In the

United States Court of Appeals

For the Seventh Circuit

No. 19-2082

CALVIN HORNE,

Plaintiff-Appellant,

v.

ELECTRIC EEL MANUFACTURING

COMPANY, INC., et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:17-cv-08080 — Ronald A. Guzmán, Judge.

ARGUED JANUARY 23, 2020 — DECIDED FEBRUARY 10, 2021

Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges.

ROVNER, Circuit Judge. Calvin Horne was injured while

using a drain rodding machine made by Electric Eel Manufacturing Company, Inc. (“Electric Eel”), and rented to him by

Home Depot USA, Inc. (“Home Depot”). He brought claims

against the defendants for negligence, breach of warranty, and
2 No. 19-2082

strict product liability, among other things. The district court

granted summary judgment in favor of the defendants. We

affirm in part, and vacate and remand in part.

I.

In reviewing this grant of a motion for summary judgment,

we examine the record in the light most favorable to the

nonmovant,Horne, andconstrue allreasonable inferences from

the evidence in his favor. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986); Yahnke v. Kane County, Ill., 823 F.3d 1066,

1070 (7th Cir. 2016). The review of the record was complicated

inthe district court when the parties failed to fully comply with

Local Rule 56.1.1In his response to the defendants’ Local Rule

56.1(a)(3) statement of material facts, Horne failed to support

his denials of certain of the defendants’ facts with specific

references to the record. The district court therefore deemed

Horne “to have admitted all properly supported material facts

1

That Rule requires the movant to furnish “a statement of material facts

as to which the moving party contends there is no genuine issue and that

entitle the moving party to a judgment as a matter of law.” Each fact must

be supported by “specific references to the affidavits, parts of the record,

and other supporting materials relied upon.” In turn, the party opposing

summary judgment must include “a response to each numbered

paragraph in the moving party’s statement, including, in the case of any

disagreement, specific references to the affidavits, parts of the record, and

other supporting materials relied upon[.]” In addition, the nonmovant

may file “a statement ... of any additional facts that require the denial of

summary judgment, including references to the affidavits, parts of the

record, and other supporting materials relied upon.” The Rule warns, “All

material facts set forth in the statement required of the moving party will

be deemed to be admitted unless controverted by the statement of the

opposing party.” Local Rule 56.1(b)(3)(C).
No. 19-2082 3

in the defendants’ statement.” Horne v. Home Depot USA, Inc.,

2019 WL 556709, *1 n.1 (N.D. Ill. Feb. 12, 2019) (hereafter

“Horne I”).

2 The court “also disregarded several immaterial

facts contained in the parties’ Local Rule 56.1 statements, as

well as statements and/or responses that are not supported by

the evidence cited.” Id. As is apparent from the district court’s

recitation of the material facts, the court did credit certain

statements that Horne properly supported in his own statement of material facts. R. 172. None of the parties contested the

court’s decision to deem certain facts admitted and to disregard other asserted facts as immaterial or unsupported. We

have therefore largely adopted the district court’s version of

the facts for summary judgment purposes.

On July 21, 2017, Horne noticed that the main sewer drain

for his house was clogged. He decided to rent an electric drain

rodder from Home Depot so that he could attempt to clear the

drain. Horne went to the tool rental department at the Home

Depot in Homewood, Illinois, and told an employee that he

needed an electric rodder. The employee selected a machine

and presented it to Horne, who then signed a three-page rental

contract. The entire rental process lasted approximately ten

minutes.

The contract identified the rented device as “Drain Cleaner

100' x 3/4",” with Part Number 0448505995. The equipment

corresponding to that part number was an Electric Eel

2

In their appellate brief, the defendants claim that “the court deemed all

of defendants’ statements of material fact admitted.” Brief of DefendantsAppellees, at 12. That is an overstatement; the court limited the admissions to the defendants’ “properly supported” statements of fact.
4 No. 19-2082

Model R, which had been shipped to the Homewood store on

May 2, 2017. That particular machine had been assembled

manually by Electric Eel employee Richard Berry. Berry tested

the machine before it was shipped to the Homewood Home

Depot, ensuring that the foot pedal that acted as an on/off

switch was working properly, and that the forward/reverse

toggle switch also worked. When the machine is working

properly, the operator presses down on the foot pedal to start

the motor on the drain rodder, causing the cable (and the cage

in which the one hundred foot cable is coiled) to rotate. When

the pedal is released, the motor stops. On May 7, 2017, one day

after a customer returned the machine and just five days after

the device had been delivered to the store, a Home Depot

employee determined that the foot pedal was defective. The

pedal was “leaking air” and the Home Depot employee

repaired the machine by replacing the foot pedal on May 10.

Prior to the event at issue here, Horne had rented electric

drain rodders from Home Depot a handful of times over a

period of many years to clear the same drain at his home. The

rodder he rented on July 21, 2017, appeared different from

those he rented in the past. This machine was “raggedy” and

“kind of old.” It had peeling paint, was rusty, and had a “dingy

yellow” plastic cover overthe machine’s cage and cable. Horne

did not complain about the condition of the machine at the

time of the rental because the Home Depot employee had

selected it and it seemed fine to use.

Horne took the machine home and read the operating

manualthat Home Depot provided. Two friends, PerryBennett

and Reginald Tolliver, were with Horne as he set up the rodder

and began to use it. After positioning the rodder near an
No. 19-2082 5

outdoor access port to the drain, Horne manually lowered the

device’s cable until it reached the bottom of the access pipe,

approximately three to four feet underground. At that depth,

this vertical section of pipe connected to a horizontal pipe that

extended in two directions, toward the house and toward the

street. With the forward/reverse toggle switch in the forward

position, Horne pressed down on the foot pedal in order to

cause the cable to rotate and extend into the section of

horizontal pipe leading toward the street. Afterthe cable made

the turn, Horne lifted his foot from the pedal so that he could

manually extend the cable into the drain until it reached an

obstruction. He then put his foot back on the pedal in order to

advance the cable through the obstruction. The cable was

extendedapproximately sevento nine feet into the drainat that

point. As the cage and cable rotated, Bennett saw a bend or

kink in the cable as it emerged from the cage of the machine.

He alerted Horne, who then also saw the kink in the part of the

cable that was unspooling from the cage of the machine. He

took his foot off the pedal and removed his hands from the

cable.

The kinked part of the cable had not yet reached the drain

when Horne stopped the device. Bennett advised him to not

put the bent cable down the pipe, fearing it could crack the

pipe. In order to remove the cable from the drain, Horne

placed the toggle switch into the reverse position and then

pressed down on the foot pedal. But the powered reverse did

not work, and nothing happened when Horne pressed down

on the pedal. Horne then decided to remove the cable by hand

so that he could return the malfunctioning machine to Home

Depot and exchange it for another. As Tolliver watched, Horne
6 No. 19-2082

tugged the cable with both hands, applying an amount of force

that he described as “barely none.” The cable immediately

wrapped around his right forearm and hand, and he was

flipped over and thrown to the ground. The machine also

flipped over. Tolliver confirmed Horne’s account of the cable

wrapping around Horne’s arm and flipping both Horne and

the machine to the ground. A distracted Bennett did not see

how Horne was thrown to the ground but saw Horne on the

ground seconds after advising him of the kink in the cable.

Horne’s right hand was badly injured by the cable and, after

the wound became gangrenous, most of his right index finger

had to be amputated.

Horne sued Home Depot and Electric Eel in state court,

bringing claims of negligence and breach of warranty against

both defendants. He also brought a claim against Electric Eel

for strict liability for producing a defective and dangerous

product. Horne later added a claim against Home Depot for

spoliation when the company lost the machine at issue months

after Horne’s lawyer asked the company to preserve it as

evidence in Horne’s civil action. The defendants removed the

case to federal court and eventually moved for summary

judgment.

In granting judgment in favor of Home Depot on the

negligence and warranty claims, the court relied entirely on a

broadly drafted exculpatory clause in the rental contract. The

court concluded that the spoliation claim was “derivative” of

Horne’s other claims and failed because Horne could not

demonstrate that the loss of the evidence was the proximate

cause of his inability to prove his substantive claims. For the

strict liability claim brought against Electric Eel, the court
No. 19-2082 7

found that Horne failed to produce expert or other evidence of

a design or manufacturing defect in the machine that he used.

The warranty claim failed for lack of contractual privity

between Horne and Electric Eel. The court rejected the

negligence claim against Electric Eel because Horne failed to

raise a material issue of fact regarding the condition of the

machine when it left the manufacturer’s control.

Afterthe court grantedjudgmentinfavorofthe defendants,

Horne filed a Rule 59 motion contending that the court

misapplied the parties’ burden of proof in summary judgment

proceedings, misconstruedIllinois law,andimproperlyignored

material questions of fact that precluded summary judgment.

The court deniedthe motion, concluding that Horne couldhave

raised the issues earlier and also that he was simply recasting

earlier arguments. Horne appeals.

II.

On appeal, Horne asserts that the district court erred in

granting judgment in favor of Home Depot on the basis of the

exculpatory provision. That provision is unenforceable, he

contends, because Home Depot materially breached the

contract by providing him with a drain cleaner that was not in

good working condition, contrary to an express promise in the

agreement. He argues that the district court improperly placed

the burden on him to disprove Home Depot’s affirmative

defense. In any case, Horne points out, the evidence regarding

the condition of the machine was in conflict, and that alone

should have precluded summary judgment. Horne also argues

that the release and exculpatory provisions of the rental
8 No. 19-2082

contract are procedurally and substantively unconscionable.3

He seeks to reassert his spoliation claim against Home Depot,

contending that the company’s loss of this evidence impaired

his ability to prove that the device was defective. As for the

judgment in favor of Electric Eel, Horne argues that the district

court erred in ruling that his failure to present expert testimony

was fatal to his claims, especially in light of testimony from

Horne and his eye witnesses regarding the operation of the

machine on the day of the accident. Finally, Horne maintains

that the district court erred in quashing a subpoena issued to

RGIS, LLC, a non-party that tracked inventory for Home

Depot’s tool rentals.

