next case in our call of agenda number fourteen richard p and cure versus peter cat may please the court eliot shook on behalf of kinko's we are the appellant in this matter this appeal presents one overarching question what is the standard of care for an employer whose employees provide no to resurface as the customers fact that their corridor did not personally appear war he negligently and intentionally permitted the signature to be that someone else to take his know to reseal to the bank or signature on the mortgage assignment under either scenario he gave that official misconduct but i'll bear said was i signed the notary sort of occasion for both rights deed that does not appear to be my signature on the assignment of mortgage so it is correct that is what he my middle name on anything but i saw it first and deposition he actually said i don't think i signed either one of them at trial he said when i look at the two i signed this one but that's got dated in the middle and i didn't sign that one and also they are looks a little different now where it's very strange testimony it's a very strange series of events and and your honor i can't answer your question as to what happened and how those two documents were notarized because the only people who would know would be albury are or were dino days now do you know davis or a number of other documents were introduced at the trial and he said the only time i've ever signed dated this is testimony i couldn't make this up as when i was became a citizen i don't use the name david for religious reasons but anything that i signed that's what that's what all there said and as i was saying if you look at the two documents this is the book right released deed which is signed matters not to kinko's liability it matters not what actually happened except that richard ben cora the critical factor discord between these are undisputed which had been court was not in the store he happened in a space of just a very few minutes brown went over the counter but right mason copies but i came back the x through the document they left went to the lawyers office finished with the deal which of course was a scam too to cheat frank or out of the mortgage so it all happened then and all that and i said some words of some importance because there's a lot of testimony and a lot of findings in the in the majority opinion about how kinko's was deficient in training and storage of the seal log books and all sorts of aspiration notaries might want to do one day but not to have anything to do with whatever it was that happened at that moment the only question before the bell before this court because as i was saying the first district held that we are not liable as a matter of law under position is not repeat is not the common more claims are preempted by the i and a and that's where i think there's been some some misunderstanding of our position on the on the other side the more recent decision most recent decision on this in the bird case holds and we don't disagree that common law things are not preempt the idea in a imposes no duty to train that imposes duties on so the question is whether an employer can be directly negligent based on a purported extra statutory common law a duty and we submit the answer to that question must be no it must be no for two reasons first the standard of and particularly so because the one thing the first district kinko's agree on is that there is no statutory duty to train at will and we voluntarily undertook that duty so it's really t independent but interrelated reasons the standard of care is fixed by the statute and we voluntarily undertook to train under the statu which is that statutes of i'm reading from the oil of statutes designed to protect human life and property establish the standard of conduct required of a reasonable person in other words they fix the measure of the legal duty now there's a there's a from page forty two of the opinion that this is the majority there is no testimony no testimony that kinko's directed approved tolerated encouraged or expected alberto a gauge of misconduct based on the expert testimony presented by the plaintiff which argues in favor of model no to react standards now as i deleted to a few minutes ago but there is there are pages and pages of testimony about aspirational goals for storage a trade out there to keep has his seal secure when he wasn't using it it trained out there to use a logbook those aren't even required by the statute but as he said let's put all that to one side and let's focus on the only possible acts the only possible  that gave rise to bank or is quite which is going back to where we started either al bear was part of the scam or all they are either intentionally or negligently somehow allowed someone to do a quick change of the counter and slap a seal on something and that someone duties of an employer it only speaks to duties of a notary and we trained al baker to keep his seal secured we trained al bayard to keep it in the manager's office out of the way of the traffic manager's office wasn't always locked the desk wasn't always locked but it often was if a manager was in there was a lock this is all albert's testimony he would leave his seal and materials in the manager's office if someone came to the kinko's and that's my curious line but we have to start with kinko's training if we trained him to keep his seal secure even beyond the structure requirements and he didn't  all we did all we did three it's a question probably better place to opposing counsel is what what part of that training would evoke liability your position is that if we can only be liable for what we trained  only overlay to that is that