HUITT v. CALIFORNIA GAS CO

ar understood his responsibilities and adhered to them. According to the majority, "[t]his is negligence." 391 Ill. App. 3d at 374.

The dissenting justice would have found that Kinko's was not liable on either the statutory claim or the common law negligent training and supervision claim. Although the dissent agreed with the majority that the common law standard of care was one of "reasonableness," the dissent opined that the Act establishes what is reasonable. 391 Ill. App. 3d at 385 (O'Malley, P.J., dissenting). The dissent criticized the majority and the trial court for relying on the Model Notary Act, noting that the Illinois legislature has declined to adopt the Model Notary Act into either current Illinois notary law or the Act as in effect in 1995. The dissent opined that the scope of Kinko's duties can be defined only by the Act or its own voluntary undertakings.

The dissent also found that Closen's interpretation of the Act was incorrect. According to the dissent, the phrase "identification documents" in section 6-102 of the Act means oily that "identification can be ascertained from a variety of different documents that various individuals may present, such as a driver's license, state identification, immigration documents, passport, etc." 391 Ill. App. 3d at 386. Thus, the dissent concluded, Yamnitz's testimony that he trained Albear to require one form of photo identification demonstrates that Kinko's properly trained Albear.

ANALYSIS Illinois Notary Public Act

Several provisions of the Illinois Notary Public Act are relevant. Although we have already made some references to those provisions, we now reproduce them in full.

The Act was substantially amended in 2008. Because the operative facts of this case occurred in 1995 and 1996, we refer to and cite only the version of the Act in effect at that time.

Section 6-102 establishes the function and duty of a notary public.

"§ 6-102. Notarial Acts. (a) In taking an acknowledgment, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the notary and making the acknowledgment is the person whose true signature is on the instrument.

(b) In taking a verification upon oath or affirmation, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the notary and making the verification is the person whose true signature is on the statement verified.

(c) In witnessing or attesting a signature, the notary public must determine, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the notary and named therein.

(d) A notary public has satisfactory evidence that a person is the person whose true signature is on a document if that person:

(1) is personally known to the notary;

(2) is identified upon the oath or affirmation of a credible witness personally known to the notary; or

(3) is identified on the basis of identification documents." 5 ILCS 312/6-102 (West 1996).

Section 7-101 establishes the liability of the notary: "Liability of Notary and Surety. A notary public and the surety on the notary' s bond are liable to the persons involved for all damages caused by the notary's official misconduct." 5 ILCS 312/7-101 (West 1996).

The vicarious liability of the notary public's employer is set forth in section 7-102:

"§ 7-102. Liability of Employer of Notary. The employer of a notary public is also liable to the persons involved for all damages caused by the notary's official misconduct, if:

(a) the notary public was acting within the scope of the notary's employment at the time the notary engaged in the official misconduct; and

(b) the employer consented to the notary public's official misconduct." 5 ILCS 312/7-102 (West 1996).

Section 7-104 defines "official misconduct" as it appears in the above-quoted portions of the Act:

"§ 7-104. Official Misconduct Defined. The term `official misconduct' generally means the wrongful exercise of a power or the wrongful performance of a duty and is fully defined in Section 33-3 of the Criminal Code of 1961. The term `wrongful' as used in the definition of official misconduct means unauthorized, unlawful, abusive, negligent, reckless, or injurious." 5 ILCS 312/7-104 (West 1996).

Compliance with Supreme Court Rule 341

We first address the appellate court's determination that Kinko's waived review of the common law claim by failing to appropriately support its argument. In reaching that determination, the court briefly reviewed Kinko's arguments. It noted that Kinko's argued the trial court had erroneously expected Albear to be trained to a higher standard than that set forth in the Act, supporting its argument with cases "indicating violation of a statute may be a basis for a tort claim." As the court recognized, Kinko's maintained that it could not be liable for negligence in this case because its training was consistent with the statute. With respect to the negligent supervision claim, the court opined that Kinko's had cited authority "regarding an entirely different type of tort, negligent hiring and retention of an unfit employee," referring to Kinko's citation to Van Horne v. Muller, 185 Ill. 2d 299 (1999).

Supreme Court Rule 341(h) sets out the requirements for appellants' briefs. The rule lists the sections of the brief that shall be included, as well as requirements for each section. With respect to arguments, the rule states that the briefs shall contain:

"Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal or abstract, if any, where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are waived and shall not be raised in the reply brief in oral argument, or on petition for rehearing." 210 Ill. 2d R. 341(h)(7).

Consistent with the plain language of the rule, this court has repeatedly held that the failure to argue a point in the appellant's opening brief results in forfeiture of the issue. See, e.g., Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 143 n. 2 (2006) (issue forfeited where it was raised for the first time at oral argument); Skolnick v. Altheimer Gray, 191 Ill. 2d 214, 237 (2000) (affirmative defense forfeited where it was not raised in brief). Both argument and citation to relevant authority are required. An issue that is merely listed or included in a vague allegation of error is not "argued" and will not satisfy the requirements of the rule. See, e.g., People v. Phillips, 215 Ill. 2d 554, 565 (2005) (issue forfeited where defendant raised it but failed to make any argument or citation to relevant authority); People v. Franklin, 167 Ill. 2d 1, 20 (1995) (issues forfeited where defendant provided no argument to support claims of error); People v. Guest, 166 Ill. 2d 381, 413-14 (1995) (one sentence in brief indicating that defendant "incorporated" all claims made in earlier proceedings not sufficient to satisfy Rule 341, resulting in forfeiture of claims). Moreover, an argument that is developed beyond mere list or vague allegation may be insufficient if it does not include citations to authority. See, e.g., Dillon v. Evanston Hospital, 199 Ill. 2d 483, 493 (2002) (three-paragraph argument insufficient to satisfy Rule 341 where argument did not include any citations to authority).

The appellate court has further held that even where the brief includes both argument and citation, a party may nonetheless forfeit review if the cited authority is irrelevant and does not represent a sincere attempt to comply with the rule. See, e.g., Britt v. Federal Land Bank Ass'n of St. Louis, 153 Ill. App. 3d 605, 608 (1987) ("We do not view the inclusion of citations to irrelevant authority scattered throughout [the plaintiffs'] brief to constitute even an attempt to comply with the rule"). In the present case, with respect to Kinko's argument on the negligence claims, the court found that "[t]he cited case law has no bearing on the judge's finding of negligence and does not warrant further discussion." Thus, the court concluded, Kinko's forfeited consideration of the argument. 391 Ill. App. 3d at 368.

Kinko's brief to the appellate court contained more than eight pages of argument on the common law claim and citations to 17 cases, along with statutes and secondary authority. Kinko's argued there, as it does here, that the Act governs an employer's duty to train and supervise notary employees, citing cases in which this court and others have discussed the role of statutes in negligence cases. See, e.g., First Springfield Bank Trust v. Gaiman, 188 Ill. 2d 252 (1999); Bier v. Leanna Lakeside Property Ass'n, 305 Ill. App. 3d 45 (1999). As the appellate court noted, most of Kinko's citations are not directly on point. Instead, the cited cases arise from violations of statutes, and they generally discuss the use of statutory violations as evidence of negligence. See, e.g., Calloway v. Kinkelaar, 168 Ill. 2d 312, 319 (1995) ("If the plaintiff is a member of the protected class and his or her injury is of the type the statute was intended to protect against, the plaintiff may recover upon establishing that the defendant's violation of the ordinance or statute proximately caused plaintiffs injury").