Home Depot responds that Horne waived his primary

argument on appeal, namely, that the exculpatory clause was

unenforceable because of Home Depot’s material breach. If the

argument was not waived, Home Depot argues in the

alternative that the undisputed evidence demonstrates that the

machine was in good working condition. Home Depot also

asserts that the exculpatory clause is enforceable and not

contrary to public policy under Illinois law, and that the

spoliation claim was properly dismissed. Finally, Home Depot

contends that the district court did not abuse its discretion in

quashing the subpoena issued to RGIS because it was untimely.

3

In the district court, Horne did not preserve an argument regarding

procedural unconscionability, waiving the issue. He did contend that the

contract violated public policy, a claim that he now seems to reframe as

substantive unconscionability.We will address hispublic policyargument

but any stand-alone assertion of substantive unconscionability was also

waived.
No. 19-2082 9

Electric Eel maintains that Horne’s factual admissions defeat

his claim for negligent manufacturing, and that Horne lacks

anyevidence of defective design. Electric Eel also contends that

any claims for breach of warranty fail because there is no

contractual privity between Horne and Electric Eel, and

because Horne lacks evidence supporting his claims.

A.

We review the district court’s grant of summary judgment

de novo, and as we noted above, we examine the record in the

light most favorable to Horne and construe all reasonable

inferences from the evidence in his favor. Anderson, 477 U.S. at

255; McCottrell v. White, 933 F.3d 651, 661–62 (7th Cir. 2019).

Summary judgment is appropriate when there are no genuine

disputes of material fact and the movant is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson, 477

U.S. at 247–48; McCottrell, 933 F.3d at 662. “Although federal

law governs procedure in a case in which federal court

jurisdiction is premised on diversity of citizenship, state law

applies to substantive issues.” Skyrise Constr. Group, LLC v.

Annex Constr., LLC, 956 F.3d 950, 956 (7th Cir. 2020); Fednav

Int’l, Ltd. v. Continental Ins. Co., 624 F.3d 834, 838 (7th Cir.

2010); RLI Ins. Co. v. Conseco, Inc., 543 F.3d 384, 390 (7th Cir.

2008). “When neither party raises a conflict of law issue in a

diversity case, the applicable law is that of the state in which

the federal court sits.” RLI Ins., 543 F.3d at 390. No party raised

a conflict of law issue here, and Illinois law therefore applies to

the substantive issues.

Horne devotes much of his briefing to detailing alleged

errors in analysis by the district court. “But since the review of
10 No. 19-2082

summary judgment is plenary, errors of analysis by the district

court are immaterial; we ask whether we would have granted

summary judgment on this record.” Thorn v. Sundstrand

Aerospace Corp., 207 F.3d 383, 386 (7th Cir. 2000). See also Tobey

v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993) (“The

question whether a movant is entitled to summary judgment is

one of law—one therefore that we review de novo, which is to

say without deference for the view of the district judge and

hence almost as if the motion had been made to us directly.”).

With these standards in mind, we begin with Horne’s

argument that the exculpatory provision was unenforceable

because Home Depot breached its primary obligation under

the rental agreement.

1.

Because Home Depot asserts that Horne waived this

argument regarding the company’s material breach of the

rental contract, we must first discuss the proceedings in the

district court in some detail. Home Depot sought summary

judgment on all of Horne’s claims on the basis of exculpatory

clauses in the rental contract. The primary exculpatory clause

provides in relevant part:

RELEASE, INDEMNIFICATION AND

WAIVER OF DAMAGES. TO THE FULLEST

EXTENT PERMITTED BY LAW, CUSTOMER

INDEMNIFIES, RELEASES, WAIVES AND

HOLDS THE HOME DEPOT HARMLESS

FROMAND AGAINST ALL CLAIMS, LOSSES,

EXPENSES (INCLUDING ATTORNEY’S FEES

AND EXPENSES), LIABILITIES AND
No. 19-2082 11

DAMAGES (INCLUDING PERSONAL

INJURY,DEATH,PROPERTYDAMAGE,LOST

PROFITS, AND SPECIAL, INCIDENTAL AND

CONSEQUENTIAL DAMAGES) IN ANY WAY

CONNECTED WITH THE EQUIPMENT, ITS

OPERATION OR USE, OR ANY DEFECT OR

FAILURE THEREOF OR A BREACH OF THE

HOME DEPOT’S OBLIGATIONS HEREIN.

R. 151-3, ¶ 9. Home Depot also relied on an assumption-of-risk

clause which provides, in relevant part:

CUSTOMER LIABILITY. DURING THE

RENTALPERIOD, CUSTOMERASSUMESALL

RISKS ASSOCIATED WITH AND FULL

RESPONSIBILITY FOR THE POSSESSION,

CUSTODY AND OPERATION OF THE

EQUIPMENT, INCLUDING, BUT NOT

LIMITED TO, RENTAL CHARGES,

CUSTOMER TRANSPORT, LOADING AND

UNLOADING, PROPERTY DAMAGES AND

DESTRUCTION,LOSSES,PERSONALINJURY,

AND DEATH.

R. 151-3, ¶ 7. We will refer to these two provisions together as

the “Exculpatory Clause.” Horne contended below that, under

Illinois law, a party who is in material breach may not take

advantage of terms of the contract that benefit that party, and

so the Exculpatory Clause could not be enforced against him

because Home Depot materially breached the contract.
12 No. 19-2082

2.

In setting forth the nature of the material breach, Horne

cited language from the “General Responsibilities” paragraph

of the rental contract:

The Home Depot will provide Customer the

tool(s) identified on page 1 of this Agreement

(the “Equipment”) “as is” and in good working

condition for the time (“Rental Period”) and

rental subtotal price identified on page 1 of this

Agreement (“Rental Price”).

R. 151-3, ¶ 1 (hereafter “Paragraph 1”). Horne asserted that

Home Depot promised the new machine associated with the

part number listed in the contract, but instead provided a

machine that appeared “old, raggedy and rusty[.]” R. 170, at 2.

He explained:

Home Depot promised to provide Calvin

[Horne] with the Model R drain cleaner in good

working condition per the Tool Rental

Agreement. ... Instead, he received a drain

cleaner with significant functional issues, such

as: a pre-existing kink in the cable hidden to

Calvin until after he started using it ...; a reverse

toggle switch that was faulty ...; and, a foot

pedal that malfunctioned when Calvin pressed

down on it. ... Home Depot failed to deliver on

its promise to Calvin that the drain cleaner

would be in good working condition.
No. 19-2082 13

R. 170, at 2–3 (citations to Horne’s Statement of Material Facts

omitted). He also asserted that the machine he received looked

nothing like the rodders he had used in the past and nothing

like the photographs of new Electric Eel models that Home

Depot produced in discovery as exemplars of the machine they

claimed to have provided. R. 170, at 2, 5. He could not recall

what the “Model R” designation meant and noted that the

rental contract itself listed only a part number that Home

Depot subsequently held out to be associated with a newly

assembled Electric Eel Model R.

Infurtherance of his observationthat the machine appeared

old even though Home Depot claimed that it had been recently

assembled, Horne inferred that Home Depot provided him

with the “wrong machine.” After asserting repeatedly that the

machine he was given had a defective foot pedal, a defective

forward/reverse toggle switch, and a pre-existing kink in the

cable, Horne summed up the breach in the district court

proceedings:

Here, there is no doubt that Home Depot

materially breached the contract by providing

Calvin with the wrong drain cleaner which

caused significant andpermanent injuries due to

the defective condition of the drain cleaner; as

such, Home Depot must not be able to benefit

from the terms of the contract, including

enforcement of the alleged Exculpatory Clause.

R. 170, at 6. Horne provided variations on this theme that the

Exculpatory Clause was unenforceable due to Home Depot’s

breach. For example, because the contract promised a machine
14 No. 19-2082

in good working order, he asserted that injuries caused by a

defective machine were not within the scope of risks

contemplated by the Exculpatory Clause. R. 170, at 10–11.

Horne also argued that the exculpatory provisions of the

contract contradictedthe express promise to provide amachine

in good working order, contrary to Illinois case law that holds

that a party may not promise to act in a certain manner in one

part of a contract and then exculpate itself from liability for

breach of that very promise in another part of the contract. R.

170, at 10. Horne also claimed that the Exculpatory Clause

violated public policy, and that the contract itself was silent

about the risks and dangers of operating the machine, making

no mention of the type of injury that Horne sustained. R. 170,

at 6–9.

3.

In its reply, Home Depot asserted that, because Horne did

not sue for breach of contract, his reliance on contract law was

misplaced and had no bearing on the enforceability of the

Exculpatory Clause.4 The company made much of Horne’s

inference that he was provided the “wrong machine.” Home

4 Horne, of course, did not assert a stand-alone claim for breach of

contract in his complaint. Instead, when Home Depot sought to take

advantage of the contract’s Exculpatory Clause, Horne asserted that the

company could not benefit from that provision in light of its own material

breach of the contract. As we discuss below, because Home Depot relied

on a contractual defense, Horne was entitled to invoke contract law in

disputing the applicability of the Exculpatory Provision to his claims for

negligence and breach of warranty. Moreover, as the district court noted,

Horne’s claim for breach of warranty is a contract-based claim, and so a

contract-based argument is appropriate.
No. 19-2082 15

Depot complainedthat, up to that point inthe litigation, Horne

had focused on being provided a defective Electric Eel

machine, and was now taking the “contradictoryposition” that

he was provided the “wrong drain cleaner.” R. 178, at 3. Horne

had alleged in his complaint that he rented an Electric Eel

ModelRdraincleaner and was operating that brandandmodel

when he was injured. Because Horne received the drain cleaner

listed in the contract, Home Depot denied that it materially

breached the contract by providing “the wrong drain cleaner.”

R. 178, at 4. Home Depot also argued that the contract

promised no particular model, and specified that the machine

would be provided “as is.” Horne, the company contended,

accepted the machine in the condition in which it was

presented and executed the contract by using the drain rodder.

Home Depot urged the district court to reject any argument

that it materially breached the contract because the contract

promised only to deliver an electric rodder and Horne received

an electric rodder. Home Depot asserted that it therefore “fully

complied with and performed the agreed terms of the contract

and demonstrated no material breach.” R. 178, at 6–7.

4.