we trained to the reasonableness of our training is that it's completely in accord with the but you agree that if if the employee really would receive improper training in the monetary undertaking if that would increase or would or could increase the risk that they would perform present yes which is why sort of the beginning this is not a preemption issue you look just like any anyone who voluntarily undertakes we are liable to the extent of our undertaking the fact that our undertaking happens to parallel the statute and the and the only secretar book shows that it was reasonably done but even absent that it would be to the extent to which we trained him and he was trained this is understood and although there was a bit of a back and forth between the majority of the dissent over manifest weight of the evidence and whether photo id he said he always asked for a photo id a bear said not only that alberto something that's not required in the statute at all perhaps because he got confused with the alternative means of identifying people he would make the person who gave him the id swear that it was them take an oath and swear or affirm that it was actually them statute doesn't require that at all so he was he was trained not only in accordance with the statute and accordance with the handbook he was trained in beyond the statutory requirements if what it would was that happened either he  and then say therefore the training was inadequate because it's direct liability off i carry a slight ability you start with the training and see if the training was in accordance with our voluntary undertaking and here with the statute this court's this court's holding and look in the fry case on which we rely is the duty of care to be imposed upon a defendant is limited to the extent of its undertake because the training that we gave was consistent with our undertaking was consistent with the statute the only way that the first district majority held that kinko's could be liable as a matter of common law was by creating extra statutory duties i think including the opinion directly when i said that the core of the holding was in this  you must demand a photo id you must do this you must do that all of which is aspirational aspirational goals from from professor close in but it's not in the statute so you start the first as recent alice a starts with imposing an extra statutory duty and then goes backwards and says because you didn't train on the sex for statutory duty that we now imposes about her of illinois common law your training was inadequate so all that leaves is negligent supervision which i'll touch on very quickly as my time was expiring we did not voluntarily undertake t supervise we start with that we did not voluntarily undertake to supervise but even if a supervisory duty can be inferred from getting voluntary training or inferred under the i and i we win because there are two elements of negligent supervision one that an employer knew or should have known of employees and i'm quoting from from van horn implants and particular unfitness for the position so as to create a danger of harm to third persons you have to know of the individual employees particular five both the trial court and the first district have determined that kinko's is liable to richard baker under the common law for its negligent training and supervision of its what it was dhaval bear i think we need to step back and realize or take a look at exactly how this program transpired this wasn't a situation where mr albert said i want to become a notary i want to offer no resurfaces in this so working because it was a situation where kinko's as a corporation as a company made a corporate decision to anybody else who came into that store to have a document notarized and that's what he was to protect the public from exactly what happened here to protect the public from harm that would result from the improper  document counsel looted to the c e o of the issue of the seal and i know they'll certainly be questions regarding that they train mr although to keep it in a safe place well first of all i suppose it's a step back and talk about the training scope of their voluntary undertaking you would allow there to be a duty i think you're saying it's a failure to do more well they train him to store his sealed a safe place if we look at the facts that came out what did that what does that mean i mean he kept it he decided mr alter testify that he decided leaving at the counter was not a good place ok so he went he thought ok i'll put in the manager's office the manager's office is locked sometimes it's a story that's open twenty four hours there's a manager on duty i think the testimony was between eight and twelve hours a day and when the manager was on duty that was not locked which means any employee of kinko's could go into that office go into that measure desk take that seal and notari testimony that came out from professor close and who is an expert and this is what he spent his life dealing with the notary at the notary law and understood it and explained that and it's not his testimony hated the trial court and handling of the common law claims he's not he can't testify so what the statute says but when the court looked to determination of what actions were reasonable by kinko's they look to professor closer to his testimony his testimony was such that it's not just ok to say stored a safe place which really wasn't that safe because it was an office that anybody can access to and there's even testimony at trial that not only could other employees access it but potentially the public could access it they were trained to say don't go back there don't go to the manager's