¶1dissenting:
¶2I cannot support the fiction indulged in by my colleagues in the purported extension of the implied warranty of habitability concept which this court originally announced in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31. The decision in Petersen was based on a contract theory, implying a contract between the builder-vendor and his vendee. My colleagues, in the case before us, by abolishing the privity requirement, have transferred what was conceived in Petersen as a contract action into an action in tort in the nature of strict liability. Calling this action an implied warranty action is a mere fiction to circumvent our recent decision in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, which held that recovery for economic loss cannot be had under strict liability in tort. If it is the desire to permit the recovery for economic loss in a strict liability tort action, why do we not simply so hold?
¶3Implied warranty without privity is essentially strict liability in tort. Historically, the tort of strict liability evolved from the contract action based on implied warranty. Prior to 1960 such an action included the requirement of privity. In that year, however, the Supreme Court of New Jersey, in Henningsen v. Bloomfield Motors, Inc. (1960), 32 N.J. 358, 161 A.2d 69, indulged in the same fiction the majority of this court now uses, and held that recovery in a products liability case could be had on the theory of implied warranty and privity was no longer required. (See Prosser, The Fall of the Citadel (Strict Liability to the Consumer) 50 Minn. L. Rev. 791 (1966).) However, in 1963 the Supreme Court of California, in Greenman v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697, wiped away the last vestiges of a contract action in a products liability case. The court in that case in effect stated that it should stop indulging in such fictions and call this action what it really is, an action for strict liability in tort. Being an action in tort, privity was not a prerequisite to recovery. Soon, many States abandoned the fiction of implied warranty without privity and adopted the principle of strict liability in tort. (See Prosser, Torts secs. 81, 96-104 (4th ed. 1971).) In 1965 this State abandoned the fiction in favor of strict liability in tort. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612.
¶4Now, in the case before us, the fiction of implied warranty without privity has been resurrected. A fiction once abandoned has been exhumed and commissioned to provide recovery for economic loss where such recovery cannot otherwise be obtained. Henceforth, this fiction will be called upon to perform that function as a second count sounding in contract in every strict liability in tort action. Henceforth, there will be no restriction on the recovery of economic loss in strict liability in tort actions. If that is the intent of the majority, why indulge in the fiction to achieve it?
¶5JUSTICE UNDERWOOD joins in this dissent.