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.
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.
A. Eleventh Amendment
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
On the basis of this provision, defendants Sayers, Dempsey,
and Schulz argue that any judgment against them will be paid
out of the state treasury, and thus this suit is
barred by the Eleventh Amendment. It is submitted that any
tort claim against them must be filed in the Illinois Court of
Claims pursuant to Ill.Rev.Stat., ch. 37, Section 439.8. The
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.
B. Warranty Theories
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 should be
dismissed as to them.
C. Strict Liability in Tort
Count IV alleges that defendants Sayers, Dempsey, and Schulz
are strictly liable in tort to plaintiff. This Count must also
fail as to these defendants. These defendants are not part of
the original producing and marketing chain. Liability will not
be imposed upon a defendant who is not a part of the original
producing and marketing chain. See Peterson v. Lou Bachrodt
Chevrolet Co., 61 Ill.2d 17, 329 N.E.2d 785 (1975); Keene v.
Dominick's Finer Foods, Inc., 49 Ill. App.3d 480, 7 Ill.Dec.
341, 343, 364 N.E.2d 502, 504 (1st Dist. 1977). The rationale
for that qualification was explained in Keene:
[I]t becomes apparent that the cornerstone of
liability rests upon the defendant's active
participation in placing the product into
commerce for use and consumption by others. One
of the underlying reasons for imposing strict
liability is to ensure that losses are borne and
subsequently reaped the profit of marketing the
allegedly defective product.
7 Ill. Dec. at 343, 364 N.E.2d at 504. See also Templeton v.
Blaw-Knox Co., 49 Ill. App.3d 1057, 7 Ill.Dec. 950,
(3rd Dist. 1977). This rationale underscores why defendants
Sayers, Dempsey, and Schulz cannot be held strictly liable in
tort for the allegedly defective football helmet.
They did not create the risk and reap the profits.
Accordingly, Count IV must be dismissed as to these
II. Defendant Riddell's Motion to Dismiss
Defendant Riddell argues that plaintiff's warranty theories
under Ill.Rev.Stat., ch. 26, Sections 2-314 and 2-315 should be
dismissed because no privity exists. As for plaintiff's strict
liability theory, defendant Riddell submits that critical
elements are missing from plaintiff's pleading. These arguments
will be considered separately.
A. Warranty Theories
Defendant Riddell argues that because it lacks contractual
privity with plaintiff, it cannot be held liable for breaching
the implied warranty of merchantability, Section 2-314, or the
implied warranty of fitness for a particular purpose, Section
2-315. Although direct contractual privity is not always
necessary for an implied warranty theory, the Court agrees
with defendant Riddell that plaintiff cannot succeed under
either Sections 2-314 and 2-315, and Counts II and III should
The Court in Slate Printing Company v. Metro Envelope Co.,
532 F. Supp. 431 (N.D.Ill. 1982), analyzing state law, found
that a plaintiff must satisfy at least one of three
possibilities before bringing a warranty action: (1) there must
be privity of contract between the plaintiff and the defendant,
Suvada v. White Motor Co., 32 Ill.2d 612, 616-18,
210 N.E.2d 182, 184-85 (1965); In re Johns-Manville Asbestosis Cases,
511 F. Supp. 1235, 1239 (N.D.Ill. 1981); (2) the plaintiff must be
in a position equivalent to that of a third-party beneficiary
of the defendant's sales contract, Frank's Maintenance &
Engineering, Inc. v. C.A. Roberts Co., 86 Ill. App.3d 980,
992-93, 42 Ill.Dec. 25, 34, 408 N.E.2d 403, 412 (1st Dist.
1980); Rhodes Pharmacal Co. v. Continental Can Co., 72 Ill. App.2d 362,
368, 219 N.E.2d 726, 730 (1st Dist. 1966); or (3)
the plaintiff must otherwise be able to sustain a tort action
against the defendant, Berry v. G.D. Searle & Co., 56 Ill.2d 548,
558, 309 N.E.2d 550, 556 (1974). Slate Printing Company,
supra, 532 F. Supp. at 434. At issue is whether plaintiff falls
into any of these categories. In the Court's opinion, he does
Analysis must begin with Section 2-318. That section defines
the scope of the statutory warranties:
A seller's warranty whether express or implied
extends to any natural person who is in the
family or household of his buyer or who is a
guest in his home if it is reasonable to expect
that such person may use, consume or be affected
by the goods and who is injured in person by
breach of the warranty. A seller may not exclude
or limit the operation of this Section.