With respect to the negligent-supervision claim specifically, Kinko s relied on Van Horne, as noted above. In Van Horne, the plaintiff alleged that the defendant radio station was vicariously liable and directly liable for damages caused when a disc jockey made defamatory statements about the plaintiff on air. Van Horne, 185 Ill. 2d at 303-04. The plaintiff alleged direct liability against the station for defamation based on its publication of the defamatory statements, but the plaintiff also alleged direct liability based on the station's actions as an employer. Under the heading "Negligent and Reckless Hiring, Supervision, and Retention," this court explained that "[c]ounts V through VIII [of the plaintiffs complaint] purport to allege claims for negligent and reckless hiring and negligent and reckless supervision." Van Horne, 185 Ill. 2d at 308-09. Specifically, the court noted that the plaintiff alleged "that the defendants had a duty to supervise their disc jockeys," along with allegations of negligent hiring and retention. Van Horne, 185 Ill. 2d at 310.

In discussion, however, this court focused solely on negligent hiring and retention; the plaintiffs claim of negligent supervision was not separately discussed. Noting that "Illinois law recognizes a cause of action against an employer for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons," the Van Horne court went on to explain that liability "in this context" arises only when the employee has a "particular unfitness" that gives rise to a "particular danger of harm to third parties." (Emphasis omitted.) Van Horne, 185 Ill. 2d at 310, 313. It is this language that Kinko's cited in its brief to the appellate court. While the cited language may be unpersuasive on the issues in this case, we disagree with the appellate court's conclusion that Van Horne has "no bearing."

Thus, although we acknowledge that citation to completely irrelevant authority may, in some cases, be so inadequate as to run afoul of Rule 341(h)(7), the case at bar is not such a case. In our view, citation to cases that are merely unpersuasive or inapposite, as the appellate court apparently found Kinko's cited authorities to be, is not tantamount to failing to cite relevant authority altogether. We therefore find that Kinko's has not forfeited review of the common law negligence claim, and we will review it on its merits.

We note that although Rule 341(h)(7) applies on its face only to appellants' briefs before the appellate court, it also applies to appellees' briefs through Rule 341(i) and to briefs before this court through Rule 315 (210 Ill. 2d R. 315). Thus, while Rule 318(a) provides that an appellee may seek and obtain any relief warranted by the record on appeal without filing a separate appeal or petition for leave to appeal (155 Ill. 2d R. 318(a)), Rule 341 nonetheless requires that the appellee provide adequate argument and citation to authority for any such relief.

In his appellee's brief to this court, plaintiff Vancura includes a section entitled "Additional Issue Presented for Review," which reads, in total, "Whether the First District properly vacated the trial court's ruling that Kinko's impliedly consented to its employee's official misconduct in notarizing the forged Assignment of Mortgage." Similarly, plaintiff's "Conclusion" section includes the sentence, "The First District should not have vacated the trial court's finding that Kinko's was liable for Albear's official misconduct." Aside from these two sentences, however, plaintiff makes no reference to the statutory liability claim and devotes no portion of his argument to supporting that claim. In contrast to the sections of Kinko's brief discussed above, plaintiffs brief contains no argument and no citations to authority on this point. As discussed above, a claim of error that is merely listed but not "argued" will not satisfy the requirements of Rule 341. See, e.g., Phillips, 215 Ill. 2d at 565. We find that plaintiff has failed to comply with our rules, and he has therefore forfeited review of the statutory liability count. Consequently, with respect to the statutory claim, we affirm the appellate court and reverse the trial court's judgment against Kinko's.

Standard of Review

Plaintiffs remaining claim against Kinko's alleges that Kinko's "negligently trained and supervised and failed to properly control its employee, Albear, resulting in the improper notarization of the Assignment of Mortgage." To succeed in a claim for negligence, a plaintiff must establish the existence of a duty, a breach of the duty, and an injury to the plaintiff that was proximately caused by the breach. Hills v. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 228 (2000). Whether a duty exists in a particular case is a question of law, which we review de novo. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002); Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). Breach of duty and causation are generally findings of fact, which we will reject only when they are against the manifest weight of the evidence. Jones v. Chicago Northwestern Transportation Co., 206 Ill. App. 3d 136, 139 (1990); Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 151-52 (2005). A finding is against the manifest weight of the evidence when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002).

Although plaintiff formulated his common law claim as a single claim of negligent supervision and negligent training, we note that it in fact raises two distinct theories of negligence on the part of Kinko's: liability for negligent supervision and liability for negligent training. We evaluate each in turn.

Negligent Supervision

The central question we must resolve is whether, in light of general common law principles and the statutory scheme established by the Act, Kinko's can be liable for negligent supervision of Albear. Kinko's, as appellant, begins its argument by conceding that the statutory remedy provided in section 7-102 of the Act does not preempt a common law cause of action for negligent supervision. Instead, Kinko's argues, the Act fixes the measure of the common law duty owed by employers of notaries. Thus, according to Kinko's, an employer cannot be liable on the basis of a duty found outside the Act. Plaintiff responds that although the Act establishes and fixes the duties of a notary public, the statute does not "preempt" a common law cause of action based on the employer's own negligence. Thus, plaintiff maintains, he may assert a common law claim that is unaffected by the statute. Plaintiff relies primarily on general assertions of negligence on the part of Kinko's and the testimony of Professor Closen, described above.

Because plaintiff asserts a common law claim, we note that at common law an employee's malfeasance may generally create liability for his or her employer in two ways: vicarious liability for the acts of the employee, or direct liability for the employer's own acts. Under the theory of vicarious liability, or respondeat superior, an employer can be liable for the torts of an employee that are committed within the scope of the employment. Wright v. City of Danville, 174 Ill. 2d 391, 405 (1996); Pyne v. Witmer, 129 Ill. 2d 351, 359 (1989). The employee's liability is imputed to the employer; that is, where the employee is acting within the scope of the employment, the plaintiff generally need not establish any malfeasance on the part of the employer. See Darner v. Colby, 375 Ill. 558, 560 (1941).

In contrast, a claim of direct negligence, such as the plaintiff's claim in this case, alleges that the employer was itself negligent. As in any claim for negligence, a plaintiff must establish the existence of a duty, a breach of the duty, and an injury to the plaintiff that was proximately caused by the breach. Hills, 195 Ill. 2d at 228. In direct negligence, the plaintiff must prove that the employer's breach — not simply the employee's malfeasance — was a proximate cause of the plaintiff's injury. In a claim of negligent supervision such as the one plaintiff has pleaded in this case, where there is no assertion of a particular duty to supervise, the duty upon which plaintiff relies must be based on the general relationship between employer and employee. The scope of that duty in this case, however, is the heart of the dispute between the parties.

