*1 WHITAKER, TIMOTHY A. Plaintiff-Appellant, v. LIAN FENG MACHINE al.,
COMPANYet Defendants-Appellees. (3rd Division) First District No. 86 — 2196 27, 1987. filed Opinion May RIZZI, J., specially concurring. (Michael Reid and James F. Roche, Chicago T. &
Halfpenny, Hahn counsel), appellant. Flanagan, of Donohue, F. Schiff, (Daniel J. Kaiser and Kevin Chicago &
O’Connor Co., & Tool Inc. counsel), appellee Valley Supply *2 Bohrer, C. Hardies, (William D. Serritella and David Chicago of Ross & Importers, Inc. counsel), appellee Equipment of for of the court: opinion JUSTICE WHITE delivered to recover for in- brought A. suit Timothy Plaintiff Whitaker belonged to a bandsaw which working while juries he sustained (Du Page). He Company his Du Precision Products Page employer, manufactured Company Machine alleged Feng that defendant Lian Inc., Importers, Equipment and sold it to defendant bandsaw it to States and resold defendant which it to the United imported sold to Du (Valley Supply), & Tool Valley Supply Company plaintiff sought III and of his amended Page. complaint In counts IV of merchantability on the of of warranties recover breach Equipment Defendants Im- particular purpose. fitness for a III Inc., counts porters, Valley moved dismiss IV Supply defendants. grounds plaintiff on of the lack of between appeals. The motions and granted plaintiff trial court defendants’ 29, 1984, he that on used alleged Plaintiff his June complaint Page. The with Du employment bandsaw in the course of his alleged that hand, three He fingers. saw his left amputating cut its employ- suitable for knew Du bandsaw Page sought defendants ees to use to cut bar stock. single question appeal:
Plaintiff asks us
resolve a
in this
Can
of
of the ultimate
recover
product
from
of warranty?
seller
breach
Our research indicates that
question
has not been
decided
the State courts of Illi
squarely
nois.
Corp.
In Knox v. North
American Car
3d
App.
employees
this court stated
of
dicta
purchasers may
be able to sue sellers for
breach
section 2—318 of the
(UCC) (Ill.
Commercial
Code
Ill.
3d
2-318).
(80
399
App.
1355.)
(80
N.E.2d
dissent
Ill.
agreed with this dicta.
App.
J.,
In Boddie
(Rizzi,
dissenting).)
1355
v. Lit
ton
Ill.
Handling Systems (1983),
Unit
455
App.
dicta,
indicated,
the court
that it
again
agreed
employ
ees
grounds
of ultimate
should be allowed to sue on
purchasers
of warranty.
Ill.
Federal courts in Illinois have addressed this question three published decisions which have been brought our attention. In In re Johns-Manville Asbestosis Cases Ill. (N.D. 1981), 511 F. Supp. 1235, the right court held that the recover breach of warranty is limited in purchasers Illinois to and the narrow class of persons listed in section 2—318 the UCC (Ill. Rev. Stat. 318). Since that section does not mention employees pur chasers, court dismissed suits brought by employees ultimate
purchasers for the seller’s breach of implied (511 warranties. F. Supp. 1239-40.) Similarly Hemphill Sayers (S.D. Ill. 1982), 552 F. Supp. the district court held that the purchaser’s employees could not sue the (552 seller for breach warranty. F. Supp. Bros., In Eisenmann v. (N.D. 1983), Cantor Inc. Supp. hand, F. on the other the court indicated that would allow employees purchasers sue for breach of warranty contract, third-party beneficiaries of following Knox. F. Supp. 1356.) However, in that case the cause action was barred the applicable statute of limitations.
Defendants, relying Hemphill, Johns-Manville and contend has no right to recover for breach warranty because he does not fall within the class listed in section 2—318 *3 of the UCC as exceptions to the requirement According privity. section 2—318 the of UCC:
“A
seller’s
whether
or
express
extends to
person
natural
who is in the
or
household
his
buyer who
in
guest
or
his home if it is
reasonable
ex
use,
that such
pect
person may
by
consume
be affected
the
and who is
in
person by breach of the warranty.
A seller
(I
operation
not exclude
limit the
of this Section.”
26, par.
Rev. Stat.
318.)
ll.
2 —
not,
Section 2—318 does
face,
on its
state
limitation on
the
rights of
persons
recover for breach of
Our
warranty.
supreme
court
held that
has
section 2—318
not list
only exceptions
does
the
to the
in
requirement of
breach of
cases: “It
***
clear from the
2—318
language
section
and the commentary
thereon,
that the requirement
privity between the
and
D.
Berry
remote manufacturer is
established.”
Searle &
G.
Co.
