concurring in part and dissenting in part.
I concur in the majority opinion regarding negligence and the Court’s interpretation of the statutory cause of action. I respectfully dissent from the majority’s opinion in regards to the requirement of privity between a builder and a subsequent purchaser. The majority concludes that the Kentucky legislature’s failure to adopt alternative B or alternative C of the U.C.C. evidences a present legislative intent to deny warranty protection to a home buyer who is not in privity with the builder. I do not so interpret the legislature’s intent.
In 1985, this Court held that under the U.C.C. breach of warranty is only viable when privity exists between the manufacturer and the injured party or if the injured party is one of the persons described in the statute. Williams v. Fulmer, Ky., 695 S.W.2d 411 (1985). The Appellant in that case referred the Court to official “Code Commentary” which states U.C.C. Alternative A “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 Court noted that the commentary was not incorporated in nor referred to by our statute.
*930In 1990, the legislature enacted KRS 355.2A which are U.C.C. provisions dealing with leases. This statute contains KRS 355.2A-216 which is parallel to KRS 355.2-318. Both statutes provide a warranty “to any natural person who is in the family or household of the lessee or who is a guest in the lessee’s 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.” However, the legislature did not stop there in enacting KRS 355.2A-216. The legislature adopted the commentary into the statute. The second sentence of the statute states, “This section does not displace principles of law and equity that extend a warranty to or for the benefit of a lessee to other persons.” The legislature responded to this Court’s decision in Williams v. Fulmer. By adopting the commentary, the legislature signaled to this Court that some extensions of warranties “to other persons” are necessary because of equity considerations and are thereby matters to be considered and decided by this Court.
The statute that this Court today construes as providing a private right of action is further indication from the legislature that the public policy of this state supports the extension of warranty protection to persons other than those in privity with the builder. KRS 198B.130 allows recovery by “any person or party, in an individual capacity or on behalf of a class of persons or parties.” This statute is wholly inconsistent with a public policy which limits a person’s right of action for breach of warranty of habitability based upon the question of privity.
Whatever the legislature’s intent as to the public policy regarding privity in cases concerning U.C.C. sales or leases, the warranty of habitability as to workmanship and suitability of materials is a judicial creation in this state. In Crawley v. Terhune, Ky., 437 S.W.2d 743 (1969), this Court adopted this warranty as a common law principle. This judicial action was taken in response to a need which was not covered by any statute. Twenty-five years after the adoption of this judicial creation we are again confronted with a need.
While I concur in the majority opinion’s interpretation of KRS 198B.130, I am concerned that the protections accorded by this statute are not uniformly available to all residents of the Commonwealth. Applying the warranty of habitability to all non-privity home buyers state wide would not usurp the legislature’s policy-making authority. The legislature has already made its policy statement by the plain language of KRS 198B.130. Extending the warranty would only insure a uniformity in protection for citizens wherever they reside in this Commonwealth.
I dissent today because I am concerned about the message which is being sent by the majority’s opinion. Although the majority opinion acknowledges the validity of the reasoning of the New Hampshire court and laments the limitations it perceives in Kentucky U.C.C. provisions regarding privity of contract requirements, the Court will not act to follow a public policy which it knows to be in the best interest of the citizens of this Commonwealth. We do not need statistics to show us that Kentucky has experienced increasing mobility of our population. Like the other states who have considered this privity question, we also have buyers with little experience and. knowledge about construction and builders in this state with superior knowledge, skill and experience in the construction of houses. The majority does not deny that these and other reasons discussed by the New Hampshire court for the extension of the warranty are valid and good reasons for extending the warranty.
In 1986, in a schizophrenic decision which is Ellis v. Robert C. Morris, Inc., 128 N.H. 358, 513 A.2d 951 (1986), the New Hampshire Supreme Court refused to extend the warranty of habitability to persons not in privity with the builder. Two years later, in the well reasoned opinion that is Lempke v. Da-genais, the New Hampshire Supreme Court overturned its own precedent with only one dissenting vote. Today the majority opinion rationalizes its decision by blaming its inaction on the legislature. We can only hope that in the near future this Supreme Court will be presented with an opportunity to reconsider this decision. Times have changed, needs have changed, and this Court created *931law must change. I would affirm the decision of the Court of Appeals on all issues.
REYNOLDS and SPAIN, JJ., join.