is only as good as its foundation and the framework right now that ties into why it is so important and white so prejudiced prejudicial to the plaintiffs that the jury instructions were not properly given because the jury instructions are the foundation second judge that wasn't the situation  were granted summary judgment in favor of the defendant and that's a mistake to so in the q that's what you're arguing to us now yes you're right why didn't you argue that the trial judge th because that will count so yes i knew him before some thirty years worth of trial court experience we understand how this works those concerns you just expressed are particularly appropriate before a jury this is not a jury discussion this is a matter where the court is starting about a summary judgment matter and i'm sympathetic when judges  was surprised i did not believe that that was an accurate reflection or at least was not the way i interpret when i read it i interpret it to mean yes trying to her aware of your prior clearly when i was aware of the court's prior comment reading of the transcript state why isn't he right because to accomplish their work brian stoltz over the course of several years traveled only and constantly he went to places like georgia rockford illinois champagne illinois he went to michigan florida he was possibly traveling because he could not want perform the work he was hired to to do in less he was on about whether or not brian stelter was working at the time that what is reality looking at the evidence there was a rush or at least they did not question and of course the standards of the insurance company and whether or not they determined we have no idea rprise fooling about summary judgment on the special on the traveling employee issue the trial judge said this is something for the appellate courts to decide whether or not they wish to create this traveling where you have to remember the motion for summary judgment that defense counsel made there were two prongs to that motion for summary judgment on life billy under traveling employee and under special errand the trial court says we agree or not i'm not going to create a bar on importing traveling employee into on top law from the workers compensation cases but i disagree on special errand i think there's a question of fact so i'm denying your your motion for s because a special errant theory is going to go forward and be able to present that at trial ok so that's what the trial court has done they come in for the pretrial conference we're disappointed we move for summary judgment again actually shortly before trial defense moves summary judgment on the special errant issue because that's the only one left the pretrial conference rolls around and the court says because of the ruling that i made special era it is the only theory that's going to go to the  and the plaintiffs says nothing in defense counsel says nothing because nobody is surprised that is consistent with what the judge has stated on the record is is his ruling traveling employee out special errand in so i have possibly elements of that but whichever way you look at it i think the burden was on the plane if that that point if they truly were surprised misunderstood were prejudiced in their ability to prepare for a trial they needed to step forward in o in a brief i'm acutely aware that you ruled against me on fatling employee we're not arguing traveling employee we're only talking about special area and i don't see how you can come up on appeal and say this was a state of surprise ruling and we've somehow in i think the record sustains both so i think you have to separate elements there and i think in both cases the record supports what the court has done and that should that should be affirmed very are very your position is  conceded below the trial judge specific we asked do you have any illinois law on point as you've just asked here any illinois law on point where the traveling employee doctrine has been used from the workers comp context and product into tort law responded by abilities situation and plaintiffs counsel said not and the judge said ok i'm not making that law now now here on appeal all the sudden pine versus wait might actually establishes that well again we're did then you should have said that to the trial court you should have said no there's no illinois law and i don't think any fair reading of pine vs whitmer says that they're importing traveling employee into tort law it just doesn't say that the  correct under the law so they did reach the merits even though the issue had been waived so again there's nothing inconsistent it's not been misrepresented we've got a uniform by the illinois law stating that worker's comp here you go you can have  there was talk about the jury instructions and about how the agency instruction needed to to be given the instruction that was refused because it was an accurate statement of illinois law but what the trial court did it is not say that it wasn't an accurate statement of illinois bar which it is it's an i p o standard instruction but they said it didn't apply to the facts of this case and that the jury could have been confused not that the jury would have rightfully found under those instructions that on these facts  wasn't so the judge said this is a correct statement of the law but it doesn't apply to these facts i don't want the jury to be confused so i'm going to give an instruction that's particularly tailored to the facts in front of me which says he must be on a special errand the plaintiff was not deprived of proving their case but it needed to be proved on the facts before the court and that was if they found that he was on a special errand then he could have been deemed in the course and scope of his employment while he was traveling but the travel alone wouldn't get you there and so the court the trial court acted correctly in trying to prevent confusion and is now being criticized after the fact when really he was being very conscientious in what he did and so if the court has no further it's a jet it's a statement of general agency principles and it is correct in the ordinary context but here the allegation was that merely traveling from ohio to champagne was going to put mr salt in the course and scope of his employment and the court said no that would be traveling employee so on the facts of this case we're going to give it tailored instructions specifically talking about special airing and no no not that it wasn't a correct statement of illinois law that it wasn't correct to be given in this case on the facts before because you don't consider the instructions in a vacuum every i p i instructions a correct statement of the law but you give every i p instruction in every case now you pick the ones that are applicable to the facts before you and the court found that the general agency instruction was not a political to the facts before it because they were arguing a special circumstance a special era and that that was going to get them outside the ordinary coming in going through all and based on that theory the judge gave an instruction that was specifically tailored to that special er but even the plaintiffs wanted to do that plaintiffs wanted to have the general instruction given and then they wanted to have a limiting instruction given that would qualify the general instruction to take out traveling under the ordinary coming in going rule and to say well you have to find a special errand and so what the judge did is said instead of giving the general i p i and then a limiting instruction to remove this trialling as just part of the coming going experience he said no i'm going to one instruction that's going to just limit it to special area and so plaintiff was not arguing just give these general agency instructions they were actually suggested a limiting instruction to take general travel under the coming and going  rule out so they were arguing one position we argued something else and the judge said this is what i'm going to do i'm going to give an instruction that specifically tailored to the theory that plaintiff is pursuing on this trial and the evidence that they've introduced at this trial so i well i think it would probably be helpful to have that and maybe that's something that the you know my committee should consider i think that i think that might be very helpful it's certainly nicer and cleaner when there is an instruction the responses could point out so what's the alternative view here for me because i wasn't there i do not know precisely how the trial judge came up with the special errand instruction that was judge says i think this land which will drag specially errant theory and we agree i think we're ok now if we came up here and we're arguing it was error i think we have a big problem but we agreed with the instruction that the judge gave and i think that's sufficient on our part to say that sounds good to us and we're ok with that regardless of how that land which actually came to be maybe it was informal discussions and the judge said how about this i mean you know those jury instruction conferences sometimes that goes back and forth between the parties and then somebody makes an announcement in this case the court says here's what i'm thinking of and we say ok i think that's all that you i don't think there's any problem with a stick and as long as the judge accurately stated the law there's no reversible error if the instruction that he gave about special airing accurately informs the jury and accurately instructed them as the law in illinois there's no reversible error and that is our position here no of illinois law does convey when combined with the evidence that is allowed to the jury and the argument made by the council all of those items together create the atmosphere of the for the jury to come to the correct legal conclusion i think that's right it's broader enough the court is correct that the special air doctrine is the means by which you can advance this case to the jury to jury by giving this general structure would not be so important criminal committee for five years ago so i spent a lot of time with i struction said you know i know like the civil counterparts these folks do the best they can to try to get the ector it but you know they're dealing with general turns up said one of the things we did in the criminal committees look for guidance from the appellate court what instructions need to be editor changed and it's maybe this should be the case resave by the way