The courts and Johns-Manville Hemphill Berry were in grounds plaintiffs Berry purchasers, the in “vertical manufacturer, plaintiffs Hemphill with defendant whereas in privity” in the were non- Johns-Manville, like instant plaintiffs users, those defendants. “horizontal purchasing privity” a limi this case that section 2—318 establishes argue Defendants in to recover for tation in “horizontal right persons privity” on the persons not act as a warranty, although breach of it does bar to the three alternative versions point “vertical Defendants privity.” Alternatives B section 2—318 written the drafters the UCC. right courts the to recover for breach of require C extend than that class larger nonpurchasing class of users Rep. A. U.C.C. Serv. ((1 Materials) named alternative Current Plaintiff, of a (Callaghan) 318.) purchaser, sec. 2 — allowed to would for breach of under al clearly be recover argue ternatives B and C. A. Defendants adopted Illinois alternative not to legislature implication the Illinois has decided extend the em right persons, plaintiff, expressly to recover like who are 2—318 which braced alternative versions of section only legislature Illinois not to adopt. decided legislature Illinois section 2—318 of UCC in The enacted At that time there 1961. 2 — However, were the section. several States no alternative versions of enact this in the form the drafters suggested by refused to section UCC, so B C were in 1966 as recom alternatives added ((1 Materials) mended alternative forms of section 2—318. Current Illinois, 22-24.) like (Callaghan) U.C.C. Serv. sec. Rep. States, most retained version the section. R. original Anderson, ed. (3d. 1983).) Commercial Code sec. 2—318:3 UCC, addition B Following the of alternatives and C import drafters comment to each al clarify revised UCC states 3: ternative. The revised UCC comment subsection first version ex adopted “The alternative Illinois] [the includes as within its fam provisions beneficiaries pressly this, guests purchaser. Beyond household ily, in this and is to enlarge section form is neutral not intended law the seller’s or restrict case on whether warranties, resells, extend to given to his in the alternative is de distributive chain. second states already developed law has signed where *4 of and for the class benefi expand further those desire further, following The third trend goes ciaries. alternative of as indicated Restatement Torts of modern decisions 10, extending rule (Tentative 1965) sec. 402A Draft No. Stat., par. ch. Ill. Ann. 2— injuries person.” beyond 320 Comment, at (Smith-Hurd Commercial Code 112 Uniform 1987).
Supp. de of the does “restrict the Thus, the Illinois version statute left for case law are questions developing case law.” The veloping its sentences: “The alterna clearly subsequent indicated second developed where the case law has designed already tive for states further, following ***. The the trend goes further third alternative Stat., 2—318, (Ill. of decisions ***.” Ann. ch. if par. modem Un Comment, (Smith-Hurd orm 112 Commercial Code Supp. 1987).) Thus of apparent where comment speaks “developing case law” it regarding includes case law in hori persons zontal privity with sellers. The Wisconsin Supreme Court, interpret ing statute and comments Illinois, identical to section 2—318 in found that the statute not limit did the seller’s to non- liability purchasing users for breach of those specified (Dippel (1967), statute. v. Sciano 37 Wis. 2d 55, 62.) agree. legislature N.W.2d We The Illinois expressly stated coverage must extend of household if purchaser, the members of the household would reasonably expected to product; use the left it legislature for the courts to decide, in accord with common law principles guidance with the UCC, of the whether should warranty coverage further extend to Stat., users nonpurchasing product. (Ill. Ann. ch. par. Comment, Uniform Commercial (Smith- Code at 219 2 — 1963); Hurd State ex rel. Western Corp. Seed Production v. Campbell (1968), 250 Or. 442 P.2d cert. denied U.S. 21 L. Ed. 2d 89 S. To the Ct. extent that this part holding our is inconsistent with statements we made Knox Sears, Miller Roebuck and Co. those sections Knox and Miller are over ruled.
