*1 (Nos. 95243, 95253, 95256, 95280 cons . al., BER et v. Appellees,
THE OF CHICAGO CITY al., et Appellants. ETTA U.S.A. CORPORATION 18, Rehearing denied Opinion November 2004 . filed January 2005. *2 Fred Fore- J. Howard, Daniel Voelker
William N. appellants for Peters, Chicago, & man, of Freeborn Inc., al. Galleries, et Shore Simmons, Dorr, L. and Lisa S. Sarah Olson
James E ap- for Dixon, Chicago, Harrold, Allen & Wildman, Sturm, & Co. Ruger pellant Ltd., McAuliffe, Jr., & of Wiedner Leamy,
Richard J. Inc. Riley’s, for Chicago, appellant Loretta M. Downs, the Law Offices of Ana Marie Kite, for Chicago, appellant all of Griffin, and M. Leslie Brothers, Inc. Faber Denberg, of Minichillo and Kenneth H.
Lora E. Friedrich, L.L.C., Chicago, appel- Michael Best & *3 al. lants Donald Beltrame et Bell, Chicago, and & of Fegan,
Thomas H. of Johnson Bledsoe, of and Catherine A. S. Greenwald Lawrence Hollander, & Gordon, Feinblatt, Rothman, Hoffberger Baltimore, Beretta L.L.C., Maryland, appellants of for et al. Corporation U.S.A. Yorkville, B.L. appellants of for Maye, Anne
Melissa Arms, Inc. Jennings, Bryco Inc. and M. Crisham, L. and Jean Thomas M. Daniel Stanner Kubes, Ltd., Chicago, of of Crisham & Prendergast, Clark, of III, Eldredge & Friday, M. of William Griffin Arkansas, Browning Arms Co. Rock, appellant Little for Piper Chicago, Isaacson, Samuel B. Rudnick, of of and Thomas E. Rice, Fennell and Michael L. Jones, of Day, Pogue, appellant & Dallas, Reaves of Texas, for Manufacturing Colt’s Co. Renzulli,
John F. Renzulli, of Renzulli, Pisciotti & appellants L.E, York, L. of York, New New for Glock, Inc. et al. Chicago, Trueco,
Michael Trueco, T. of Stamos & of appellant for International Armament Co. May, Yorkville,
Melissa Anne of Tarics, and Robert C. I. Michael Branisa and Zomick, Michael J. of Tarics & Carrington, appellant PC., Houston, of Texas, for Phoenix Arms. Chicago, Michels,
Robert L. of Strawn, Winston & of Jeffrey Hardy Schaefer, S. Nelson and Tina Shook, of City, appellant Bacon, L.L.E, & Missouri, of Kansas for Corporation. & Smith Wesson Timothy Bridgette Bumann, A. Jennifer C. Kane and Greenberg Eckerson, Budd, E. Larner, Rosenbaum, & Georgia, appellant Sade, Atlanta, for Taurus Interna- Manufacturing tional Co. Algoma, appel- Valentino, Jr.,
James Wisconsin,for lant Firearms, Universal Ltd. Georges, Corporation
Mara Counsel, S. (Lawrence Rosenthal, Benna Ruth Solomon and Suzanne counsel), Roger Loose, M. Pascal, Thomas B. Quinn Safer, Schiff, Waite, and Ronald Harden & Chicago, appellee City Chicago. *4 Attorney, Chicago Devine,
Richard A. of State’s Kottaras, As- (Thomas Demetrios Pera and Rieck, Mark J. and Michael counsel), of Attorneys, State’s sistant and Roache, Martin Lisa T. McKey, John Patrick Hayes, Douglas, of & Gardner, Carton Griswold, of Joel counsel), of Pennsylvania, (David Philadelphia, of Kairys, County of Cook. appellee A. Marnie I. Rothstein DiVito, Michael L. Gino L.L.C., Chicago, of Rothstein, Tabet, & Jensen, DiVito of Manufacturers. of Association curiae National for amicus Brook, Chicago, of & Lord, Bissell Griffin, of C. Hugh Dechert, L.L.P, Philadelphia, Beck, of M. and James Reston, Virginia, Jr., of Young, F. (Hugh Pennsylvania Advisory Liability Product counsel), curiae for amicus Council. E. General, and Brett Feinerman, Solicitor
Gary S. General, Attorneys Wunder, Assistant Laura Legner and Attorney Madigan, Lisa for amicus curiae Chicago, of Illinois. of the State General Adam B. Deutsch Eimer, Solberg, C. P Scott
Nathan Eimer, Stahl, Klevorn & Weintraub, Greg J. Solr of Cit- League for amici curiae National Chicago, berg, ies et al. opinion delivered
JUSTICE GARMAN court: violence gun consequences tragic personal society as upon imposed The burdens
inestimable. and medical enforcement the costs of law whole case, City present In the are immense. services rising in an effort to stem County, Cook Chicago expenses some of recoup and to gun tide of violence manufacturers, crimes, have sued gun that flow from that have been handguns distributors, and 11 dealers *5 illegally possessed city. and used in the For various reasons, 13 manufacturers, 2 distributors, and 8 dealers theory liability remain as defendants in this case. The public sought by City nuisance. The relief includes compensation emergency for the costs of services, medical prosecution law enforcement efforts, the of violations of gun expenses. ordinances, control and other related The County compensation seeks for the costs of treatment of gun prosecutions victims of violence and the costs of including expenses criminal firearms, use of associ- providing ated with gun defense counsel to those accused of plaintiffs punitive damages crimes. Both seek permanent injunctive alleged public relief to abate the nuisance. County,
In the circuit court of Cook defendants sought dismissal of the lawsuit under section 2—615 of (Code) (735 the Code of Civil Procedure ILCS 5/2—615 (West 2000)), plaintiffs on the basis that failed to state a public cause of action for nuisance. The circuit court granted the motion to dismiss. appellate construing light court, the facts in a plaintiffs,
most favorable to the found that based on the specific alleged complaint, plaintiffs acts had suf ficiently stated a cause of action for against all three classes of defendants, reversed trial proceedings. court, and remanded for further 337 Ill. 1, 3d 18. granted petitions appeal We defendants’ for leave to 315(a) (177 315(a)). pursuant to Rule Ill. 2d R. Pursuant (155 Supreme 345), Court Rule Ill. 2d R. we have permitted the National Association of Manufacturers and Liability Advisory the Product Council to file briefs amici permit curiae on behalf of the defendants. We have also Attorney ted the General of the State of Illinois and the League along Cities, National with the U.S. Confer Mayors Municipal Lawyers ence of and the International on behalf of Association, file amici curiae briefs plaintiffs.
