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HEMPHILL v. SAYERS

December 2, 1982

MARK HEMPHILL, PLAINTIFF,
v.
GALE SAYERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Foreman, Chief Judge:

MEMORANDUM AND ORDER

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 refile.

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
                             Dismiss

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 employee:

  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. . . .

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 Court disagrees.

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
  merit.

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 ...


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