case for this morning is jane doe against eagle county indiana required to treat all competing inferences of the facts in the favor of the nonmoving party and that is not what happened in the district court in this case the court does something right and in fact the defended by the county does the same thing right in its briefing where they correctly state the standard they correctly state the law about when an employer would be held responsible for the they but they deviate in their interpretation of the facts of this case so one of the main points that both the district court and the defendant the agree on is that if there are certain authorized acts by the employee mixed in with the un authorized the acts then that would be something that should be saved for a jury decision and not not taken away by summary judgment so in this case we have a whole supplemental state law theories because the mon el issues separate issues but it seems to me that the problem you run at the gans is that the indiana supreme court particularly in barnett but in other cases has taken a rather narrow view of responding and superior liability where their employer liability is appropriate only if an assault occurs when the situation is where physical contact would be expected you know a doctor some sort of you know maybe a sports person some kind of physical contact now that's not what the restatement of agency would say that restatement of agency would say state law claim the indiana supreme court gets to make up the state's law and so i'm concerned that you're trying to swim upstream in a way that we're not empowered to do well if you if you look at the state law claims that i appreciate that barnett has the statement it makes but barnett is relying on strobes case and the strobes case lays out the groundwork for how to determine a case like this if the if the authorized acts are mixed with on authorized acts then you contact there's no vicarious liability in the indiana supreme court and languages i read as siding with that other than perhaps creating a greeting handshake the employer was not explicitly or implied the authorized to touch or confine the applicants so it's not an extension well we do have a confinement that's a very big difference in this case in this case in the middle where he authorized to confine her in the bathroom while he was authorized to hold the key to the bathroom he was the authorized to be the only person in charge of that four hundred acre acre park because his coworker with had a different park on that day he was authorized to be in control that bathroom with that key because the supervisor only came to the park every three weeks that most during the makes the mistake that the district court me which is where they look at the case and they have these established rules about interpret in facts in favor of the new nonmoving parties and setting  these rules about how much authorized activity is mixed in with the unauthorized activity don't have any authority to disagree with the barnett case but so you know however much you may disagree with barnett we have to i believe i have the authority to do to agree with the strokes case and that this case because neither of been overruled and they established the groundwork for out of side this case and if the if the barnett case used that particular set of facts a certain way those are not the same facts that are to mr barnett case established you know a fairly clear rule that unless the employment in question and evolves physical contact details physical contact contact as part of the authority that the employer grants to the employee there can be no liability for these physical torts likes sexual battery criminal confinement for sexual battery purposes etc and that seems to be a fairly clear rule and that governs here so whatever auxiliary facts you are claiming the district court ignored you really don't make any difference if that rule controls which apparently that's just to add one more point in response to said already you may notice from the briefing that we have suggested that india's supreme court is considering a similar type case involving police two separate cases with police officers and that we have asked for the court at least to wait the employer's employee's activities i think in this particular situation it was it while mr grey may have had you know access to the bathroom he made it will drive the a t v he may have been able to direct people to clean restrooms he was not within his duties to physically assault another individual that they didn't think about that was not close in a way to his activity so they could simplist it's got to be closely related or incidental to this employment it wasn't i think mr bose also spoke to the common carrier exception and talked about a case mate hundred ninety three and mention the strobes case i think that was all that was not an issue that mr o'brien up in the response to summary judgment the first time was brought up as on appeal i believe as a result of that it was waived with that being said i think when you move onto other comics your exception applies if you get half kind of look at the strip situation which dealt with is there a non tell it will duty and look at some other case law after that as to whether in this particular situation is this a situation that the common care except is really going to apply did mr hope placed herself in the situation where her care and safety was given up to mr grech she did in this particular situation she was not a volunteer she was under a court order to complete community service and she gone if you go county parks department complete that community service and so in the record it shows there's indications when she had left the park at one time to leave and came back i don't think there's any evidence in the record that would show in her testimony that were she ever place yourself in such a position that she was ever going to be her safety was going to be handled by to be a county parks department that her or she would really kind of given up all autonomy to them there's nothing no evidence to show that that occurred over a twenty year period to various individuals whether be an inmate whether it be an employee within the county or be somebody outside that there was just a prevalent systematic abuse that was going on and county officials ignored it the first one goes back to one thousand nine hundred six almost twenty years before the incident valving this doe we have a correctional officer assaulting a inmate in that particular situation that correctional officer was charged criminally and pleaded guilty to official misconduct was terminated another incident brought up by