I. BACKGROUND their this 1998 and Plaintiffs filed suit November 10, February On April 1999. complaint first amended motion to 2000, court defendants’ granted trial entrustment, II, negligent with count respect dismiss I, In March ruling on count nuisance. and reserved to file a second amended permitted were plaintiffs 15, 2000, the trial court On complaint. September counts, to dismiss both with defendants’ motion granted only raised dismissal appeal, On prejudice. count of the second amended complaint. *6 distributors, manufacturers,
All of the defendants — their federally engage licensed to and dealers —are defen- businesses. manufacturer respective None have Illinois. principal places dants their business are other for the incorporated purpose Several states one of importing Only firearms manufactured abroad. based in Illinois. The dealer the distributor defendants is Illinois, city defendants are located in but outside the Chicago. offer complaint, plaintiffs
In the amended second nation, statistics, and the city dramatic both for number and other crimes regarding the of homicides statistics, involving they on as- handguns. Relying these “widespread availability and use firearms sert that the further, claim, They “[a]b- is a national problem.” gun control prosecution sent effective enforcement laws, anyone are who wishes readily firearms available guns ready availability also to use them.” shootings, particu- contributes to suicides and accidental to the larly dangers, according of children. These today, continue to long and will plaintiffs, ago, “were known to defendants.” specifically provisions city’s Municipal Plaintiffs also cite place requirements prohibitions Code that strict possession, Chicago use, and transfer of firearms in only and assert that such ordinances can be effective if jurisdiction imposing the “residents of the the restriction legally purchase cannot those firearms elsewhere and bring jurisdiction.” them back into the The State of Il- regulates possession, linois also use, and transfer of according complaint, However, firearms. “data from recovered firearms and the undercover work of the Department system- Police reflect numerous and Despite atic violations” of these ordinances and statutes. gun protect strict Chicago, control laws intended to the citizens of illegal
there are “thousands of firearms” in the city brought city every year. and more are into the Thus, illegal assert, the “existence of firearms in the City Chicago constitutes nuisance because it designed protect violates ordinances and laws safety,” from a threat health, to its welfare and readily and because the existence of available firearms significant “creates an unreasonable and interference” public safety. with complaint alleges
The second amended further categories put all three of defendants are on notice of the “crime-facilitating consequences conduct,” of their process virtue of the used the United States Bureau of (ATF) Explosives Alcohol, Tobacco, Firearms and to trace by federal, firearms recovered state, and local law *7 agencies. According complaint, enforcement only defendants “know that firearms that have been used subject in connection with crimes can be of traces.” On the basis of trace data 26, 1988, from March to involving guns 31, 1998, December 858,902 traced nationwide, 20 of the 22 manufacturer defendants “ac- approximately guns, count for 48.3% of crime those even though they comprise only 2.8% of the 716 manufactur- trace database.” The data ers listed in the national however, do not reveal the market shares provided, these manufacturers. dealers, offer more gun to regard
With revealing of dealers recent data from the ATF that 1.2% for of traced firearms. Plaintiffs nationwide account 57% study of ATF data released rely congressional also on a extraordinary that “an in December which found guns bought ‘high gun from crime’ proportion of crime “one- that probably purchased” dealers were straw in connection guns third of crime were recovered these just year purchase, a crime one of its with within their years to crimes within two half were traced purchase.” allegation against named specific
Plaintiffs’ they is “sell firearms even when dealer defendants that that the firearms will used know or should know they allegation sup- is illegally Chicago.” or This possessed by dealers some of their ported assertions know it illegal are residents of and that customers to possess weapons for those use or these customers or city; that dealers make sales even when words an to buyers behavior indicate intention use handguns designed that dealers sell weapon illegally; law though even state weapons, be carried as concealed carrying weapons; concealed prohibits they whom multiple dealers make sales individuals guns know know should intend resell dealer complaint The identifies the city. second amended group irresponsible of a deal- part defendants as “core gunrunners and other ers” who attract business criminals, trace complaint reflected ATF data. as regarding factual numerous also includes assertions offic- “sting” operations police carried out undercover at the dealer defendants’ stores. Plaintiffs ers various practices that the “have caused further assert dealers’ illegal firearms flourish large underground market *8 City Chicago,” they many and that “know that they possessed illegally, of the firearms sell are used or put underground Finally, into the market.” complaint states that the dealers’ “actions and omissions selling Chicago illegal firearms to residents that are City Chicago unreasonably facilitate violations of City physical ordinances, and contribute to harm, fear injuri- and inconvenience to residents, and are safety Chicago ous to the health and residents.” regard With to the defendant manufacturers and complaint alleges distributors, the second amended that they produce regularly and distribute firearms that are Chicago police department. recovered For each of complaint the manufacturer defendants, the lists police depart- total number firearms recovered filing ment from 1992 until the date of the complaint. tracing by plaintiffs data offered also contain a
