Calvin Horne v. Electric Eel Manufacturing Com ( 2021 )

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 Manufac-
turing 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, and construe all reasonable 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
in the district court when the parties failed to fully comply with
Local Rule 56.1.1 In 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 state-
ment of material facts. R. 172. None of the parties contested the
court’s decision to deem certain facts admitted and to disre-
gard 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 Defendants-
Appellees, at 12. That is an overstatement; the court limited the admis-
sions 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 over the 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
manual that Home Depot provided. Two friends, Perry Bennett
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. After the 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
extended approximately seven to nine feet into the drain at 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.
After the court granted judgment in favor of the defendants,
Horne filed a Rule 59 motion contending that the court
misapplied the parties’ burden of proof in summary judgment
proceedings, misconstrued Illinois law, and improperly ignored
material questions of fact that precluded summary judgment.
The court denied the motion, concluding that Horne could have
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 his public policy argument
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
any evidence 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
FROM AND AGAINST ALL CLAIMS, LOSSES,
EXPENSES (INCLUDING ATTORNEY’S FEES
AND EXPENSES), LIABILITIES AND
No. 19-2082 11
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, ¶ 9. Home Depot also relied on 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 POSSESSION,
CUSTODY AND OPERATION OF THE
EQUIPMENT, INCLUDING, BUT NOT
L I MI T ED TO, RE N TAL CH A RGE S,
CUSTOMER TRANSPORT, LOADING AND
UNLOADING, PROPERTY DAMAGES AND
DESTRUCTION, LOSSES, PERSONAL INJURY,
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.
In furtherance of his observation that 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 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
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 contradicted the express promise to provide a machine
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 complained that, up to that point in the litigation, Horne
had focused on being provided a defective Electric Eel
machine, and was now taking the “contradictory position” that
he was provided the “wrong drain cleaner.” R. 178, at 3. Horne
had alleged in his complaint that he rented an Electric Eel
Model R drain cleaner and was operating that brand and model
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
provided the “wrong machine,” and rejected that 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 completely devoid of any argument that
Home Depot breached the Contract by failing to
provide him with the Machine “in good working
condition.” Instead, he argued before 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 condition by supplying a device with a malfunctioning
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, under Illinois
law, an exculpatory clause may not relieve a party of material
breach of 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 between the parties and no 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 in the 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 for injuries 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” generally means that the buyer (or renter) 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 at414–15.
The Illinois Supreme Court found the agreement ambiguous
because it sought to relieve the defendant of all liability in one
sentence and assumed a particular liability in another sentence.
But the Court found no need to resolve the ambiguity:
Whatever the meaning of the exculpatory clause,
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 and the primary obligation of Home
Depot under the 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
exculpatory language and the specific obligations, the court found that the
exculpatory clause relieved the defendant only from general responsibility
for structural damage to the elevator. But the contract would not protect
the defendant “from liability for any damages 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 not recover for solely economic loss
under tort 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 had not disturbed that 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 remedy is repair or replacement 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 or rely 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 for resolving 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
or replacement (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 breach of contract would apply 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 for injuries 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
injury to her person or property, her remedies would be 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 would preclude 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 that result 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 Progressive Universal 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
section provides for an implied warranty of merchantability for
goods “unless excluded or modified.” See 810 ILCS 5/2-316
(“Exclusion or modification or warranties”). The express terms
of the statute thus contemplate that parties to a contract may
bargain away 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 provision would not
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
unreasonably dangerous at the time it left the control of Electric
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 caused his 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 again rejected Horne’s unsupported denial that 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 and the 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 responded to 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 record in support 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 or inaction
was the cause of his injuries.
