may please the court i'm chris cannady i represent mr castro on behalf is daughter in this matter i would like to reserve a minute of possible thing and for bottle this is a very tragic case as we know by the facts in this case  corporal castro model was in her private room on liberty when she was shot six times in the face by her assailant and then left for six hours in her own blood before she was retrieved and and ultimately taken away from the very room that she she stayed in this case obviously centers around the faeries doctrine and or stand the issue  understand that this court has set forth factors which this case falls squarely within the faeries doctrine is not all encompassing but every situation this case is only outside looking in based upon the facts that are presented that you have before you that i will discuss here today this court in johnson and nine hundred eighty three set forth four factors to determine if there is an exception to the fairies doctrine  to walk through each one of those factors and discuss the facts in each factor why this case is an exception to the rule the first factor deals with the place and the nature of where this took or the act happen in this situation will cast remodel was in a room or a private room or was it really a private room it was your honor in that she had access to the room it was an open anybody else she does she was a member of the united states marine corps she still has rights to privacy in that room but wasn't that room provided by the military that room is actually rented by corporal castro mata we have service members there speak to someone who is not a member of the military rethought i on the premises no well you could have government contractors that could be i don't know the situation we haven't got that far in the case to know but you could have situations with a lot of these corridors so to speak or ran by private companies we have service members that are staying and i'll tell rooms we have service members that stay in base housing we have service members that they don't this case it was in the motel room it wasn't and weren't their roof that were promulgated by the military that govern those payments there are many of those rules were violated so in that respect for instance just like a hotel room you have someone at the front desk you assume that you will not that no member all the members of the public have access to that room and in this case because of a violation of a well a clear rule the the duty at the front similar to a hotel clerk gave the key to the room that ultimately gave mr lopez access to her room otherwise also if we delve into those matters aren't we really inject in  into the matter that are governed by the military something bad on the ferry thakur and we're not permit it to do well your honor i believe that if you're dealing with a judgment call or discretion i agree with but in this case there were polls he's they were already set forth by the military and were not followed so we're not getting into a judgment call we're not getting into the discretion of a commander commander expects that the person the front desk is going to give  of discipline and good order that are best left to the military they're best left the military to make the determinations and the decisions and they were made that's why those orders were in place so therefore we moved on of the fact that there were actions taken that violated policy in the military and there was that discipline move forward in this case so this this case in these actions had no effect on the discipline but the policies were well settled this isn't a case dealing with an airplane and making a judgment call or someone who is in a hospital or something takes place where there's a judgment call it was very clear that there were duties and obligations of people who were involved that were just blatantly violated counsel what is sure a strong case what case most closely resembles your argument that when there is a breach of an order or failure to abide by an order that that's an exception to the fairness doctrine case most strongly support your argument well i believe your honor that if you look at the johnson case where you it's obviously a violation of law to drink and drive on a military installation so in that case the there was someone who was working in c o club which by the way is is that there are certain hours of military they cannot go in and c o club so it is governed in their rules and regulations but in that case you had someone who committed a breach of policy within the military in most cases in the military you cannot consume any alcohol and drive so what's the language in jonson's the fifth that plea that you rely on to support your argument you asked me about which case i think is most like it and that's where i was going factually if you look in the in the sure case it talks about i believe you mentioned your own or the discipline supervision and control of the military and how we don't want to interfere with those three activities and in this case the military had control and supervision had set forth policies that would have prevented this act from happening and that actions were taken move beyond the the scope of what those orders and provisions and control were set forth in this particular circumstance so what's the language and share that you're relying upon to support your position that  takes the cake thout fact the fairness doctrine rearm rely on the fact that a violation of the order falls outside of the three things ensure that the court said that we or the court whoever it may be cannot go into interfere with the functions of the military do you have a case that says that i appreciate trying to distinguish here i think shares are real tough case for you to get around here can you point to a case in response to just relatives question that says what you just said a violation of a policy is somehow outside of here one of us a civil case on a particular policy other than what i mentioned in the johnson case because driving and drinking and driving there are policies in the military that you're not supposed to you know supposed to do that just like in the civilian world and i believe this case that's one piece of it i believe when you go down the factors in this case and you look at the four factor set forth in johnson it's very clear that this case meets those criteria where this took place is only one issue in a totality of circumstances you also look at the fact that she was on liberty it was after hours you have to look at the fact she was not doing something that was a command sanction of that like some of the other cases where there river rafting are on jet skis what we call the military mandatory fun she was doing she was our own personal time and our own personal room with someone that was i mean it's personal as you possibly can get in a situation so i believe it meets the criteria she was not enjoying a picnic areas she was not doing anything she was not at the gym she was in her room compensated for were she was she had a right to privacy in a room the barracks are regulated just like dorm rooms or hotels so on and so forth and this situation if the policies and procedures were followed this would have never happened but the facts and circumstances in the criterion johnson meet squarely with the criteria in this case in that it is a private personal situation whereas she was on her own time doing or own thing and obviously was a victim of circumstances counsel is it your argument that any time in the military a policy or procedure is not followed the fear is doctoring has no application now you're on i don't believe that i actually think that that's one issue but the factors that are presented in johnson are really what implicate exceptions to fairies so on your own private time not a military sanctioned event those are the things that i believe her family and her friends nevertheless the district court correctly dismissed this case under the fair's