monoxide you probably is wrong for two reasons first under each of the court cases cited by either side in this matter the scope of the voluntary undertaking is defined precisely by what did the defendant and undertake to do for the plight in many cases particularly those with integration auspice that is in fact defined by the contract itself in this case if the definition of a voluntary undertaking is limited to the contract itself back contract includes two documents everybody  on the preventative maintenance checklist the contracts pacifically noted that emissions from a propane powered four foot which is specifically called out in the  would be tracked by pronoun under operational tracks exhaust emissions everyone who testified said the emissions are what comes out of the tail pipe everybody testif with this machine that included carbon monoxide which is a deadly gas mr crippen who signed on behalf of fast and all in this case and each and every employee for pal who testified including the sole shareholder in fact company mr powell testified that no one explained to krypton that there was any limitation on the definition of emissions or that the test of emissions would be limited to to avoid a test for a known deadly gas those conversations did not happen yes who testified to that i did say carbon monoxide i said it all for emissions and when you look at the preventative maintenance checks checklist that's this there is a specific line that says exhaust heat he testified about what he called recruitment fast and all about this test he said and i'm quoting basically i assured him that we will always do what's right and maintain his just as we do our own justice we do our own and he received a copy of this and this which and subsequent questions were clarified to be the contract and the preventive maintenance you would agree that want to propane forklift is being operated indoors it is particularly important to monitor c e o emissions correct he said absolutely by the owner of the fasten all outside the four corners of that document we're we're going to do what's right and we're going to treat it like it was our went and we're mr pitt now miss that owners have an obligation to track he goes on to testify by the way that his company can be assigned that obligation and that you recognizes that it is clear i believe from the four corners of the document but to the extent any in for creation of that consideration the rendering of services which was in fact in this phase the preventive maintenance work that is all for on that checklist the next question is should they have machine without the catalytic converter was at a higher risk a greater propensity if you will to admit the deadly gas yet they satisfy the three alternate criteria alternatives are the failure to exercise reasonable care keep produce the proof i just covered why that stuff this is a deadly gas a machine without a catalytic converter being used in an indoor environment pen testified it si nine seventy four that he wanted the preventative maintenance program to protect his employees from the risk of harm we know that nine seventy six he testified that the preventative maintenance checklist he assumed that exhaust and emissions would be tracked in a manner to protect his employees and it seemed nine hundred seventy seven he testified that he relied any body else how fast they relied entirely on penhallow to provide the safety checks and in further response to your earlier question about did it require this each of the technicians testified that this preventive maintenance tract was to assure that the machine was operating safely and appropriate to have three boxes to check ok quoted but if you read the quote carefully in the in paoli three or in the actual testimony itself the question said after the exposure did you request and did you receive and did you pay for the carbon monoxide testing it does not prove at the time of the formation of the contract at the time with established at the time of the negligent conduct at issue that he knew that it simply establishes that once he found out his employees have been exposed to a deadly gas these ratings again were ten times over the ocean allowed women as they hauled out the fire department they had opened all the doors they had closed the shop and he called and allen says hey i've got a problem get out here and please check this out for the first time at that point in time just bell says oh yeah don't be a charge for  fast and all that there is any limitation on the testing that will be done they also make the argument your honor that because they want it is necessary that somehow this said outside the scope of the contract simply not true read the testimony of highs and l and alls each one of them testified to check the safety of the chains they used a small plastic day to do the preventative make that when they had to check the starter or other pieces of equipment that might non mechanical mine did not always follow that they had to use a volt meter or some other type null but it doesn't say we're going to use a plastic page to check change it doesn't say we're going to use a volt meter check the starter it doesn't say how we're going to conduct any of the items on the checklist that doesn't from conducting a task or giving some therapy warning hey we're not checking for the deadly gas that's coming out the tailpipe of that machine you need either pay us more or you need to go hire somebody to is interesting because you see the courts apply the three twenty four a analysis and you see some