“time measurement, to crime” which reflects the number days gun between the initial sale of a traced and its According complaint, use in a crime. the median guns “time to crime” for traced to distributor defendants days, guns is 834 while the median “time to crime” for days. traced to nondefendant 1,386 distributors is complaint alleges addition, the second amended that the defendant manufacturers and distributors know- ingly oversupply or “saturate the market” with their products gun-control in areas where laws are less restric- knowing persons illegally bring tive, that will them into jurisdictions they illegal possess where and then illegally complaint alleges Further, resell them. that discourage these defendants do not the dealer defendants selling irresponsibly, though from their firearms even they are on notice as a result of the ATF traces that “responsible vastly dispropor- certain dealers are for a weapons. tionate number” of the traced The defendant an that there is manufacturers and distributors “know regulations of dealers” and know meaningful absence federally “almost can become a licensed anyone knowledge, these defen- Despite firearms dealer.” this regulate “fail to or set standards supervise, dants conduct, on the mere fact relying dealers’ instead *9 the government.” the dealers licensed federal the Finally, plaintiffs allege that manufacturer market to to design products appeal defendants and their to use them for criminal purposes. those who intend concealment, features such as ease of Specifically, many to fingerprints, ability and the to fire resistance clip from a ammunition make certain single rounds types to criminals. These particularly firearms attractive to no weapons, according complaint, the “serve sport hunting designed or and are legitimate purpose than wish to better armed appeal criminals who be law The other criminals enforcement officers.” identifies individual models manufactured complaint this each of the manufacturer defendants as evidence of “intentionally marketing strategy, recklessly which and illegal firearms to end in Chi- up causes thousands cago.” allegations,
Based on these the second amended I: that the complaint states in “Count Public Nuisance” right free Chicago residents of “have common to be an jeopardy from conduct that creates unreasonable free health, safety, welfare and and to be public’s that creates a and unreason- from conduct disturbance danger and apprehension person property.” able “intentionally reck- conduct of and The defendants’ distributing, selling marketing, and lessly” designing, will taken to they firearms “should know” to be Chicago possessed causes “thousands of firearms “a Chicago illegally” significant and causes and used rights and unreasonable interference” with public. complaint alleges Further, the that the conduct is continuing ongoing of a nature and has created an nuisance. complaint alleges also City Chicago that defendants “owe
duty of care to the and its residents and County living of Cook and its residents within prevent to exercise reasonable care to their ending up persons firearms from in the hands of who use possess illegally” city. them In addition to this allegation, negligence, complaint which sounds in al- leges “outrageous” conduct defendants’ and is “committed with a reckless and wanton indifference to rights safety of others.” regard remedy sought, complaint
With states that the defendants’ conduct causes increased expenditures by city county that should be compensated by money damages. In addition, because money damages adequately compensate” “will not plaintiffs they suffered, for the harm do not an have adequate remedy Injunctive proper, at law. relief is they claim, because and the residents of *10 city irreparable will continue to suffer harm in the injunction. absence of an plaintiffs’ theory sum, is that the defendants’ designing, manufacturing, distributing,
conduct in selling handguns certain models of is done with the knowledge, significant intent, if not the that a of number guns ultimately way illegal the will find their into an gun secondary persons market and then into hands of legally possess guns city who cannot those within the Chicago. plaintiffs allege Further, that this conduct is generally compliance unreasonable, if even it applicable governing with state and federal laws the sale presence guns firearms, because the and use of these people possess illegally, who them with the participation defendants, substantial of the violates the from the threat to be free public right general safety. to health jeopardy and from gun violence unreason- the defendants’ allege that Finally, plaintiffs of a substantial cause is the proximate conduct able to live residents ability interference with risk of inconvenience, or undue fear, city without resulting demand and of the injury, physical limited resources. plaintiffs’
II. PRESENTED ISSUES argue court, defendants the manufacturer Before this the second dismissed properly the trial court (1) al- plaintiffs’ complaint complaint amended because: facts, and thus conclusions, underlying not leges specific (2) standard; fact-pleading conform to the does not cannot, as a matter product of a nondefective lawful sale (3) nuisance; their conduct is law, constitute a that, injury as a matter alleged so remote from the (4) cause; law, proximate plaintiffs cannot establish law for a situa- are not liable under they control, specifically, tion have no they over which left their after the firearms have criminal acts of others (5) any recovery from possession; barred the economic loss doctrine damages this case based on from recover- prohibiting municipality and the doctrine al- services from expenses governmental of local ing authority; statutory tortfeasors in the absence of leged (6) the state and federal constitutions forbid liability regulating for the imposition purpose of civil conduct. extraterritorial commercial arguments adopt defendants these The distributor (4) above, argu- make the related and, respect with negligent sounds in against the claim them ment entrustment, nuisance, they and because not dealers, to individual only to licensed provide firearms for the actions of consumers, they cannot be held liable *11 negligent entrustment. purchaser the ultimate based on 364
The dealer argument, defendants make additional (2) above, related to their practices cannot be deemed unreasonable if are in they compliance all with applicable state and federal regulations.
III. ANALYSIS
A motion to dismiss under section 2—615 of the Code
(735
(West 2000))
ILCS
challenges
legal suf
5/2 —615
ficiency of the complaint by alleging
on
defects
its face.
de novo an
We, therefore,
granting
review
order
deny
Mraz,
motion. Wakulich v.
ing a section 2—615
203 Ill.
(2003).
223,
2d
reviewing
228
In
sufficiency of
complaint,
accept
we
as true all well-pleaded facts and all
reasonable
inferences
be drawn from those
Jarvis
Inc.,
v. South Oak
Dodge,
81,
facts.
201
2d
Ill.