38 No. 19-2082
Although Horne may be correct that not all product 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 abnormal use or reasonable 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 for failing to provide a machine in good
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 failed entirely 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. for Independence, 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 Exculpatory Provision because it did not
breach the contract, although the company now acknowledges
that it might need to show more than that it provided a drain
cleaner in “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 preserved because 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 778No. 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 for them,
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-is-
sufficient-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 in any 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, if defendant routinely breached these 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. But return 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
provision limiting damages to one dollar remove an agreement
from the realm of Jewelers Mutual and insulate Home Depot
from liability for knowingly or negligently providing a machine
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 and contradictory 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 re-
garding 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 neg-
ligence claim, the Exculpatory Clause bars him from recover-
ing 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 Excul-
patory 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 rem-
edy—albeit a limited one—in the event the company breaches
its obligation to provide equipment in “good working condi-
tion.” 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 agree-
ment 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 sen-
tence 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 con-
tract” by promising to exercise ordinary care but then com-
pletely “exculpate itself from … that very promise” which
“formed the heart of the parties’ agreement.” Id. And the sit-
uation 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 fo-
cuses 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 defi-
cient Equipment or to receive, at The Home De-
pot’s option, a rental charge adjustment.
R. 151-3, at ¶ 3.
The majority treats Home Depot as having waived any re-
liance on the Limited Liability Clause. Though the majority is
correct that Home Depot did not reference the Limited Liabil-
ity Clause in its summary judgment papers, the district court
discussed the clause in its order granting Home Depot’s mo-
tion for summary judgment. More specifically, the district
court recognized that “the exculpatory clause, when read to-
gether with the provision in Paragraph 3, limits Home De-
pot’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 Ex-
culpatory Clause combined with the more specific Limited Li-
ability Clause do not entirely exculpate Home Depot from li-
ability. 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 Mu-
tual 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 favor-
able to him, such as an exculpatory clause.” Maj. Op. 20 (empha-
sis 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 complain-
ing party is also in breach. See Robinhorne Constr. Corp. v.
Snyder, 251 N.E.2d 641, 645–46 (Ill. App. Ct. 1969) (citing Glen-
ridge 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 de-
fend itself by relying on the contract’s exculpatory clause, ab-
sent 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 ma-
jority opinion seems to acknowledge the limitations of its
analysis by recognizing that exculpatory clauses only “gener-
ally 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 “re-
pair or replacement” of the machine, or at Home Depot’s op-
tion, 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 of-
fers no real distinction in its analysis of Horne’s contract and
negligence claims. Rather, the majority concludes that be-
cause nothing in paragraph 3’s Limited Liability Clause ap-
plies to claims for negligence, Horne can proceed to trial on
his tort claim. But because I read the Exculpatory Clause’s lan-
guage in paragraph 9 as applying to claims that sound in neg-
ligence, I would treat Horne’s contract and tort claims as dis-
tinct 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 dis-
cussing 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 scaffold-
ing 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 re-
quired (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 li-
ability 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 inspec-
tions. 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 per-
son, 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 les-
sees, parties may generally contract around liability for negli-
gence. 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, ab-
sent fraud or willful and wanton negligence, the contract will
be valid and enforceable unless: (1) there is a substantial dis-
parity in the bargaining position of the two parties; (2) enforc-
ing 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 Re-
statement (Second) of Contracts § 195 (Am. L. Inst. 1981) (list-
ing 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 ren-
ders the rental agreement’s Exculpatory Clause unenforcea-
ble. 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 com-
pared to Home Depot’s “is not the sort of disparity that vio-
lates 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 fa-
vor” under Illinois law. Meyers v. Rockford Sys., Inc., 625
N.E.2d 916, 921 (Ill. App. Ct. 1993). They must be strictly con-
strued 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 in-
jury must fall “within the scope of possible dangers ordinarily
No. 19-2082 53
accompanying the activity and, thus, [be] reasonably contem-
plated 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 As-
sumption-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 opera-
tion 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 Op-
eration 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 can-
not 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 ma-
chine 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 in-
specting a rental device before turning it over to the con-
sumer—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 lim-
ited-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 deci-
sion, these stores might do well to revisit their rental agree-
ments. 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 chal-
lenge—one in which I disagree with the majority’s approach.
I respectfully dissent.