courts traditional do the analysis and you see some courts apply both but there is never a clear statement in the case law as as to whether or not three twenty four a entirely supplants traditional duty analysis form or not i don't think it matters in this case because i think the duty is clearly established and in either direction with regards to those four factors we have reasonable foreseeability of injury we have a likelihood of injury we have the magnitude of the burden of our new injury and we have the burden placed on the defend them by and posing that duty you're not going to check the whole warning to the people that are going to be exposed to that deadly gas if you're not going to check or as the deposition testimony clears take the ones that got had in your building spill one down the tailpipe and look at the computer and find out whether it's safe or not always of the burden would that be they own the wants or it was available to these technicians it on proximate cause we never had that opportunity to address it i want to be clear we have not yet had a deadline for the disclosure of experts sat in that case we had experts repainted never been disclosed and there was no need to do it here x thank you for your question and your attention four left three months later or three months later august twenty fifth two thousand and eight light of blair was diagnosed with exposure to carbon monoxide of a critical question in this of carbon monoxide unacceptable levels on that date then there is no causal connection between handles and blair's injury lawyers come forward with ever saline no evidence to effect of carburetor had been defective for quite some time we look into that this the citation is to mr blair's own testimony let's look at the testimony of the technician himself who actually suggestion any claim that the four live was committing unacceptable levels of carbon monoxide in may two thousand and eight is entirely speculative based on conjecture that carburetor could have worn out at a time for four years it had operated in that facility without any reports of injuries now i'd like to also refer directly to mr blair's testimony we asked if he had any information indicating that before it was a meeting dangerous amounts of carbon monoxide a prior to september two thousand and eight he testified that he had not and that's a piece twelve forty four out of the record he testified as of may nineteenth you haven't had any health problems that's of page twelve fifteen he also testified that he could not say with a live that was a middy inappropriate amounts of carbon monoxide on may nineteenth and conceded that it could have started doing so a month or so after that all that service the four th kaufmann give a very detailed medical history you have probably just learned problems with ammonia michael plasma in the monia and a number of other issues and he said on august twenty eighth though he said that's when it changed that's when he really had symptoms of carbon monoxide and they said well what about all the prior problems and he said those are separate so those are related to the pneumonia they're not related to carbon monoxide exposure so we know for a fact by his own physicians testimony that he was diagnosed as of august twenty eighth so over three months after our test the only other evidence is a test for even kaufmann who had experience specific experience with carbon monoxide poisoning from police officers he said it was the the changeling in his hands and feet he said that's what made the difference that's when i knew  poising and that was the first time you've ever experienced symptoms do you know when the symptoms arise after exposure is that show that they expose your ways in august we know it was in august we we we know it was some time before august but we have absolutely no evidence to say suggest that it was prior to animals inspection of a forklift absolutely not and any suggestion that it was carbon monoxide is entirely speculative this the defective carburetor could have broken down on august first it could have broken down on july first but a broken down on testimony right right here with me i do have mr blair's testimony where he was asked this is right from the transcript you can't tell me as you sit here today that this particular form that was a inappropriate amounts of carbon monoxide and may nineteenth two thousand and eight answer no i guess not i mean it could have started doing this on june nineteenth two thousand and eight right answer it could have is you know are is a matter of fact if you look at his motion for his response to our motion for summary judgment he has a headache subheading entitle of proximate cause does exist o attachments to the memorandum of law but we made specific argument in our pleadings stating that summary judgment must be entered because there is no evidence other than complete speculation and conjecture to ensure a safe workplace for its employees they're supposed to test the year for carbon monoxide and they're supposed to maintain records on that they didn't do either there is also no evidence anywhere in the records from crippen's testimony that he specifically asked at all to check c e o of the carbon monoxide emissions on the for this despite players contention that this was a priority is now there's items on their testing c e o carbon monoxide missions is not on that list it's not we were there a performance a check on the emissions you had would have been in that category what about the of panel that what the the service tech is