(2002).
addition,
we construe the
in the
allegations
complaint
light
plaintiff.
most favorable to the
Wakulich,
It is well passes: unreasonable, from the wrongs
“that class of that arise his person or unlawful use a own unwarrantable personal, improper, real or or from his own property, conduct, working an obstruc- personal indecent or unlawful *** to, of, injury right public. tion a of another or every part great compact It is a social to which person party, principle is fundamental and essential every every person yields por- community, civilized Wood, right tion of his of absolute dominion ***.” H. A (3d 1,§ Practical Treatise the Law Nuisances at 1-3 1893). ed. promulgation
The of the Restatement of Torts in “significant 1939 was the first to determine attempt types liability” some limits to the of tort associated with Keeton, 86,§ nuisance. W Prosser & Keeton on at Torts (5th 1984). 617 ed. Two lines of development case noted, “narrowly law were one restricted to the invasion land,” of interests in the use or enjoyment of which has nuisance; come to be known private as other “extend- ing virtually any form annoyance or inconvenience interfering rights,” with common public which is known public Keeton, as nuisance. W & Keeton on Prosser Torts (5th 1984). 86,§ private at 618 ed. While nuisance is “a wrong, land,” civil based on a rights disturbance species offense, nuisance is “a of catch-all criminal of an consisting rights interference with the of the com- Keeton, munity large.” W Prosser & Keeton on Torts (5th 1984). 86,§ at 618 ed. private Restatement definitions of
nuisance are law. v. consistent with Illinois See Wheat
366 (1974) Coal Mining Corp., Freeman App. 14, 23 Ill. 3d 1901 to conclusion (citing support Illinois cases from defini adopted that Illinois courts have Restatement Stanmar, Inc., 261 Ill. App. Gilmore v. nuisance); tion of cases). (1994) Donald (summarizing 3d See also son, (adopting language Ill. 2d at 101 contained then-draft of section 82IB of the Restatement (Second) Edison, Commonwealth Torts), quoting Ill. 3d at 631. nuisance, IB of the regard section 82
With
“(1)
(Second)
A public
Torts
states:
Restatement
a right
an unreasonable
interference with
is
(Second)
Restatement
general public.”
common
(1979). Thus,
recognized
it
that:
generally
§
Torts
821B
*13
nuisance,
“A
nuisance,
does not
public
private
unlike a
enjoy-
necessarily
an interference with the use and
involve
land,
or an
of another’s interest
ment of
invasion
land,
encompasses any
private
enjoyment
use and
but
to the
right
interference with a
common
unreasonable
Thus,
may lie
public
an action for
general public.
though
plaintiff
neither the
nor the defendant acts
even
2d
property rights.”
58 Am. Jur.
private
the exercise
(2002).
31,§
Nuisances
at 592
Theatre,
See also Festival
(equitable
B.
argue
appel
The manufacturer defendants
that the
relying
proposition
pleading
court,
late
on the
that the
requirements
in an action for
nuisance are not
exacting,
fact-pleading
failed to hold the
repeatedly
ap
standard that
this court has
stated is
plicable
e.g.,
See,
to civil cases in Illinois.
Weissv. Water
(2004) (noting
Securities, Inc.,
house
208 Ill. 2d
again”
that this court has stated “time and
that Illinois
fact-pleading jurisdiction). Specifically,
is a
these defen
only
allegation
regard
dants claim that the
factual
made
ing
they lawfully
their conduct is that
sell firearms to
they
addition,
licensed
distributors.
assert that the
complaint
support
conclusoryallega
offers no facts to
its
regarding
knowledge
They
tions
their
and intent.
contend
complaint
plead
allegations
that the
fails to
factual
suf
any
ficient to state a claim as to
of the individual
reply
manufacturer defendants.
In their
brief, the
adopt
arguments.
distributor defendants
these
suggest
appellate
Further, these defendants
that the
improperly
upon
Supreme
court
relied
the decision of the
*14
City
Corp.,
Court of Ohio in
Cincinnati v.Beretta U.S.A.
(2002),
416,
95 Ohio St. 3d
at plain only a short and statement need contain plaintiff to relief. is entitled that the claim which shows plaintiffs any consistent with If there is set of facts recovery, complaint the court a allow that would jurisdiction may grant notice-pleading a defendant’s pleadings. City Cincinnati, 95 to dismiss on the motion at 1146. 768 N.E.2d Ohio St. 3d jurisdictions looking to cases from other When complaint on dismissed should be whether determine pleading keep pleadings, in mind that a must court imposes vary. pleading heavier burden a Fact standards complaint plaintiff, that would survive that a so jurisdiction might notice-pleading in a to dismiss motion e.g., People jurisdiction. fact-pleading See, not do so (2004) Madigan Tang, 277, 286 Ill. 3d v. ex rel. personally corporate (noting officer in action to hold pleading facts nuisance, the burden for liable may the burden on than be “heavier” jurisdictions). cases from other the cited plaintiff fact-pleading must standard, the Under our legally bring allege a claim within facts sufficient recognized Schuster, Ill. 2d v. action. Vernon cause of (1997). complaint requirement “[T]he set that a 338, theory recovery necessary as under the forth facts necessary al of the satisfied, in the absence is not serted favoring general policy legations, the liberal pleadings.” Clemens, 112 2d Ill. Teter v. construction of (1986). considering a motion to Thus, in 252, 256-57 disregard the conclusions dismiss, must a court well-pleaded only to determine pleaded facts and look they of action a cause to state are sufficient whether must be against not, motion If defendant. many “regardless the count granted, conclusions of how they regardless inform or not of whether contain way general the claim nature of in a the defendant
369 him.” against Knox v. Celotex 88 Ill. 2d College Corp., (1981). 407,
However, despite that requirement complaint allegations must contain bringing of fact the case within action, the cause of plaintiff “the is not required to set evidence; only out proved ultimate facts to be should alleged, not the evidentiary tending facts to prove such ultimate facts.” Chandler v. Illinois Central R.R. (2003). Co., 331, 207 Ill. 2d Plaintiffs contend that they have set out such suggest ultimate facts and if they are permitted discovery, to conduct sup additional porting facts will come to light. rely heavily Plaintiffs underlying facts the trace data and the “time to which, crime” they claim, statistics point these contributing defendants as problem illegal guns degree to a merely is not a function of their sales volume.
A sufficient pleading in a public nuisance cause of ac tion allege right will common to the general public, transgression of that right by defendant, and result ing injury. Co., Feder v. Perry Coal 279 Ill. App.
(1935). To be more precise, facts must be alleged sup port of four distinct elements of a nuisance claim: the existence of a public right, a substantial and unrea sonable interference with that right by defendant, proximate cause, and injury.
