The opinion of the court was delivered by: Foreman, Chief Judge:
Before the Court are motions to dismiss filed by each
defendant. They argue that plaintiff's complaint should be
dismissed for failure to state claims upon which relief can be
granted.*fn1 Fed.R.Civ.P. 12(b)(6).
From what the Court can make of plaintiff's second amended
complaint, plaintiff alleges the following: Count I is against
defendants Sayers, Dempsey, and Schulz for negligence; that
count alleges that they failed to warn plaintiff of the
dangers of the helmet, and negligently trained, coached,
contracted for services, hired and supervised employees.
Counts II and III are apparently against defendants Riddell
Sporting Goods, Inc. (Riddell) and Bleyer Sport Mart, Inc.
(Bleyer) for breach of implied warranties.
Ill.Rev.Stat., Ch. 26, Sections 2-314 and 2-315. Count IV
alleges that defendants Sayers, Dempsey, Schulz, and Riddell
are strictly liable in tort because they "manufactured, sold,
furnished, to plaintiff" an unreasonably dangerous football
helmet. Count V again sounds in negligence, alleging specific
acts. Count V simply states that "defendants" were negligent,
without reference to whom. There are six defendants in this
lawsuit; it is unclear as to whom Count V is directed. Without
discussing Count V as to each defendant, the Court believes
that it should be dismissed with leave to refile. For
plaintiff's convenience, the Court reiterates its statement in
the April 21, 1982 Report of Status Conference: "[I]t has been
determined by the Court that it is in the best interest of this
litigation that the attorneys for the plaintiff refile a second
amended complaint stating further with particularity and in a
short concise manner as provided in Rule 8 of the Federal Rules
the theories upon which claims for relief are sought, along
with stating against which specific defendants are charged."
(emphasis added). Count V should be dismissed with leave to
To add to the confusion, it appears from the briefing that
plaintiff intends to include defendants Sayers, Dempsey, and
Schulz in Counts II and III, which allege warranty theories.
It appears to the Court that Counts II and III are directed
only to defendants Riddell and Bleyer. However, since the
Court believes plaintiff has no warranty action against
defendants Sayers, Dempsey, and Schulz, their Motion to
Dismiss will be considered as to Counts II and III as well.
Each Motion to Dismiss will be considered separately.
I. Defendant Sayers, Dempsey, and Schulz' Motion to
These defendants, sued in their individual capacities, argue
that they are immune from suit under the Eleventh Amendment.
In the alternative, they argue that plaintiff's warranty and
strict liability claims should be dismissed as to them.
Defendants Sayers, Dempsey, and Schulz argue that at all
relevant times, they were agents of the State of Illinois, and
that Chapter V, Section D.11, Indemnification Policy of the
Policies of the Board of Trustees, Southern Illinois
University is applicable. That section provides that each
shall be indemnified by the Board of Trustees of
Southern Illinois University against all costs
and expenses reasonably incurred by or imposed
upon him . . . in connection with or resulting
from an action, suit, proceeding, claim, or
investigation, civil or criminal, to which
he . . . shall or may be made a party . . . by
reason, directly, or indirectly, of his action or
omission to act in the scope of his appointment
as a Trustee, officer, or employee of the
University. . . .
It is undisputed that suits against Southern Illinois
University must be brought in the Illinois Court of Claims.
Ill.Rev.Stat., ch. 37, Section 439.8(d). At issue is whether
defendants Sayers, Dempsey, and Schulz, who are being sued in
their individual capacities for their alleged acts of
negligence committed as employees of Southern Illinois
University, must be brought in the Court of Claims. The Court
in Watson v. St. Ann Hospital, 68 Ill. App.3d 1048, 25 Ill.Dec.
411, 386 N.E.2d 885 (1st Dist. 1979) considered a similar issue
and held that Illinois employees are not exempt from liability
for their own negligence simply because they were acting in
their official capacities. Such a liability suit need not be in
the Court of Claims. The Court reasoned that the remedy of
damages would not operate to control the action of the State or
subject it to liability. Citing Madden v. Kuehn, 56 Ill. App.3d 997,
14 Ill.Dec. 852, 372 N.E.2d 1131 (2d Dist. 1978), the
Court found that when the negligent acts of state employees are
nongovernmental in nature, as opposed to obligations incurred
solely by virtue of holding a public office, the damage remedy
involved would not control the actions of the state.
Any liability of these defendants would not control the
actions of the State. As made clear by plaintiff, these
defendants are being sued in their individual capacities.
Further, the alleged negligent acts of each defendant are not
"obligations incurred solely by virtue of holding a public
office." Madden, supra, 14 Ill.Dec. at 855, 372 N.E.2d at 1134.