In support of its argument that the Act alone fixes the scope of the employer's legal duty, Kinko's cites several cases in which Illinois courts have discussed the relationship between statutes designed to protect life or property and negligence actions. See Noyola v. Board of Education of the City of Chicago, 179 Ill. 2d 121, 130 (1997); Dunn v. Baltimore Ohio R.R. Co., 127 Ill. 2d 350, 367 (1989); Price v. Hickory Point Bank Trust, 362 Ill. App. 3d 1211, 1216-17 (2006). Kinko's relies primarily on Noyola, citing that case's assertion that "statutes and ordinances designed to protect human life or property establish the standard of conduct required of a reasonable person. [Citation.] In other words, they fix the measure of legal duty." Noyola, 179 Ill. 2d at 130. According to Kinko's, the imposition of a standard of care that is higher than that prescribed by the statute violates the principle expressed in Noyola and similar cases. We disagree.

In Noyola, this court considered whether section 18-8(A)(5)(i)(1)(a) of the School Code, which set forth the manner in which certain school funds could be expended, created an implied cause of action against the defendant school board for failing to comply with the statute. Noyola, 179 Ill. 2d at 124-28. The court observed that in the state courts of this country,

"judges have come to identify the implied statutory action with modern tort actions based on the law of the reasonable person. Their view is that conduct violating legislated rules is negligent, and if a statutory violation proximately causes an injury of the kind the legislature had in mind when it enacted the statute, the offending party is civilly liable for that injury." Noyola, 179 Ill. 2d at 129.

"In Illinois," the court noted, "this approach is reflected in those cases holding that the violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence." Noyola, 179 Ill. 2d at 129. Thus, although Noyola went on to explain that "statutes and ordinances designed to protect human life or property establish the standard of conduct required of a reasonable person," the court meant only what it asserted in the remainder of the quoted paragraph: "Where a defendant violates one of these statutes or ordinances, a plaintiff who belongs to the class intended to be protected by that statute or ordinance and whose injury is of the type the statute or ordinance was intended to protect against may recover upon establishing that the defendant's violation proximately caused plaintiff's injury." (Emphasis added.) Noyola, 179 Ill. 2d at 130. Kinko's reliance on Noyola for the inverse proposition — that is, that compliance with a statute precludes a finding of negligence — is misplaced. See, e.g., Indianapolis St. Louis R.R. Co. v. Stables, 62 Ill. 313, 317-18 (1872) ("Because the statute has imposed specified duties, it does not follow that the employees of [railroads] are released from the dictates of humanity or the common legal duty of regarding the rights of others"); Christou v. Arlington Park-Washington Park Race Tracks Corp., 104 Ill. App. 3d 257, 261 (1982) ("Compliance with statutes and safety regulations is not conclusive evidence on the question of negligence"); Belvidere National Bank Trust Co. v. Leisher, 83 Ill. App. 3d 179, 186 (1980) ("Although violation of statutes, ordinances or codes is conclusive to show defendant's breach of duty (leaving only the question of proximate cause), compliance with codes and safety regulations is not conclusive evidence on the question of negligence").

Clearly, then, the mere existence of a statute establishing legal duties for employers of notaries does not foreclose the possibility of a common law negligence action based on an extra-statutory duty of care. However, the legislature may intentionally foreclose or limit such an action through the statute by altering the common law. "A statute will be construed as changing the common law only to the extent the terms thereof warrant, or as necessarily implied from what is expressed." Cedar Park Cemetery Ass'n v. Cooper, 408 Ill. 79, 82 (1951). To determine whether the legislature has modified the common law liability of employers of notaries, we first examine the statute.

Section 7-102 establishes a cause of action against the employer of a notary for an employee's official misconduct where: (1) the notary public was acting within the scope of his employment, and (2) the employer consented to the notary's official misconduct. The section is titled "Liability of Employer of Notary." 5 ILCS 312/7-102 (West 1996). With respect to the second prong of the statute, the appellate court concluded that for an employer to be found to have "consented" to a notary's official misconduct, there must be a showing that the employer had some knowledge of the notary's misconduct. We agree.

Where the language of a statute is clear, it must be given its plain and ordinary meaning. King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 26 (2005). Here, the statute provides that an employer may be found liable for the acts of a notary only where "the employer consented to the notary public's official misconduct." 5 ILCS 312/7-102(b) (West 1996). The statute does not define "consent," but Black's Law Dictionary defines the term in relevant part as "[a]greement, approval, or permission as to some act or purpose." Black's Law Dictionary 323 (8th ed. 2009). Whatever the proof required to establish "consent" on the part of an employer, it is clear that an employer cannot "[a]greet, approv[e], or [grant] permission" for an act or purpose of which the employer has no knowledge.

The legislature therefore intended for the employer of a notary to be liable where the employer has some minimum threshold of knowledge of the notary public's conduct. This represents a clear conflict with common law claims of either respondeat superior or direct negligence. A common law vicarious liability claim typically requires no proof of the employer's knowledge, consent, or culpability. See Alms v. Baum, 343 Ill. App. 3d 67, 74 (2003) (an action for respondeat superior, "is brought against ei master based on allegedly negligent acts of the servant[.] and no independent wrong is charged on behalf of the master"). Similarly, in a direct liability claim, the plaintiff may allege that the employer merely should have known of the employee's malfeasance. We presume that the legislature was familiar with the common law requirements. See People v. Hickman, 163 Ill. 2d 250, 262 (1994) ("it must be presumed that the legislature acted with knowledge of the prevailing case law"). We therefore hold that section 7-102 was Intended to modify common law liability for employers of notary publics. Plaintiffs who raise a common law claim against the employer of a notary public must show, at a minimum, that the employer had some knowledge of the notary public's misconduct. In other words, the minimum duty of an employer of notaries at common law extends only as far as the duty established by section 7-102 of the Act; the employer has a duty to not consent to the official misconduct of its employees.

Our conclusion today is consistent with the Act as a whole. The Illinois Notary Public Act was enacted "to simplify, clarify, and modernize the law governing notaries public" and to "promote, serve, and protect the public interest." 5 ILCS 312/1-102(b)(1) (West 1996). The office of notary public, however, extends well into common law history. Black's Law Dictionary 1161 (9th ed. 2009), quoting J. Proffatt, The Office and Duties of Notaries Public § 1, at 1 (2d ed. 1892) ("`A notary public is an officer long known to the civil law'"). Under the Act and common Jaw, the notary public "`serves as a public witness of facts transacted by private parties.'" Black's Law Dictionary 1161 (9th ed. 2009), quoting S. Litvinoff, 5 Louisiana Civil Law Treatise: The Law of Obligations 296-97 (2d ed. 2001). Thus, the notary public gives his or her personal seal and signature when completing a notarial act, and in so doing he or she assumes personal liability for the accuracy of his or her notarization. 5 ILCS 312/3-101, 3-102 (West 1996) (setting forth the requirements for the notary's official seal and signature); 5 ILCS 312/6-105 (West 1996) (setting forth the requirements for certificates of notarial acts); 5 ILCS 312/7-101 (West 1996) ("A notary public and the surety on the notary's bond are liable to the persons involved for all damages caused by the notary's official misconduct"). In this way, the Act codifies a long tradition of imposing burdens and liabilities on a notary public that are personal to the notary, rather than shared with his or her employer. Thus, under the Act, when a notary public wrongfully or negligently exercises the powers of the office, it is the notary alone who becomes liable. Under section 7-102, the employer is liable only if the employer "consented to" the misconduct of the notary; that is, if the employer committed some malfeasance of its own.