Ill.Rev.Stat., Ch. 26, Section 2-318. This language defines the
classes of persons who may benefit from implied warranties who
stand in "horizontal" non-privity to the last buyer in the
distributive chain. A horizontal non-privity plaintiff has been
defined as not a buyer in the distributive chain but one who
uses or is otherwise affected by the product. Knox v. North
American Car Corp., 80 Ill. App.3d 683, 35 Ill.Dec. 827, 831,
, 1359 (1st Dist. 1980); White & Summers,
Uniform Commercial Code Section 11-2 at 399 (2d ed. 1980). In
contrast, a "vertical" non-privity plaintiff is a buyer in the
distributive chain who did not purchase from the defendant.
Knox, supra; Wright & Summers, supra. Subsection 3 of the
Official Comment to Section 2-318 indicates that the class of
vertical non-privity plaintiffs entitled to warranty protection
may be expanded by judicial fiat:
The text of Section 2-318 and its Official Comment 3 have been
interpreted to mean that although the class of vertical
non-privity buyers entitled to warranty protection
may be judicially expanded and contracted, the class of
horizontal non-privity plaintiffs entitled to such protection
has been statutorily limited to "natural persons" in the
"family or household of the buyer and to his guests" where it
is "reasonable to expect that such persons may use, consume or
be affected by the goods." Knox, supra, 35 Ill.Dec. at 831-32,
399 N.E.2d at 1359-60. A horizontal non-privity plaintiff not
within the language of Section 2-318 is not entitled to
warranty protection. As the Knox Court stated: "We cannot
disregard or enlarge the express limitations of Section 2-318."
399 N.E.2d at 1359, 35 Ill.Dec. at 831.
This conclusion is buttressed by considering alternative
versions of section 2-318 which the General Assembly rejected:
Alternative B. A seller's warranty whether
express or implied extends to natural person who
may reasonably be expected to use, consume or be
affected by the goods and who is injured in
person by breach of the warranty. A seller may
not exclude or limit the operation of this
Alternative C. A seller's warranty whether
express or implied extends to any person who may
reasonably be expected to use, consume or be
affected by the goods and who is injured by
breach of the warranty. A seller may not exclude
or limit the operation of this section with
respect to injury to the person of an individual
to whom the warranty extends.
These alternatives obviously contemplate a much more expansive
class of horizontal non-privity plaintiffs entitled to
warranty protection. The Court agrees that "the legislature
consciously chose to limit a seller's liability for breach of
warranty to the specific classes enumerated therein."
Knox, supra, 399 N.E.2d at 1360, 35 Ill.Dec. at 832. If this
Court chose to exceed the express limitations of Section 2-318,
the judgment of the legislature would be substituted.
The recognized exceptions to the privity requirement in
warranty actions have developed in Illinois according to
Official Comment 3, which contemplates that the class of
vertical non-privity plaintiffs may be determined judicially.
Those exceptions include: (1) a plaintiff standing in a
third-party beneficiary relationship to the seller's sales
contract; and (2) a plaintiff who may otherwise sustain a tort
action against the seller. Slate Printing Co., supra, 532
F. Supp. at 434. Illinois case law reflects that these two
departures from the privity requirement were developed as an
expansion of the class of vertical non-privity plaintiffs, as
contemplated by Official Comment 3.
In Rhodes Pharmacal Company v. Continental Can Company,
72 Ill. App.2d 362, 219 N.E.2d 726, 732 (1st Dist. 1966), the
Court enunciated the test for the third-party beneficiary
exception to the privity requirement:
[T]he implied warranty of fitness imposed by law
on a manufacturer may be enforced directly
against the manufacturer by a third-party user,
where, as alleged in the instant case, the
manufacturer (1) was aware of the purpose for
which the product was to be put, and (2) knew of
the third-party user's reliance that the product
would be fit for the purpose intended.
Although couched in broad language, this test was declared in
the context of deciding the rights of a vertical non-privity
plaintiff. Rhodes Pharmacal Co. involved a plaintiff who
purchased defective aerosol cans and consequently was in the
distributive chain linked to the defendant manufacturer. That
Court was not limited to the narrow class of horizontal
non-privity plaintiffs defined in Section 2-318.
Other Illinois cases applying the third-party beneficiary
exception involve plaintiffs in the distributive chain. In
Lango v. Division Paint & Garden Supply Co., 75 Ill. App.2d 384,
221 N.E.2d 47 (1st Dist. 1966), the plaintiff was a buyer
and therefore was in the distributive chain. Likewise, the
Court in Frank's Maintenance & Engineering, Inc. v. C.A.
