are presenting you actually with what in many respects is a very simple issue the court dismissed mr kirk's claim against the united states a claim of arising as a result he has inappropriate dual relationship created by his there at the v a midsts philips the trial court found that under liability but this trip or that summary judgment was appropriate because the employee engagement a personal relationship with her client that was not of the kind she was employed to perform whether the professional negligence of the fair this should be attributed to the government and if this were any other kind of professional negligence like a surgery gone bad  way we would not even be having this discussion but the reason we're having this discussion is because the dollar relationship that mrs phillips foster in there with mr kirk  into a relationship outside the offices of the v a so let's stop right there actually just a moment it is very clear ringback i'm a complaint that this allegation of dual relationship arises out there are huge relationship and we have alleged numerous examples d of inappropriate conduct with in the therapeutic relationship the good rise to claim professional it's very clear that what they were doing in those cases was looking at the rd prong of the vicarious liability and applying it when there was something more and that something more was intentional conduct  specifically sexual assault claim that had been filed against the employer but if you look at the analysis as to how they came to the conclusion that in fact there was  almost exclusively so i mean i am i am not entirely convinced that the there really are two different things as opposed to the application of chesterman to the situation has been explained more specific i i and consistent with the latter that there is one role and we have the three prong test and the soul question is how do we get to the wrong if the employee has also engaged in intentional misconduct and i think we would all agree that the standard for intentional misconduct is and of itself higher than negligence but most significantly this is resolve for us is it even conceivable that in an workplace environment where there are is substantial evidence of inappropriate professional interactions with m misconduct that the entire claim itself must be dismissed because there also was conduct occurring outside of the workplace therefore the government would have you come to the conclusion that there is no i beli and we purposely put a claim of professional negligence primarily arising from the fact that witness philips did was inappropriate under any standard and the government has not challenged the government has not some of the activity with regard to the text messages that just gusty therapy relationship are is actionable and that other don't understand why that is a possibility i would suggest it to be analyzed in a different perspective which is is it a jury question is it a question for the jury to decide what conduct was within the course and scope of employment or arose as a result of that employment relationship and the professional negligence the door emanation ship and if so where damaged or flowed from that you relationship fully expect at trial the government will argue there was no professional purpose for them to make that trip to the vehicle not worth any damages for that but that is something that is evidence and again we go back to sleep suspicion evidence let me just suggest that there is a responsibility by the employer or all of the misconduct that occurred and to that extent if you go back to our complaint you will see that we have alleged that there wasn't sat a conduct that arose as a result of this trusting relationship that they developed within therapy that mr phillips otherwise would not have i love hearing myself talk but unless there is for questions i will turn it over to counsel for the government thank you thank you very much mr snyder mr hayes may it please the court jerry hagar for the united states be a did nothing wrong in this case mr phillips misconduct was unpredictable unpreventable and one hundred percent authorized she pursued a personal and i gather the physical location we're all part of the employment relationship and the is that right that's right you are and during that those responsibility why happens if somebody is driving a car and drinking while they're driving are not supposed to be drinking when they're driving he when you're driving but they are drinking when they're driving they have a car accident it's the government responsible  air in the scope of the oil economy that important you know or maybe you dump that this was at the same dialogue was the original dialogue around having sexual or harassment as a  why can't he still sue for a mouse in many aspects to bad therapy he was supposed to get there or even the v a that's what she was authorized to do and she did it quite not it is clear that she was hired to get there and that you look at these text messages at least some of them seem to be related to therapy i mean she says i'm going to this kind of therapy and they talk about his father and they talk about his suicidal to other services is the paperwork she was hired to do but that is not what the complaint says breaches her duty but if you look at the complaint what breached her duty was austrian engender in a personal relationship not only was she not authorized to do that she was indicted and she was fired for this inappropriate relationship this is not a kind of she was hired by my hypothetical the driver was fired for driving while drunk that doesn't prove anything your honor it is your theory would reduce  let's stick to therapy session for now and they'd be some of the text messages should she that was the type of work she was hired to do she was hired to be the guy therapy now if she was doing it badly because she had different her own court was it was decided by the supreme court to be absolutely outside the scope of them not the paperwork employee but nonetheless actionable because it was sufficiently related and caused by the  supreme court was creating a new more forgiving tests for all intentional torts that came true it's not a more forgiving test because you have to connect the scope activity with the natural  boy scout troop leader pastor they are hired to establish personal relationship with their clergy in their trip that's exactly what happened that is why that activity was natural approach the gender  fiduciary but is a professional more arm's length transaction you're not going to their house for dinner like aster make them your house and make friends meet your parents it's different in that regard the social code the code of ethics for social workers demands that not touch your patient in the in the bear or the room in the main that you're not after your own personal gain or test or personal non work related purposes and i just want to under the complaint of not say sometimes suspects their personal relationships and he goes on just summarize the evidence that was our support of that claim that being said i also suggest that the government has overlooked the allegations of the developed with mr kirk during that their sessions cause them to engage in this out there conduct and we have asserted the position of trust was a motivating factor  conduct that even occurs as an intentional tort we have not played an intentional tort but it gives you an example of why there are not two tests and nor again and i am