Applying these holdings to the present case, plaintiff does not argue that Kinko's had any knowledge of Al-bear's misconduct, nor did the evidence at trial reveal any such knowledge. On the contrary, the evidence established that Kinko's never received any complaints about Albear's conduct as a notary. Plaintiff has claimed only a general negligence in failing to discover defects in Albear's performance. Even if we assume that such allegations establish a cause of action for negligent supervision of an employee generally, section 7-102 makes clear the legislature's intent to require some knowledge on the part of the employer as a prerequisite to imposing liability. Therefore, the judgment of the circuit court imposing liability against Kinko's for negligent supervision must be reversed.

Negligent Training

Plaintiff also alleges that Kinko's was negligent in its training of Albear. Initially, we note that plaintiff has not argued that Kinko's breached a generalized duty to provide training. Instead, plaintiff has alleged that Kinko's was negligent because the training Kinko's did provide was insufficient or defective in several enumerated ways. In other words, although plaintiff acknowledges that Kinko's provided training, it argues that Kinko's did so negligently. Kinko's responds that its liability for training should be limited in light of the voluntary undertaking doctrine, relying on Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26 (1992).

In Frye, this court addressed the question of whether a pharmacist who was under no duty to attach warning stickers to dispensed medication could be liable for negligence when she undertook to attach stickers. Frye, 153 Ill. 2d at 28-29. The plaintiff alleged that the pharmacist was negligent because she attached a sticker indicating that the medication may cause drowsiness, but she did not attach a sticker indicating that the medication should not be taken with alcohol, although she knew that drinking alcohol with the medication was dangerous. Frye, 153 Ill. 2d at 29. This court noted that, although the pharmacist was initially under no duty to warn patients, "[p]ursuant to the voluntary undertaking theory of liability, one who gratuitously or for consideration renders services to another is subject to liability for bodily harm caused to the other by one's failure to exercise due care or `"such competence and skill as [one] possesses." `" Frye, 153 Ill. 2d at 32, quoting Cross v. Wells Fargo Alarm Services, 82 Ill. 2d 313, 317 (1980); Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86 (1964). The court also applied section 323 of the Restatement (Second) of Torts, which provides:

"§ 323. Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking." Restatement (Second) of Torts § 323 (1965).

Kinko's argues that, because it was under no duty to train its notary public employees, the training program it provided should be subject to the provisions of Frye and section 323. We disagree for several reasons. First, both the Restatement and Frye contemplate the liability of a service provider for the provision of services. In our view, the training of an employee cannot reasonably be viewed as the employer's "render[ing] services" to an employee. Moreover, section 323 and our precedents explicitly limit themselves to situations in which the plaintiff has suffered "physical" or "bodily" harm. In the present case, plaintiff has suffered only economic damages. Finally, section 323 provides for liability of the service provider in favor of the person to whom the services were negligently rendered. Here, even if we could view Kinko's training as providing a service "gratuitously or for consideration," that service was clearly not provided to plaintiff. We therefore reject Kinko's argument that plaintiffs negligent training claim is controlled by Frye or section 323 of the Restatement.

Section 324A of the Restatement, which this court applied in Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 210-11 (1979), does provide for limited liability to third persons based on the negligent performance of a service or undertaking. However, like section 323, section 324A provides liability only where the provision of services results in "physical harm," and Kinko's has not claimed that section 324A applies.

Instead, whether and to what extent Kinko's had a duty to train its notary employees is best analyzed under principles generally applicable to negligence cases. As we have stated, whether a duty exists in a particular case is a question of law, which we review de novo. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002), quoting Ward v. K. mart Corp., 136 Ill. 2d 132, 140 (1990); Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). `The touchstone of the duty analysis is to ask whether the plaintiff and defendant stood in such a relationship to one another that the law imposes on the defendant an obligation of reasonable conduct for the benefit of the plaintiff." Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 226 (2010). The inquiry involves four factors: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing the burden on the defendant. Marshall v. Burger King Corp., 222 Ill. 2d 422, 436-37 (2006).

Initially, we note that the Act imposes no duty on the employer of a notary public, except to refrain from consenting to the notary's misconduct, as discussed above. Consistent with the Act's overall emphasis on the personal responsibility of the notary, the notary's employer is not charged with providing training, supplies, or any other assistance to the notary. Indeed, the notary is not required to undergo any special training before or during has or her tenure as a notary. Moreover, plaintiff has not asked us to impose a general duty on employers to train notary employees; as noted above, plaintiff has alleged that Kinko's training was negligent, not that Kinko's breached a general duty to train. We therefore express no opinion on whether a general duty to train exists, and we move instead to defining the scope of the employer's duty once training has been provided.

Plaintiff urges us to adopt a duty that would require employers to train notary employees in the best practices of notaries generally, as expressed in Closen's testimony. Closen based his testimony almost entirely on the Model Notary Acts of 1984 and 2002, opining that Kinko's was negligent for failing to teach Albear about several practices required under the Model Acts but not mentioned in the Illinois Notary Public Act, including maintaining a logbook and destroying the notary seal when he resigned his commission. However, the legislature of Illinois has never adopted the Model Notary Act. Though it could have done so when it considered and revised the Act in both 1986 and 2008, it did not enact any of the provisions of the Model Acts into law. The stated purpose of the Act includes "to simplify, clarify, and modernize the law governing notaries public," and the legislature may well have declined some of the more stringent requirements, including those in Closen's testimony, in the interests of simplicity and clarity. 5 ILCS 312/1-102(b) (West 1996). We note also that the Act's reduced requirements makes it easier to obtain a notarization, thus allowing more of the public access to notary services. If we were to impose a duty on employers who provide training that required such training to teach proposed and model standards rather than the standards selected by our legislature and expressed in the Act, we would be undermining the legislature's careful determination of what should be required of a notary. This we will not do.

Instead, we hold that where an employer provides training to notary public employees, it has a duty to ensure that its training conforms to the provisions adopted by the Illinois legislature in the Act. This holding is consistent with the four factors we have enumerated: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing the burden on the defendant. First, where an employer trains notaries as part of a program to offer that notary's services to its customers, it is highly foreseeable that errors in the training program could lead to injuries such as those that occurred in this case. With respect to the second factor, where the training is incorrect or misleading, the likelihood of a resultant injury is also relatively high. Notary publics are routinely asked to witness instruments of great legal and financial significance, including loan documents, mortgages, and property transactions. The potential for fraud in such transactions is great, and parties to the transactions rely on the proper performance of the notary. If the employer provides incorrect or inadequate instruction, the potential for injury is present.

Furthermore, where the employer has already under-taken to provide training, the burden imposed on the employer by requiring that the training comply with the Act is minimal. The Act should be the starting point of any training program for notary publics in Illinois, and we expect that any employer who seeks to train Illinois notaries would attempt to conform the training to the Act. The last factor, the consequences of placing this burden on employers of notaries, is similarly not a concern. Although some employers may decide not to provide training programs to their notary employees, notary publics are not required to undergo any training under the Act.

Having determined that once Kinko's undertook training, it had a duty to train its employees consistently with the Act, we next evaluate plaintiffs claim that Kinko's breached its duty. Breach of duty is a finding of fact, which we will reject only when it is against the manifest weight of the evidence. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 151-52 (2005). A finding is against the manifest weight of the evidence when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002).