Instead, any liability would flow from negligence in
maintaining a football team.
That the Eleventh Amendment does not bar this suit is
underscored by the Court's decision in Rutledge v. Arizona
Board of Regents, 660 F.2d 1345 (9th Cir. 1981). In Rutledge
the Court considered a similar Eleventh Amendment argument. The
plaintiff was asserting a negligence claim against a state
university's athletic director and football coach sued in their
individual capacities. The Court found that the Eleventh
Amendment was not a bar:
The district court extended the Eleventh
Amendment bar to these appellees on the ground
that "the alleged acts were committed in the
interest of the Arizona State University football
program" and that nothing suggests that "the
alleged conduct falls outside the scope of Kush's
or Maskill's scope of employment." This is not
sufficient ground to invoke the Amendment's bar.
That bar is not automatically applicable to a
suit brought against a state official in his
individual capacity alleging the commission by
him of a common law tort in the course of his
employment. Johnson v. Lankford, 245 U.S. 541, 38
S.Ct. 203, 62 L.Ed. 460 (1918).
Rutledge, supra, 660 F.2d at 1350.
Further, defendants Sayers, Dempsey and Schulz' reliance on
Southern Illinois University's indemnity agreement is
misplaced. The Supreme Court in Edelman v. Jordan,
415 U.S. 651, 653, 94 S.Ct. 1347, 1351, 39 L.Ed.2d 662 (1974) stated
that "the rule has evolved that a suit by private parties
seeking to impose a liability which must be paid from public
funds in the state treasury is barred by the Eleventh
Amendment. . . ." The Court in Rutledge recognized the
significance of any provision requiring state indemnification
for employee negligence: "Neither the district court nor Miller
have pointed to any law of the State of Arizona that would
require that any damages, for which Miller would be liable for
failure to supervise Kush and Manskill properly, be paid from
state funds." Id. at 1350. Here, however, it is altogether
unclear whether any judgment would be paid by the State of
Illinois. Southern Illinois University agreed to indemnify
their employees provided that "the cost or expense is not
reasonably recoverable from any other source." As pointed out
by plaintiff, alternative sources potentially exist, which
would avoid application of the indemnity agreement. Since
indemnification is contingent
at best, dismissal of defendants Sayers, Dempsey, and Schulz
at the pleading stage would be wholly inappropriate.
As noted, Counts II and III allege breach of warranties.
Ill.Rev.Stat., Ch. 26, Sections 2-314, 2-315. Although it is
doubtful whether these counts are directed to defendants
Sayers, Dempsey, and Schulz, it is clear that plaintiff has no
warranty action against them.
Count II is governed by Section 2-315. At issue is whether
these defendants can be liable under this section. The
complaint alleges that Sayers was the university's athletic
director and Dempsey was and is the football coach, and Schulz
was the athletic trainer. These parties cannot be held liable
under Section 2-315. The Court in Carroll v. Grabavoy, 77 Ill. App.3d 895,
33 Ill.Dec. 309, 396 N.E.2d 836 (3rd Dist. 1979)
held that the implied warranty of fitness for a particular
purpose applies only to warranties made by a seller to a buyer.
Specifically, the Court held that the Section 2-315 warranty
did not apply when a dentist furnished dentures to a patient.
In rejecting an argument identical to the one made by plaintiff
here, that Court stated:
Plaintiffs base their contention on the theory
that the implied warranty rule now encompasses
anyone who selects or furnishes goods when such a
person knows the particular purpose for which the
goods are required and the buyer is relying on
the skill or judgment of that person. An
examination of Section 2-315 of the Code
(Ill.Rev.Stat. 1975, ch. 26, par. 2-315) reveals
the provision to apply if "the buyer is relying
on the seller's skill or judgment to select or
furnish suitable goods * * *" (emphasis added)
[sic]. Thus plaintiffs' contention is without
Carroll, supra, 33 Ill.Dec. at 313, 396 N.E.2d at 840.
(emphasis added). Simply stated, since these defendants are not
sellers, Section 2-315 does not apply to them.
For the same reason, plaintiff's Section 2-314 theory in
Count III fails against these defendants. Section 2-314
creates liability only for "the seller [who] is a merchant
with respect to goods of that kind." As was made clear by the
Court in Sieman v. Alden, 34 Ill. App.3d 961, 341 N.E.2d 713,
715 (2d Dist. 1975), "the definition of merchant within 2-314
is a narrow one and that the warranty of merchantability is
applicable only to a person who, in a professional status,
sells the particular kind of goods giving rise to the
warranty." Defendants Sayers, Dempsey, and Schulz do not
qualify as merchants.
It is clear that plaintiff's warranty theories do not apply
to these defendants, and that Counts II and III ...