The district court accepted Home Depot’s characterization

of Horne’s claim of breach of contract as being that he was

providedthe “wrong machine,” andrejectedthat claim because

Horne had already admitted that he received the machine

described in the contract. Among the facts that the court

deemed admitted were: (1) that Horne rented an Electric Eel

Model R drain cleaner with part number 0448505995, (R. 171,

¶18); (2) that after signing the contract for that device, he

returned to his home with that particular drain cleaner(R. 171,
16 No. 19-2082

¶26); and (3) that the Model R with part number 0448505995

was assembled, inspected and distributed to Home Depot by

Electric Eel on May 2, 2017 (R. 171, ¶36). Having admitted as

a factual matter that he received the very machine listed in the

rental contract, the district court concluded that there was no

breach for supplying the “wrong machine.” 

But the court erred in accepting Home Depot’s

characterization of Horne’s argument regarding the nature of

the breach. To be sure, Horne’s summary judgment briefing in

the district court was not a model of clarity. But the focus on

the “wrong machine” inference led to a misapprehension of

Horne’s actual argument, as well as an unfounded claim by

Home Depot that Horne “waived” his argument about breach

of the “good working condition” clause:

A true reading of plaintiff’s response to Home

Depot’s motion for summary judgment reveals

that it is completelydevoidof any argument that

Home Depot breached the Contract by failing to

provide him withthe Machine “ingood working

condition.” Instead, he arguedbefore the district

court that Home Depot breached the Contract

by “providing Calvin with the wrong drain

cleaner.” 

Brief of Defendants-Appellees, at 18. That was not a “true

reading” of Horne’s response to Home Depot’s motion for

summary judgment.

5

5 Home Depot conceded that, “[i]n his response to Home Depot’s motion,

(continued...)
No. 19-2082 17

In his district court response to Home Depot’s motion,

Horne repeatedly argued that Home Depot breached the

contract’s express promise to provide a machine in good

working conditionbysupplying a device withamalfunctioning

foot pedal, an inoperative forward/reverse toggle switch, and

a pre-existing kink in the cable. R. 170, at 2–3, 3, 6, 10, 11–12.6

5

(...continued)

plaintiff did argue that the wrong machine that he allegedly received was

not in good working condition but only in support of his argument that

the exculpatory clause in the contract violated Illinois public policy.” Brief

of Defendants-Appellees, at 18 n.1. Home Depot’s attempt to limit this

concession to a separate argument regarding public policy is not a fair

reading of Horne’s summary judgment brief as a whole.

6

See R. 170, at 2–3 (“Home Depot promised to provide Calvin with the

Model R drain cleaner in good working condition per the Tool Rental

Agreement. ... Instead, he received a drain cleaner with significant

functional issues, such as: pre-existing kink in the cable ...; a reverse

toggle switch that was faulty ...; and, a foot pedal that malfunctioned

when Calvin pressed down on it.”); at 3 (“Calvin’s injuries were sustained

because the foot pedal and reverse toggle switch failed to function

properly, causing Calvin to have to manually reverse the kinked cable.

Home Depot failed to deliver on its promise to Calvin that the drain

cleaner would be in good working condition.”) at 6 (“Here, there is no

doubt that Home Depot materially breached the contract by providing

Calvin with the wrong drain cleaner which caused significant and

permanent injuries due to the defective condition of the drain cleaner; as

such, Home Depot must not be able to benefit from the terms of the

contract, including the enforcement of the Exculpatory Clause.”); at 6

(“the other significant disputed fact is whether Calvin received a machine

that was in good working condition as promised by Home Depot”); at 10

(“In one breath, Home Depot warrants to provide Calvin with a good

working drain cleaner; and, in another breath, Home Depot attempts to

(continued...)
18 No. 19-2082

That Horne also characterized the rodder that was supplied as

the “wrong machine” does not negate his many references to

breach of the “good working condition” clause by providing a

defective machine, an allegation for which he provided more

than adequate support in his own statement of material facts.

True, Horne’s repetition of this argument in different formats

under different section titles in his district court response is

somewhat clumsy, but the issue was not waived. Cf. United

States v. Wanjiku, 919 F.3d 472, 486 (7th Cir. 2019) (we may

review arguments related to preserved claims, and a challenge

below is sufficient to preserve an argument even if it is a new

twist based upon additional authority on appeal); Bew v. City

of Chicago, 252 F.3d 891, 895–96 (7th Cir. 2001) (we will usually

address a new argument made in support of a claim raised

below when the argument grows out of facts presented to the

district court; once a claim is properly presented, “parties are

not limited to the precise arguments they made below.”). He

thus preserved his argument that the Exculpatory Clause was

unenforceable because Home Depot breached the “good

6

(...continued)

exculpate itself from the obligation. ... A party cannot promise to act in a

certain manner in one portion of a contract and then exculpate itself from

liability for breach of that very promise in another part of the contract.”);

at 11–12 (“the alleged Exculpatory Clause is contradicted by the promise

to provide the drain cleaner in good working condition[.] Calvin clearly

had the expectation that the drain cleaner would be in good working

condition as implied by law. A jury could reasonably conclude that

Calvin’s [sic] did not foresee to be injured because of the” flaws in the

device).
No. 19-2082 19

working condition” clause when it provided a defective

machine.

Although Home Depot now supplies some citations to the

record in support of its claim on appeal that the machine was

in good working condition,

7

that evidence is disputed. For the

purposes of summary judgment, therefore, we must assume

that the machine had the three flaws asserted by Horne,

regardless of how recently the device had been manufactured

and delivered to the store. Because Horne did not waive his

claim that Home Depot materially breached the “good

working condition” clause of the contract by providing a

defective machine, we turn to the merits of that claim.

B.

We begin by examining Illinois law to define the

parameters of the dispute because, in addition to disagreeing

about the facts, the parties disagree about the law that governs

exculpatory clauses. Home Depot begins with the proposition

7 Home Depot goes so far as to claim on appeal that the evidence that the

machine was in good working condition is undisputed. This is incorrect.

Horne, as we noted, provided testimony to the contrary, testimony that

was corroborated by two eye witnesses. He also provided evidence from

Home Depot’s own records that the device was broken only days after it

was delivered to the store. Home Depot’s argument on this point is

especially unwarranted because Home Depot took the position in the

district court that the contract promised a drain rodder in “as is”

condition, ignoring the “good working condition” clause and presenting

no evidence in the district court regarding the condition of the machine.

Home Depot instead argued below that there was no breach because it

promised a drain cleaner and it provided a drain cleaner, without regard

to the condition of the device.
20 No. 19-2082

that Horne’s reliance on contract law to defend against

summary judgment is misplaced because Horne did not bring

a claim for breach of contract. But Home Depot founded its

argument for summary judgment entirely on a contract-based

affirmative defense, relying on Illinois contract law. Horne is

entitled to defend against the motion for summary judgment

by pointing out any legal errors and factual deficiencies in

Home Depot’s contract-based defense, and obviously, he may

rely on contract law to do so. Moreover, as the district court

pointed out, Horne’s breach of warranty claim sounds in

contract, undercutting the very premise of Home Depot’s

proposition, at least as to that claim. See Collins Co., Ltd. v.

Carboline Co., 532 N.E.2d 834, 838 (Ill. 1988) (“an express

warranty is imposed by the parties to a contract and ... an

action for breach of express warranty is an action ex

contractu.”).

Horne is also correct that, under Illinois law, a party in

material breach may not enforce a provision of a contract that

is favorable to him, such as an exculpatory clause. Dubey v.

Public Storage, Inc., 918 N.E.2d 265, 284 (Ill. App. 2009) (“a

party who materially breaches a contract cannot take

advantage of the terms of the contract which benefit him”);

Goldstein v. Lustig, 507 N.E.2d 164, 168 (Ill. App. 1987) (same);

Builder’s Concrete Co. of Morton v. Fred Faubel & Sons, Inc., 373

N.E.2d 863, 870 (Ill. App. 1978) (same). Cf. LB Steel, LLC v.

Carlo Steel Corp., 122 N.E.3d 274, 290 (Ill. App. 2018) (party

who commits first material breach may not recover damages

for other party’s subsequent breach, citing Dubey). And a party

seeking to enforce a favorable provision has the burden of

proving substantial compliance with the contract. James v.
No. 19-2082 21

Lifeline Mobile Medics, 792 N.E.2d 461, 464 (Ill. App. 2003) (“A

party seeking to enforce a contract has the burden of proving

he has substantially complied with all material terms of the

agreement.”); Goldstein, 507 N.E.2d at 167–68 (same). Thus,

Home Depot may not rely on its Exculpatory Provision if it

cannot ultimately prove that it substantially complied with its

obligations under the contract. And summary judgment is not

appropriate if there are factual disputes regarding Home

Depot’s substantial compliance with the rental agreement. To

be sure, exculpatory clauses generally come into play once

there has been a breach. But as we explain below, underIllinois

law, an exculpatory clause may not relieve a party of material

breachof an express promise at the core of the contract because

that would render the contract illusory.

Public policy in Illinois “strongly favors freedom to

contract,” and therefore exculpatory clauses are generally

enforced “‘unless (1) it would be against a settled public policy

of the State to do so, or (2) there is something in the social

relationship of the parties militating against upholding the

agreement.’“ Harris v. Walker, 519 N.E.2d 917, 919 (Ill. 1988)

(quoting Jackson v. First Nat’l Bank, 114 N.E.2d 721, 725 (Ill.

1953)). See also Reuben H. Donnelley Corp. v. Krasny Supply Co.,

592 N.E.2d 8, 11 (Ill. App. 1991) (“private parties to a contract

may allocate the risk of negligence as they see fit and

exculpatory clauses are not violative of public policy as a

matter of law”). At the same time, exculpatory clauses are not

favored in Illinois, and are to be strictly construed against the

party they benefit, especially when that party was also the

drafter, as is the case here. Scott & Fetzer Co. v. Montgomery

Ward & Co., 493 N.E.2d 1022, 1029 (Ill. 1986). “Such clauses
22 No. 19-2082

must spell out the intention of the parties with great

particularity and will not be construed to defeat a claim which

is not explicitly covered by their terms.” Scott & Fetzer, 493

N.E.2d at 1029–30. Moreover, in Illinois, the construction,

interpretation, or legal effect of a contract is a matter to be

determined by the court as a question of law. Avery v. State

Farm Mut. Ins. Co., 835 N.E.2d 801, 821 (Ill. 2005). The “starting

point of any contract analysis is the language of the contract

itself.” Id. We must construe a contract “as a whole, viewing

particular terms or provisions in the context of the entire

agreement.” Matthews v. Chicago Transit Auth., 51 N.E.3d 753,

776 (Ill. 2016).

