thank you your honor and may please before council says you know this case is not a breach of contract it's a tart case but home depot has made the contract between the parties a central issue in the case home depot raise the release of the release of this copy tory provisions of its contract as affirmative matter to avoid the allegations of plaintiff complaint and so that has become one of the primary issues in the case and called on the court in place is because sometimes people take the pills from the final orders non final who are final judgments that appear to be final that were intended to be final but don't address all claims for all parties so we to obviously the the burden of persuasion on summary judgment as a whole and then he did raise multiple times the fact question of what condition the machine was in when it was provided to him and that condition was the critical promise in the contract between the parties so to that extent i mean by plaintiff in responding to the summary judgment of home depot did assert that it had failed to provide a the machine that was identified in the contract but be a machine in good working condition there were quite a few assertions of fact and argument regarding the condition of the machine itself so i believe that preserved the question of whether home depot had the and play of did argue plaintiff had you started a bit so i think your description is l lines exactly with where read the case that home depot held up the exculpatory clause in defense of tort claim right and as i read the briefs though one of the points that you're making is that home depot can't prevail with its reliance upon the exculpatory clause because this machine here was not in good working order at the time it was supplied you know to your client at the time he rented it correct ok but that that scene's disconnected to me from the argument that you presented to the district court very clear in your appellate briefs but in the district court when i had looked i went back and looked at your summary judgment briefs ok what you were arguing is that home depot's material breach of the contract was by providing mr calvin with the wrong machine ok and so right that's that seems to that disconnect seems significant to me because it raises a it raises a bit of a waiver question or a lot of a waiver question i understand the question your honor and i agree the focus of the argument in responding to the summ whether the machine identified in the contract was what was provided to mr horan but i think the underlying argument and it may not have been as fleshed out as it was on appeal but the purpose of raising its condition and the testimony of the witnesses who said it was raggedy old paint was peeling was distinct just not only that it was not this two month old machine that home depot identified in the contract but that it was a machine a poor working condition i agree it was the st out as clearly as accident or that there was a problem with the cable or anything like that you know i don't know i do not believe the friend did however mr morris wife to return to home depot this is in the records she was deposed and she did return to home depot the day after the accident because they were still experiencing their urgent ongoing plumbing issue and they had hired a roto rooter to drain their line and they needed a part to help assist with that and when she was at home depot that day she did notify them that there had been an injury limiting damages for breach if the court finds that those provisions do not violate public policy what would remain of any remedies for negligence well your honor st i would argue that paragraph three which is the contractual damages provision does not apply to any of plaintiff's claims he doesn't assert breach of contract so i don't think that those provisions limit any of his claims but for the broader release and exculpatory provisions even if you don't find that they violate public policy you still do have the job of deciding whether this contract this specific contract should be enforced as written and the st step in that is to look at these very contradictory provisions the very st paragraph of the contract is the one paragraph where home depot clearly assumes an obligation which is to provide the mission equipment and good working condition and then later home depot purports to relieve itself of that obligation completely and if you analyze the case under illinois law it's a sunni would since we've argued on island nobody disputes that that's the law that applies i think the jeweler's mutual case out of the illinois supreme court is a very illustrative case and it talks about a lease for safety deposit boxes where and the landlord promised to use x exercise ordinary care to prevent the ana arised opening of safety deposit boxes but the later in the paragraph purports to relieve itself of all liability for any of its breaches negligence breach of contract and the court there said you could not promise to do one thing in the contract and elsewhere basically just claim your obligations to perform that application and your time to act and we we can time that's the exact same situation here home depot expressly promised to provide a machine in good working condition and then later says we are exculpated a relief from any liability including f of contract or breach of warranty but that is true the district court addressed that right the district court said no to know that you're in there or not if in that scenario there was a hypothetically a machine not in good working order there is there's a remedy you know you can get to an it's in that situation you know one provision completely cancelled another but i thought that this record in the contractual analysis here which seem right to me so no you don't have a complete cancellation situation well but your honor the that's true if the only saw our contact damages but it doesn't address really you know providing a machine in good working condition here is very different than in the jeweler's mutual case because they're the only damages could be financial damages monetary damages here not providing a machine in good working condition could cause breach of contract or warranty damages but it could also cause personal