because i lived in when i lived there in two thousand and seven i just want it on the record i mean i just i don't feel that it's any reason to recuse myself from this case but i want to disclose that to the lawyers and it seems like your last could be on the motion to dismiss and i my fear your honor is that the the issues relating to the proposed class will have an improper impact if you will on whether these particular plaintiffs can stay to claim under the causes of action so i beg the court to consider the fact that the class definition is not at issue not just it's disclosing this little piece of information anybody has a problem with that they can say honour's that whether the you feel you to provide the service that is required as a matter of law as a matter of legal standard is systemic or individual is not not really at issue if if com ed failed in its duty of care if com ed failed to provide power in accordance with section five slash sixteen one twenty five it doesn't matter if the what matters for instance your honor the failure to restore power or occurred in accordance with the already established legal standard is pleaded and well pleaded if you will by the plaintiffs know whether or not conmen met that standard is something that the court can easily decide indeed in many other cases that the plaintiffs have cited you pretty much abandoned all of your declaratory judgment really no your honor we haven't abandoned any of our claims of breath of injunctive relief they saw the receiver they asked the court to instill if you will are ready to require my med to meet a reasonable and necessary standard of care that was not yet if you will that the village of deerfield decision that was just decided is the best case in the plaintiff's favor ok in that case the court established that the question of jurisdiction was properly the plain infrastructure is the we're already pointed out in the pleadings under five five sixteen one twenty five another thora g s that com ed was already under a duty to provide a plan and already indeed had instituted a plan for  ational power your honor we have a ledge that that plan was already in effect and it just didn't work therefore there's no need for the trial court to establish what the proper standard even is because apparently how many are to dismiss a thirty minute complaint clearly indicated that it thought that it was possible that it would have to opine on the proper standard of care this is a motion to dismiss there are pleadings under which it would it was negligent in trying to carry out the plan ok and you think the deerfield gives you some support for the possibility that you can plead a cause of action that will get by  entitled to as the basis of an outage is the loss of what you would have paid for that service had it been provided so that if you without electricity for twelve hours you could have repeated twelve hours on your bill well your honor it's basically what you're arguing i think of by understand your position is that the restoration plan really is a recognition i don't need part of combat that they have a duty and that they've assumed an eight by providing for a restoration plan they've assumed a duty and it's required by the statute as well that is best director honor and in fact under five star sixteen one twenty five like in bell switching it's very not the storm that we're seeking damages arising you know you're seeking damages for the consequences of the storm you know your honor we're seeking damages for little you know i mean you still have to plead you still have to plead negligence in the way that common law neg gence would be recognized by a court ok and then you have to rewind the film to foreseeability because that's always an initial determination that the court has to make as to when when you tried out you  your complaint involving thirty thousand people and god knows how many you know amendments to the complaint are going to take place as you add people to it whose phone was spoiled in their freezers etc et etc at some point you're going to have to address the court's concern for the issue of foreseeability or mass saudi choose your honor where this storm are for commonwealth s are you want to cut off did you cut off i'm a twenty four hours oh only under five slash sixteen one twenty five ok for those circumstances and player on  end the statute is very clear in a sad wishing right below the in those circumstances so basically what you're saying is that if the storm occurs and the tree falls on the power lines lightning it's easier lightning is nice there's a big storm and lightning strikes the central grid the commonwealth edison in northwestern illinois and knocks out two  you're seeing up to watts that under traditional commodore principles of negligence it was foreseeable the commonwealth edison should realize that a very substantial portion of their infrastructure to be knocked out by lightning your traditional standards of foreseeability we should at least make that determination as judges that we move from it being first a question of law of course foreseeability then involves public policy doesn't which also involves the i c c and we should get that the at point where this always will be under your theory a question of fact here every vision of a situation where would be a question of la and foreseeability would be decided is the question of wall and the scenario involving comment what you want to see you can you think of any there are already pleaded facts indicating that the storm was for syria both all due respect  i understand that can you can see who won they wouldn't be that's what i'm asking because i initially asked you whether what you're really telling us is that every power outage ultimately results in a triable issue  you're asking me to do i think they're asking us to do you want us to write in opinion that would say that foreseeability in these kinds of situations i did use caused by acts of nature storm streets falling on power repair the damage caused by a natural storm or