seller's warranties, given to his buyer who resells, extend to other persons in the distributive chain.").
The vast majority of cases examining the limits of section 2-318 in Illinois have dealt with the employment context, expanding the class of potential breach of warranty plaintiffs to employees of the ultimate purchaser. See Wheeler; Thomas v. Bombardier-Rotax Motorenfabrik, 869 F. Supp. 551 (N.D. Ill. 1994); Whitaker v. Lian Feng Mach. Co., 156 Ill. App.3d 316, 509 N.E.2d 591, 108 Ill. Dec. 895 (Ill.App. 1st Dist. 1987); Maldonado v. Creative Woodworking Concepts Inc., 296 Ill. App.3d 935, 694 N.E.2d 1021, 230 Ill. Dec. 743 (Ill.App. 3rd Dist. 1998). In these cases courts have allowed employees to sue for breach of warranty despite a lack of horizontal privity.*fn2
In Whitaker, plaintiff was injured while using a bandsaw that had been purchased by his employer. 509 N.E.2d at 592. The court determined that section 2-318 does not state any limitation on the rights of persons to recover for breach of warranty, nor does it differentiate between horizontal and vertical privity (id. at 593-94). It reasoned that the purpose of warranties is to determine what the seller has agreed to sell (id. at 594), quoting UCC § 2-313, comment 4. The employee was essentially a third party beneficiary to the sale in that the employee's safety while using the bandsaw was "either explicitly or implicitly part of the basis of the bargain when the employer purchased the goods" (id. at 595).
In cases examining the limits of section 2-318 in other contexts, courts have been reluctant to find additional exceptions to the privity requirement. See Frank v. Edward Hines Lumber Co., 327 Ill. App.3d 113, 761 N.E.2d 1257, 260 Ill. Dec. 701 (Ill App. 1st Dist. 2001); Lukwinski v. Stone Container Corp., 312 Ill. App.3d 385, 726 N.E.2d 665, 244 Ill. Dec. 690 (Ill.App. 1st Dist. 2000); Hemphill v. Sayers, 552 F. Supp. 685 (S.D. Ill. 1982). In Hemphill, the court refused to allow a breach of warranty claim by a university football player against the manufacturer of his helmet. 552 F. Supp. at 690-93. The court determined that while courts may expand the class of vertical non-privity plaintiffs, the class of horizontal non-privity plaintiffs is expressly limited by the language of section 2-318 to a "natural person who is in the family or household of his buyer or who is a guest in his home." Id. at 690-91. Hemphill was, however, decided prior to Whitaker and the subsequent decisions expanding the plaintiff class to include employees of the ultimate purchaser. The court in Hemphill believed that Illinois law did not allow courts to expand warranty coverage to exceed the "express limitations" of section 2-318 (id. at 691). We have seen in Whitaker and subsequent decisions that, while not allowing any user lacking horizontal privity to sue, Illinois courts have recognized that the exceptions to horizontal privity are not absolutely limited by the language of the UCC. See, e.g., Whitaker, 509 N.E.2d at 593.
Lukwinski and Frank, while refusing to allow plaintiffs to sue for breach of warranty, encourage us to expand warranty protection in this situation. In both cases the courts recognize that, following Whitaker, the scope of section 2-318 may be properly expanded where the circumstances warrant. Lukwinski, 726 N.E.2d at 672; Frank, 761 N.E.2d at 1267. In both cases the courts refused to expand the scope of the UCC because the warranties could be adequately enforced without expanding the plaintiff class. Lukwinski, 726 N.E.2d at 672. The court in Lukwinski recognized the validity of expansion when required: "If coverage was not provided to employees of a corporate buyer, any warranties of the seller would be ineffective and extend to no person since it is impossible for a corporation to be the beneficiary." Id.
While no Illinois courts have expanded the plaintiff class for breach of warranty actions beyond employees, we believe that the law requires us to do so here. The beneficiary of any warranty made by the manufacturer and designer of the gown is necessarily a potentially suicidal detainee like Reed. If protection is not provided to plaintiffs like Reed, any warranty as to the safety of the gown would have little, if any, effect. In designing and manufacturing the gown, defendants contemplated that the users of the gown would be detainees. Moreover, the safety of these detainees was necessarily a part of the bargain, whether explicitly or implicitly, between the seller and buyer. For these reasons, a detainee of the City like Reed must be able to enforce the protections of any warranties made by the manufacturer and designer of the gown.
For the foregoing reasons, defendants' motion to dismiss count VI of the complaint is denied.