injury and that this circles is back to it's not the argument you made below though you made you made the argument below on the on the contractual breach in terms i think the attempt was to say it was the wrong drain cleaner and there was a lot of evidence produced about how the condition of the drain cleaner was not warned expect of a two month old drain cleaner and its condition overall was a very h disputed fact issue i mean that's i think that's one criticism though of the district court's decision that we have is that to enforce the scope atory provisions the district court necessarily should evaluate whether ok it's affirmative matter affirmative defense i went to home depot bears the burden of persuasion it's a summary judgment proceeding i want to go bears the burden of persuasion we're now suing for breach of contract in this context breach of warranty i agree with sort of another claim but we're talking let's just say strictly the negligence claims the court before it allows home depot to prevail on an affirmative defense to our tort claims should be required to establish that itself is entitle to enforce the provisions of the contract meaning it did not materially party who created the contract made an express promise to do something or two to do something in the cases that are and point which is jewelers mutual and a store paper products case in those two cases the contracting parties promise to exercise ordinary care are to perform their work and work in a workman like manner so in those cases the courts do find if you then try to get out of those promises those two provisions conflicting you can't do it at the very we're not we're not to deliver as promised fedex failure fails to deliver a package as promised there's a limitation of damages provision that says you get your money back but if the widget causes the factory to shut the the lack of the widget causes the factory to shut down for a minute you don't get millions of damaged dollars in damages and consequentially images right but it assumes a breach so the fact that there's a breach of the difference and and maybe we just focus on the procedural aspect which is this is affirmative matter that a home depot never plaid never once pled this is an affirmative defense so it could be  on the claim against electric eel on page thirty eight of the response brief blast paragraph the defense list evidence needed to make out the negligent i see that page as saying plaintiff's failure to disclose an expert is that the last paragraph to begin there i do not have it in front of me unfortunately well i just ok i'll just go generally to i know electric eel has claimed the plaintiff has to present which is we have presented evidence of how the machine functioned on the day the plaintiff rented it the only evidence home depot provided was evidence of its practices and procedures regarding inspections which notably not only did the home depot's fully the machine it issue it also discarded contrary to its own written procedures it discarded every inspection tag service tag and every tag that it said it uses to demonstrate that its machines have been inspected and cleaned so they not only supposedly of the machine but they supposedly they had their own evidence of when it was inspected when it was cleaned so the only evidence we have as to the condition of the machine on that day was the three occurrence witnesses who testified to a significant problem with the machine so the evidence would be the three witnesses who testified that the machine came out with  it but not only that the claim of testified that when he went to reverse the snake out of the drain the foot pedal malfunctioned there was no pressure coming to pull the snake out of the drain and that the reverse toggle also didn't work so he could not reverse the snake out of the drain and when he attempted manually which is exactly provided for in the instructions when he attempted to manually retrieve it that's when it missed when you say when you say only evidence i'm i have a memory that didn't the home depot employees talk about you know not just their standard practices but you know no indication that they didn't occur on this particular day because i think it goes to you know george hamilton's question about the injury being reported a bit i wouldn't expect a home depot rental office person to remember you know what happened with each machine kind of coming and going i mean this is going on all day long right in you know very very many number of rental transactions i would but that but didn't they aren't they did offer testimony today about what they do to get machines ready and  named davis or something testified about what he what he does when machines come back yes they testified about their practices but you're right they don't none of them specifically recalled what they did with this particular machine which is why discarding suspicious discarding of all the service tags all the customer tags all the inspection tags that are supposed to be signed off on by home do people employ it's hugely problematic all their claim of practice is can't be established by any of the report generated a repair order repair generated by home depot august th so this is after the preservation letter is issued it's the day after home depot's claims manager sent notice to home depot to pull this machine and preserve it the day after they got that message there was a repair order put in for this machine and then it said the repair was completed in november so there was hugely suspect activity that happened with this machine and the there are no witnesses who have independent memories of what they did and the only employee who did testify i felt veranda testified that he had inspected the clean the machine pursuant to his normal procedures two weeks before plaintiff rented it so and then there was no evidence of activity until the plaintiff rented it but suffice it to say i mean the evidence of the condition of the machine that day after the last inspection of it was over two weeks prior is not established by home depot and they lost all their tags and inspection records and that testimony was in dispute regarding whether or not home depot demonstrated the machine in front of plaintiff that day