1.

In moving for summary judgment, Home Depot contended

that the Exculpatory Clause “clearly and unambiguously

releases Plaintiff’s claims against Home Depot.” The company

argued that the Exculpatory Clause was valid and enforceable

because it did not violate public policy; there was no special

relationship betweenthe parties andno substantial disparity in

the bargaining positions; and the type of injury the plaintiff

suffered was reasonably foreseeable and contemplated by the

parties. We will address these contentions in a moment, but we

first note that Home Depot’s motion and its argument failed to

address or acknowledge other significant legal hurdles that a

defendant must overcome in seeking the enforcement of an

exculpatory clause.

For example, as we have just noted, a party in material

breach may not take advantage of provisions in the contract

that are favorable to it. Dubey, 918 N.E.2d at 284. In moving for
No. 19-2082 23

summary judgment, Home Depot made no attempt to

demonstrate that it was not in breach. James, 792 N.E.2d at 464.

When Horne raised this legal principle (and accompanying

factual disputes) in his response to Home Depot’s motion for

summary judgment, the company responded that it was not in

breach because it promised nothing more than a drain cleaner

in “as is” condition and it had provided a drain cleaner. Home

Depot also denied that it breached by supplying the “wrong”

drain cleaner. Those responses ignored entirely Horne’s

references to the express promise in the first paragraph of the

contract to provide a machine “in good working condition.” 

2.

That leads to the second deficiency in Home Depot’s

argument for summary judgment, namely, that the rental

agreement contained ambiguous and even contradictory

provisions on the promised condition of the device. The

contract first confusingly promised to provide the rented

equipment “‘as is’ and in good working condition.” R. 151-3,

¶ 1. The phrase “as is” usually signifies that “the buyer takes

the entire risk as to the quality of the goods involved and he

must trust to his own inspection. Implied and express

warranties are excluded in sales of goods ‘as is.’” Black’s Law

Dictionary, Fifth Edition (1979). There is considerable

ambiguity in promising to provide goods both “as is” and “in

good working condition.” In a later paragraph of the rental

agreement, the company deepened the ambiguity as it

attempted to disclaim all warranties, including, apparently, the

express promise it made in the first paragraph:
24 No. 19-2082

Customer acknowledge(s) acceptance of the

Equipment “as is” and on a “where is” basis,

with “all faults” and without any recourse

whatsoever against The Home Depot.

R. 151-3, ¶ 8. The provision of goods with “all faults” means

that the buyer accepts, “in the absence of fraud on the part of

the vendor, all such faults and defects as are not inconsistent

with the identity of the goods as the goods described.” Black’s

Law Dictionary, Fifth Edition (1979).

8

In resolving the

ambiguity of these provisions against the drafter, and in

construing this language inthe context of the entire agreement,

we conclude that the initial express promise to provide the

drain rodder in “good working condition” takes precedence

over the limiting phrases “as is” and “with all faults.” Scott &

Fetzer, 493 N.E.2d at 1029–30. Home Depot thus may not

disclaim liability forinjuries that occur as a result of a breach of

that express promise.

3.

This reading also resolves other objections that Horne

raised to Home Depot’s summary judgment motion. Citing to

Shorr Paper Products, Inc. v. Aurora Elevator, Inc., 555 N.E.2d 735

(Ill. App. 1990), and Jewelers Mutual Ins. Co. v. Firstar Bank

Illinois, 820 N.E.2d 411 (Ill. 2004), Horne contended that Home

Depot could not assume a specific duty (to provide a device in

good working condition) in one part of a contract, and then

8

The phrase “where is” generallymeans that the buyer(orrenter) accepts

the goods where they are and will transport them as needed. This term is

irrelevant to the parties’ dispute.
No. 19-2082 25

also exculpate itself from liability for breach of that core

promise in another part of the contract (the Exculpatory

Clause). In Jewelers Mutual, the plaintiffs were insurers of

individuals and businesses that rented safety deposit boxes at

a bank. The rental agreement contained a broad exculpatory

clause, denying liability for loss of or injury to the contents of

the box unless the lessee entered into a separate agreement

with the bank to that effect. But the contract also provided that

the “liability of said bank is limited to the exercise of ordinary

care to prevent the opening of said safe by any person not

authorized[.]” The bank conceded that it breached that

provision of the contract, which led to the loss of jewelry and

loose diamonds stored in the boxes. The bank nevertheless

sought to enforce the exculpatory provision to limit its liability.

The Illinois Supreme Court framed the issue as “whether

defendant can exculpate itself from all liability for breach of an

express obligation assumed in the contract.” 820 N.E.2d at

414–15.

The Illinois Supreme Courtfoundthe agreement ambiguous

because it sought to relieve the defendant of all liability in one

sentence and assumeda particularliability in another sentence.

But the Court found no need to resolve the ambiguity:

Whateverthe meaning ofthe exculpatoryclause,

it clearly cannot be applied to a situation in

which defendant is alleged to have breached its

duty to exercise ordinary care to prevent

unauthorized persons from opening the box.

This is a specific duty that defendant assumed in

the contract, and it formed the heart of the

parties' agreement. A party cannot promise to
26 No. 19-2082

act in a certain manner in one portion of a

contract and then exculpate itself from liability

for breach of that very promise in another part

of the contract.

Jeweler’s Mutual, 820 N.E.2d at 415. That is because “focusing

solely on exculpatory provision of contract to the exclusion of

its specifically articulated obligations ... would render [a]

defendant's contractual duties illusory.” Jeweler’s Mutual, 820

N.E.2d at 415–16 (citing Shorr Paper, 555 N.E.2d at 738).

9 Here,

the heart of the agreement andthe primary obligationof Home

Depot underthe contract was to provide the rented equipment

in good working condition. If Home Depot’s breach of that

9

Shorr Paper similarly held that the drafter of a contract could not

exculpate itself from liability for breaching specific obligations delineated

in an elevator maintenance contract. 555 N.E.2d at 737–38. The court first

presumed that all contract “provisions were intended for a purpose, and

conflicting provisions will be reconciled if possible so as to give effect to

all of the contract's provisions.” Id. In order to give meaning to both the

exculpatorylanguage and the specific obligations,the courtfound thatthe

exculpatoryclause relieved the defendant onlyfrom general responsibility

for structural damage to the elevator. But the contract would not protect

the defendant “from liabilityfor anydamages directly caused by its failure

to perform its specified service obligations sufficiently.” 555 N.E.2d at 738.

This reading also prevented the defendant’s duties “from becoming

illusory and meaningless, a result which would be occasioned if [the

defendant] were not liable for failing to perform its obligations

sufficiently.” Id. Moreover, the court’s interpretation honored the rule to

construe ambiguous or uncertain contracts against the drafter, a

consideration the court found “particularly important when a party seeks

to take advantage of a purported exception to an agreement.” Id. Thus, a

defendant may not exculpate itself from liability for injury resulting from

the breach of a core promise in the contract.
No. 19-2082 27

core provision is the cause of the injury, then under Jeweler’s

Mutual, Home Depot may not exculpate itself from liability for

that breach.

The district court found that the principle articulated in

Jeweler’s Mutual applied only to contract claims and was thus

irrelevant to Horne’s negligence claim, relying on Geimer v.

Bank of America, N.A., 784 F.Supp.2d 926, 934 (N.D. Ill. 2011).

But Geimer supplies no support for this proposition. The

plaintiff there cited Jeweler’s Mutual in support of an argument

that negligent failure to take appropriate security precautions

against identity theft was a recognized basis for bank liability,

over and above any contractual liability which may exist. The

plaintiff was attempting to sidestep Illinois’ Moorman rule,

holding that plaintiffs may notrecoverfor solely economic loss

undertort theories of negligence and the like. The Geimer court

rejected the applicability of Jeweler’s Mutual, noting that the

lower courts in Jeweler’s Mutual had dismissed the plaintiff’s

negligence claim under the Moorman doctrine, and the Illinois

Supreme Court hadnot disturbedthat decision. Because Horne

seeks damages for personal injury, the Moorman doctrine is

inapplicable. And as we explained above, it is the defendants

who seek to enforce the contract here and so Horne may turn

to contract law to demonstrate why the Exculpatory Clause

may not be enforced.

The district court similarly rejected the applicability of the

Jeweler’s Mutual principle to Horne’s breach of warranty claim

(which sounds in contract) because the rental agreement did

not leave Horne without any remedy in the event of Home

Depot’s breach. Specifically, the contract provided:
28 No. 19-2082

Should The Home Depot fail to meet any of its

obligations under this Agreement, Customer’s

only remedyis repairorreplacement of deficient

Equipment or to receive, at The Home Depot’s

option, a rental charge adjustment.

R. 151-3, ¶ 3. In this case, that would mean that Horne’s

damages for loss of his finger would be limited to $63.80, the

rental charge. In the district court, Home Depot did not

respond to Horne’s argument under Jeweler’s Mutual, did not

cite orrely on paragraph 3 of the rental agreement, and did not

argue that Horne’s damages were limited to refund of the

rental amount. In light of that waiver, and given that Home

Depot bore the burden of demonstrating its entitlement to

summary judgment, that should have been the end of the

matter.

10

Indeed, Home Depot makes no attempt on appeal to

10

In finding that Jeweler’s Mutual was distinguishable, the district court

also cited Willmott v. Federal Street Advisors, Inc., 2006 WL 3743716 (N.D. Ill.

Dec. 19, 2006), for the proposition that the Exculpatory Clause was

enforceable because it did not entirely exculpate Home Depot. But that

analysis reads too much into Willmott, which enforced an exculpatory

clause where the plaintiff was seeking consequential damages for a breach,

a type of damages specifically excluded by the contract at issue. The court

held that the defendant could still be held liable for direct damages.

