right tire ran over his left leg severely and permanently injuring when the the i think the point that concerns me though those arguments those arguments would resonate more with me or they seem stronger to me if you're talking about for colder so can you can do this was a concern i have is that it's basically a duty to inspect there's there's probably all kinds of different safety features and other but also in the souls that may not be on a particular forklift but when their obligation is to lubricate the machine and keep an eye on the tires and what have you you know where what what source of law what's your best authority that they need they need to go further than that well i think what we're doing here and what the district to make a recommendation to their customers to install of course that if they observed i mean a backup alarm if they saw a backup alarm or one of the forklifts they were service and that was in happen they also they also said we have an they're not dispositive necessarily in the reason that is subtle is because as i pointed out earlier when you have a loading tax were customarily forklift operators are constantly moving if they all had backup alarms on and then th roni dealt with the situation where the company did alert the bank that there was a problem with the rug but they never repaired it and it turned out that this company was not in the business of repairing it here there was no recommendation that there's something amiss it snaps really safe to be aberrated in a forklift in this situation at this facility and they never communicated that ever to d the criteria under three twenty four eight is that you're undertaking your duty to perform a duty old by another it's clear ocean mandates if burkholder has the obligation to inspect and make sure they're there first the they're operating correctly that they're in good repair but this was supplanted by fitzgerald they wash their hands and said they're the ones that are the experts in these things they prepare they service we buy everything else through them and they is a result they supplanted the duty finally the third one is that the harm you suffered by relying on the district court was that it says that in their in their opinion dismissing the action they somebody to do some work for them and it wasn't done correctly well tenets of the of the ward were the didn't know that they were big that the contractor wasn't doing their do that amount to substantial assistance i find it a little bit that's where the guy is under sun he had an underage drinking party at their home and one of the girls passed out under age from drinking too much alcohol the family took control of the girl didn't may please the court bruce lying on behalf of the defendant happily fitzgerald this case boils down to simply the lack of duty the plaintiff has never holder fitzgerald is not a manufacturer of forklifts fitzgerald has a limited contract the last very clear that adds to that contract that fines the responsibilities at this point in time it appears as if plaintiff is conceding the fact that there is no duty under the contract plaintiffs sole argument goes to this voluntary undertaking and what's important to know no duty what the point of this asking this court to do is place an obligation on a service company to warn of a potential isn't even required and isn't necessarily helpful the plaintiffs are an expert in the case has testified that in some occasions backup alarms can be helpful in some places they are not forklifts now to give you an example with the plaintiff is asking is i bring my car to a gas station and ask them to change the oil they take a look at it and they say hey you know your windshield wiper there's a wreath there and i say know ok that's nice you know but just change the oil do they have a duty ok cars now are manufactured you can purchase them that have up lights to come on if a car comes up on your side do they have a duty to say it was like hey i've got to put this on i can't you can't take this vehicle away until i put the side protection on because it's possible that that might help you know that's not the allegation that the service provider if unknown it whether in this particular case what a backup alarm would or wouldn't have done but what is very clear is that manufacturers all over this country are manufacturing forklifts with and without back the evidence shows that it was manufactured without a backup of the evidence show that exists in service company showing the fitzgerald wasn't the only service company that came out to this story after the accident put a backup a affidavit from the provider who did this he indicated there was no backup alarm on the us and in fact had shearer the individual who backed into mr hutcherson he testified that in working at photographs taken the day after the accident there was no backup alarm it is uncontroverted that there was no backup alarm fixed girl did not in terms of terry undertaking the spending is trying to equate an internal business practice with a voluntary undertaking when you take your car to jiffy lube they look at things they haven't voluntarily undertaken a responsibility and you have a business practice of trying to sell additional things when you go get your oil changed that is not a duty that goes to the point or to a third party in this case even if there was a volunteer undertaking there would be no violation as i've already said there's no requirement for backup alarms clearly for coal there is the want your honour's ask council if they are the ones who have sites a very very different set of facts here you have a pharmacy who is getting information specifically requesting information from a clinic concerning other medication they're taking and their background and such and because of the pharmacies background the special circumstances as the court saw they are permitting them that they are saying ok here we see that there is a duty and they specifically say it is very limited and there are special circumstances none of those circumstances exist in this case  in terms of the only equal knowledge this is another key factor in that there was not an equal knowledge in fact the people who knew what gore colder did at their operation is for colder or colder purchase machinery for cold or runs their operations how they do it when they do it that is all information that for cold or house it's not information that someone who comes twice a year to change oil has so clearly there is no on equal knowledge very dissimilar from a plaintiff who knows nothing about prescription medication and pharmacists vs simply a service company in terms of in concert liability i think approval of the cases shows you what in concert liability is in concert live billy tends to be in situations where someone's intoxicated they get in the car and they tell someone to drive fast go through the stop signs drag race those are the type of situations where they are actively encouraging a joint enterprise of the boat with the the one occupant is giving alcohol and cocaine to the driver and encouraging them that isn't in concert they are they are doing something together and you have someone substantially assisting the two cases involving winners and for today where you have basically it's two vehicles on the roadways got an oversized vehicle and a lead vehicle and they are working in tandem working together and if they giving false information that they have something they are doing together and the front vehicle is substantially assisting that simply is not the  because they're not there every day they're nat this day to day operating this they only come out although they have a negative a service agreement he says they come out a couple times a year i'm not going to argue that i'm not sure it makes any difference in the analysis but w we have here if you look at the will coolidge case the father who took control of this tax the young girl and put her in a special room in their home to let presumably to let her sleep it off without calling her parents  without calling for a system he had no duty to do that he could have done nothing but he chose to do that and the only supreme court said wait wait a second if you're going to do this if you're going to take this effort to take this the custody deprive her of think you have to her parents be devolved to make a decision about how they best want a cure for their daughter or don't call for assistance with an ambulance or saying you are responsible here's what we have is fitzgerald they come out they tell the general manager of burglars metamorphosis o t eight where your guys were going to come out we're going to tell you and everything you need to have done to this to make sure these things are operating safely that's what