natural disaster then they'll always be a question of fact as to whether they effectively implement i leave the question of foreseeability has not  in this case what kind of a burden are we going to put on the utility with respect to their liability for damages to their customers as a result of storms like well your honor it could well be you mean you would but it might be more limited in terms of the liability that they will be facing but there's no question that a liability that they will be facing under your theory will be questions of fact for the tri and plaintiffs contend that they have a right of action under the statute which is clear in fact there's no involve a question of foreseeability it's a standard set forth by the legislature judge i i think i understand your position of celebrity right but one thing i don't understand here feel case they send it back to to get around it then you're asking this you see that's the whole problem here you know that you're asking this court to reverse the circuit court and to have this ma five sixteen one twenty five for instance establishes a clear standard of care not sure what the commission would need to opine on if the trial court determines that certain matters are proper for the commission to tread first light on if you will then so then so will give you a chance to respond after we've that part of the case but let's talk about a complaint because even this morning in the last twenty minutes or so we've heard some of the same struggles that i think late the case of a lot today sitting here now we've heard yet a new version of what the case is about what i heard from countless argument was that this case is about ahmed filing a plan and not following through with a plan that's not to complain that i heard and in response to in the statutory standards are all on a strictly about the same concept that much of a small business in illinois switching and pretty much as far as i know your field aside illinois switching is the last word of our supreme court and this kind of it's ok and this case is somewhat different from what my switching to because at least in illinois switching they could that they were negligent in the way they prepared the switching station to protect it from fire that's what one of the troubles things they're now i suspect but there's the other what they're really arguing here is they're trying to take the dissent in illinois switching and the dissent in the appellate court opinion in illinois switching both of which thoroughly cover all of these issues it seems to me and they're saying well we can somehow shoehorn in a massive storm and the consequences of for the myriad damages that occur the role the result of a big storm the problem lay help with the way they're trying to plead their case is the same problem i think the trial judge had there's a difference between failure to put a yellow sleeve on the table ok in the back yard i have a guy have a cable in my backyard that cable is a responsibility of commonwealth that is a while back there was a case where it was a case i don't know where the case went although i do know is that commonwealth edison has gone around putting yellow sleaze on all of those cables that's different that is maintaining their superstructure that's different than the damages that are caused by an act of god the storm they want to take the cable case and transfer it to a class action for thirty thousand people or one hundred thousand people because of storm damage at some point there is a public policy issue and there is always a public policy issue and the initial determination as a question of law is to foreseeability and i think that's where they're going to have real hard time  they want us to take all of the cases the incidental cases and they cite them all or commonwealth edison has been negligent in maintaining its property or if it's truck runs over a kid you know  take those cases and transfer it into these for some reason class actions for failure to maintain infrastructure on a massive scale and my only question is as a matter of public policy where would the commonwealth edison or illinois bell or any other utility buy insurance to cover themselves against these kinds of losses and answer i don't think there is one other than a court making a statement and usually as a matter of public policy we're going to hold public utilities liable for these kinds of consequential damages i use consequential not on the legal side because i don't want to get into a mormon argument but but that's where this case really comes down to and i think the last word from the supreme court on that was almost which i agree just the scale and i'm sorry for the speech it's subtle opinion i don't think we can write an opinion that gives them relief without some signal from the supreme court that we're opening things up but i certainly agree with that i also think that you probably don't need to go anywhere near that because let's talk a little bit about a piece of discretion there were multiple efforts to amend this complain something like that was there some outside your your guard what is it that happened to you and we never got an answer we never got anything clear when you go through the complaint this is the first of many complaint that's on file you go through that complaint you find nothing like that they're here generalized allegations justice were you asked about if your field case counsel said that your field case was far broader than this one all that's not true when you look at the request for relief in the complaint it's and because of all its deficiencies and ran it for what eighteen years and which is different from that kind of circumstance he's here we have a right we have a regular that's been trusted by the legislature and let's be clear no one is saying that an utilities act and they can go to the commission and bring their claim there so no one has said that out before a lot of us warning about section sixteen when twenty five let's just spend a minute on that course that's the cause of