Roberts, Inc., 86 Ill. App.3d 980, 42 Ill.Dec. 25,
408 N.E.2d 403 (1st Dist. 1980) considered the rights of a buyer who
ordered from one defendant goods which were manufactured and
delivered by another
defendant. Again, these courts were not limited to the express
class defined in Section 2-318, but were able to expand the
class of vertical non-privity plaintiffs as contemplated by
Official Comment 3.
The second exception to the privity requirement was
enunciated in Berry v. G.D. Searle & Co., 56 Ill.2d 548,
309 N.E.2d 550 (1974). In Berry, the plaintiff sued the
manufacturer of a birth control pill prescribed and sold to her
by a codefendant. 309 N.E.2d at 552. The Court decided that
since no privity is required in a tort action, privity should
not be required under warranty. The Court held that plaintiff
could maintain a warranty action against the manufacturer:
[W]e are of the opinion that privity is of no
consequence when a buyer who purportedly has
sustained personal injuries predicates recovery
against a remote manufacturer for breach of an
implied warranty under the Code.
Id. at 556. The Court so held after recognizing that Official
Comment 3 authorized judicial expansion of warranty protection
"to other persons in the distributive chain." Id. at 556
quoting Official Comment 3 to Section 2-318. As noted, that
comment allows expansion only to vertical non-privity
Cases involving horizontal non-privity plaintiffs have
adhered to the express limitations of Section 2-318. As noted,
that provision "was meant to act as a limitation only upon a
seller's liability for breach of warranty to those who stand
in horizontal [non-]privity. . . ." Knox, supra, 35 Ill.Dec.
831, 339 N.E.2d at 1359. In Knox, a plaintiff, an employee of
the cosignee of a leased boxcar, brought a warranty action
against the boxcar's lessor. Being outside the distributive
chain, the plaintiff was found unentitled to warranty
protection. The Court recognized that since the horizontal
non-privity plaintiff did not qualify under Section 2-318 and
the Court was statutorily precluded from extending warranty
protection to plaintiff pursuant to Official Comment 3,
plaintiff's warranty theory must fail.
Likewise, in In re Johns-Manville Asbestosis Cases,
511 F. Supp. 1235 (N.D.Ill. 1981), the Court considered the warranty
rights of plaintiffs outside the distributive chain. The
plaintiffs were past and present employees of Johns-Manville.
They sought recovery from defendants who supplied their
employer with raw asbestos, which caused respiratory diseases.
The Court held that the horizontal non-privity plaintiffs could
not sue for breach of warranty:
[T]he General Assembly has dealt in
express terms with the extended scope of the
sellers' warranties. It would be impermissible
judicial legislation to ignore the strong negative
implications from the statute's non-coverage of
plaintiffs' status. Certainly the Illinois courts
have not interpreted Section 2-318 as providing the
basis for a warranty action by a plaintiff who is
not a buyer or a member of a buyer's household, and
this Court will not rewrite the statute either.
Id. at 1239-40. The rationale for dismissing the plaintiffs'
warranty claims was that those outside the distributive chain
who do not qualify under Section 2-318 are statutorily
unentitled to warranty protection.
Plaintiff is a user outside the distributive chain. He was
supplied the football helmet by Southern Illinois University,
the last buyer in the distributive chain. As discussed, it
would be inappropriate for the Court to afford him warranty
protection pursuant to Official Comment 3. That comment
concerns vertical non-privity. At issue is whether plaintiff
falls within the express language of Section 2-318. In the
Court's opinion, he does not.
As noted, Section 2-318 extends warranty protection to "any
natural person who is in the family or household of his buyer
or who is a guest in his home if it is reasonable to expect
that such person may use, consume or be affected by the goods
and who is injured in person by breach of the warranty."
Section 2-318. Plaintiff is neither a household member or a
guest. In Knox, the Court suggested that employees of the last
purchaser may qualify under Section 2-318. The rationale is
that the employer-employee
relationship is functionally equivalent to the relationship
between a buyer and his family member or guest. See McNally v.
Nicholson Manufacturing Co., 313 A.2d 913 (Me. 1973). If this
reasoning is valid, an argument could be made that a
university's football player would also fall under Section
2-318. However, the Court declines to follow the speculation in
First, the Knox Court's statement that a buyer's employees
may be entitled to warranty protection is dictum. In no way was
the statement viewed as the applicable law in Illinois. Second,
it has been subsequently determined that a buyer's employees
are not entitled to warranty protection under Section 2-318. In
re Johns-Manville Asbestosis Cases, supra. Plaintiff argues
that those employees were denied recovery solely because the
warranties did not cover the type of damage suffered. The Court
disagrees. The Court in Asbestosis Cases clearly denied
warranty coverage to the employees on the basis of their
status. Third, the Court believes that by including a buyer's
employee, or football player, within Section 2-318, that
section would be judicially rewritten. Had the legislature
intended that these plaintiffs be included in Section 2-318, it
would not have adopted the most narrowly worded alternative.