The trial court found that "Kinko's failed to meet the necessary standard of care." However, it did not directly explain the factual findings that led it to this conclusion. Instead, the court reviewed several portions of Professor Closen's testimony, noting that the testimony was "not impeached" and that Kinko's offered no expert witness of its own. The court specified several ways in which Closen opined that Kinko's failed to meet the standard of care: the instructor of the notary training program, Yamnitz, "was not a notary at the time he trained Albear and had never been a notary"; Yamnitz did not teach Albear "that information regarding notarizations was to be kept in a journal"; Yamnitz did not teach notaries about "steps to take to secure the notary seals and journal"; Yamnitz did not instruct Kinko's notaries "on the need to preserve the notary seal and logbook"; and Yamnitz did not properly train Albear about the procedures for "identifying document signers."

The court also found that Kinko's managers were not trained "in the responsibilities of notaries." Although this is framed in terms of training, plaintiff's argument was that the lack of managerial training was a factor in the negligent supervision of Albear. We therefore need not consider that finding here.

First, Kinko's was not under a duty to provide notary training classes taught exclusively by notaries. As we have stated, all that was required of Kinko's training program was that it teach notaries in a manner consistent with the Act. The credentials of the trainer are therefore irrelevant, so long as he or she teaches the class in conformity with this duty. With respect to the journal, we note that both Albear and Yamnitz testified that Albear was taught to maintain a journal of his notarizations, and Professor Closen referred to their testimony on the matter when he opined that the journal Albear kept was insufficient. Thus, the court's finding that Kinko's breached its duty by failing to teach Albear to keep a journal is against the manifest weight of the evidence. Even if it were not, however, the Act did not require notaries to maintain a journal or logbook of any kind in 1995. Therefore Kinko's was under no duty to train Albear to keep one.

Similarly, Kinko's was under no duty to train its notary employees to secure or preserve the logbook. With respect to the security and preservation of the seal, the Act contains no requirements about either. Although section 7-107 of the Act makes it a misdemeanor to unlawfully possess a notary's seal, the Act makes no command, specific or general, about the need to secure the seal. The Act also contains no requirement that the seal of a notary who resigns his commission be preserved or destroyed, as Closen suggested was required.

Finally, the trial court also found that Kinko's breached its duty because Yamnitz did not properly train Albear about "identifying document signers." Although Professor Closen found several faults with Albear's identification process, the court repeated just one such deficiency in its summary of Closen's testimony: "Albear did not require photo identification from a document signer."

Where the language of a statute is clear, it must be given its plain and ordinary meaning. King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 26 (2005). In addition, the statute "should be read as a whole with all relevant parts considered." Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). As we have already discussed, the notary public gives his or her personal seal and signature when completing a notarial act, and in so doing he or she assumes personal liability for the accuracy of his or her notarization. 5 ILCS 312/3-101, 3-102 (West 1996) (setting forth the requirements for the notary's official seal and signature); 5 ILCS 312/6-105 (West 1996) (setting forth the requirements for certificates of notarial acts); 5 ILCS 312/7-101 (West 1996) ("A notary public and the surety on the notary's bond are liable to the persons involved for all damages caused by the notary's official misconduct").

It is in this context that the Act provides that a notary must determine, "either from personal knowledge or satisfactory evidence," that the person seeking notarization is the person whose true signature is on the document. "Satisfactory evidence" is generally defined as "[e]vidence that is sufficient to satisfy an unprejudiced mind seeking the truth." Black's Law Dictionary 639 (9th ed. 2009). Thus, under the Act a notary public, whose inherent function is to serve as an unprejudiced witness, must satisfy himself of the truth of a signer's identity. The specific manner in which the notary should do so is left to the notary, but as noted above, the Act establishes that a notary who does so in a negligent or reckless manner has committed "official misconduct" and is liable for any damages so caused. 5 ILCS 312/7-101 (West 1996).

Closen cited the Model Notary Act of 1984 as establishing that a photograph was required, and the appellate court accepted this assertion, noting that Illinois courts have occasionally turned to such persuasive authority to define a statutory term. See Lohr v. Havens, 377 Ill. App. 3d 233 (2007); Hasemann v. White, 177 Ill. 2d 414 (1997). Thus, the appellate court indicated that reading in the requirements of the Model Notary Act was appropriate to help define "satisfactory evidence." In our view, however, adopting the Model Notary Act's approach in this manner would not merely define "satisfactory evidence," a term that is clear as it is used in the Act, hut would instead supply additional requirements not indicated by the statute's plain language. Where the Act did not specify that only photographic identification could provide "satisfactory evidence" of identity, we decline to read in such a requirement.

We therefore find that under the 1991 Illinois Notary Public Act, Albear was not required to obtain photographic identification to have "satisfactory evidence" of a person's identity, and the trial court's reliance on Closen's testimony to the contrary was incorrect as a matter of law. Instead, the Act required Albear to satisfy himself of the signer's identity in a non negligent manner, either by personal knowledge or on the basis of "identification documents." As a result, Kinko's was not under a duty to teach its notary employees that a photo identification was required; its duty was simply to teach notaries that they could use identification documents to fulfill their statutory obligation to receive "satisfactory evidence" of identity. The evidence clearly establishes that they did so.

Yamnitz testified that he instructed his notary students to look for a photo, saying:

"Typically what I told my students or my participants was to ask for a state ID, driver's license, or some type of ID that had a picture, a description, and the signature on it so that they could use a picture to verify, use a description to more or less verify height and weight, and then be able to compare the signature."

Although Albear testified that he was taught a photograph was not required, he nonetheless corroborated Yamnitz's claim that he was taught to ask for identification. He testified, "I ask for identification. The majority of the times I ask people for a driver's license. If at that time there were driver's licenses with photos on it, that is what I received. If not, then I received other identification." Albear's testimony was corroborated by Boatwright, who testified that on December 20, 1995, when he approached the counter for the notarization of his signature, Albear asked him to show a driver's license.

Albear also testified that Kinko's trained him to make sure the person whose signature he was notarizing was the person appearing before him. When asked "So you wouldn't notarize a signature unless that person was physically in your presence?" Albear responded, "That is the way we were taught." Moreover, although he acknowledged that the Act permitted him to personally identify a signer or to allow a person known to him to swear or affirm an identification, he testified that he always asked for identification because he felt more comfortable that way. He also testified that he asked all of his customers to "swear or affirm" that they were who they claimed to be, because that was his "preference."

Closen also expressed concerns about one answer Albear gave in which he stated that his job was merely to "verify [a] signature" based on the identification provided, not to determine that the person providing the identification was the person whose name appeared on the identification. After positing a hypothetical situation in which counsel appeared before Albear and provided a social security card for identification, counsel asked, "How would you know that I am actually Richard Hirsh?" and Albear responded, "Well, that is not my job. My job is to verify your signature based on what I have in front of me." Closen criticized this answer, noting that Albear's focus on signature rather than identification was inappropriate. However, in Albear's next answer, he clarified his statement, saying, "Well, my job was to receive identification and verify based on the signature and the signature on the identification that it was the person they said they were."

The evidence at trial therefore supports Kinko's claim that it fulfilled its duty to ensure that its training program complied with the requirements of the Act. To the extent that the trial court found that Kinko's breached its duty we conclude that such a finding is against the manifest weight of the evidence. Thus, the trial court's finding of liability against Kinko's for negligent training is reversed.

