it appears to me is most of us who are trial judges we tend to lump six one minds and summary judgment motions together is one and the same  most cases that may be true and i feel it's not so i ask you to make clear your position and exactly why  dismiss and although judge lowrance eventual e entered in a word granting the two six one nine motion i think it's clear during the hearing and during the ruling that the trial court appeared to be confused as to which motion was actually pending at the time and you knew that his comments that were made during the hearing i think shed light on that the battle before me today is a question of summary judgment the question is is there a pleading stage and this court i'm sorry the trial court made findings of fact didn't accept the allegations in the complaint as true and as a result required proof by the before any discovery was being done at all oh allegations made in the complaint specifically the trial judge said i don't see the evidence in the record supporting the fact that the defendant made these promises well we didn't have an opportunity yet to prove that but we did actually end up providing the court just as a matter of being safe and covering all bases we did provide an affidavit from the plaintiff stating that all the allegations contained in the complaint are true so what happened in this case is the judge was hearing a two six one nine motion should have accepted all of the allegations in the pleadings is true to make it even well counsel years from point as if that's what you were told and that you were told to get in person requests he said that on a plane you also said in the counter affidavit what your complains says nothing about telephones and now the defendant comes forward and says there was a phone clearly marked phone with a phone number above it in the gold letter billion there was an emergency phone outside is there any question for us as to whether that's true that there were phones in that but that you could have used i don't know whether or not through any phones i mean that is something that mr morris the head of security is saying there were forms that at the time the employees were hired they were told about forms the bottom the fact is that this occurred several months after she was hired after the orientation that's when she was offered the job to work at the night shift that's when they sa in exchange for you working the night shift we're going to make these promises to you so whether or not there were phones that were discussed at the time at orientation that's not even relevant but the fact is if there were fans out there that would go to the issue of contributory negligence if anything and the fact is we provided an affidavit that stated that she was told specifically you need to call in the complaint to say we want you to approach the security desk to call for safe right or to get a security officer but then we provided an affidavit where she was specifically told don't call we want you to go to the security desk i don't understand that she was told that she should go to the desk the fact that she could have call that something that the jury can consider when this case goes to trial as to the issue of contributory negligence but it certainly doesn't just feed the respect to duty and some suggestion that there is a finding that there is no duty this is the fifth amended complaint had there been earlier allegations with respect to premises liability and some ruling with respect to duty  the answers we had never claimed any private premises liability action at all we've never legit premises rivaled the law isn't relevant to this case at all this is a case about breach of contract and voluntarily and  breach of a voluntarily assumed duty the question is what was the extent of the duty that was undertaken by the court actually found that this was a forseeable event the court actually found that that th ere was a duty but that it wasn't triggered and the fact is is the fact that the incident the actual attack took place off of the premises off of the defendant's premises is not relevant and is not part of the analysis in this case what is part of the analysis in these cases what promises did they make and how far did those promises extended and the promises extended to the area where the attack took place and where she parked they promise to provide these services both the safe right and the escort services there's been a they've been kind of lumping everything in the same safe ride services they didn't just offer safe ride services they promised safe right services to transport and they promised escort services to take these employees to where they parked and on the night in question they didn't provide either and both of those areas where she was attacked and where she parked were within the areas in which they provided those services that they provided i mean that they promised so the extent of the voluntary undertaking extends absolutely to the area were she was attacked accepted the premise that there was a promise a duty if asked by the employee for the university of chicago to get people safely to their partners i don't think he disputed that what he said is though is that the university of chicago never said we're going to read to their employees minds they're going to have to tell us they need a ride and they had fox and those the existence of those phones was put forth in an affidavit that i did not read you to counter you didn't say no there were calls you did say we were told not to use them but aside from that their argument is and trial court's ruling was that that the duty was never breached as a matter i think what the judge said was we can't find the defendants libel here because the duty that they do wasn't triggered right that the pla did not a veil herself of the services that were promised and i have a couple of responses that number one if they had kept their promise of a security guard being present twenty four hours  they could be approaching told they would have known so there wouldn't be any reason to use a phone call if they had kept their promise a security guard would have been there and would have known that she was making a rider or an escort and the other thing is it seems incredible to me that the university of chicago old can instruct somebody to do is specific to to request their services that they're promising in exchange for working at night in a day dangerous neighborhood it seems incredible to me that when they instructed to do something specifically and she follows her and their instructions to a t and they aren't there as they promised that they can now fact back on that and say well we didn't know about your coming here so she followed their instructions she she she did her part she did exactly what she was told to do if they had said you need to call on the phone don't approach the street does she would have done that but she did as she was instructed and they weren't there i think the fact that she followed their instructions as to what to do and what not to do should constitute a veil in herself of the services and i think it's important to nobody in one spot in their brief university schroder three there's a couple different spots in one spot on page thirteen of their brief they say in the contents they say give the plaintiff ha engage the services there would have been a duty but it's interesting to note that on page fourteen of their brief they said if she had attempted to reengage there are services there would have been a duty i think that's interesting because it's it is a matter of semantics what is the meaning gauge what do you mean by engaged and certainly attempting to everything that she was told to do should constitute engaging or it at the very least attempting to engage which they admit that would trigger the duty as well and it makes sense that it would trigger the do because what else is she supposed to do again calling on the found is that something that she may have done it was sure it's something that she may have she could've done but that's not part of the analysis here that it's there's a lot of things that she could have done but she was she wanted to avail itself of the services that they