A close examination of the second amended complaint reveals that factual allegations are sparse, particularly respect with to the individual manufacturer and distribu- tor note, defendants. We however, that factual allegations with regard to the individual dealer defendants somewhat more detailed. Although we have reservations regarding the adequacy of the second complaint amended under our fact-pleading standard, dispose we decline to of this case on a procedural issue. The questions law raised this appeal great importance, are of have been fully argued, provide a briefed and substantive basis resolving case. this
Turning issues, to these we consider each substantive required elements nuisance cause beginning turn, action right. with the existence of heading Under the of “Unreasonable Interfer- argument ence,” we that the of a consider lawful sale *16 product law, cannot, as a matter nondefective of consti- public argument tute a related that nuisance and the compliance applicable federal defendants’ with state and precludes liability public laws for Under head- nuisance. ing argument Cause,” of the that “Proximate we address public may not be nuisance defendants held liable instrumentality they no the at when have control over alleged harm from the acts the time the results criminal argument parties, of third as well the that their as alleged injury liability from for conduct is too remote the addressing the of the to After each of elements attach. by claim, the the we consider remedial issues raised defendants. of of turn to our examination the elements
We now public the cause of action to determine whether nuisance they plaintiffs in which, a action if have stated cause of they prevail, might to seek be avail- were remedies able. Right C. Public “ doing public
A has defined as ‘the of been something injuriously to do that affects or safety, failure public, morals or some health or works annoyance, injury or inconvenience to substantial ” public.’ Village Services, Inc., v. A Wilsonville SC § (1981), quoting Prosser, 88, Torts Ill. 2d 21-22 W 1971). (4th Thus, that must n.29 ed. the first element alleged public claim is the exist state a to rights general public. right of a common to the Such ence public safety, public rights health, include the comfort, Restate- peace, public and convenience. (Second) 821B(2)(a) (1979). § ment Torts complaint, allege amended plaintiffs second right that the residents of have “a to common be free conduct creates an unreasonable from health, jeopardy public’s safety, welfare and and be free conduct that creates disturbance and from and apprehension danger person prop- reasonable added.) erty.” none (Emphases Because of the defendants are alleged engaged any city to have conduct in the Chicago, right we understand the asserted to be free right health, to be from jeopardy unreasonable welfare, safety, and from unreasonable threats danger to person caused property, presence illegal weapons city Chicago, allegedly made possible by defendants’ action inaction elsewhere.
Defendant do not manufacturers distributors argue plaintiffs have failed to identify public right alleged affected nuisance. Several dealer defen- dants, however, argue that have failed assert recognized public right.
We note that although other courts have dismissed
public
suits against
groups
similar
of defendants
(see
Sturm,
Co.,&
Spitzer
v.
309
Ruger
A.D.2d
761
(2003);
N.Y.S.2d
County
192
Camden
Chosen
Board of
(3d
Corp.,
Freeholders v. Beretta U.S.A.
Nevertheless, question we whether a public there is right, as to an opposed right, individual free from illegal by the threat of conduct others. The case law is not helpful. right Cases involving public safety of by have involved nuisances created dogs, vicious stor- 372
age explosives,blasting, storage fireworks, of of or use e.g., presence buildings. Turpen See, v. or the of unsafe (1986) City App. Francisville, 145 Ill. 3d 891 St. of (dilapidated building); Village Cannon, Northbrook v. of free). (1978) (allowing dogs App. Ill. 3d 315 run 61 by disorderly right public peace disrupted of has been unruly City e.g., taverns, See, houses, and dance halls. of (1979) (house Chicago prostitu Cecola, 423 v. 75 Ill. 2d of (1935) tion); City Chicago Clark, Ill. v. 359 374 of house); Sequoia (disorderly People Books, Inc., 149 Ill. v. (1986) (lewd bookstore); App. behavior in adult 3d 383 (1974) City Chicago, App. 23 3d Toushin v. Ill. (massage parlor). comfort has been affected Public pollution. See, odors, dust, fumes, and other sources of App. e.g., Co., v. International Shoe 319 Ill. Gardner (1944)(odors, smoke); City Chicago Latronica noises, v. (il (2004) Asphalt Grading, App. Inc., 346 Ill. 3d & waste); legal dumping County Cook v. (odor). (1987) Corp., Magnet 152 Ill. 3d 726 Wire public generally. have affected Such nuisances recognizing public We have found no Illinois case right that members of the free from the threat to be against may individuals. Plaintiffs commit crimes support their that “a violation cite assertion Cecola safety protect public welfare, health, laws public right infringes be remedied hence through however, an Cecola, a nuisance action.” involved operation created action to abate illegal; prostitution. The conduct itself was a house of permitted prostitution specifically to be houses of statute operation enjoined house nuisances; and the of a as prostitution a nuisance at common was considered sup not offer Cecola, Ill. 2d at 427. Cecola does law. public right port recognition characterized of a public’s right enjoy reply plaintiffs’ “the brief as governing possession the unlawful benefits of laws *18 and of firearms.” use
373 public a right qua “The interference with is the sine non However, public of a cause of action for not nuisance. all rights public interferences with public nuisances. The general nuisance must affect an interest common to the public, produce injury, dangerous must common or be or injurious general public, to the it must or be harmful health, the public prevent public peaceful or from a use public streets, their land and the or there be must some public direct encroachment on Am. Jur. property.” 58 2d (2002). § 39 Nuisances Further, public right