they claim they did he claims they didn't and they also inconsistently say he refused to have a demonstration so there was a big factor speed about whether or not they demonstrated it that day and if it really worked that day but it is notable that the rd or th day after home depot received this machine from electric you know the manufacture of foot pedal had a d and rather than sending it back to electric eel which it's kind tracked but home depot is says it's supposed to do home depot chose to repair the foot pedal themselves so the whole month later plaintiff gets injured claiming police court gave a true order for the appellee home depot and electric eel i think our brief was very comprehensive on all of the issues presented in this case but there were just a few points that i wanted to address that were raised in the reply brief contract limits damages for home depot's breach to repair or replacement of the machine or an adjustment to random costs  the way they're reconciled is that under illinois law the more specific per provision is given precedence over the more general so in the situation for paragraph three which limits the remedy for a defect in the machine to either replacing the machine or getting your your rental price back that provision would take precedence over the more general provision in paragraph nine  well it is that that deals with our obligations to meet our obligations under the contract there are other things like what happened here where the where the plaintiff was using the machine that led to his injury that would not be covered by that provision so therefore i think paragraph nine is broader than paragraph three or you know machine as is with all faults so i take it that you think we have to reconcile these seemingly contradictory  well well st of all i don't think you get to that issue on the record before you indulge us ok so on the record before you the argument that they made was not that the machine was not in good working order it was that they got the wrong machine so well actually ok the district court seemed to conclude that horn was changing is argument from wrong machine to defective machine i read his summary judgment response as a sensually saying that the wrong machine had three very specific defects if we find that he preserved the defective machine argument how does that change your argument so in other in other words if he had argued in our risk in response to our motion not that he got the wrong machine but the machine he got was and not in good working condition well he argued both well actually he didn't argue both he only argued that he got the wrong machine before the district court and then on the grave  no they didn't they didn't make that argument before the district court they made that argument in their nine thousand nine hundred and fifty nine rule fifty nine motion where they then argued no that's not we were saying it was a machine that wasn't in good working condition and here are all the problems with the machine well i guess i i guess i read the summary judgment response differently and we'll of course go back and look at it and i have obviously read read them carefully because that was one of the big issues that we raised in our our response for relief was that the issue that they were raising here's here's the sense right now not sufficiently clear that's from their brief yes they made that argument in response to a nother another arguments there was too disputed facts right but then they but they didn't use that and their response to the motion they they made the argument that it was the wrong machine it wasn't an electric eel model are that they were given that he was given it was only later with respect to the breach of warranty argument work he tried to raise the he tried to make the argument he didn't give us a machine to work and we circled switch did not work three the foot pedal did not work i don't know how much more could be said about it being defective in specific ways ok so if the if he was arguing that the machine was not in good working condition when he received it then under paragraph three of the at home depot's option no i believe it said that the should the home depot should fail to meet its little any of its obligations under the supreme and i didn't bring my magnifying glass  option to have it repaired or replaced still or at our option we could give him a rental adjustment its own obligations under the contract where in the record did home depot meet that obligation to demonstrate that it provided a machine in good working order as it says it failing to give us the right machine and therefore you're not entitled to enforce the exculpatory clause because you breached the contract and our response to that was that you admitted that this the machine you got by pleading at your complaint and by it middling that it was of electric eel model our in our statement of material fact so that argument that that they didn't get a machine in good working condition was never made to the district court it was that they got the wrong machine and we responded to that by saying you admitted that this was the right machine and two different ways let me ask you a hypothetical ok i don't want to talk at all about the facts of this case so don't respond by saying this is what happened here ok or not what happened here let's let's suppose that an individual comes into home depot and rents a power sprayer ok for painting or spray off the driveway right in the spring and let's suppose that the manager of the rental office of greed and testifies under oath that the rental sprayer was not in good working order we knew it and we rented it and that's as clear as day in the transcript ok and the renters then hurt in the driveway badly hurt because it's not in good working order ok analyze that as a legal matter for me these are the the exculpatory clause how does that work or not work well initially he would be entitled to his remedy under paragraph three which is judge hamilton school you know a you know he's saying i'm not look i'm not worried about a new machine i'm worried about know lost my finger or what you know some serious and then if you turn to paragraph nine unless there would be an argument of but would you say i guess i'm