Willmott, 2006 WL 3743716, *8 (“public policy does not prohibit an

exculpatory clause that limits remedies to a plaintiff but does not absolve

the other party of liability. The exculpatory clauses in the Loan

Agreements do not absolve BOA of liability or in any way limit direct

damages from a breach by BOA. Instead, they limit the extent of

Willmott's remedies. This important difference distinguishes Jewelers

Mutual Ins. Co. v. Firstar Bank Illinois, the case upon which Willmott

(continued...)
No. 19-2082 29

defend the district court’s sua sponte reliance on Geimer or

Willmott.

Instead, Home Depot now cites paragraph 3 primarily as a

means forresolving contradictory terms in the contract. Home

Depot contends that paragraph 3 is a more specific provision

regarding remedies that limits the reach of the more general

Exculpatory Clause, and does not relieve Home Depot of all

liability. Home Depot argues that, if the machine was not in

good working condition, then Horne was entitled to its repair

orreplacement (or, presumably, as the agreement specifies, the

return or adjustment of his $63.80 rental fee). This new

argument attempting to reconcile the conflicting provisions of

the rental agreement comes too late, and does not address

Illinois law construing exculpatory clauses strictly against the

drafter and against the party seeking to enforce them, which in

both instances is Home Depot. As a secondary matter, Home

Depot asserts without citation to any case law that Horne’s

reliance on Jeweler’s Mutual and Shorr Paper is misplaced

because paragraph 3 of the rental contract supplied him with

a remedy and did not immunize Home Depot from all liability.

Again, Home Depot did not present this argument to the

district court, and it fails to account for Illinois law construing

ambiguities strictly against the drafter. Finally, Home Depot

fails to address why a provision purportedly limiting damages

for breachof contract wouldapply to a claim for negligence. At

10

(...continued)

relies.”). In this case, Home Depot sought in the district court not to limit

Horne’s remedies but to entirely absolve itself of all liability for its breach

of an express promise.
30 No. 19-2082

most, paragraph 3's limitation of remedies might apply to

Horne’s claim for breach of warranty (which sounds in

contract), but not to the negligence claim. In any case, Home

Depot made no argument in the district court regarding this

clause and so waived this argument.

4.

Our reading harmonizing the conflicting provisions of the

rental agreement also resolves another variation of Horne’s

opposition to Home Depot’s motion for summary judgment,

namely, that the injury he sustained was not within those

contemplated by the Exculpatory Clause. See R. 170, at 11–12

(arguing that Horne did not assume the risk of using a

defective drain cleaner, in light of the contract’s promise to

provide a machine in good working condition). Courts closely

scrutinize liability release clauses because they are disfavored

under Illinois law, and they are strictly construed against the

party seeking to rely on them. The parties need not

contemplate the precise occurrence that later results in injury,

but the defendant must put the plaintiff on notice of the range

of dangers for which the plaintiff assumes the risk of injury.

Hawkins v. Capital Fitness, Inc., 29 N.E.3d 442, 447 (Ill. App.

2015). Under the contract, Horne assumed the risks of

operating a machine in good working condition. But because

of the “good working condition” clause, he did not assume the

risks of operating a machine with flaws in its basic functioning.

Because Horne has evidence that three key features of the

machine were defective and because a jury could infer that

those defects caused his injuries, he is entitled to take his case

against Home Depot to trial. And because his substantive
No. 19-2082 31

claims may go forward, so too may his derivative spoliation

claim.

5.

This is not to say that exculpatory clauses in general or the

specific one at issue here are toothless. Horne must prove at

trial that the machine was not in good working condition and

that the alleged flaws in the machine were the cause of his

injuries. Reading the Exculpatory Clause in the context of the

whole agreement, Home Depot is not liable forinjuries caused

by a machine in good working condition. Most power tools

come with inherent risks. If the device was not flawed and a

customer nevertheless lost a finger, or suffered some other

injuryto her person or property, herremedies wouldbe limited

to repair or replacement of the machine, or adjustment of the

rental fee.

C.

We promised earlier that we would also address whether

the Exculpatory Clause here violates Illinois public policy.

Because we have read the Exculpatory Clause narrowly as

required by Illinois law, we conclude that it does not violate

public policy. That is, because the Clause does not exculpate

Home Depot for breach of the core promise in the contract, it

is enforceable. As we noted above, exculpatory clauses are

generally enforced “unless (1) it would be against a settled

public policy of the State to do so, or (2) there is something in

the social relationship of the parties militating against

upholding the agreement.“ Harris, 519 N.E.2d at 919; Jackson,

114 N.E.2d at 725. Moreover, the clause must spell out the

intention of the parties with great particularity and will not be
32 No. 19-2082

construed to defeat a claim which is not explicitly covered.

Scott & Fetzer, 493 N.E.2d at 1029–30. In moving for summary

judgment, Home Depot argued that nothing in the clause

violated public policy, that there was no special relationship

between the parties that wouldpreclude enforcement, and that

the type of injury suffered was reasonably foreseeable and

within the scope of the Exculpatory Clause. Horne responded

in the district court that the provision violates public policy as

expressed in the Uniform Commercial Code (as adopted by

Illinois at 810 ILCS 5/2-314), that there was a substantial

disparity in the bargaining positions between Horne as an

individual and Home Depot as a large corporation, and that

the injury was not reasonably contemplated by the parties

because Horne did not assume the risk of operating a faulty

machine.

We have already addressed Horne’s last point by holding

that the rental agreement may not exculpate Home Depot for

injuries thatresult from breach of its core obligation to provide

a machine in good working condition. We now conclude that,

with the limits we have placed on this Clause, enforcement

would not violate public policy in Illinois. Illinois allows

private parties to a contract to allocate the risk of negligence,

and exculpatory clauses are not, in and of themselves, violative

of public policy as a matter of law. Reuben H. Donnelley, 592

N.E.2d at 11. “In the absence of legislation to the contrary,

courts will not interfere with contracts containing exculpatory

clauses, unless there is a defect in the contract negotiation

process such that a disparity in bargaining power denied a

party a meaningful choice.” Id. See also ProgressiveUniversal Ins.

Co. of Ill. v. Liberty Mut. Fire Ins. Co., 828 N.E.2d 1175, 1180 (Ill.
No. 19-2082 33

2005) (an agreement will not be invalidated on public policy

grounds unless it is clearly contrary to what the constitution,

the statutes or the decisions of the courts have declared to be

the public policy or unless it is manifestly injurious to the

public welfare).

Horne’s reliance on Section 2-314 of the commercial code as

support for his public policy argument is unavailing. That

sectionprovides foranimpliedwarrantyof merchantabilityfor

goods “unless excluded or modified.” See 810 ILCS 5/2-316

(“Exclusionor modification or warranties”). The express terms

of the statute thus contemplate that parties to a contract may

bargainaway rights to an implied warranty of merchantability.

So long as the parties comply with the terms of section 2-316 in

modifying or excluding a warranty, such a provisionwouldnot

violate Illinois law and may not provide a basis for a claim that

the agreement violates public policy. Horne failed to account

for section 2-314's language allowing exclusions or

modifications under section 2-316. The commercial code does

not support Horne’s claim that the Exculpatory Clause was

contrary to state law.

Finally, Horne’s generic “David and Goliath” argument

regarding the relative bargaining position of the parties is not

the sort of disparity that violates public policy under Illinois

law. Bargaining relationships that potentially violate public

policy include those between an employer and employee;

between the public and those charged with a duty of public

service, such as involving a common carrier, an innkeeper, a

public warehouseman or a public utility; and between parties

where there is such a disparity of bargaining power that the

agreement does not represent a free choice on the part of the
34 No. 19-2082

plaintiff, such as a monopoly or involving a plaintiff without a

reasonable alternative. White v. Village of Homewood, 628 N.E.2d

616, 619–20 (Ill. App. 1993) (citing Restatement (Second) of

Torts § 496B, comments e-j, at 567–69 (1965)). Horne’s

suggestion that he was pressured by the serious nature of his

plumbing problem is insufficient to demonstrate that he was

deprived of free choice. He does not suggest, for example, that

he had no other options, that he could not hire a plumber, or

rent a machine elsewhere under better terms. The record

demonstrates that, after this incident he did in fact hire a

plumber to fix the issue. Because he had other options, and

because he did not have the type of special relationship with

Home Depot that Illinois courts have referenced, he cannot

establish that the Exculpatory Clause violated public policy.

D.

Horne’s case against Electric Eel is a different matter

entirely, both factually and legally. Horne brought claims

against Electric Eel for negligence, strict products liability, and

breach of express and implied warranties. Although his

complaint alleged many different acts of negligence and types

of faults with the device, in opposing Electric Eel’s motion for

summary judgment, Horne pointed to the malfunctioning foot

pedal and toggle switch as the defects that caused his injuries.

Yet he conceded that, because the drain cleaner is no longer

available for inspection, “it is impossible to determine the

specific malfunction of this machine as it existed on July 21,

2017.” R. 166, at 4. He asserted that Electric Eel was negligent

in failing to properly inspect and test the defective product but

failed to supply record support for this assertion or even

explain how the company’s inspections and tests were
No. 19-2082 35

inadequate. He also argued that Electric Eel warned of the

dangers presented by kinked cables, and yet once the cable

became kinked, the manufacturer, “seemingly, left Calvin with

no alternative in its design other than to manually pull the

kinked cable from the drain as the toggle switch and foot pedal

both did not work properly. Had there been another safeguard

in place, Calvin would not have had to manually pull the cable

from the drain.” Id. He conclusorily claimed that he could

therefore show that he was injured by a drain cleaner that was

unreasonablydangerous at the time it left the controlofElectric

Eel.

In Illinois, an injured plaintiff may allege two types of

products liability claims: negligence and strict liability. Salerno

v. Innovative Surveillance Tech., Inc., 932 N.E.2d 101, 108 (Ill.

App. 2010). Horne has alleged both. “[T]o recover in a strict

product liability action, a plaintiff must plead and prove that

the injury complained of resulted from a condition of the

product, that the condition was unreasonably dangerous, and

that it existed at the time the product left the manufacturer's

control.” Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 335 (Ill.