According to subsection of the official .code comment to section 2—313 the Uniform Code, Commercial “purpose of warranty law is to determine what is that the seller has in es Stat., agreed (Ill. 2-313, sence to seH” Ann. Comment,
Commercial (Smith-Hurd Code at 219-20 1963)), hold the seller liable if he has goods agreed failed supply upon quality. A seller of goods express creates when he *** makes “[a]ny affirmation fact promise relates to the becomes of the part bargain.” Rev. Stat. 313.) Courts hold sellers liable merchantability on the basis *5 2—314, Stat., if Ann. ch. (Ill. in the trade usage common Un 1963)), infer 2, at (Smith-Hurd orm Commercial Code Comment bargain any of the basis of part terms are ring warranty that these Stat. (Ill. excluded Rev. in the are they expressly trade unless to know seller has reason 2—314(3), ch. When the pars. 6). 2—3 1 the a and that buyer goods particular purpose that the needs the for in goods, the courts selecting on the seller’s relying is skill is particular purpose fer of fitness for a implied warranty that Rev. excluded. Stat. bargain expressly unless is part 26, par. 2 — 315. as warranty to for Certain are allowed sue parties establishes, under section which third-party beneficiaries 2— bargained essence, purchaser a that the who presumption conclusive of himself for a the on behalf safety sought *** or or household who is in “any person natural [his] that such expect who is a in his home if it reasonable guest use, by goods.” consume or affected person may extends We hold that who is the use of a any employee the use of the long of that goods, safety as as the bargain was of the basis of explicitly implicitly part either or purchased goods. when the employer case, alleged Page bought
In instant that Du plaintiff did not with the comply bandsaw from defendants which particular purpose it fit for the merchantability, nor was Page bargained for which it Insofar as Du for purchased. was bandsaw, that as as merchantable bandsaw was safe use on were use sought employees of its safety behalf at all unless its corporation employ saw. A use the bandsaw cannot Page If, alleged, bargained ees Du a band- plaintiff it. operate for which particular purpose saw was safe for the sufficiently which saw, Du features sought Page sought safety Du to use the Page to use the saw. We find on behalf of its who were employees which, if proved, facts would show defend plaintiff alleged has a bandsaw promised provide ants implicitly explicitly either or Therefore, find that plaintiff to use. we enough was safe are not barred the causes of action for breach of warranties lack defendants. plaintiff’s privity with order above, we the trial court the reasons stated reverse
For remand for III IV and we complaint, dismissing counts this in accord opinion. further proceedings and remanded. Reversed
McNAMARA,P.J., concurs. RIZZI, specially concurring:
JUSTICE I agree However, with the result reached by majority. I do agree should be decided privity a lack my thereof. In it is opinion, case, a mistake to decide this exhuming Il personal injury concepts linois. I continue to believe what I in Knox stated v. North Ameri can Car Corp. N.E.2d 1355: “In actions when the seeking recover damages for personal injuries, Illinois position courts have taken the *6 liability not nonliability should be decided on the basis In privity. v. Great Atlantic & Tea Co. Tiffin Pacific 18 Ill. 2d 162 N.E.2d the court recognized that a of implied breach warranty action be maintained against a seller of food even though there was no privity be Suvada, tween the- In parties. the court the doctrine abolished in privity product liability Rozny cases. In v. Marnul 43 Ill. 2d 250 N.E.2d the court abolished the requirement of privity in all tort cases. In Berry, the court held that lack of is no privity consequence in a breach implied action purchaser between a product of the and a remote In manufacturer. eschewing privity, Berry court recognized that tort liability implied warranty liabil ity are similar. 56 Ill. 2d 309 N.E.2d 554. in
Plainly, process Illinois the of adhering to or distinguish ing the privity proved requirement has to be an unsatisfactory of determining method liability personal who suffer injuries. Because of doctrine, the difficulties applying courts created artificial exceptions deemed necessary desirable always achieve results which were not completely (Rozny, reconcilable. 43 Ill. 2d I 250 N.E.2d do not believe treading this court should be same beaten In path. my opinion, it does not make any sense to re deny covery because he is an A merely employee P, & and in another yet, allow to a recovery Hershey accident, in the same manner, in a like as a result of the same defect product. Rozny relating court’s statement privity here Ill. 2d apt N.E.2d 656, 660): after Suvada remaining still uncertainty ‘To eliminate Co., emphasize we v. White Motor parties between relationship direct contractual lack of Thus, tort jurisdiction. tort action in this defense a not a scope be measured will henceforth liability concepts privity. rather than artificial duty owed privity concept, we remnants of Having discarded defendant’s liabil- scope now concern ourselves with standards.’ misrepresentation using traditional tortious ity remnants up I discarded pick feel this court should them back into our actions and mold personal injury again.” 80 Ill. are for eradication law, where destined they 1355, 1366. 698-99, Knox, In I also stated: action under section
“Berry implied warranty involved an held that lack of The court 2—315 and 2—318 of Code. is of a remote manufacturer a privity between action implied warranty no breach of consequence (56 Ill. conclusion, the court stated reaching the Code. In its 553): demonstrated provisions clearly ‘The aforementioned Code statutory cause of action legislative intent create protec- consumer afford resulting personal injuries tion to those sustain from added.) product (Emphasis deficiencies.’ and, the same In full effect to this intention give order to lia time, concerning into case law take account Motor Co. Suvada White (see for defective bility products & Vaughan Dunham v. 182; *7 (1965), 32 Ill. 2d 210 N.E.2d 401; Mfg. Co. 42 Ill. 2d Bushnell (1969), 1; Berry, Winnett Winnett 57 Ill. 281; see Court v. Grzelinski im (1965)), 402A Torts sec. (Second) also Restatement to users and all should plied apply im affected reasonably expected be regardless privity.” (80 plied 1355, 1365.) 696-97, 399 N.E.2d on the principles
I should be decided present believe that in Knox. that I expressed