trying to say is would you we knew it wasn't in poor working order and we rented it it would certainly be a much stronger argument for the plaintiff in that situation than i would have i would and that and  we're not it's not ambiguous correct and we and of course our position is that we did give them an offer for my hypothetical not not the case in your hypothetical  so that that's the that's the difficulty that i had with the whole you know specific governs general it sadder and sadder i mean i follow it just fine but we can hypothesize a set of facts that i think it really did really difficult was the guy that the guy that had his arm amputated and has tested sworn testimony that the machine was not in good working order right he doesn't want to reynolds the adjustment well i would i would say that then under that hypothetical going back to black letter contract law if you breach the contract you can't enforce other provisions of it so under your hypothetical the provision one was breached and therefore the other provisions are not enforceable by by unenforceable well it is it is it and i don't i don't mean to come play lawyer and get picky with words here right but is it is it prove or create a jury trial issue creator create a question of material question in fact well for that they don't because that's not what they argue they argue that i got the wrong machine right then we search and edit and it's really their argument that circular because they say well we can't prove that it was wrong wishing because you lost it but the way they they they just i mean these were the decisions that they may they decided to make of to draft their complaint to say that they got an electric eel modern model r and that the plaintiff was injured and in response to the motion motion and try to argue that that's how we met we met we didn't get a machine in good working condition and though the one of the thing that i want to say about that issue since we're getting into a lot of facts here is that there's one fact that they completely ignore and that is that or that the series of events on this particular machine it was rented once the foot pedal was replaced was rented twenty three  times without incident it's rented to the plaintiff who has this incident but it's returned to us with no mention to us that a finger was lost at that there was a problem we clean it we get well i would if i didn't know that they were going to make this argument but i would say we have here or you're right i would have to provide that in the record but i think we can find it in the record did the spouse testify in it did she offered up she was she deposed yes she was case about the number of rentals the fact it was rented the plaintiff from that it was rented again and the plaintiff's description of how the accident happened he was able to conclude that there was nothing wrong with the machine that the way this accident had to have happened was through user ms their mistake that he could not inspect the machine how is that anything but just work well i think again the key fact here is that it was rented so many times without incident this happened and then it was rented again without incident it's a key people whose kids and causes a problem does it have to be replaced they're going to be repaired it would depend on the kink that usually it's replaced and there is another who bags but it could be repaired it might be uncapable well could it be repaired davis who received the machine testified that had a pink been found in it he was been he would have been required to note that and charge the customer two hundred and thirty dollars for replacing the cable and that did not happen in this and again it was rented one more time after this without a kink in the cable and what was the repair order for the repair order i'm not sure that there's anything on the record as to what that repair order was and you're saying no i want to make sure i understand heard you write your same when this what's his name davis the worker if davis would have found  practice is what it is correct and as you pointed out that had he been told when the machine was returned by the ways the guy you use this last half a finger or is in the hospital right now that might have been something that he would have remembered but you know his return without any time has one more question who's going to i'm i don't mean to take this this is literally intended as a nd question what in the world happened to the machine i mean don't you all corn teen this stuff when somebody calls in and says somebody got badly hurt here they lost a finger shirt so what happened what happened is that the machine was segregated it had a tag put on it it was in a facility where it was locked and then the plaintiff didn't ask for it for at least six months and at the point where they then the plaintiff's counsel did ask for it we went and looked for it and it was not there they assume it was sent a preservation letter five days after the accident that was acknowledged a month after the accident and as i mentioned the next day after the claims administrator told home depot to segregate that some mystery repair order was put out the deposition transcript i don't know if his report is but yes they both testified to her coming into the store the next day and i did mention that someone had been injured that the last point is the important one right he's not contesting she went to the store o mentioned that her husband had been injured and mr branscum has prepared a written report that is in the records if you like me this of the service up a man a memo identifying or on the record that is i would think it would be helpful for both sides to provide such a letter with ten days of the argument all potential toward liability and i do think that has significant policy concerns because it will end up in the situation where customers will have fewer protections than if they had bought the machine from home depot and it shouldn't be that way because home depot actually has exclusive control over the machine or its customers other customers have exclusive control over that machine at periods of time so why in the world does it make sense in a product situation for us to merge have fewer protections than if