Stewart-Warner Corp. v. BURNS INTERNAT'L SEC. SERV., INC.

• Decision Date: 28 June 1972
• Docket Number: No. 71 C 336.,71 C 336.
• Citation: 343 F. Supp. 953
• Parties: STEWART WARNER CORPORATION, Plaintiff, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

343 F. Supp. 953

STEWART WARNER CORPORATION, Plaintiff, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant.

No. 71 C 336.

United States District Court, N. D. Illinois, E. D.

June 28, 1972.

Holland C. Capper, Geoffrey G. Gilbert, McBride, Baker, Wienke & Schlosser, Chicago, Ill., for plaintiff.

John M. Moelmann, Perry L. Fuller, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

McLAREN, District Judge.

This matter arises on defendant's motions to dismiss Count V of the third amended complaint and to substitute the Sun Insurance Company of New York ("Sun") as plaintiff. The motion to dismiss Count V is granted and the motion to substitute Sun is denied.

Plaintiff's action alleges that certain of its personal property stored in a portion of a building it had leased was damaged because of a fire intentionally set by an employee of the defendant, a private detective agency. Counts I to III predicate liability on common law negligence in the hiring of the employee and violations of the Illinois Detective Act, III.Rev.Stat., ch. 38, §§ 201-1 et seq. Count IV, alleging that the plaintiff was a third party beneficiary of a contract between the defendant and the lessors of the building, and that the defendant's hiring of the employee in question constituted a breach of the contract, was dismissed by Judge Napoli.

Count V alleges that defendant breached an implied warranty to guard the building in a workmanlike manner and with adequate and fit personnel. Plaintiff faces two obstacles to stating a cause of action in this count: (1) implied warranties generally apply only to sales of goods, not services; and (2) unless public policy demands otherwise (e. g., dangerous products, sale of food or drink for human consumption), a breach of warranty action may only be maintained by a party to the contract.

Plaintiff opposes the motion to dismiss, arguing that the Court should expand the doctrine of implied warranties to cover sales of services. The Court can find no authority in Illinois law for such action. The cases cited by plaintiff in support of its argument are unpersuasive since they deal with strict liability and/or sales of goods. E. g., Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 446-48, 266 N.E.2d 897, 900-01 (1970). Plaintiff's admiralty authority also is unpersuasive in light of the Illinois' courts expressed refusal to expand the doctrine of implied warranty for services in that unique area of the law to cover the building contractor area. Wrobel v. Trapani, 129 Ill.App.2d 306, 316-17, 264 N.E.2d 240, 245-46 (1970).

Even assuming that implied warranties did apply to sales of services, plaintiff, not being a party to the contract between defendant and the lessor of the building where the fire took place, could not maintain such an action. Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28, 39, 139 N.E.2d 275, 282 (1956). Although products liability is a fast-changing area of the law, Illinois courts, with certain exceptions not applicable here, still require privity of contract to maintain actions on implied warranties. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, 184 (1965).

Plaintiff also argues...