action in quotes i put it  that the court below deny the meat receipt but even if we look at the substance of the complaint you can't take away the first part of section sixty one twenty five either like the talks about a thirty thousand person outrage and so forth with case and what we're asking you to do is to look at the case but what it is which is a situation where the plaintiffs have multiple opportunities to state a claim and couldn't do so the case really ought not be viewed as some sort of a referendum so we can see what's going to happen if we allow these times it's all well part of the problem again though is that i think and to with what the plaintiff is trying to allege here is that once commonwealth edison undertakes a duty that they may not have originally had like these preparations for emergency situations involving people who have to have power even when there's an allergy making  is highlight their negligence and the duty they've undertaken the power outage puts a spotlight on their negligence undertake if it were i'd like to turn that spotlight that's good that's what that's what they're trying to ple well let's let's just assume they did i don't know how specific they did they need to be about that but i think they probably have to be a little more specific than alleging that thirty thousand people may have been damage by their failure get whatever you claim your damages to be the only thing you're going to be able to get is recovery of what you paid for the service you lost and what that which in case also says that there is no duty to provide on iraq uninterrupted s planes is this really is the standard we heard counsel say legal standards been pleaded early completed early well what is it is it a duty not to have power ever go off because that's what they started out possible outages you're responsible for doing it negligently well that's not in the complaint but even if it worked that particular allegation squirrely i think it runs right up against the statutory prohibitions which anticipate this kind of an argument but you know you got to give her chance to plead her good lawyers i think we've covered just about every point that i've got to make if there's anything else i can do to help the court be happy to answer  honor and in the court just made clear in the village of deerfield that this type of case would not affect rates if this were a case where only four plaintiffs for before the core there is no class allegations were pla decision not about whether the elements matter particular duty but the court actually acknowledged in the transcript we have tash to our opening brief but this case was his decision was not about that it was about whether it followed it could quote unquote political regular to the pats attention is that we are less claims under which the court doesn't have to play regulator the standard is already set forth in the statute they stand or in section one twenty who who have basements there fred it and irrespective of whether the adage affects thirty thousand people or six hundred thousand people back i should and shouldn't be before the court right now because before the court we have all plaintiffs who suffered significant damages the illinois adventurous that sure is clear it's given us a statute your honor which enables customers to bring up private cause of action for violations of the statue it's this argument about having the quote play regular is only recently introduced by combat it was not a common or main thread in its prior arguments only after plaintiff had a mentor the complaint in the third amended complaints motion to dismiss th around but we have a cause of action for breaching pre established standard of care which is well clued in the complaint which is already stated in the car in the statute assaf such as fast life sixteen one twenty five in terms of the right plaintiff and her and her or her son who can breathe without a ventilator twenty four seven we will ensure that meanwhile we've arranged that v i p s very important persons ahmed rushed to restore rare when someone is out of power that's why they ask customers to call now this is foreseeable this it's clear because it's already called a fact in the statute your honor it's foreseeable that conrad needs to have a plan if you if if it was assumed that strong sorry for the damage to read this whole thing then suggest again that if this belongs anywhere you want the mission no your honor because we have a private because the statute is clear that the of the statue which is not to be disregarded either no i'm not denigrating look the clearly under the statute you're yellow sleeve on the table indicates that commonwealth this and understand is there a lot of potential liability courts are going to keep pushing you back into the commerce commission to resolve is that if we leave the door ajar for the kind of damages that you want to pleaded proof for thirty thousand people here and certify the class ok we're going to have to set up a special court here commonwealth edison case now you may say as a matter of public policy that's what the legislature wants to run and i think there are the crane to relief that you really want that the statute itself already provides a procedure in which combat or any utility can make a request for a waiver on grounds that the  damage not the stone that the damage rests on preventable by that's a procedure provided by the legislature now it would be improper for the court to say that procedure doesn't matter because we're holding as a matter of customer is aggrieved by a violation of the standard under the act that they can say a claim that any can bring a cause of action under the act the public policy matter to the extent the prior passing would matter based on the press of the class not asking for that but what do you think would happen if we directed commonwealth edison to good group you do kind of relieve which required they spend millions and millions of dollars on anticipated dollars and their current restructure to upgrade their