promised and she did exactly as she was told and now it's up to the jury later on to say hey there's of there are phones out here and that's something that we're going to reduce or with covered by so that i think that that is the critical no i don't think so there's there's no we stated we factually alleged a cause of action they didn't follow through six one five they were filing a file the two six one nine they had to do it was their responsibility to provide evidence of an affirmative matter that would defeat this cause of action and they didn't provide an affirmative matter the only thing that they did is they offered the affidavit in deposition of mr morris the head of the director of security and there's three important points that his affidavit deposition provide number one he has no personal knowledge of what the promises were so that certainly doesn't defeat the plaintiff's claim number two he says there that reliance of my client on those promises she wouldn't work the night shift if she didn't have a safe way to get her to her car in an area that's known to be dangerous based on statistics and specifically as t women walking at night getting raped she would have taken that job and that's alleged in the complaint and the university of chicago knew this was a dangerous area that's why they offered made these promises to her in exchange for her agreeing to work this night shift so i think there was a duty based upon the promises it's a it's a voluntarily assume duty they don't normally have a responsibility to protect somebody i don't understand that but in this situation it was a special situation where they made the promises and they had a duty to keep those promises within the extent of the promises that they made and this this event falls right into the extent of their undertaking it's exactly what they were promising to help deter of course nothing is for sure but in all likelihood if they had provided the your honour's is that it being a two six one nine they have the obligation to provide evidence of an affirmative matter that defeated the claim and they didn't thank you for your or it is trumped they should say oh yes dani right now in my mind we have a factual dispute and i don't see anybody leading the pack here and i'm happy to have to clarify there's a separate set of facts that have been supplied in the form of an affidavit from mr moore's the facts in the two are not in disagreement or separate the complete picture but they are not in disagreement if you look at specifically at the facts that were employees specifically instructed users of the security personnel escort service including the plaintiff to obtain a security personal escort to and from their vehicles by pushing security personnel located at any of the security tests it doesn't say when i don't know what she means by supposed to be certainly if you look at page at paragraph twelve she says promises were made on numerous occasions by her superiors and she names three people and bet a prize to paragraph a loving in which there's the affirmative matter and that if she wished you to engage the safe right service she needed to call and the first time we hear that she was told not to call is not in the complaint it's in her affidavit and if you look at her affidavit it's even less clear and more of it as to what was going on paragraph i ever affidavit it says  fact i was specifically instructed by defendant staff members not to call well in the complaint she's talking about supervisors now in the affidavit she's talking about staff members we don't have any idea who these staff members are was talking about it in different context was he was talking about at that point in the or like if you go a bit off the rails here and they were talking about the scope of the entire process he was talking about her entire theory of the case not just this one and that david he said affidavit that was supplied and the burden shifting process so it wasn't just plaintiff's affidavit that was applied now we have a deposition transcript and we have orders and we have additional papers attached to that response so i don't blame the judge judgment and i would say the answer is yes and if you look at the reynolds versus jimmy john's case at the end of that opinion it talks about well you know if two six one is really proper and it's more like a motion for summary judgment that's ok if there hasn't been had to go to a man security desk i was promised it would be me and i was told to make it in person west before we even get to her affidavit that's their theory of the case and it seems to me your theory of the case is well that's not quite right because it was something another come down to whether or not that affidavit is entitled no no no first of all you have to shift the burden to her you have to show that your habit is trumps and if all you're doing is contradicting the allegations of the complaint well i think nine it is a knockout punch you've got something that just wipes out their case and it seems here this is much more intensely factual that you've got a person and you've got support for that version i submit i acknowledge but you've got a version a david we have in the david and although you characterize them as adding additional facts surrounding out the picture they in fact don't agree they they are divergent wouldn't that if ike i'm sorry if you are so except when it doesn't play with a real one anyone who was going to make a determination as to whether it does or does not i think there's been some discussion here that it does not comply with one of mine but we do have her affidavit and then we have the decide and we have very we have two different versions of what that undertaking was that the defendant submitted undertaking was to provide a service but the preserve us doesn't exist as an active in a vacuum and used to be engaged there has to be some a friend of acting by the plaintiff doing gauge that service what did she do on this evening she went to the security desk and whether anyone there she was on her break she waited ten minutes and she left on the boss or after she got off the bus we might have a different scenario but that's not what we have here she never called for in she walked through a park or should be told not to do that he's been raised or maybe in a sense  none of the cajuns we there was an even any argument we decided to withdraw voluntarily dismissed or withdraw the complaint to we pleaded to satisfy some of the concerns that  affidavit it states i was promised by multiple staff members of the defendants that security does including the security dust located in the lobby of the go play at pavilion would be manned with security personnel at all times during the night shift i was instructed by multiple staff members of the defendants that in order to obtain a safe right transport or security escort during the night shift i should approach the security personnel manning any security desk including the security desk and gold let her go in the lobby and request the service that i desired and the reason that we did provide that affidavit was exactly to rebut the arguments that the defendants were making and so you've got the plaintiffs stating one thing with respect to the security desk and you've got mr morris saying that they want all mand that clearly is an issue of fact at the very least that is critical to this case and needs to be decided by a jury not here at the pleading stage with respect to the booth i'm sorry the lewis case is if you want me to address that that case i will but that was a case that basically that was a premises case and that's where the landowner didn't have a responsibility as to this it was with both of us living it they did address that you're right they did address that but what they found in that case is that once they left the property and didn't ask the bartender that was the that was the determining factor so in our case it's very very different she did exactly what she was told to do in order to engage or attempt to engage those services and if there isn't if there's a specific question or issue that you'd like me to address at this point i will i thought that during the original argument i dressed mostly