CONCLUSION

Based on the foregoing, we find that the trial court's determination that Kinko's was liable on the basis of negligent supervision and training is against the manifest weight of the evidence. With respect to the statutory liability claim, we find that plaintiff has forfeited review of the appellate court's judgment. Thus, we affirm in part and reverse in part the judgment of the appellate court, reverse the judgment of the circuit court against Kinko's in its entirety and remand to the circuit court with directions to enter judgment in favor of Kinko's on both counts.

Appellate court judgment affirmed in part and reversed in part; circuit court judgment reversed; cause remanded with directions.

itation.] `These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.' [Citation.] Thus, `proximate cause "is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor's responsibility for the consequences of his conduct."' [Citation.]" ( Ferguson v. Lieff, Cabraser, Heimann Bernstein (2003) 30 Cal.4th 1037, 1045 [ 135 Cal.Rptr.2d 46, 69 P.3d 965].) While this case implicates both aspects of causation, we conclude that plaintiffs have not established that the Gas Company's failure to warn was a cause in fact of their injuries.

Analysis of Evidence

We must determine whether the Gas Company's failure to issue a warning about the propensity of new steel pipes to adsorb the odorant in natural gas was a substantial factor in causing plaintiffs' harm. We review the record for substantial evidence. ( Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1137 [ 122 Cal.Rptr.2d 139], overruled on other grounds in People v. Ault (2004) 33 Cal.4th 1250, 1272, fn. 15 [ 17 Cal.Rptr.3d 302, 95 P.3d 523].) We are required to review the whole record, looking for evidence that is reasonable, credible, and of solid value. ( People v. Hillhouse (2002) 27 Cal.4th 469, 496 [ 117 Cal.Rptr.2d 45, 40 P.3d 754]; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681 [ 76 Cal.Rptr.2d 641, 958 P.2d 393].) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. ( People v. Kraft (2000) 23 Cal.4th 978, 1053 [ 99 Cal.Rptr.2d 1, 5 P.3d 68].) We will not substitute our evaluations of a witness's credibility for that of the trier of fact. ( People v. Koontz (2002) 27 Cal.4th 1041, 1078 [ 119 Cal.Rptr.2d 859, 46 P.3d 335].)

Plaintiffs' counsel argued to the jury that the accident was caused by the lack of odorant in the natural gas. Plaintiffs urge us to find substantial evidence of causation because two of their experts testified that once they learned of odor fade, they began doing whatever they could to spread the word throughout the industry. One of their experts brought the issue up at local meetings of the IAPMO and the ASPE. Another expert testified he had made it a "personal campaign" to get the word out. Finally, plaintiffs argue that causation is a matter of common sense and the jury could have inferred from the facts that a warning would have prevented Huitt's actions leading to the accident.

Plaintiffs' arguments confuse knowledge with causation. Their argument, in essence, is that if they had known that the odorant in natural gas could fade, they would not have bled the natural gas pipe servicing the water heater for over two minutes. We agree with this contention. But causation, in this case, requires plaintiffs to prove that if the Gas Company had issued a warning, they would have acquired the knowledge they lacked. A warning that never reached plaintiffs would not have changed the events that occurred on the day of the accident.

We recognize that plaintiffs testified they bled the line for only a few seconds. The expert testimony, however, conclusively established that it would have been impossible for enough natural gas to accumulate in the water heater closet to cause an explosion if the line was bled for only a few seconds. Expert testimony also conclusively established that it would have been impossible for the line to be under "test pressure" because it was connected to the rest of the system, and other aspects of the system were operating normally. This is not to suggest that plaintiffs were untruthful at trial. They were involved in a traumatic accident resulting in serious injuries. We simply conclude they were mistaken when they testified about the length of time the line was bled.

Plaintiffs fail to address this issue, perhaps because of the difficulties of providing an effective warning in this case. In many instances, a manufacturer issuing a warning has a simple and expedient method to do so. A manufacturer of cigarettes can print a warning on the package containing the product. Similarly, a manufacturer of a table saw can include warnings with its product, even placing warning labels directly on the product.

Not so here. The product, natural gas, is conveyed over great distances directly to the consumer through pipelines, most of which are never seen by the consumer. In most instances, the consumer never handles the product, but uses the product in other appliances for the consumer's benefit. The consumer has no direct contact with the product itself. Even if the consumer has direct contact, the product cannot be seen.

Therefore, if a warning is required it must be delivered in some other form. So, how can the Gas Company effectively warn consumers and tradesmen about odor fade? This is a question plaintiffs did not answer in the trial court, and have not answered in this court. Several possible vehicles for issuing a warning have been posited but, as we shall explain, none withstand analysis.

At one point plaintiffs' argued to the jury that a notice could be included in customers' bills, or a warning could be posted on the Gas Company's Internet Web site. Plaintiffs also seemed to suggest the Gas Company could have its employees, who attend meetings of various plumbing organizations, inform those organizations about odor fade.

Every one of these examples requires some proof that the warning would have reached plaintiffs. If a warning had been included in each of the bills sent to customers by the Gas Company, plaintiffs would not have received the warning unless they purchased natural gas from the Gas Company. If they were the Gas Company's customers, they would not have received the warning unless they opened the family mail and saw the warning by reading the material enclosed. There was no testimony that plaintiffs bought natural gas from the Gas Company, opened their bills, or reviewed each enclosure in detail.

Moreover, issuing a warning in this fashion would be ineffective. Although the record is silent on the issue, we are confident that the vast majority of the Gas Company's customers receive their natural gas in established natural gas pipes. From this record it appears that odor fade occurs in new steel gas pipes. Few, if any, established customers would be concerned with issues related to new steel pipes. An effective warning must be directed at new construction and the customers of new construction.

The lack of causation also is apparent if other forms of warnings, even those directed to the new construction industry, are examined. A warning to design professionals may result in the warning being added to the plans prepared for the project, but it is uncertain that such a warning would reach a plumber working on a project, especially in a case like this where plaintiffs were sent to the job site to perform minor tasks after the pipes were installed.

Perhaps warnings could be given to building inspectors. Again, however, there is no guarantee that a plumber working on a large project would have contact with the building inspector, or the topic would be addressed if the plumber happened to meet with the building inspector. Even if the Gas Company's employees informed the job foreman at every large job site of the possible loss of odorant in the natural gas, we cannot be certain that the job foreman would pass the word on to every individual plumber. We are certain that this record contains no evidence that would permit us to infer such a warning would have reached plaintiffs in this case.

One of plaintiffs' experts stated he brought up the issue at a local IAPMO meeting, and the minutes of the meeting were included in a national publication. We need not evaluate the thoroughness of the information included in the publication to recognize the deficiency in this type of approach. The publication was limited to members of IAPMO. There is no indication that plaintiffs were members of IAPMO. Even if they had been members, there was no evidence that they read the IAPMO publication and the minutes of the meetings of the local chapters included therein. For that matter, there was no evidence plaintiffs thoroughly read any trade publication. Therefore, even if the Gas Company had placed a full-page advertisement warning of odor fade in the largest publication directed at the plumbing industry, the warning may not have reached plaintiffs.