there to look and listen and see of anything is out of order they're looking for blue smoke they're looking for manifold gasket or crack they're looking at of a muffler th falling apart they're looking for basic visual or operational tests and i think it's important to note you can't test for carbon dioxide emissions visually obviously and it's up part of an operational test these guys start of the engine see if it's if it read smoothly low z of the blue smoke or suggesting oil burn or white smoke suggesting an  reserve burn the they're not there to perform a safety check otherwise we'd have a right there under the seat column on the checklist they look for warning whosis they listen for maintain records on it if you wanted a contract to do that testing he would have done so he did and got this he got preventive maintenance check that's out of check the voluntary undertaking theory upon which this entire case is based is limited to the extent of the undertaking we're here to do a fifty six dollar look and see to see if there's anything that that's going to  of the technician would bring one of them out of the other things is is that the fact that you would have been easy to perform this task is just one element of the d analysis in the end we're still looking at negligence claim based on a contract and when that when you have a claim and the glutens claim based on contract it is limited to the contractual provisions it's limited to the extent of the undertaking and as i pointed out in our brief the supreme court is caution that this theory is narrowly construed that we're going to need something on that contract that says we would take issue with that now i think that when you'll find is we have some unsupported claims made by mr blair that good ask for this but it's in the record if you look at it what you'll find is that the record with me but if i could support his side in our reef citation is there yeah crippen expected us to perform carbon monoxide testing you think you would have thought that he had grounds for breach of contract when we didn't you know he said there was no reason for breach of contract claim he had no reason to think that at all that somehow failed to live up to  seals are not broken they do a visual inspection to see if there's blue smoke or white smoke that were or odor that would suggest that there are other problems with the before that but there's no suggestion anywhere in this about the preventive maintenance agreement because he can't rely on help to perform this problem and i've said testing and less he knows that that's part of the agreement where testified that he had no idea what these inspections point two four wires of the test for carbon monoxide particularly when you have you was working in the warehouse pass and i'll never contracted with anyone ever to perform its kinds of tests in closing i would like to of point out the the case fails on a number of different levels in order to prevail in this case a jury will have to presume taking yes the before lift that that that we inspected actually could have been of emitting a dangerous amounts of c of carbon depositions and testimony and while he doesn't i'm romel john his statements with regards to the evidence in this case i believe are mistaken in a number of ways and i urge this court to give careful consideration permit this court to make a determination to the extent you believe otherwise jerry blair to testify that his symptoms began in march or april dr allen's deposition he's an expert in carbon monoxide exposure testified that based upon a history of sentence beginning in march and april he believed that the carbon monoxide exposure that he trust or charity was consistent with the exposure that would have be this didn't happen overnight this was a where item and that is entirely consistent with mr blair's testimony that this had happened over quite some period of time as i mentioned earlier  experts have been disclosed in this case and given the feelings before the trial who were there was no reason to redress that issue act worse from our perspective this is a fact issue that that deserves experiencing and saying yeah that's consistent with carbon monoxide exposure and it would have been prior to may examination they should or could have been it was consistent i mean these doctors  and symptoms he was reporting for were back are in fact consistent with carbon monoxide very quickly the language in this contract said visual looks x inspection where it does not limit the inspection to a visual inspection if a visual inspection is not possible that limitation cannot apply nobody tol else that asked and all that when we say missions that we know contain a deadly gas that we told you we were going to track like it was our own nobody said oh and by the way we're not we're not going to check for carbon monoxide we're not going to do that task recall our complaint specifically says a failure to warn that they weren't going to do the task a failure to warn that they didn't do the test and the negligent failure do test and all of those are relevant with regards to the work talking about in this case you can't look at that machine that you know can be deadly make the representations that were made in this case and blindly turn your back the duty element is clearly established a couple of other points mr pinellas testified this inspection was a loss leader he did it so that he could do all the require if he had to charge for the use about want and he knew this was a dangerous condition then the duty is to warn that it