2008). For his negligence claim, Horne must establish the

existence of a duty of care owed by the defendant, a breach of

that duty, an injury proximately caused by that breach, and

damages resulting from the breach. Salerno, 932 N.E.2d at 111

(citing Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 263 (Ill.

2007)). For a breach of warranty claim based on a product

defect, a plaintiff must prove, among other things, that the

purported defect existed when the product left the

manufacturer’s control. Alvarez v. American Isuzu Motors, 749

N.E.2d 16, 22 (Ill. App. 2001).
36 No. 19-2082

Common to each of these claims is the need for Horne to

demonstrate that there was a defect in the device at the time it

left Electric Eel’s control. Also for each of these claims, Horne

must also demonstrate that the alleged defect causedhis injury:

Under Illinois law, in a products liability action,

whether based on strict liability or negligence,

the plaintiff must demonstrate a causal

relationship between the injury and the

manufacturer's product. ... The causal

relationship can be proven by circumstantial

evidence. ... But in order to get to the jury, the

plaintiff must demonstrate more than a mere

possibility that the product caused the injury. ...

Rather, the plaintiff must come forward with

evidence justifying an inference of probability.

Thornton v. M7 Aerospace LP, 796 F.3d 757, 770 (7th Cir. 2015).

As it did in analyzing the claims against Home Depot, the

district court againrejectedHorne’s unsupporteddenialthat he

received the device listed in the contract, and so we will again

assume that Horne received the device that Electric Eel

manufactured and delivered to the Home Depot store on May

2, 2017. In its Rule 56.1 statement of material facts, Electric Eel

submitted testimony from Richard Berry, the employee who

assembled and tested the device before it was shipped to

Home Depot. Berry testified that he personally assembled and

tested the machine that was listed in Horne’s rental contract

before it was delivered to the Homewood Home Depot. When

he completed assembly, Berry tested the operation of the

device, including the foot pedal andthe forward/reverse toggle
No. 19-2082 37

switch. He testified that the machine had no defects when it

was shipped out, that it was in “pristine, perfect condition,”

and that he would not have sent it out if there had been any

issues with it.

Horne respondedto this statement with, “Deny.There were

other defects present.” Horne did not cite any record evidence

to support either his bald denial or his assertion that there were

defects present when Electric Eel shipped the device. In fact,

Horne did not supply references to the recordinsupport of any

of his denials in his response to Electric Eel’s statement of

material facts, and so the district court deemed Horne to have

admitted Electric Eel’s version of the facts to the extent they

were properly supported. Electric Eel’s assertion that there

were no defects in the device when it left the company’s

control is well-supported by Berry’s testimony. Horne also

failed to produce any evidence that Electric Eel’s actions (or

omissions) were the cause of his injury. And he failed to

produce any evidence regarding the alleged design defect,

offering only speculation that some unspecified safer design

would have prevented his injuries. See Salerno, 932 N.E.2d at

111 (manufacturer's duty to design reasonably safe products

does not require the product to reflect the safest design

possible; the question is not whether the product could have

been made safer, but whether it is dangerous because it fails to

perform in the manner reasonably to be expected in light of its

nature and intended function). In any case, speculation that the

device could have incorporated more safety features is

inadequate to demonstrate that Electric Eel’s action orinaction

was the cause of his injuries.
38 No. 19-2082

AlthoughHorne may be correctthat not allproduct liability

cases require expert testimony to prove that a product was

defective and that the defect existed when the product left the

manufacturer’s control, the alternative under Illinois law is to

demonstrate that, in the absence of abnormal use or reasonable

secondary causes the product failed to perform in the manner

reasonably to be expected in light of its nature and intended

function. DiCosolo v. Janssen Pharm., Inc., 951 N.E.2d 1238, 1244

(Ill. App. 2011). But Horne has failed to produce any evidence

regarding the absence of abnormaluse orreasonable secondary

causes. In a case where the record shows that the product was

rented out twenty-four times after it left the manufacturer’s

control and before the plaintiff was injured, the plaintiff must

produce some evidence from which a court could infer the

absence of abnormal use or reasonable secondary causes.

Horne’s claims against Electric Eel fail for lack of evidence

tying the company to his injuries.

E.

Finally, Horne appeals the district court’s grant of a motion

to quash a subpoena issued to RGIS, LLP. This court reviews a

district court's grant or denial of a motion to quash a subpoena

for abuse of discretion. Mitchell v. City of Chicago, 862 F.3d 583,

586 (7th Cir. 2017). Near the close of discovery, Horne learned

that Home Depot had hired RGIS to inventory tools that the

store rented out. Believing that RGIS had information that

could assist him in locating the missing machine or in proving

the spoliation claim, Horne attempted to subpoena RGIS,

seeking inventory reports and other documents. RGIS notified

Horne’s counsel that the subpoena had not been sent to the

company’s registered agent. Horne’s counsel then reissued the
No. 19-2082 39

subpoena shortly after discovery closed, without seeking leave

of court. Home Depot moved to quash the subpoena, and after

a brief hearing, the district court granted the motion, finding

that it was not timely issued. On appeal, Horne asserts that the

district court abused its discretion in quashing the subpoena

because Home Depot lacked standing to object to a subpoena

issued to a third party. But Horne failed to raise this objection

in the district court, and the court acted well within its

discretion in quashing the late-filed discovery request.

F.

Before closing, we respond briefly to our dissenting

colleague. Like the district court, the dissent concludes that the

final sentence of paragraph 3 of the rental agreement limits

Home Depot’s liability forfailing to provide a machine ingood

working order to repair or replacement of the machine, or an

adjustment to the rental charge of $68.30. That clause, the

dissent contends, keeps the agreement from being rendered

illusory because Home Depot “is not completely off the hook

for a breach.” Because of the availability of this limited remedy,

the dissent finds Jewelers Mutual inapplicable.

But Home Depot waived any reliance on this contract

provision by failing to cite it, rely on it, or develop any

argument using it in any manner in the district court even

though Horne asserted that the company was in breach, and

invoked Jewelers Mutual. In fact, in the district court, Home

Depot simply denied that it breached the contract, and the

company failedentirely to respond to Horne’s argument under

Jewelers Mutual and Shorr Paper. Arguments not raised in the

district court are waived. Savory v. Cannon, 947 F.3d 409, 430
40 No. 19-2082

(7th Cir. 2020); Milwaukee Ctr. forIndependence, Inc. v. Milwaukee

Health Care, LLC, 929 F.3d 489, 493–94 (7th Cir. 2019). Even on

appeal, Home Depot continues to rely primarily on its claim

that it may enforce the ExculpatoryProvisionbecause it didnot

breach the contract, although the company now acknowledges

that it might need to show more than that it provided a drain

cleanerin “as is” condition. Having ignored Horne’s argument

entirely in the district court, Home Depot makes only a cursory

and incomplete effort to respond to Jewelers Mutual on appeal.

Rather than treating these failings as a waiver, the dissent

treats this new argument as preservedbecause the district court

constructed the argument for Home Depot. But under the

principle of party presentation, courts generally do not craft

new arguments for a party, especially in civil cases and

especially when the party is represented by counsel:

In our adversarial system of adjudication, we

follow the principle of party presentation. As

this Court stated in Greenlaw v. United States, 554

U.S. 237, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008),

“in both civil and criminal cases, in the first

instance and on appeal ..., we rely on the parties

to frame the issues for decision and assign to

courts the role of neutral arbiter of matters the

parties present.” Id., at 243, 128 S.Ct. 2559. In

criminal cases, departures from the party

presentation principle have usually occurred “to

protect a pro se litigant's rights.” Id., at 244, 128

S.Ct. 2559; see, e.g., Castro v. United States, 540

U.S. 375, 381–383, 124 S.Ct. 786, 157 L.Ed.2d 778
No. 19-2082 41

(2003) (affirming courts’ authority to recast pro

se litigants’ motions to “avoid an unnecessary

dismissal” or “inappropriately stringent

application of formal labeling requirements, or

to create a better correspondence between the

substance of a pro se motion's claim and its

underlying legal basis” (citation omitted)). But

as a general rule, our system “is designed

around the premise that [parties represented by

competent counsel] know what is best forthem,

and are responsible for advancing the facts and

argument entitling them to relief.” Id., at 386,

124 S.Ct. 786 (Scalia, J., concurring in part and

concurring in judgment).

United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020).

Again, Home Depot never once in the district court relied

on the limitation of remedies provision. This well represented

corporation is not in need of our assistance in crafting

arguments for summary judgment, yet the district court and

now the dissent risk our role as neutral arbiters to become

advocates for one side of this dispute. It is not our role to save

a party from the consequences of drafting ambiguous or

contradictory contract terms, or failing to advance arguments

that may be advantageous. Moreover, a company may decide

for strategic business reasons not to pursue legal arguments

that may be available to them. It is not difficult to imagine that

Home Depot made a strategic choice not to raise the refund-issufficient-remedy argument in the district court because of the

message that this would deliver to potential customers.

Imagine the marketing: “Whether you lose a finger, a hand, or
42 No. 19-2082

an arm, you can rest assured we will return your rental fee!”

We risk overruling a company’s business judgment when we

intervene and advance new arguments on behalf of a party.

But inany case, this provision does little to save the primary

promise in the contract from becoming illusory, and perhaps

that is why Home Depot did not advocate this position itself

until the district court fashioned the argument. Jewelers Mutual

rejected the idea that a return of the rental fee could relieve the

bank of liability for breaching a duty it expressly assumed:

In this contract, in exchange for plaintiff’s rental

fee, defendant assumed the obligation to

exercise ordinary care to prevent unauthorized

access to the safety deposit box. Having

assumed this duty, defendant cannot exculpate

itself from liability for a breach of that duty.

Accepting defendant’s argument would mean

that, ifdefendantroutinelybreachedthese safety

deposit box rental agreements by handing the

keys to anyone who came in off the street and

asked for them, it would have no liability to its

customers except to give them their rental fee

back. It is safe to assume that, if defendant

explained the agreement this way in the

contract, defendant would not have many safety

deposit box customers.

Jewelers Mutual, 820 N.E.2d at 416–17.