office but that's not to say that someone from the public can go back there and just help themselves to the seal i know it's a little it's a little reaching but nonetheless it's a scary proposition that mr albers seal could be used that any time he didn't work twenty four hours a day when the hours he was make sure that that seal was kind of in a safe place i mean it wasn't like mr all there wanted to become an order he wasn't like i'm sorry i wanted but it wasn't like he was doing it on the weekends or took a seal home with him this was at the direction of kinko's it further said it went further inside of their years afterwards he never would have known the difference that's not very good training you get to say that it's ok we'll just take your sail back he should have taken it so back he should have been instructed to take that seat with him when he left employment and he didn't and it's sad that they can go source and who knows what happened with that se l going back a little bit to the trainer himself and how faulty this training this training was the trainer mr yam gets as i said it was never never himself he worked thr a worked up a handbook did not consult an attorney when he when he developed a training program it's testimony was that he sent a copy to a corporate office for review he never received a response he even requested a kinko's allow him to trade to take a notary training class due to his doubt and i quote doubt about his self instruction which was denied because the expense was three or four hundred dollars which kinko's refused to pay counsel do you you agree its employees actions when it's within the scope of their employment and there's case law going back in the state of illinois to the eight hundred fifty s i think how does that fit in with a voluntary undertaking well i suppose in addition there's a part of it or i think it within the scope of his employment they manipulated they controlled this whole program this was very mr hubbard in i have a whole lot you know outside of you offering the service at kinko's they paid for it they had him do this for they had others as well and it was just it was just so you know manipulative on the part of kinko's and so they owed him they owe the duty to make sure that it's notaries knew exactly what they were doing when they looking at a standard a reasonable miss and the reason is so his actions in the result of just throwing a notary out there and say ok you had notarized documents i mean i know what you're doing but go ahead and do it anyhow it's kind of a scary proposition i mean so because i think for under the common law theory we look at a standard of reasonable defense and the standard of reasonable is what would someone who undertook to train what would they have reasonably done in this training you know mr albers testified that he his  training was the torah law and one form of identification not to confirm the identity of the person appearing before him but to confirm that the signature on the identification doctor and matched the doctor he was notarizing there was no photo there was no didn't know to rise it as his testimony kind of alluded to or he was confused about someone did and whether it was another employee taking pills or whether it was mr boat ride or mr brown or one of the other people there it still goes to the fact well i don't think it's i don't think that what happened here is he simply disregard of the train i think that the ample facts conclusions that the finder of the driver who should  but the voluntary undertaking but but but what i don't think is that yes the duty is to the extent of the undertaking but the undertaking was so deficient here is what it is i think what he did pushing it ya know i but i don't understand how so because it if if if you undertook to do something you did such a deficient job of doing it that's not pushing it supervision of mr alder counsel i'm trying to understand your position really a follow up on your answers to justice carmen also now to justice freeman is your position that there is a duty imposed above and beyond the duty that's a knee in the i don't think that's correct i think the duty is is it when you look to just a reasonable duty a reasonable is what we'll look back ok statute desired it says in terms of employer liability i think it's section seven dash one or two that there has to be the employer had to consent in the republic's officials misconduct yes again there's a duty that does or does not exceed that requirement to show that player consented in th liability it rises from a under a negligence there in what would have been reasonable for the training that kinko's did what would have been reasonable that the training they provided to their notary what would have been reasonable as far supervising or what would have been reasonable as far as the seal was concerned if it's something other than a consent as opposed to this actually it is extra statutory well but i mean i but i think we can look outside of the statute distention it is yes it defies  theory of consent and this idea of consent and there's been nothing that's interpreted that i don't think the legislature certainly didn't interpret didn't give us some guidance as to what consent means doesn't mean they have to stand over him and say you know that's an obviously a for signatures go ahead and sign it i don't know and i don't purport to know but i think it's the duty is just arises given the given the program given the fact that  they put this program into place given the protection of the public in general by offering such a service that what would have been reasonable and what would have been what should the notary done to secure things