over the engine, and since he was not the party who repaired the engine, Thomas should not suffer the severe sanction of dismissal. Since we conclude that Thomas did nothing warranting the severe sanction sought, Rotax is no more entitled to prevail than Decker Aero.
The destruction of the Prairie Hawk proves to be more problematic in that Thomas was the only party in control of the aircraft and neither defendant participated in its destruction. Nevertheless, we feel that defendants have failed to demonstrate that they are prejudiced by their inability to examine the aircraft. See H & H Sand & Gravel Haulers, 632 N.E.2d at 704-05. Defendants claim that a number of things could have caused the engine to "seize," including "an improper oil-gas mixture, an air leak if the carburetor is not properly secured, failing to properly 'break in' the engine, faulty operation of the engine" in addition to a cylinder head being installed backwards (Def. Rule 12(M) Statement of Facts at P20). However, defendants have not demonstrated how examination of the aircraft would aid them in determining whether any of these causes were to blame here. Defendants point to the deposition testimony of Steve Decker and Charles Mielke as support for their conclusion that the aircraft is material evidence. However, the cited testimony only reveals that "there's a thousand reasons that an engine can seize" (Decker Dep. at 83), but not how examination of the aircraft is necessary to determine if these causes played a part in the crash. Thus, this case is similar to H & H Sand & Gravel Haulers, in which the court held "when the alteration or destruction of evidence does not deprive a party from establishing their case, there has been no prejudice and sanctions which deprive the parties a trial on the merits are inappropriate." H & H Sand & Gravel Haulers, 632 N.E.2d at 705.
C. Breach of Warranty
Defendants claim that Thomas cannot recover under breach of implied warranty because it was not he, but rather his corporation, Flight Works, that paid for the engine. Defendants contend that any implied warranty runs with the contract of sale and therefore did not extend to Thomas individually. Defendants cite no cases to support this point, but rather quote for us § 2-314 of the Uniform Commercial Code which states in part that "a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." Thomas counters that Illinois does not maintain a privity requirement when the plaintiff is seeking damages for personal injury, and that he was a third party beneficiary under the contract and therefore covered by any warranty protection.
Generally plaintiffs suing for breach of warranty in Illinois must establish both vertical and horizontal privity. However, there appear to be exceptions to this general rule.
Defendants' motion is focused on Thomas' lack of horizontal privity. Unfortunately, the Illinois Supreme Court has yet to decide the privity requirements when dealing with horizontal privity. We will therefore follow the lead of the Illinois appellate courts who have decided that horizontal privity is not required when suing under an implied warranty for personal injury, "as long as the safety of the employee and the use of the goods were either implicitly or explicitly part of the basis of the bargain when the employer purchased the goods." Wheeler v. Sunbelt Tool Co., Inc., 181 Ill. App. 3d 1088, 537 N.E.2d 1332, 1340, 130 Ill. Dec. 863 (4th Dist.), appeal denied, 545 N.E.2d (1989); see also Whitaker v. Lian Feng Mach. Co., 156 Ill. App. 3d 316, 108 Ill. Dec. 895, 509 N.E.2d 591, 594-95 (1st Dist. 1987) (which also "overruled" any inconsistent cases of the First District).
Wheeler noted the dicta by the Illinois Supreme Court that § 2-318 leaves "'a door at least slightly ajar'" for this abolition of the privity requirement. Wheeler, 537 N.E.2d at 1340 (quoting Collins Co, Ltd. v. Carboline Co., 125 Ill. 2d 498, 532 N.E.2d 834, 842, 127 Ill. Dec. 5 (1988)). In their motion defendants do not contend that the safety of the employees was not at least implicitly part of the bargain between Flight Works and Decker Aero, but rather argue that even if there was such a warranty Thomas could still not prevail. We disagree. The motion is denied.
JAMES B. MORAN,
Chief Judge, U.S. District Court
November 1, 1994.