concurring in part and dissenting in part:
In the instant case, the majority opinion states "counts III and IV of Sille’s complaint against McGann alleging breach of warranty were timely filed and the trial court improperly dismissed these counts.” (265 Ill. App. 3d at 1058.) Although I concur with the holding as to other issues in the instant case, I respectfully dissent regarding the reversal of the trial court’s dismissal of counts III and IV. Count III alleges breach of the implied warranty of fitness for a particular purpose under section 2 — 315 of the UCC (Ill. Rev. Stat. 1991, ch. 26, par. 2 — 315 (now 810 ILCS 5/2 — 315 (West 1992))), and count IV alleges breach of the implied warranty of merchantability under section 2 — 314 of the UCC (Ill. Rev. Stat. 1991, ch. 26, par. 2 — 314 (now 810 ILCS 5/2 — 314 (West 1992))).
Section 2 — 725 of the UCC provides in pertinent part:
"(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued.” Ill. Rev. Stat. 1991, ch. 26, par. 2 — 725 (now 810 ILCS 5/2 — 725 (West 1992)).
In this case, the problem does not exist with the law. The problem exists with the application of the law. The majority is correct in noting that, in "Berry v. G.D. Searle and Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550, our Illinois Supreme Court specifically held that the four-year statute of limitation provided by section 2 — 725(1) of the UCC (Ill. Rev. Stat. 1969, ch. 26, par. 2 — 725(1)) applied to actions for personal injury predicated upon the theory of breach of implied warranty under the Code.” 265 Ill. App. 3d at 1057.
I note that the record establishes that during a hearing in the instant case, the trial court considered plaintiffs argument that the Berry holding was applicable. Relative thereto, the trial court, in considering the facts of Berry, stated:
"THE COURT: In Berry versus Searle the personal injuries proximately resulted from the seller’s breach of warranty. That is this was a case obviously involving pills, in this case birth control pills. And the Court found that the plaintiffs injuries directly resulted from the breach of implied warranty for consumers of this type that are distant and innocent users of certain products.”
The trial court was mindful of Schreiber v. Eastern Airlines, Inc. (1976), 38 Ill. App. 3d 556, 348 N.E.2d 218. The trial court considered that Schreiber correctly states the law applicable to the instant case. In Schreiber, the court wrote:
"Examination of decisions in this State indicates that the limitation period is to be determined by the type of injury sustained. In Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 317 N.E.2d 505, our Supreme Court held that a five-year limitation period was applicable to an action for loss of consortium. The court said, 'We think that it is the nature of plaintiffs injury rather than the nature of the facts from which the claim arises which should determine what limitations period should apply. Where, as here, plaintiff has suffered no direct physical or mental injury the two-year statute is inapplicable.’ (58 Ill. 2d 162, 163.) Conversely, in the present case plaintiff seeks recovery for direct physical and mental injury allegedly sustained as a result of defendant’s conduct. [Citations.]” Schreiber, 38 Ill. App. 3d at 558-59.
See also Neikirk v. Central Illinois Light Co. (1984), 128 Ill. App. 3d 1069, 1072, 471 N.E.2d 1027, where, in affirming an order dismissing plaintiffs complaint, the court wrote:
"[Closes cited by plaintiff ] are not cases where a plaintiff is suing for direct personal injuries, as is the case here. Contrariwise, the applicability of the two-year limitation is determined by the nature of the injury resulting to the plaintiff, and not the form of the action.”
I also note that during the hearing in the instant case, the following statements were made by the court and attorneys for the parties:
"THE COURT: Shriver [sz'c] directs one to look at the type of injury sustained.
MR. LEWIS: Exactly, your Honor. And plaintiff here is not asking for repair of the — Very briefly, factually plaintiff was injured while using a piece of construction equipment, which was manufactured by Toyota and sold, distributed by McCann Construction Specialties. And plaintiff Mr. Sille was injured while he was using this piece of equipment.
He’s not asking for repair of the skid loader. He’s not asking for replacement of the skid loader. He’s seeking purely damages for personal injury.
MR. KOMPERDA: Correct, Judge, everything he states is correct.
With regard to the warranty counts I just want the Court to recognize that the Illinois Supreme Court in Berry versus G.D. Searle has said that the UCC four year statute of limitations applies to warranty actions even if the action involves personal injury. So I would ask the Court to rely on the Supreme Court. Shriver [szc] is an Appellate Court case, Judge.”
There is no dispute about the facts in the instant case and the real dispute isn’t about the law. The real dispute is about the application of the law. Berry was a warranty action which involved personal injury. The instant case is an action where plaintiff is seeking purely damages for personal injury. Therefore, Schreiber and Neikirk state the law which is particularly applicable due to the nature of the injury in this case.
Accordingly, the judgment of the trial court should be affirmed.