that like this don't happen  just to ensure that you know people don't lose their property people don't lose money i mean people come in all the time notarized documents that would have others to do with to do with draw money from an ira whether it's an assignment a mortgage like in this case there has to be some sort of  responsibility for you know when you train a notary tend not to take a photo id to let his seal be in a place where anybody can you set sail i see your time's running out yes and there's been some merger of the terms negligent training and negligent supervision so my so i'm trying to understand where we would have a negligent supervision case because without kinko's being aware of on this can there be an allegation that they failed to protect some third party against this seem to it was predicated upon speech protected under the first amendment and that more along the lines of negligent toward negligent hiring and retention of an unfit employee i'm not sure that that that case the   advocate my client's position it's certainly been an honor and a privilege to appear before you judge me against kinko's for negligent training at supervision is consistent with the findings of fact made by the trial judge clearly not manifestly erroneous as the you please the court kinko's was not on trial for the victimless crime of having a bad training program we were on trial for a negligent act that injured van choro and if i could go back to the first district majority's words there is no evidence that kinko's directed approved tolerated encouraged or expected albury twenty gauge in misconduct professor close and did not like our training program i think everyone in the courtroom is aware of that  and i believe i heard opposing counsel refer to our training in general as being as being so deficient but let's go back again to where i started in my argument which is the first district's characterization of what happened in the store on the day of the incident it didn't involve somebody sneaking back into the manager's office with some other time and grabbing hold of i'll bear seal or doing anything like that this is what the the first district concluded the record requirement that the person whose signature is to be notarized appear before the notary so scenario one happened i'll bear simply disregarded everything the most basic thing that he was taught in his in his kinko's notary class second possibility something that involved notarizing the signature of someone who was not before him he violated everything he was taught in kinko's notary class so the only theory on which my oppon could possibly go forward and direct negligence against kinko's is the possibility that elbereth make would gently allowed his seal to be used by another he was trained unquestionably to bring his seal and to put it back he wasn't trained to leave it lying around he wasn't trade to leave it where anyone could grab it that was not his trade his training was to keep it secure if he slip rig that's what's really happened was simply a slip up by al bail at the time of the motivation not when it was in the manager's office not when it was stored anyplace else not in the middle of the night when he wasn't even there but at that moment he anything that happens any slip up by a notary any intentional congress conduct by a notary any type of negligence any disregard of training you then reason backwards to say that kinko's must have therefore been negligent or not is that is not  his students to ask for state identification card driver's license or other card that had a photo of the person's height and weight and the person signature for comparison with the signature on the document youngest sort of students to rely on one form of identification but if they were suspicious they could ask identification documents proper identification should include a photograph of the signature on a reliable identification card such as a driver's license you have this for all of his all the criticism that he gets in the first district majority opinion and from my opponent trough do exactly what the secretary of state have book says you should do and i'll bear testified that he was taught to do exactly what the secretary of state's handbook said to do the act that injured ventura whatever it was had nothing to do with the water broke it had nothing to do with how the seal was kept undone and suspicions about people sneaking back in the dead of night to get the the document notarized and albert's absence simply have no basis in this record because we know no business could ever design a notary training program that would satisfy this kind of work is reasonable to standard because what that standard means is that anything that goes wrong is the trainer's responsibility and not only that we understand now from our point that there's some nebulous obligation to train in the first instance it doesn't appear anywhere in the section which would obliterate the voluntary undertaking docu doctrine and make every employer of a notary viable for anything that might go wrong as as we as we program so one of two things would have to be that there be no training and employee might decide well the structure doesn't require me to train at all and they could tell an employee go get a notary license and come back to the store and it's not my problem it's up to you to do it right or more likely as a protection would have would would would terminate notarial services basic bedrock principles of common law govern the disposition in this case the duty is fixed by the statute and lawyers only liable on a voluntary undertaking for the extent of the undertaking we submit the first district's decision