Nor will directing a warning to each licensed plumber in the state withstand analysis. There was no evidence in the record that plaintiffs were licensed plumbers, so they would not have received the warning. Plaintiffs did work for a plumbing contractor, who presumably was licensed. There is no certainty, however, that a warning received by plaintiffs' employer would have been relayed to plaintiffs themselves. If the warning had been received one or two years before the project, it may well have been forgotten by the time plaintiffs were directed to the job site, or deemed irrelevant by plaintiffs' employer for the tasks plaintiffs were to perform at the school site.

Nor was there any evidence that plaintiffs ever visited the Gas Company's Internet Web site. Therefore, even if an adequate warning was contained there, there was no evidence it would have reached plaintiffs.

The difficulty of designing a warning that would have reached plaintiffs also is clear from the testimony in this case. It was undisputed that the water heater plaintiffs were attempting to light had a label on it advising^fn6 plaintiffs to read the installation manual. It also is undisputed that the installation manual warned of the possibility of odor fade, although it apparently did not specifically state new steel pipes could cause odor fade. Therefore, plaintiffs would have known odor fade could occur if they had read the installation manual. Their failure to read the installation manual demonstrates the difficulty in getting a warning to these plaintiffs.

Plaintiffs' counsel attacked the warning in the manual as hidden and inadequate because it did not mention new steel pipes as the cause of odor fade. We fail to see the significance of the reason the odorant was adsorbed in this case. What was significant was that the odorant had faded. If plaintiffs had read the warning, it may have been effective to prevent their actions in this case. Plaintiffs, however, did not read the manual, even though they had installed this type of water heater on numerous occasions in the past.

The water heater also had lighting instructions affixed to it that informed plaintiffs to wait five minutes between attempts to relight the pilot light. Each of plaintiffs' experts testified that plaintiffs acted reasonably in ignoring this warning on the water heater. They also testified that there was no need to read the installation manual because plaintiffs simply were lighting the pilot light, not installing the water heater. Moreover, plaintiffs themselves testified they had installed similar water heaters in the past.

If it is acceptable for plumbers to ignore the warnings and installation manuals, what certainty is there that they will read or heed a warning about odor fade placed on the water heater or mailed to them. Plaintiffs' experts, and plaintiffs themselves, relied on experience to justify plaintiffs' actions in this case, even though they had before them a warning about odor fade (in the installation manual). But, as this case demonstrates, experience is not always sufficient to avoid injury.

This lengthy discussion points out the absence of any evidence to suggest plaintiffs would have received any warning issued by the Gas Company, even if the warning were comprehensive and issued in many different ways. Plaintiffs' suggestions otherwise are insufficient. We reject their request that we rely on common sense. Common sense tells us only that if plaintiffs knew about odor fade, and had thought about it before bleeding the natural gas pipe into a confined water heater closet, then they might have chosen a different course of conduct. Common sense cannot tell us that there was some form of warning that would have reached plaintiffs on this record. We look for substantial evidence, not speculation.

Review and Applicability of Relevant Cases

The cases we have reviewed confirm our conclusion that plaintiffs did not present sufficient evidence to establish causation. The plaintiff in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 [ 107 Cal.Rptr.2d 617, 23 P.3d 1143] ( Saelzler) was employed by Federal Express when she attempted to deliver a package to a large apartment complex owned by the defendants. She was attacked and seriously injured by three individuals who were never identified. Saelzler sued the defendants, alleging they failed to provide adequate security, despite their knowledge that dangerous persons frequented the premises. The issue before the Supreme Court was whether Saelzler could establish that the defendants' negligence was the cause in fact of her injuries, i.e., was "defendants' possible breach of duty a substantial factor in causing plaintiffs injuries?" ( Id. at p. 772.)

(3) The Supreme Court began its analysis by noting that "`[a] mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.' [Citation.]" ( Saelzler, supra, 25 Cal.4th at pp. 775-776.) The plaintiffs inability to identify her assailants made proving causation difficult. They could have been tenants of the complex and authorized to be on the premises. ( Id. at p. 776.) Accordingly, "she cannot show that defendants' failure to provide increased daytime security at each entrance gate or functioning locked gates was a substantial factor in causing her injuries. [Citations.]" ( Ibid.) Moreover, the Supreme Court rejected her assertion that increased security presence at the complex would have prevented her injuries because "the argument is entirely speculative, as assaults and other crimes can occur despite the maintenance of the highest level of security. [Citations.]" ( Id. at p. 777.)

The Court of Appeal found that Saelzler had presented sufficient evidence of causation using a practical approach. The Supreme Court disagreed. "[T]he majority held that common sense and common experience should lead us to conclude that a defendant's `complete absence of required security measures' is necessarily a `contributing cause of most crimes occurring on that property.'" ( Saelzler, supra, 25 Cal.4th at p. 778.) "[W]e hesitate to adopt a rule of common sense that seemingly would prevent summary judgment on the causation issue in every case in which the defendant failed to adopt increased security measures of some kind. Nola M. [v. University of Southern California (1993) 16 Cal.App.4th 421, 429 [ 20 Cal.Rptr.2d 97]] observes that `it would be grossly unfair to permit a lay jury, after the fact, to determine in any case that security measures were "inadequate," particularly in light of the fact that the decision would always be rendered in a case where the security had, in fact, proved inadequate. . . .' [Citation.] Similarly, in Sharon P. [v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1194 [ 91 Cal.Rptr.2d 35, 989 P.2d 121]], we quoted with approval a legal commentator's observation that if we simply relied on hindsight, the mere fact that a crime has occurred could always support the conclusion that the premises were inherently dangerous." ( Ibid.) Common sense could not establish causation because "plaintiff must show some substantial link or nexus between omission and injury. Under the Court of Appeal's `common sense' rule, the defendants' omission itself would constitute the missing link." ( Ibid.)

Overruled on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, footnote 5 [ 113 Cal.Rptr.3d 327, 235 P.3d 988], and in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, footnote 19 [ 107 Cal.Rptr.2d 841, 24 P.3d 493].

Plaintiffs were required to establish a substantial link, or nexus, between the failure to warn and their injuries. Instead of introducing evidence to establish a link between the two, plaintiffs relied on common sense and common experience to convince the jury that if a warning had been issued, the accident would have been avoided. In doing so, the trial court allowed the jury to use hindsight to conclude that plaintiffs would have acted differently if they had known of odor fade. As explained above, mere knowledge is not enough to establish causation because it ignores the lack of evidence that any warning issued would have reached plaintiffs. In other words, this approach permitted the jury to ignore an element of plaintiffs' cause of action.

Here, plaintiffs' experts testified that information about odor fade was readily available had one sought it out. Indeed, one of their experts published an article about odor fade in a periodical directed to the plumbing industry. This is not a case where only the Gas Company's employees knew of odor fade. Plaintiffs could have learned of odor fade from any number of sources. They conclusively established (through their ignorance and the ignorance of their experts) that other sources of information about odor fade were ineffective to bring the issue to the plumbing industry. It is pure speculation to assert that a warning issued by the Gas Company would have succeeded where numerous cases and other sources failed.

In Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234 [ 7 Cal.Rptr.2d 101] ( Osborn), the plaintiffs' child contracted AIDS after receiving a blood transfusion provided by the defendant. Prior to the surgery, the plaintiffs had contacted the defendant and asked if they and their friends and relatives could donate the blood the child would need for the surgery. The defendant's receptionist informed the plaintiffs that directed donations were not permitted. The defendant's written policy, however, discouraged such donations but did not prohibit them.