“A is one common to all members general public. It is collective in nature and like the not right everyone individual that has to be or assaulted injured.” or negligently defamed defrauded Restatement (Second) (1979). 821B, g, § of Torts Comment at 92 v. & 313, Ganim Smith Wesson Corp., 258 Conn. 780 (2001), A.2d 98 the Supreme Court of Connecticut resolved a case similar on the present case question threshold plaintiff mayor of whether city had standing public assert claim of nuisance. Conn, Ganim, 343-44, 258 at 780 at The A.2d 117. Con- commented necticut court also that: “ public rights, ‘Nuisances are where they public violate produce injury, they common where constitute is, an public rights, obstruction to rights enjoyed that part annoyance as the public. [I]f citizens ... is is one that common the public generally, then it is a public persons nuisance. ... The test is not the number of annoyed, annoyance but the possibility A rights. invasion its one that injures generally the citizens who he so circumstanced ” Conn, Ganim, as to come within its influence.’ at 369, 131-32, A.2d quoting Higgins v. Connecticut Light Co., 606, 611, Power & 129 Conn. A.2d (1943). acknowledged Connecticut court defini-
tion of a might common law “capa- enough” cious to encompass complaint: the plaintiffs’ “One well might say alleged by harms *19 by have the conduct to been caused defendants’ injure may Bridgeport the of that citizens who harms to within the of
be so circumstanced as come influence Conn, Ganim, that conduct.” 780 A.2d at say, might alleged however, One the 132. also that harm public, not was harm to individual members of the public generally. complaint, plaintiffs describe the second amended they allege possession that result from the
the harms Chicago: illegal city “a and use of firearms injuries higher crime, and to level death higher citizens, fear, a level of discomfort and inconve- Chicago, and nience the residents increased costs investigate prosecute plaintiffs to and crimes caused brought by illegal possession and use of the firearms Chicago.” into by
Leaving a the costs incurred aside for moment plaintiffs, determine, below, are which not recover- we public right damages, query as- able as we whether by plaintiffs merely assertion, an on behalf of serted is community, right not of the individual to be the entire (Second) e.g., See, of Torts assaulted. Restatement (1979) (a public right § g, is 821B, at 92 “not Comment everyone right has to be like the individual as- saulted”). recognize public a are also reluctant We presence any right undefined that the so broad and instrumentality community potentially dangerous threaten it. could be deemed to By posing question, do not to minimize this we intend very problem crime and the difficult real violent public facing law and other officials. tasks enforcement of citizens who do intend to the concerns we dismiss Nor frequent. particularly gun crimes are areas where live public a Rather, that there is are reluctant to state we right that some individuals free from the threat be (be liquor, legal gun, may product it a a use an otherwise phone, instrumentality) car, a cell some other may manner that create a of harm to another. risk consumption example, purchase For and legal, driving alcohol is under the influ- adults while right ence If free crime. there is to be from product the threat that others use lawful to break right right upon law, would include to drive highways, injury posed free from the drunk risk public right passage highways drivers. This to safe on the provide would the basis for nuisance claims against companies, distributing distillers, brewers proprietors liquor bars, taverns, stores, liquor licenses, restaurants with all of could whom said to to an contribute interference with the *20 right.
Similarly, phones, players, cell other DVD and lawful products may by creating drivers, be misused a risk of increasing jurisdictions, harm to In an others. number of legislatures state have acted to ban the use of these legal products driving. public right otherwise while A to may defy be free threat from the that other drivers these permit liability imposed laws would to be on an endless list of manufacturers, distributors, and retailers products of be, manufactured that are to intended or are likely distracting be, to drivers, used them and caus- ing injury to others. authority
We that conclude there is no for the unprecedented expansion concept rights public of encompass right by plaintiffs. to the asserted Further, plaintiffs’ conclude, below, because we claim does required public not meet the all of elements of a ground action, we need decide whether break new precedent. creating such D. Unreasonable Interference holding “Circumstances sustain a that an public right interference with a is unreasonable include following: the
(a) significant a Whether conduct involves health, safety, public interference with public peace, comfort or convenience, or
(b) statute, proscribed by a whether the conduct is regulation, ordinance or administrative or (c) continuing the conduct is a nature or whether of effect, and, produced permanent long-lasting has a know, as the actor knows or has reason to has significant upon public right.” (Emphases effect 821B(2) added.) (Second) § Torts Restatement (1979). plaintiffs’ claim of unreasonable We understand (2)(c), based on section 82IB because interference complaint alleges their that defendants’ “conduct marketing, distributing, selling designing, and firearms persons Chicago defendants or to whom residents up Chicago end will cause those firearms to know added.) continuing (Emphasis The second nature.” “significant complaint describes the effect” amended higher crime, as: level of death defendants’ conduct “a Chicago injuries higher citizens, fear, level Chicago, discomfort inconvenience residents complaint plaintiffs.” also increased costs to illegal firearms “are used in the commission avers that including crimes, crimes in which residents addition, killed, maimed, or are terrorized.” regarding complaint data the number homi- contains involving handguns, other cides, robberies, and crimes city regard- Data offered both and nationwide. *21 ready availability handguns ing those who are significance by possess law to them. forbidden by problem citations numer- is further demonstrated gun intended to curb violence. state statutes ous reported 2,500 in more than Defendants assert that history public over-100-year nuisance law cases only public to exist Illinois, in nuisance has been found present: either the was when one of two circumstances creating public defendant’s conduct in nuisance land, involvedthe defendant’s use of or the conduct at is- they in sue was argue, violation of a Thus, statute or ordinance. though public even an action for nuisance lie allegations without that the nuisance emanates from the public land, defendants’ use of the law of nuisance does encompass not conditions that eventuate from the lawful manufacture, distribution, and sale of a nondefective product.
