manner of him responding to non emergency calls you know he was a volunteer firefighter his training that we haven't been able to delve into there are lots of facts that we'd like to uncover through discovery that we haven't had the opportunity to do and your honor i'd like to point out that the district court relied heavily on the tenth circuit case of green versus post and it's in opposite your owners that in green the police officer had a yellow light so he still had the right of way and he was following up on a suspect who had allegedly stolen gas so he was pursuing a suspect through a yellow light he had the right away i'm not connecticut and the second circuit case of pia as well and your honor the district court also sided hill versus show b and in that case i just think the seventh circuit got that wrong based on the facts those are facts that are very similar to what the tenth circuit was presented with a broader and what the district of connecticut was presented with in certain excessive speed running a red light they just reached a different result and i think they they did what the district court did here and required proof of intent to harm and respectfully your honor i don't believe that's a standard thank you very much