The plaintiffs sued the defendant, alleging the refusal to allow directed donations was a negligent misrepresentation and, as a result, their child contracted AIDS from the tainted blood supply. The trial court excluded evidence offered by the defendant that the child had an extremely rare blood type and none of the individuals willing to donate blood on the child's behalf would have been able to do so. The appellate court held the evidence was erroneously excluded. "Evidence associated with [the child's] rare blood type was relevant to proximate cause. . . . [A]n additional problem presented by the rare blood type was the extent to which any of the directed donations that would have been obtained could have been used. Ordinarily, of course, `the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.' [Citation.] If directed donations for [the child] would not have been feasible, a misrepresentation precluding those donations did not affect the outcome of his case." ( Osborn, supra, 5 Cal.App.4th at p. 254.)

Similarly, if the Gas Company here was negligent or strictly liable in failing to issue a warning about odor fade, its conduct was not a substantial factor in bringing about plaintiffs' harm, unless plaintiffs would have learned of the warning and altered their conduct because of the warning. It was incumbent upon plaintiffs to present evidence on this issue. Their failure to present such evidence precludes recovery in this case.

Plaintiffs have cited several cases from other jurisdictions that they claim establish causation. In Tune v. Synergy Gas Corp. (Mo. 1994) 883 S.W.2d 10 ( Tune), the plaintiff was injured when propane leaked from an overfilled portable tank. The plaintiff, who was working 20 feet from the tank, did not smell the leaking propane. An explosion occurred, causing the plaintiff to sustain serious injuries. The plaintiff argued the defendant was liable for his injuries because it did not warn him that the odorant in propane, the same odorant as in natural gas, might not be noticeable in all conditions. The defendant argued there was no evidence that if a warning had been given, the plaintiff would have acted differently. The Missouri Supreme Court relied on a presumption that had a warning been given, it would have been heeded by the plaintiff, to conclude there was sufficient evidence to uphold the jury's verdict. ( Id. at p. 14.)

This case does not aid plaintiffs for two reasons. First, it does not address the issue in this case — the ability of the Gas Company to issue a warning that would have reached plaintiffs. Second, the presumption relied on by the Missouri Supreme Court is not recognized in California. Indeed, the Missouri Supreme Court dismissed the defendant's argument with little analysis, relying exclusively on the presumption.

We are aware of the comment included in the Restatement Second of Torts, cited by plaintiffs, that a sufficient warning permits the seller to assume the warning will be read and followed. ( Johnson, supra, 43 Cal.4th at p. 65.) Even if this comment creates a presumption, an issue we need not decide, the presumption would be in favor of the seller, not the consumer, and certainly would not comport with the Missouri Supreme Court's analysis.

Plaintiffs place particular reliance on Donahue v. Phillips Petroleum Co. (8th Cir. 1989) 866 F.2d 1008 ( Donahue). In this case the plaintiffs were attempting to light a propane water heater when an explosion occurred. The defendant supplied the odorant that was added to the propane. The plaintiffs obtained a verdict in their favor based on the allegation that the defendant was strictly liable because it failed to warn them that the odorant could diminish under various conditions. On appeal, the defendant argued it should be relieved of liability because it was impractical to give warnings. The appellate court, applying Missouri law, rejected the argument. "The fact that it might logistically be difficult to disseminate a warning does not undercut the strict liability analysis, which focuses on the condition of the product rather than the conduct of the defendant, [¶] Moreover, it is not, as [the defendant] suggests, impossible to warn as to the possibility of odor fade. Indeed, [the defendant's] assertion is belied by its own brochure explaining the danger, which was prepared after the accident involved here and was introduced into evidence on this issue. . . . [The defendant] made no effort to discharge its obligation by contracting with its purchaser to ensure that adequate warnings ultimately reach the consumer." ( Donahue, at p. 1011.)

(4) This analysis is less than compelling as it completely ignores the issue of whether any warning issued by the defendant would have reached the plaintiffs. To be liable in California, even under a strict liability theory, the plaintiff must prove that the defendant's failure to warn was a substantial factor in causing his or her injury. (CACI No. 1205.) The natural corollary to this requirement is that a defendant is not liable to a plaintiff if the injury would have occurred even if the defendant had issued adequate warnings. ( Osborn, supra, 5 Cal.App.4th at p. 254.) We are unsure if Missouri law differs from the law of this state, or if the defendant failed to make an appropriate argument or if the appellate court simply overlooked the causation requirement. In any event, we are not persuaded by Donahue.

Nor are we persuaded by the other cases cited by plaintiffs, which address unrelated issues. ( Menschik v. Mid-America Pipeline Co. (1991) 812 S.W.2d 861, 864-865 [rejected propane supplier's reliance on the bulk supplier and learned intermediary defenses]; Heifner v. Synergy Gas Corp. (Mo.Ct.App. 1994) 883 S.W.2d 29 [same accident as Tune — court of appeal adopts Tune analysis]; Freeman v. United Cities Propane Gas, Inc. (M.D.Ga. 1992) 807 F.Supp. 1533, 1538-1539 [finding triable issue of fact precluding summary judgment on learned intermediary defense under Ga. law]; Stuckey v. Northern Propane Gas Co. (11th Cir. 1989) 874 F.2d 1563, 1567-1569 [finding triable issue of fact on learned intermediary defense].)

CONCLUSION

Odor fade is a potentially dangerous phenomenon that apparently is not well known in the new construction industry. Efforts should be made to inform appropriate individuals about the phenomenon, and we encourage the Gas Company, as well as others in the industry, to undertake efforts to educate those working in new construction. Plaintiffs' failure to establish that a timely warning issued by the Gas Company would have prevented this accident, however, precludes recovery.

The parties have submitted three requests that we take judicial notice of various items (the Gas Company's request for judicial notice was filed on Sept. 11, 2009; plaintiffs filed two requests for judicial notice, one on Jan. 29, 2010, and the other on July 27, 2010). Only one request was opposed — the July 27, 2010, request.
We deny the Gas Company's request. Each item was either contained in the record or need not be noticed judicially to be considered by this court. Moreover, our resolution of this case renders most of the documents irrelevant.
We deny plaintiffs' January 29, 2010, request for judicial notice. This request was for information apparently included on the Gas Company's Web site. This information was not introduced at trial and is not relevant. Moreover, the failure to introduce evidence that plaintiffs reviewed the Gas Company's Web site before the accident also makes the information irrelevant.
Finally, we deny plaintiffs' July 27, 2010, request for judicial notice. This request was directed to information contained on various Web sites. It relates to attempts by natural gas suppliers, in various forms, to educate the public about odor fade. None of the information was introduced at trial, and all of the information appears to have been generated after the date of the accident. It is not relevant and not a proper matter for judicial notice. Simply because information is on the Internet does not mean that it is not reasonably subject to dispute. (Evid. Code, § 452, subds. (g), (h).)

DISPOSITION

The judgment is reversed and the trial court is directed to enter judgment in favor of the Gas Company. The Gas Company is awarded its costs on appeal.

Wiseman, Acting P. J., and Hill, J., concurred.