s i thought to be a fairly simple claim to be made and will before yawners today on these issues about the discretionary function exception and the n independent contractor employee stare asako that removes waste if you will from the v a hospitals my client was in charge of taking out from the substantial mistake in infecting several veterans it made all the news lines newspapers and so in that context we got to employ hailing this t defense he raised the affirmative defense of the independent contractor but not the discretionary defense and i had already tried the case if you will in the state court people that would do the inspection in tennessee it's mandatory the o elevators be inspected by the state but the government inspections by that stage so the gum has to have its own inspection process and that's the reason that the inspection people wars brought in that lawsuit saw feel comfortable that didn't but that it did that exception would not really from the elevator operation the the harm here is that but because the plaintiff had to be so careful in moving all of the sharks into huge containers through the elevator he'd do it has slowed manner and the timing sequence for the closing the elevator had to be changed because she was having all of these little instance of the elevator closing on her pleadings on the briefing you can see that on my half of your client there was nothing wrong with the designated elevator speeds and that they complied with the codes so why is that the discretionary function exception does not apply in these circumstances  the the supreme court case to bork of each case which seems to be the benchmark most most all of the decisions concerning the a sleeve in this circuit seems to reference the berkovitz case just as marshall said that the whether the action is a matter of show us when that contract was entered into with otis elevator that they would comply with the standards of industry for elevators that that matter of choice was never brought up at that time there was never anything discussed about having to change a sequence later on  son though when i got lost it all started as an attorney for the corps of engineers and when i was involved in house council making you know reference and things that matter and what would happen to that correct but you've got to make a choice you've got to make you've got to you aren't the matters got to be before you before you've got to be there are you saying that it had to be before them at the time that the contractors entered into and did not  this choice ok so you must then if you're not saying that that's the point we have to look at then you must be saying at some later date they should have looked at this choice this that was well known in existence at that time it was not in deployed in fact the discretionary function was not brought in this lawsuit until about sixty days or three months of two months before trial and my understanding from time because of the the situation that they were looking to get as much input from the courts as they could of using the discretionary defense if the court rules in favor of this discretionary event the any made of what happens after this bitch mark happens down the road any event could you could say the decision was made back here therefore this one here cannot be pursued so nonmember have a hard time understanding your argument is said that the discretionary function exception this apply under these factual employee miss wilburn that was given to environmental was never never left that person the person made a decision apparently i guess just to just to just drop it and not stood up the system to me client suffered the really and others and so on and you're saying that as a result of that the discretionary function exception would not applies that is that your  but if that's your idea man why why is that under those circumstances is that this question every function exception does not apply to you have any case law anything like that that would choice did he make at that time did he stand it up to up the system to be looked to be put in the system or did he just ignore it that was in the in the maze there was no discretionary function in that employ it says here out if he accepts due care if you will under the tennessee state law on that situation where years under no obligation to inject into the system this would not have occurred the injury would not have occurred so   honors for police court michael barone from the u s attorney's office in nashville tennessee for the united states of america just to point out one thing is true that the discretionary function exception argument was raised rather late in the case and i'm going to just tell you why it's my fault i missed it we went through discovery and as we're going through discovery and i kind of got started seeing where the with the facts were and it just kind of dawned on me that this was a discretionary function issue and i r and perhaps others that this elevator was closing too fast on her and she was having difficulty with it she had to give testimony was i think she had five previous near misses before the incident that in which she was injured but that's the  get and i satisfied a good thing with it as discovery the testimony of the otis thirty b six representative that was notice for deposition he testified that as long as the timing of the elevator doors was within code there was no need to to huge contraption into the elevator and took additional time and not within the purview of the pickable elevator codes and there wasn't enough time and jeopardize their safety and she complained and provided notice and nothing was done and so the accident maybe was almost inevitable break on this and that almost first i think the we can all agree that no workplace can ever be one hundred percent safe for everybody she she testified the plant testified that the person who trained her to do the job wonder hey watch out for these elevator s they close pretty fast and that she i think she to that person that person who trained her testified herself that i think she had a near miss went on or maybe more on one more occasions but there never been an actual injury just near misses that she did make these complaints mr lingus testimony was that the general policy he used the word generally it was not a requirement that he do anything but the general thing was when he got a complaint he would put in a work order and if the work order if the nature of the work order was such that it came into the contract in this case without is in the contract would take care of mr lang if again his testimony is he'd been several years away from all this he had no memory of it testimony is that that's what he would have done and if he knew that otis was not going to do anything about the timing because of the their policy was if long as it was in within code then there'd be no need to to send it on up that would that would be the choice that he made and i would submit that that is squarely within the discretionary function exception we senator brief the principle that the needs of the many outweigh the needs of the one i don't mr mr spock has ever been quoted in the sixth circuit very so for the first time i've ever done it but the but that's it that's the kind of that's the nature of the discretionary function to make these composite decisions as to whether it's more cost effective that this way or that way even if you might have a situation that is unclear uncomfortable for what for one employee as opposed to the two to the greater needs those are the kind of policy policies that are there are issue timing of the doors of the service elevator and also to delegate to otis and they line the duty of maintaining inspecting the elevators in a manner consistent with the ethical standards and the decision to maintain the timing of the doors at the uniform setting consistent with codes rather than modified to says why one person i would submit is the essence of a discretionary act i would say it's analogous to the case law about the scope of employment you know we wear federal employees the question is whether they're in the scope of employment you don't look at the act itself doing the tortious thing is never within the scope of a government police employment but you look at the what's going on around that and i would say  the same here the the the issue is not his failure to send it up or put in a work order and let us look at it which by the way he says i was just in doing wrong so it's kind of not that's not really consistent argument the employee actually did that balancing act of an economic social political choices or whether there was just oversight on his part and we saw the angle case in our brief one thousand nine hundred six case from the six circuit  despite counsel's statement that he's seemed to be conceding that otis did not do anything wrong in this case the i'm not mistaken the last two issues that in his brief deal with notices negligence and the v a of course will be shielded from from any of negligence by the contractor under the independent contractor exception one more point i think it's worth making the players testimony was that she was told by the be employee who arrived on the scene after she was injured that spring broke and she probably thought enough of that to rip repeat that to her doctor when she went to the doctor later than the doctor's notes and that's in the records says you know the the lady said that the elevator springbrook and that's also consistent with their testimony that this particular incident where the doors close closed even faster than they did before and then in the prior time she said she had near misses but she made it she said her testimony was this time it was really fast which would be consistent with a spring breaking and i it would your honor and again i don't want to get into the facts of the case because we have again we have to assume all facts in the favor of the plaintiff at this stage but it's really weird you know that there is no record of any of this i've been in a usa doing it to see a case for twenty eight years and this is the first case i can remember where we can't concede if if you went to trial we can see that the incident took place usually argument is a will the plaintiff was hurt that bad or somebody else's  fault it's just really strange doing this reporter that there is none your honor and not broke there is there's a there's a report from her for her employee the contractor stares cycle  place testimony where she complained star psych on the same five previous occasions they have no records of this of this it's a question as off try to answer them and not all that's all i think i think we report walk in this case in we had the big h ave is that the same thing happened there was a panel formed attorney and i also had to prepare a report and i'm sure he asked of all the department people