misto involved if you go kind of record back and i believe it was two thousand and seven where this elected official was sexually harassing a coworker within his office over about a year period time and that particular situation the county i authorized and hired to depend investigator once that investigation was completed those facts were turned over to the bigger county prosecutor and criminal charges were filed that particular individual pleaded guilty to battery is result of those charges and resigned his position there was also some talk again on the manaul is that there were also problems going on within if you go county parks department that again leads to this widespread panic a practice of where there's a deliberate indifference as to these things going off in the situation there was a parks department employee that was found through a report that was sex or asking a coworker that a kind of parks department when they receive that complaint interviewed the individuals they also found that addition to the harassing conduct that this individual who was a mechanic at the parks department was also operating a business out of the parks department garage and using parks department supplies to fund his business as a result of that  him the opportunity to either resign or be terminated he chose to be terminated or chose to be resign excuse me and there was another situation where there was another employee who had difficulty with the other employees within the department that individual was again given the opportunity because of maybe it wasn't sexual maybe it wasn't you that resign or be terminated he chose to resign so i take it obviously your overall point which you make in the brief is that first of all there not not a great number of instances and secondly the eagle county took action  appropriate action each time so that there's not anything one could infer in for a policy of ignoring from that's correct that's your point i think each time is that there's a determination criminal conviction or resignation yeah so and i think another point made is that there's also an argument that mr gray was negligent retained or hired by because county based upon some past incidents that he had volved i think maybe just before a year or more before this instant occurred in the restroom an appropriate comment or comments to a coworker the coworker report of that to her supervisor her supervisor the cap or start a community action and they gave mr mr gray a written reprimand mr gray signed that written reprimand i think from the employee's own testimony who was the victim of that verbal sexual harassment is that it says he made that comment learned that was inappropriate you never made that comment again i think that it was very clear from  she never felt uncomfortable around mr gray again and that again what we have is that a situation where was a result frigo kind believe that because of this one incident a year before that involved a verbal harassment that that was going to make it reasonable for the county to believe that a year and a half later that mr gray was going to physically assault or sexually assault a community service person i think it was that i think in the situation is that you didn't have any physical contact in the first instance that when that reprimand was given mr gray excepted it and never any issues in his appointment with this type of harassment again and so in this particular situation when you're dealing with whether it was negative attention or negative training is that you can it was not resolve them to believe look at the circumstances that this type of conduct was going to occur and then finally that last point made and miss those brief concerned a change of policy that he could count he did after this incident occurred i think is the record shows there's parks department eventually decide that when they're going to resort to this practice that only male mate and specialists we deal with male service workers and only females and main a specialist would deal with female community service workers the argument is  of circumstances there was nothing to indicate the view of the county from the reasonable man standard that this type of assault was going to occur given past and again given the change of policy so i think trying to use that change of policy against them or trying to prevent these type of things would not be fair to vico county and what will probably happen in situations like this that if it's found to make be a county that is it would any not for profit agency ever use a community service worker again when these type of things could happen but i did want to address the the idea that under the minute my nail claim and the negligent supervision claim there we are on the opposite end of that question of whether the activity was within the scope of employment we're looking just reviewed the various incidents and i mean it's an institution i mean things did happen but they took corrective action each time well the glaring one that they took in action on was when they were faced with the  employees who were putting their hands down the pants of one of the other employees and put my hands on the breast and they allow them to resign rather than be fired and rather than have have their their case turned over to the police i sewed so they have to fire them they can't get rid of them by allowing them to resign the and that this goes back to the question of the inference is that a jury could determine that as an inference that they'll get a slap on the hand and there went in a slap in the hand you know if your job anymore right but you also aren't going to jail so and so they don't like the prosecutor for that's my point about the inference and then with regard to the the negligent supervision it's not just what mr gray did it's the circumstances of a situation where he's alone in four hundred acre park wow to supervise one on one with a female troubles me about your theory i mean of course we have a lot of things in today's world that are troublesome but i'm very reluctant to announce as a matter of law that having a man and a woman work together under circumstances where they're sometimes or often alone is automatically a signal that the man is going to assault the woman i mean that seems so over inclusive to me and rest say the least but i don't think you're announcing a policy when you're just merely allowing a jury to make that decision the facts of this case i'm not sure i agree with that ok and then i did want to point out that with through with regard to the subsequent remedial measure there the rule anticipates that that thing can be abuse when this court is there trying to determine what a duty