Although attempted verify we have not defendants’ body topic claim that the of law on this in state and applying federal courts 2,500 Illinois law cases, exceeds we have found no Illinois case which a was found in the absence of one of these two conditions. jurisdiction expressly ap- While no case law this limits plication of the doctrine of nuisance to these two expressly ap- circumstances, no case law authorizes its plication in the absence of either condition. To do so expand would encompass be to the law of nuisance to third circumstance —the effect of lawful conduct that does not involve the use of land. We are reluctant to al- expansion. low such an
With this mind, reluctance in we turn to the two arguments challenging appellate made defendants properly court’s pleaded conclusion that have the element of unreasonable interference. 1. Sale Product Lawful of Nondefective argue
Defendants that, law, as a matter the lawful production product per sale of a nondefective se liability and, reasonable thus, cannot result appellate creation of a nuisance. The court responded argument by citing to this section 834 of the “ subject liability Restatement: ‘One is for a activity, only caused an when he carries on the activity participates but also when he to a substantial carrying extent to quoting it on.’” 337 Ill. 3d at *22 378
City Bloomington, Westinghouse Indiana v. Electric of (7th 1989), citing Corp., 611, F.2d 614 n.5 Cir. 891 (Second) (1979). § appel Restatement of Torts 834 The deciding late court also noted that a federal court a case impression previously had of first under law Illinois public liability against gun impose declined to a of manufacturer absence state decisional law. citing Navegar, 14, Inc., Ill. 3d at Bubalo v. 96— No. (N.D. 1998). relying City 20, Then, C —3664 Ill. March on rejected appellate Cincinnati, the court defendants’ argument. Supreme City Ohio, The Court of Cincin against nati, a allowed nuisance claim a similar holding group stand, that, “under the of defendants to public-nuisance definition, Restatement’s broad a action by product injuries if can be maintained a for caused design, manufacturing, market facts establish ing, product unreasonably a sale of interferes with right public.” general City Cincinnati, common 520, 3d at at 1142. 95 Ohio St. 768 N.E.2d application novel cause action of Plaintiffs’ as the Restate- nuisance renders authorities such question. helpful answering Sec- ment less than this example, primarily private 834, tion focuses common a law tied to defendant’s nuisance and its basis resulting plaintiff’s use of land and the invasion preceding property rights. “Scope Note” section “may activity be the direct states that the defendant’s physical it condi- cause of the invasion or create ultimately (Emphasis in the invasion.” tion that results added.) (Second) (1979). § All of Torts 834 Restatement inva- that follow section involve illustrations rights property defendant’s use of caused sions clearly predicated as on a view nuisance land and are wrongful brought physical use condition about property. real Similarly, in manufacturer defendants’ the assertion “ brief that a ‘product which has caused cannot injury classified as a nuisance to hold liable the manufacturer ” or seller for the product’s injurious (quoting effects’ (1997)) 63A § Am. Jur. 2d Liability Products at 105 entirely is not helpful when a alleged. The cited authority also states that:
“Because a seller in a relinquishes commercial transaction ownership products they sold, and control of its when are legal right it lacks the to abate whatever hazards its products may pose. circumstances, Under these purchaser’s proper products liability remedies are actions negligence warranty breach of rather than a nuisance action.” 63A Liability 927, § Am. Jur. 2d Products at 106 (1997). Clearly, authority this is considering whether purchaser of a product may state a nuisance claim for injuries caused by product. the plaintiffs Neither in case, present nor the injured by citizens the firearms manufactured, that have been distributed, and sold defendants, purchasers seeking to assert a public nuisance claim when an products action for liability or breach of warranty would be more appropriate.
Plaintiffs concede that claim, their nuisance based on alleged effects of defendants’ lawful manufacture and sale of firearms outside the city the county, would extend public liability further than it has been in applied past. Nevertheless, they, in the amici support position, argue of their extending the doctrine nuisance in manner this is a proper exercise of this authority court’s inherent develop Further, the common they claim, law. legislature has expressed no intent to foreclose common liability law for marketing, distribution, and sales practices that create a public nuisance. Supreme
The agreed Court Indiana has with this approach, holding in v. City Gary Smith & Wesson (Ind. 1222, 801 Corp., 2003), N.E.2d 1234 that “a
380 predicated activity nuisance claim on lawful imposes a manner that it on oth- conducted such costs City Gary convincing, however, ers.” We not find do authority Yeager statement, & because the Sullivan, cited for this App. O’Neill, 474-75, 466, v. Ind. 324 Inc. (1975), a nuisance created N.E.2d 852. involved hogs, enterprise, keeping manner in a lawful rights Again, it man- that invaded the others. was the property, and ner in the defendant used his real which enjoyment use the effect of his conduct property, imposition of his resulted real liability Yeager & Sullivan. by plaintiffs authorities offered do not other directly plaintiffs’ contention that address defendants’ liability products repackaged is, effect, claim claim in products liability claim as against Because a nuisance. lawfully a non-
one manufactures and sells who (see product fail Riordan v. defective must International (1985); App. Corp., Ill. Linton v. Armament 3d (1984)), Wesson, Ill. Smith & urge 3d 676 defendants *24 failed to this to conclude that have court public a action in nuisance and to leave state cause of legislature impose question ad the the of whether to marketing ditional and sale constraints firearms. reviewing jurisdictions
Cases other which from rejected public against courts have nuisance claims gun analysis industry question. In offer more of this Ruger appellate Spitzer Sturm, Co., York v. & a New court observed: green light public a common-law nuisance
“[G]iving a will, today judgment, likely open cause in our of action limitless, doors to a flood of similar theories courthouse defendants, nuisance, but public only against these array also a other commercial against wide varied manufacturing enterprises and activities. All mind to do a a creative would need is construct harm of a sort describing perceived a known or scenario way to the a to relate back can somehow be said makes, markets, sells its industry or an company and/or service, public and a non-defective, product lawful and a lawsuit born.” claim be conceived nuisance would 96, at 196. at 761 N.Y.S.2d Spitzer, 309 A.D.2d negligent rejecting theory an earlier case Citing manufacturer, court Spitzer marketing against gun “ expansion ‘judicial resistance observed poten- both about practical concerns duty grows out impos- unfairness of and about the tially liability limitless ” A.D.2d Spitzer, the acts of another.’ ing liability for Ber- 196, Hamilton v. 95-96, quoting at at 761 N.Y.S.2d 222, 233, 750 N.E.2d 96 N.Y.2d Corp., etta USA (2001). court, concern, the This 7, 13 1061, 727 N.Y.S.2d marketing and negligent noted, common both “is 95-96, at 309 A.D.2d Spitzer, claims.” public at 196. 761 N.Y.S.2d New appeals, applying a federal court of
