specially concurring:
I agree with the result reached by the majority. However, I do not agree that this case should be decided on the basis of privity or a lack thereof. In my opinion, it is a mistake to decide this case, or any other personal injury case, by exhuming concepts of privity in Illinois. I continue to believe what I stated in Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 399 N.E.2d 1355:
“In actions when the plaintiff is seeking to recover damages for personal injuries, Illinois courts have taken the position that liability or nonliability should not be decided on the basis of privity. In Tiffin v. Great Atlantic & Pacific Tea Co. (1959), 18 Ill. 2d 48, 162 N.E.2d 406, the court recognized that a breach of implied warranty action may be maintained against a seller of food even though there was no privity between the- parties. In Suvada, the court abolished the doctrine of privity in product liability cases. In Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656, the court abolished the requirement of privity in all tort cases. In Berry, the court held that lack of privity is of no consequence in a breach of implied warranty action between a purchaser of the product and a remote manufacturer. In eschewing privity, the Berry court recognized that tort liability and implied warranty liability are similar. 56 Ill. 2d 548, 554, 309 N.E.2d 550, 554.
Plainly, in Illinois the process of adhering to or distinguishing the privity requirement has proved to be an unsatisfactory method of determining liability to persons who suffer personal injuries. Because of the difficulties in applying the doctrine, courts created artificial exceptions deemed necessary to achieve desirable results which were not always completely reconcilable. (Rozny, 43 Ill. 2d 54, 62, 250 N.E.2d 656, 660.) I do not believe this court should be treading this same beaten path. In my opinion, it does not make any sense to deny recovery to the plaintiff merely because he is an employee of A & P, and yet, in another case, allow recovery to a Hershey employee injured in the same accident, in a like manner, and as a result of the same defect in the product. The Rozny court’s statement relating to privity is apt here (43 Ill. 2d 54, 62, 250 N.E.2d 656, 660):
‘To eliminate any uncertainty still remaining after Suvada v. White Motor Co., 32 Ill. 2d 612, 617, we emphasize that lack of direct contractual relationship between the parties is not a defense in a tort action in this jurisdiction. Thus, tort liability will henceforth be measured by the scope of the duty owed rather than the artificial concepts of privity.
Having discarded any remnants of the privity concept, we now concern ourselves with the scope of defendant’s liability using traditional tortious misrepresentation standards.’
I feel this court should not pick up the discarded remnants of privity in personal injury actions and mold them back into our law, where they are destined for eradication again.” 80 Ill. App. 3d 683, 698-99, 399 N.E.2d 1355, 1366.
In Knox, I also stated:
“Berry involved an implied warranty action under section 2 — 315 and 2 — 318 of the Code. The court held that lack of privity between a purchaser and a remote manufacturer is of no consequence in a breach of implied warranty action under the Code. In reaching its conclusion, the court stated (56 Ill. 2d 548, 553, 309 N.E.2d 550, 553):
‘The aforementioned Code provisions clearly demonstrated the legislative intent to create a statutory cause of action for breach of implied warranty to afford consumer protection to those who sustain personal injuries resulting from product deficiencies.’ (Emphasis added.)
In order to give full effect to this intention and, at the same time, take into account the developing case law concerning liability for defective products (see Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182; Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401; Berry, Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1; Court v. Grzelinski (1978), 72 Ill. 2d 141, 379 N.E.2d 281; see also Restatement (Second) of Torts sec. 402A (1965)), the implied warranty should apply to users and all persons who may reasonably be expected to be affected by a breach of the implied warranty regardless of privity.” (80 Ill. App. 3d 683, 696-97, 399 N.E.2d 1355, 1365.)
I believe that the present case should be decided on the principles that I expressed in Knox.