The opinion of the court was delivered by: James B. Moran, Senior Judge, United States District Court
MEMORANDUM OPINION AND ORDER
Plaintiff Ruby Reed brought this action against defendants City of Chicago (City), police officers Timothy Gould, Bruce Young, Brian Pemberton, and Susan Madison (officers), and Edwards Medical Supply, Inc. (Edwards), Cypress Medical Products, Ltd. and Cypress Medical Products, Inc. (together, Cypress), and Medline Industries (Medline) arising from her son's death in a Chicago jail cell Defendant Cypress filed a motion to dismiss count VI of the complaint — breach of warranty — pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Cypress' motion is denied.
Plaintiff further alleges that the gown was manufactured and designed by defendants Edwards, Cypress and Medline, and that these defendants breached implied and express warranties when the gown failed to tear away when used by Reed in an attempt to hang himself.
In deciding a Rule 12(b)(6) motion to dismiss we must assume the truth of all well pleaded allegations, making all inferences in the plaintiff's favor. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir. 1994). The court should dismiss a claim only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). While the complaint does not need to provide the correct legal theory to withstand a Rule 12(b)(6) motion, it must allege all of the elements necessary to recover. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047 (1986).
The single issue we must decide is whether plaintiff, as a non-purchaser, can recover from the manufacturer and designer of the gown for breach of warranty. Historically, Illinois law has required plaintiffs suing for breach of warranty to establish both horizontal and vertical privity.*fn1 Section 2-318 of the Uniform Commercial Code (UCC), as adopted by the Illinois legislature, contains mandatory exceptions to the general requirement of privity:
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
The Illinois Supreme Court has determined that the privity is no longer an absolute requirement for breach of warranty actions. Berry v. G.D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (Ill. 1974) (stating "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"); see also Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (Ill. 1965), reversed on other grounds (holding, prior to the enactment of the UCC in Illinois, that the privity requirement should be abolished in food and drug cases). While section 2-318 lists specific exceptions to the privity requirement, Illinois courts have noted that this list is not necessarily exhaustive. See Wheeler v. Sunbelt Tool Co., Inc., 181 Ill. App.3d 1088, 1099, 537 N.E.2d 1332, 1340, 130 Ill. Dec. 863, 871 (Ill.App.4th Dist. 1989); see also UCC § 2-318, comment 3 (stating that "the section in this form is neutral and is not intended to enlarge or restrict the developing case law on whether the 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 ...