A return of the rental fee arguably compensates the renter

for a complete failure to provide a drain rodder, and leaves the

renter in no worse position than if he had never rented the
No. 19-2082 43

product. Butreturn of the rental fee provides no compensation

for the breach of the express promise to provide the machine

in good working condition. That promise implies a duty to

inspect the device using ordinary care before supplying it to a

renter. Under the dissent’s reading, Home Depot could

promise to provide a machine in good working condition,

knowingly or negligently provide it in a dangerous condition,

and then limit any damages claim to $68.30. Indeed, it is

unclear how far this reading could extend: could a contract

provisionlimiting damages to one dollarremove anagreement

from the realm of Jewelers Mutual and insulate Home Depot

from liabilityforknowinglyornegligentlyproviding amachine

in poor (and potentially dangerous) condition? Such a reading

of the contract would render the express promise to provide

the machine in good working condition illusory under Jewelers

Mutual.

Moreover, although the contract purports to absolve Home

Depot from all liability for breach of the contract (which it may

not do without rendering the express promise of the contract

illusory), nothing in the contract limits remedies for the

company’s negligence in failing to supply a machine in good

working condition. To be sure, Home Depot could have

exercised ordinary care in inspecting the machine, and missed

some latent defect. As we explained above, Home Depot

would not be liable under those circumstances. The dissent

seems to go farther and assume not only that this could happen

(i.e. that the company could exercise ordinary care and miss a

latent defect) but that it actually did happen here. But there are

disputed issues of material fact as to whether Home Depot

exercised ordinary care in inspecting the machine it rented to
44 No. 19-2082

Horne, and only a jury can resolve those issues. As we noted

earlier, a party seeking to enforce a favorable provision has the

burden of proving substantial compliance with the material

terms of the contract. James, 792 N.E.2d at 464; Goldstein, 507

N.E.2d at 167–68.

Although Illinois law allows parties to bargain away their

rights, it reads exculpatory clauses narrowly, and against the

drafter. This contract was anything but clear, and its

ambiguous andcontradictory language does not protect Home

Depot to the degree afforded by the district court or the

dissent.

III.

Because Horne has raised genuine issues of material fact

regarding whether Home Depot breached the contract by

failing to provide a drain cleaner in good working condition,

we vacate the judgment in favor of Home Depot and remand

for proceedings consistent with this opinion. We affirm the

judgment in favor of Electric Eel, and we also affirm the court’s

ruling on the RGIS subpoena. Because we vacate the judgment

in part, we also vacate the district court’s award of costs to the

defendants as prevailing parties, and remand for

reconsideration as to Electric Eel, which remains a prevailing

party.

AFFIRMED IN PART

AND VACATED AND REMANDED IN PART.
No. 19-2082 45

SCUDDER, Circuit Judge, dissenting in part. I join all parts of 

the majority opinion except the analysis and conclusion regarding Horne’s breach-of-warranty and negligence claims 

against Home Depot. In my view, any damages available for 

Horne’s breach-of-warranty claim are limited by the rental 

agreement’s Limited Liability Clause. And as for Horne’s negligence claim, the Exculpatory Clause bars him from recovering damages for his injury. 

I

A

Starting with the breach-of-warranty claim, all agree that 

Horne’s claim sounds in contract. Under Illinois law, “[a] 

party cannot promise to act in a certain manner in one portion 

of a contract and then exculpate itself from liability for breach 

of that very promise in another part of the contract.” Jewelers 

Mut. Ins. Co. v. Firstar Bank Ill., 820 N.E.2d 411, 415 (Ill. 2004). 

Doing so renders the contract illusory. See id. at 415–16 (citing 

Shorr Paper Prods., Inc. v. Aurora Elevator, Inc., 555 N.E.2d 735, 

738 (Ill. App. Ct. 1990); and Contact Lenses Unlimited, Inc. v. 

Johnson, 531 N.E.2d 928, 931 (Ill. App. Ct. 1988)). The majority 

and I agree on this basic legal principle. So far, so good.

But the majority then relies on an Illinois Supreme Court 

decision, Jewelers Mutual, to conclude that applying the Exculpatory Clause to Horne’s breach-of-warranty claim would 

make Home Depot’s rental agreement illusory. It is at this 

point that our paths diverge. Based on my reading of the 

rental agreement, Home Depot provides customers a remedy—albeit a limited one—in the event the company breaches 

its obligation to provide equipment in “good working condition.” Because Home Depot does not entirely exculpate itself 
46 No. 19-2082

in the event of this contractual breach, the rental agreement 

does not contain illusory promises.

As the majority explains, the plaintiffs in Jewelers Mutual 

“were insurers of individuals and businesses that rented 

safety deposit boxes at a bank.” Maj. Op. 25. The rental agreement included a clause providing that the “customer assumes 

all risks of depositing the contents of the box with defendant 

and that there ‘shall be no liability on the part of said bank, 

for loss of, or injury to, the contents of said box from any cause 

whatever.’” Jewelers Mut., 820 N.E.2d at 414–15. The next sentence of the rental agreement, however, indicated that the 

bank assumed “one particular liability”—that of exercising 

“ordinary care to prevent the unauthorized opening of the 

box.” Id. at 415. The Illinois Supreme Court explained that the 

two clauses could not be reconciled because “[a] party cannot 

promise to act in a certain manner in one portion of a contract” by promising to exercise ordinary care but then completely “exculpate itself from ... that very promise” which 

“formed the heart of the parties’ agreement.” Id. And the situation was not one, the court explained, where, “in the event 

of a breach, the plaintiff’s damages are limited to a return of 

the rental fee.” Id. In the end, then, Jewelers Mutual held that 

the “exculpatory provision is not applicable to an allegation 

that defendant breached its [contractual obligation],” so the 

plaintiff could seek damages for the breach. Id. at 417. 

Jewelers Mutual would apply to Home Depot’s rental 

agreement if the Exculpatory Clause totally and completely 

eliminated liability for failing to provide the rental equipment

in “good working condition.” Indeed, the majority adopts this 
No. 19-2082 47

exact position. But that view proves untenable because it focuses only on the Exculpatory Clause without regard to the 

Limited Liability Clause, which provides:

Should The Home Depot fail to meet any of its 

obligations under this Agreement, Customer’s 

only remedy is repair or replacement of deficient Equipment or to receive, at The Home Depot’s option, a rental charge adjustment.

R. 151-3, at ¶ 3.

The majority treats Home Depot as having waived any reliance on the Limited Liability Clause. Though the majority is 

correct that Home Depot did not reference the Limited Liability Clause in its summary judgment papers, the district court 

discussed the clause in its order granting Home Depot’s motion for summary judgment. More specifically, the district 

court recognized that “the exculpatory clause, when read together with the provision in Paragraph 3, limits Home Depot’s contractual liability but does not entirely exculpate 

Home Depot.” Horne v. Home Depot U.S.A., Inc., 2019 WL 

556709, at *5 (N.D. Ill. Feb. 12, 2019). In my view, the district 

court’s reference to and reliance on the Limited Liability 

Clause means there is no waiver here. See United States v. City 

of Chicago, 869 F.2d 1033, 1036 (7th Cir. 1989) (“It is folly for [a 

party] to assert that an appeals court on review of a district 

court judgment cannot consider the merits of each and every 

theory that the district judge relied upon in deciding the 

case.”). Moreover, under Illinois law we must construe the 

one-page rental agreement “as a whole, viewing particular 

terms or provisions in the context of the entire agreement.” 

Matthews v. Chi. Transit Auth., 51 N.E.3d 753, 776 (Ill. 2016); 

see id. (explaining contracts should not be interpreted “by 
48 No. 19-2082

viewing a clause or provision in isolation”). Moreover, 

“where both a general and a specific provision in a contract 

address the same subject, the more specific clause controls.”

Grevas v. U.S. Fid. & Guar. Co., 604 N.E.2d 942, 944 (Ill. 1992).

Reading the rental agreement as a whole, the general Exculpatory Clause combined with the more specific Limited Liability Clause do not entirely exculpate Home Depot from liability. Rather, the rental agreement allows Horne to recover 

limited damages. Home Depot, in short, is not completely off 

the hook for a breach: because the Limited Liability Clause 

applies to Horne’s contractual claim, the Exculpatory Clause 

does not render the rental agreement illusory. So Jewelers Mutual does not govern.

In charting a different course, the majority opinion lists 

cases to support the proposition that “a party in material 

breach may not enforce a provision of a contract that is favorable to him, such as an exculpatory clause.” Maj. Op. 20 (emphasis added). What these cases ultimately seem to be getting at, 

however, is the settled principle that a party cannot maintain 

a suit for damages for breach of contract when the complaining party is also in breach. See Robinhorne Constr. Corp. v. 

Snyder, 251 N.E.2d 641, 645–46 (Ill. App. Ct. 1969) (citing Glenridge Coal Co. v. Marion County Coal Co., 205 Ill. App. 264, 265 

(Ill. App. Ct. 1917) (“An action for breach of a contract cannot 

be maintained where the complaining party is in default.”); 

and Consumers Mut. Oil Co. v. W. Petroleum Co., 216 Ill. App. 

382, 385 (Ill. App. Ct. 1920) (“[A] party suing for damages for 

a breach of a contract must not only aver but prove he is not 

himself in default as to the agreement for the breach of which 

the suit is brought ....”)). Indeed, of all five cases relied on by 
No. 19-2082 49

the majority, none holds that a breaching party may not defend itself by relying on the contract’s exculpatory clause, absent some other reason rendering the clause unenforceable. 

See, e.g., Dubey v. Pub. Storage, Inc., 918 N.E.2d 265, 276 (Ill. 

App. Ct. 2009) (explaining that a damages limitation clause 

was unenforceable on unconscionability grounds and because 

it violated Illinois’s Landlord and Tenant Act). Even the majority opinion seems to acknowledge the limitations of its 

analysis by recognizing that exculpatory clauses only “generally come into play once there has been a breach.” Maj. Op. 

21. 

Assuming Horne can prove that Home Depot failed to 

provide the drain-rodding machine in good working order, 

his remedy for the contractual breach should be limited to “repair or replacement” of the machine, or at Home Depot’s option, a rental charge adjustment of $63.80. I would remand to 

the district court with instructions that the remedy for the 

breach-of-warranty claim cannot deviate from or exceed the 

compensation allowed by the Limited Liability Clause.