doctrine based on the supreme court's decision and cheer this court decision and mcallister those cases hold that were a complaint on its face as this complaint challenges the management of the military and the supervision control and management of service members the fairest doctrine bars the complaint per se without needing to look into the four factor test which applies in other situations such as premises liability cases very vicarious liability cases such as where one service member causes the death or injury of another in automobile accident cases like that of the cases of which the four factor test the plies insurer as i believe you've already discussed one service member killed another service member and the the murder occurred off base well both service members were off duty and not engaged in any kind of a military mission the supreme court held the case was barred by the fairness doctrine because the complaint on its face as in this case challenged the government's the military's control and protection of service members and the court said and i quote from of the opinion allegations that go directly to the manager of the military by calling into question basic choices about the discipline supervision control of the servicemen are barred by the fairness doctrine and mcallister this case applied she in the same fashion mcalister involved a case where again one service member killed another one it was this occurred while both run personal business not under any military orders well the decision was leaving the your response to opposing counsels distinction between this case and share on the basis that there were specific orders and policies that were not followed in this case well and sure it's very important to note that the supreme court noted that one of the reasons why the fairest doctrine applies when the allegations of the complaint on their face challenge the military mission is that and this is from again page fifty eight of the opinion suits like that would require commanding officer to convince a civilian court of the wisdom of military and disciplinary decision including whether to overlook a particular incident so even in a case where you have military policies that are violated the key decisions for a court to evaluate the negligence complains complaints in that case would require the court to second guess military judgments about what should be done and whether there might be exceptions that would allow those  regulations to be violated or if not violated that there would be no sanctions for having done so so that is not an exception to the sheer cases the sheer case itself explains page fifty eight  didn't use the same analysis that those cases of now told us is the right one second i think this is very important as well the mcallister case itself at page fourteen thirty seven of the opinion distinguished cases that involved what it said injuries arising out of life on the reservation and said that fair as would apply to those kinds of cases and it page fourteen thirty nine the court said that fair is would apply where the service member is injured while using military facilities well that is of course exactly what happened here as as lance corporal caster mother was killed while in her barracks to which she was assigned because of her military status so i believe those are the key distinctions from the johnson decision a council also i believe mistakenly describes  negligence was alleged in johnson the negligence is alleged was not drinking and driving but the keeping the the n c o club open after hours that any way you look at it again this case clearly implicates the military decision making on its face by its own allegations counsel mentions that lance corporal custer moto was on liberty and not on a military mission when she was killed but that is also true of the service member who was killed in who was also off base at the time and this case is an even stronger candidate for application of affairs because lance corporal cus d'amato was killed on base in base military barracks to which active duty people are assigned and this is also important to in the record it explains that it page seventy two these parents were tightly controlled by the military those civilian guests could be allowed during certain hours those guest had to be escorted and in the presence of their sponsor their military sponsor at all times that they were in the barracks and second the designated noncommissioned officer who was responsible for discipline in the barracks was required as a command responsibility to have an active presence in the barracks so these distinguish the case from sort of a common variety hotel clerk situation and again i think clearly support applying fares here and i would also note that the fair's case itself involved three cases that were consolidated for supreme court review two of those cases were medical malpractise cases but the third case in case involves a service member who was killed while in his barracks while sleeping because of a barracks fire and the supreme court thought that that was clearly barred by the faeries doct and so held so again here the fact that lance corporal custer moto was not engaged in a military mission at the time of her death is not a ground for distinguishing the fair's doctrine based on the fairest decision itself relies on the schoenfeld decision that was the case where a service member was injured in an automobile accident on a military road and the key distinction in that case to first of all the negligence alleged was not the kind as in sheer and mcallister the plaintiff there didn't allege on the face of the complaint that the military failed to properly control and supervise a service member delegation there was one of just simple premises liability and the key fact for why the fourth factor test allowed that claim was that any civilian could go on that road and they didn't have to be supervised by another service member and there was no military presence on the road to be watching what they're doing  actually things changed after nine eleven and there aren't those sorts of places on bases anymore for obvious reasons that at that time there were but again that's distinguishable from this case for reasons we've explained that people could have civilian guests in the corridors but they had to be accompanied by a military sponsor and the designated in seo had to keep a visible presence in the area at all times everything that they know the naked negligence allegations complaint all again challenge the management the military the protection of soldiers they all concern command decisions and personnel matters supreme court and sheer also basically said that personnel decisions fifty nine a personnel decision is a decision of command so all the challenge the negligence allegations here involve decisions of command that are clearly barred by the fair's doctrine  pardon me for a minute i don't believe the record that i'm aware of shows that the room was rented but it wouldn't make a difference anyway because again lance corporal custer model was assigned there because of a military that able to be there in that capacity and because again this is not a hotel this is a military barracks on base highly regulated by the military officials i believe that's all i have this morning if the court has no further questions we would ask the court to affirm it appears not thank you counsel  thank you are just a few quick points i would point out the social case in the dryer case actually use the johnson factors and they were two thousand and seven one thousand nine hundred six case and i believe those are the key points in those johnson factors and the facts in this case are it's very clear that they're very similar as far as how you would look at whether it's a private situation or whether it's incident to military service and ensure mcalister those were judgment calls in this case it was a clear violation of orders thank you thank you coun versus employees insurance