The Court declines to amend Section 2-318 to extend warranty
protection to family members, guests, "or their functional
Accordingly, Counts II and III should be dismissed as to
B. Strict Liability in Tort Theory
Defendant Riddell argues that Count IV fails to allege: (1)
the nature, character or description of the product's
condition making it unreasonably dangerous; and (2) that the
product's allegedly dangerous condition existed at the time it
left the manufacturer. Defendant Riddell suggests Count IV
should be dismissed with leave to refile. The Court agrees.
In Illinois, products liability plaintiffs must "prove that
their injury or damage resulted from a condition of the
product, that the condition was an unreasonably dangerous one
and that the condition existed at the time it left the
manufacturer's control." Suvada v. White Motor Co., 32 Ill.2d 612,
210 N.E.2d 182, 188 (1965). The dangerous condition may be
a result of a defect in design as well as one of manufacture.
Wyant v. J.I. Case Company, Inc., 633 F.2d 1254, 1256 (7th Cir.
1980); Kerns v. Engelke, 76 Ill.2d 154, 28 Ill.Dec. 500,
390 N.E.2d 859, 862 (1979).
Plaintiff has not properly alleged his product liability
claim. Even given the liberal notice pleading standard,
plaintiff's allegation of the condition of the helmet is
insufficient. Presumably, paragraph 4 of plaintiff's Count IV
contains why the helmet was unreasonably dangerous: "That the
said helmet was defective and in an unreasonable dangerous
condition for use as protective headwear for football games in
that it suddenly and unexpectedly failed to protect
plaintiff's cervical spine when put to the use
intended. . . ." This language explains what the helmet
allegedly did without describing the condition rendering it
unreasonably dangerous. It is impossible to infer what type of
defect is alleged. Further, plaintiff alleges that "said
defective and unreasonably dangerous helmet was in
substantially the same condition at the time of Mark Hemphill's
injury as it had been when sold, furnished, manufactured,
placed in commerce or supplied by defendants to plaintiff." The
Court agrees with defendant Riddell that this language is not
the same as alleging that the unreasonably dangerous condition
existed at the time the product left the manufacturer's
Count IV should be dismissed with leave to refile a third
amended complaint which cures these defects.
III. Defendant Bleyer's Motion to Dismiss
Defendant Bleyer argues that plaintiff's warranty theories,
in Counts II and III, should be dismissed because privity is
lacking. Count V should be dismissed, it is argued, because it
is unintelligible. The Court has already decided that Count V
should be dismissed with leave to refile.
As to plaintiff's warranty theories, the reasoning
applicable to defendant Riddell applies with full force to
defendant Bleyer. Plaintiff remains in horizontal non-privity
and does not qualify as a family member or guest under Section
2-318. The implied warranties of Sections 2-314 and 2-315 do
not benefit plaintiff.
To avoid confusion, the Court states that it believes that
plaintiff does not and could not assert his strict liability
in tort theory against defendant Bleyer. Defendant Bleyer has
stipulated that defendant Riddell is the helmet's
manufacturer. By operation of Ill.Rev.Stat., ch. 110, Section
801 et seq., the certifying defendant cannot be held strictly
liable in tort.
Accordingly, Counts II and II should be dismissed; Count V,
if it purports to state a claim against defendant Bleyer,
should be dismissed with leave to refile.
The Court finds as follows:
1. Defendants Sayers, Dempsey and Schulz' Motion to Dismiss
is hereby GRANTED in part and DENIED in part.
2. Defendant Riddell's Motion to Dismiss is hereby GRANTED.
3. Defendant Bleyer's Motion to Dismiss is hereby GRANTED.
4. Counts II and III are hereby DISMISSED as to all
5. Count IV is hereby DISMISSED as to defendants Sayers,
Dempsey, Schulz and Bleyer.
6. Count IV is hereby DISMISSED as to defendant Riddell,
with leave to refile a third amended Count IV only against
defendant Riddell, within ten (10) days of this order. Said
amended complaint shall cure the defects discussed in this
7. Count V is hereby DISMISSED with leave to refile.
Plaintiff is GRANTED leave to file a third amended Count V,
which indicates which defendants are charged, and corresponds
enumerated acts with the respective defendant, within ten (10)
days of this order.
IT IS SO ORDERED.