B

Next up is the negligence claim. The majority opinion offers no real distinction in its analysis of Horne’s contract and 

negligence claims. Rather, the majority concludes that because nothing in paragraph 3’s Limited Liability Clause applies to claims for negligence, Horne can proceed to trial on 

his tort claim. But because I read the Exculpatory Clause’s language in paragraph 9 as applying to claims that sound in negligence, I would treat Horne’s contract and tort claims as distinct from one another.
50 No. 19-2082

Lessors of equipment generally owe a duty of care to those 

expected to use the equipment. The leading Illinois case discussing negligence claims in this context is Huckabee v. Bell & 

Howell, Inc., 265 N.E.2d 134 (Ill. 1970). The plaintiff in Huckabee 

suffered a fractured jaw and broken wrists after the scaffolding on which he was standing tipped and fell to the ground. 

Id. at 136. Huckabee explained that, in cases involving leased 

equipment, a bailor may be liable to a third person if: 

(1) [H]e supplied the chattel in question, (2) the 

chattel was defective at the time it was supplied, 

(3) the defect could have been discovered by a 

reasonable inspection, when inspection is required (I.e., where the danger of substantial 

harm because of a defect is great, as we deem it 

is here), and (4) the defect was the proximate 

cause of the injury.

Id. at 137 (citing Chambliss v. Walker Constr. Co., 197 N.E.2d 83, 

86 (Ill. App. Ct. 1964) (defective truck); and Witt v. John Hennes 

Trucking Co., 199 N.E.2d 231, 234 (Ill. App. Ct. 1964) (defective 

crane)). Section 408 of the Restatement (Second) of Torts, 

which Illinois courts apply, similarly provides that “[o]ne 

who leases a chattel as safe for immediate use is subject to liability to those whom he should expect to use the chattel ... if 

the lessor fails to exercise reasonable care to make it safe for 

such use or to disclose its actual condition to those who may 

be expected to use it.” Restatement (Second) of Torts § 408

(Am. L. Inst. 1965); see, e.g., Brobbey v. Enter. Leasing Co. of Chi., 

935 N.E.2d 1084, 1093–94 (Ill. App. Ct. 2010) (applying section 

408). Comment (a) to section 408 then adds this instruction: 

When lessor must inspect. The fact that a chattel is 

leased for immediate use makes it unreasonable 
No. 19-2082 51

for the lessor to expect that the lessee will do 

more than give it the most cursory of inspections. The lessor must, therefore, realize that the 

safe use of the chattel can be secured only by 

precautions taken by him before turning it over 

to the lessee. ... If the chattel is made by a third person, the lessor is required to exercise reasonable care 

to inspect it before turning it over to the lessee.

Restatement (Second) of Torts § 408 cmt. a (second emphasis 

added). 

Notwithstanding this default duty that lessors owe to lessees, parties may generally contract around liability for negligence. Illinois law is clear on the point. “Public policy strongly 

favors freedom to contract, as is manifest in both the United 

States Constitution and [the Illinois] constitution.” McClure 

Eng’g Assocs., Inc. v. Reuben H. Donnelley Corp., 447 N.E.2d 400, 

402 (Ill. 1983) (citation omitted). Under Illinois law, a party 

may contract to avoid liability for its own negligence and, absent fraud or willful and wanton negligence, the contract will 

be valid and enforceable unless: (1) there is a substantial disparity in the bargaining position of the two parties; (2) enforcing the contract would violate public policy; or (3) something 

in the social relationship between the parties militates against 

upholding the contract. See Garrison v. Combined Fitness Ctr., 

Ltd., 559 N.E.2d 187, 189–90 (Ill. App. Ct. 1990); see also Restatement (Second) of Contracts § 195 (Am. L. Inst. 1981) (listing situations in which a contract term that exempts a party 

from tort liability is unenforceable on public policy grounds); 

Restatement (Second) of Torts § 496B (“A plaintiff who by 

contract or otherwise expressly agrees to accept a risk of harm 

arising from the defendant’s negligent or reckless conduct 
52 No. 19-2082

cannot recover for such harm, unless the agreement is invalid 

as contrary to public policy.”).

The underlying rationale for these principles is that

“courts should not interfere with the right of two parties to 

contract with one another if they freely and knowingly enter 

into the agreement.” Garrison, 559 N.E.2d at 190. The majority 

concludes, and I agree, that none of the three exceptions renders the rental agreement’s Exculpatory Clause unenforceable. Indeed, Illinois law allows parties to allocate the risk of 

negligence through use of exculpatory clauses, see Reuben H. 

Donnelley Corp. v. Krasny Supply Co., 592 N.E.2d 8, 11 (Ill. App. 

Ct. 1991), and as the majority explains, Horne’s “David and 

Goliath” argument regarding his bargaining position as compared to Home Depot’s “is not the sort of disparity that violates public policy under Illinois law.” Maj. Op. 33. Nor did 

Horne have any type of special relationship with Home Depot 

that Illinois courts have identified as violating public policy.

To be sure, exculpatory clauses “do not enjoy special favor” under Illinois law. Meyers v. Rockford Sys., Inc., 625 

N.E.2d 916, 921 (Ill. App. Ct. 1993). They must be strictly construed against the benefitting party, especially when that 

party drafted the release. See Harris v. Walker, 519 N.E.2d 917, 

919 (Ill. 1988). “Such clauses must spell out the intention of 

the parties with great particularity and will not be construed 

to defeat a claim which is not explicitly covered by their 

terms.” Scott & Fetzer Co. v. Montgomery Ward & Co., 493 

N.E.2d 1022, 1029–30 (Ill. 1986). Illinois law does not require 

the “precise occurrence which results in injury” to have been 

contemplated by the contracting parties at the time they enter 

into the contract. Garrison, 559 N.E.2d at 190. Instead, the injury must fall “within the scope of possible dangers ordinarily 
No. 19-2082 53

accompanying the activity and, thus, [be] reasonably contemplated by the plaintiff.” Id.

Recall that the Exculpatory Clause in the Home Depot 

rental agreement states the following: 

RELEASE, INDEMNIFICATION AND 

WAIVER OF DAMAGES. TO THE FULLEST 

EXTENT PERMITTED BY LAW, CUSTOMER 

INDEMNIFIES, RELEASES, WAIVES AND 

HOLDS THE HOME DEPOT HARMLESS 

FROM AND AGAINST ALL CLAIMS, LOSSES, 

EXPENSES (INCLUDING ATTORNEY’S FEES 

AND EXPENSES), LIABILITIES, AND 

DAMAGES (INCLUDING PERSONAL 

INJURY, DEATH, PROPERTY DAMAGE, LOST 

PROFITS, AND SPECIAL, INCIDENTAL AND 

CONSEQUENTIAL DAMAGES) IN ANY WAY 

CONNECTED WITH THE EQUIPMENT, ITS 

OPERATION OR USE, OR ANY DEFECT OR 

FAILURE THEREOF OR A BREACH OF THE 

HOME DEPOT’S OBLIGATIONS HEREIN.

R. 151-3, at ¶ 9. The rental agreement also includes an Assumption-of-Risk Clause, which provides, in relevant part:

CUSTOMER LIABILITY. DURING THE 

RENTAL PERIOD, CUSTOMER ASSUMES 

ALL RISKS ASSOCIATED WITH AND FULL 

RESPONSIBILITY FOR THE POSSESSSION, 

CUSTODY AND OPERATION OF THE 

EQUIPMENT, INCLUDING, BUT NOT 

LIMITED TO, RENTAL CHARGES, 

CUSTOMER TRANSPORT, LOADING AND 
54 No. 19-2082

UNLOADING, PROPERTY DAMAGES AND 

DESTRUCTION, LOSSES, PERSONAL 

INJURY, AND DEATH.

Id. at ¶ 7.

The scope of these provisions is broad. The Exculpatory 

Clause expressly includes within its list of assumed risks 

“personal injury” resulting from the “equipment, its operation or use.” Horne’s hand injury falls squarely within that 

language, and the injury he suffered falls within the scope of 

injuries reasonably contemplated by him. Remember, too, 

that Horne already knew from Home Depot’s Safety and Operation Guide, which he had reviewed before, that he was to 

“use caution at all times” and that the “cables can twist or 

kink and cause serious injury,” since “fingers or other body 

parts can be caught in rotating parts.”

The majority rightly concludes that the Exculpatory 

Clause does not violate public policy, nor is the disparity in 

the parties’ bargaining positions so great that the contract cannot be enforced as written. Absent any language in the rental 

agreement that Home Depot contractually assumed a duty of 

care, I would enforce the Exculpatory Clause as written 

against Horne’s negligence claim. See, e.g., Jewelers Mut., 820 

N.E.2d at 415 (assuming liability to exercise ordinary care to 

prevent unauthorized opening of box).

To be clear, Home Depot’s promise to provide the machine in “good working condition” is not equivalent to the 

bank’s promise in Jewelers Mutual to exercise ordinary care in 

preventing the unauthorized opening of a box. This is because 

it remains conceivable that Home Depot or any other lessor 
No. 19-2082 55

could exercise reasonable care—including by adequately inspecting a rental device before turning it over to the consumer—while at the same time, providing a machine that was 

not in good working condition due to some latent defect that 

went undetected during the inspection. In such a scenario, the 

lessor would have breached a contractual duty without acting 

negligently. Breaching a contractual obligation and acting 

negligently are not one in the same. Finding nothing in the 

rental agreement suggesting that Home Depot promised to 

act with a specific standard of care, the Exculpatory Clause 

should apply. And its application bars Horne from recovering 

damages based in negligence. 

II

A final, practical observation warrants underscoring. 

Hardware and other big-box stores presumably rely on limited-liability and exculpatory provisions as one way to keep 

the price of the rentals affordable. Customers agree to this 

trade-off by signing the contract. Given today’s majority decision, these stores might do well to revisit their rental agreements. Including contradictory promises—such as offering 

equipment “as is” and “in good working condition”—causes 

a real, yet avoidable, contractual conundrum. In the same 

vein, exculpating all liability in one clause, but only limiting 

that liability in another, creates another interpretive challenge—one in which I disagree with the majority’s approach. 

I respectfully dissent.