Similarly, that: Jersey law, concluded public nuisance law precise scope
“Whatever be, Jersey court has ever allowed Jersey may no New New against manufacturers proceed claim to public lawfully placed in the stream products that are for lawful courts enforced contrary, On the have of commerce. body product li- well-developed boundary between the Otherwise, if ability nuisance law. law liability, product encompass permitted nuisance law were that would devour a monster nuisance law ‘would become tort,’ If defective [citation]. gulp the entire law of in one law, then a matter of are not a nuisance as products can- non-defective, in this case products issue lawful absurdity.” straining the law to not be a nuisance without Board, at 540. County 273 F.3d Camden court affirmed addition, appellate a Florida action County’s Miami-Dade dismissal of trial court’s associations, and manufacturers, trade firearms against *25 retailers, saying: injunc- the trial court use its County’s request
“The that 382 redesign powers
tive to mandate of firearms appellees’ that the create a declare business methods nuisance, attempt regulate and ammuni is an firearms through judiciary.” medium Penelas v. tion of the Arms (Fla. 2001). Inc., Technology, 778 So. 2d 1045 regula A Florida the field of expressly statute reserves tion of firearms and to the state legislature ammunition (Fla. (1999)). Illinois, § In Stat. 790.33 cities counties are certain limits impose gun regulations free within (see (West 2002)). Nevertheless, 720 ILCS we 5/47 — 5 agree with defendants that the Florida court’s observa tion is of consideration. worthy position legislative
Defendants’ is that the execu are government tive branches of state and federal better than this court to address the societal costs that suited given illegal handguns, particularly flow from the use of already highly activity that the commercial issue is regulated. Further, argue plaintiffs’ defendants inability effectively regulate gun “frustration” at their through in the cannot be “alleviated possession city to ‘enact’ litigation judiciary empowered as the guise injunctive relief. The regulatory measures belongs judicial not to the branch of power legislate Penelas, 778 government, legislative but branch.” 2d at 1045. So. the Criminal Code
Our own research reveals provision listing categories contains a nuisance conduct or uses of land that nuisances. (West 2002). addition, As- ILCS General 5/47—5 sembly defining has enacted numerous other statutes See, constituting certain conduct as nuisance. 2002) 5/15(c) (West danger- 510 ILCS e.g., (permitting dog leaving premises ous or other animal from control); owner without a leash or other method of 2002) (West (use device); illegal fishing ILCS 5/1 —215 2002) (West (planting 605 ILCS of willow trees 5/9 —108 of a hedges margin highway); ILCS 25/11
383 (creation (West 2002) a hazard that obstructs of aircraft); landing or the takeoff airspace required 2002) (use (West equipped of watercraft 625 ILCS 45/4—8 (West ILCS lights); 720 flashing with siren 5/28—2 2002) ILCS 720 gambling place); (keeping 5/37 —1 in (West 2002) building used maintaining a (knowingly offenses). criminal certain enumerated commission of illustrate, has legislature well examples As these a nuisance that was something to be to declare power Jones, Ill. App. v. 329 People law. not at common such 2d 114 Ill. App. v. (1946); Depke, Gurnee Village 503 (1969). certain common However, the codification 162 the legislative in the Criminal Code nuisances law conditions constitute certain other declaration nuisances not common law not exclude nuisances does nuisances. public as being from classed codified therein (1915). also Clark, Ill. 156 See v. 268 Dyer ex rel. People nuisance statute Gilmore, (public Ill. 3d at 661 261 right law actions; common common law displace does not independently exists public to action to abate in Festival this court observed statutory right). As any Theatre: nuisances said jurisdiction public to abate
“[Elquitable not it even where origin,’ and exists to be of ‘ancient amenable to statute, offender is by where the conferred rights law, property no and where the criminal action, Too, a common law [Citations.] involved. not limited to nuisance is concept public extent of nui declared legislature has activities the those Theatre, 303. Ill. 2d at 91 sances.” Festival the other hand: On interfering with a
“If defendant’s conduct categories the traditional come one of right does not within or is law crime of the common acting without act, court is legislative prohibited Restatement recognized standard.” an established (1979). (Second) e, 821B, at 90 § Comment of Torts warns, analysis set cases, the Restatement In such 384
forth in 826 sections to 831 becomes more significant. (Second) 821B, e, § Restatement of Torts Comment at 90 (1979). These sections define factors that should be considered a court when determining whether an intentional invasion of another’s interest the use (Second) enjoyment of land is unreasonable. Restatement (unreasonableness invasion), § of Torts 826 of intentional harm), § (gravity (Utility Conduct), § §§ (1979). through (gravity utility) versus apply Because these factors are intended intentional conduct the use and affecting enjoyment of land, they directly are not claim applicable novel Thus, made if by plaintiffs. engage we were to *27 balancing of harm versus that the utility plaintiffs urge, “acting recog- we would be without an established and (Restatement (Second) IB, § nized standard” of Torts 82 (1979)). e, addition, at In although Comment courts contexts, in frequently weigh such factors other an analysis by caused their util- harm firearms versus ity legislative fact-finding policy- is better suited to making judicial than to assessment.
Further, despite existence numerous statutes declaring practices various and conditions to constitute nuisances, legisla- we have no indication from the ture that it would be inclined to impose public nuisance for the sale of a that be liability product possessed in some of the state. It legally by persons, parts some that seek relief from this court injunctive seems forthcoming because relief has not been from the General Assembly. lawmaking are reluctant to interfere in the We suggested by plaintiffs, especially in the manner process already heavily regulated at is so product when the issue governments. federal by both the state and We, therefore, strong public conclude that there are in the matter of legislature to defer to the policy reasons manufacture, distribution, and sale of regulating firearms.
2. With Law Compliance Applicable prac- further that their business argue Defendants if are in they cannot deemed unreasonable tices federal regulations. with state and compliance applicable suggest that because argument, a related defendants at the state industry highly regulated is both the firearms levels, regulating restraint further judicial and federal activities advisable. their compliance applicable with argument
As to of common law a claim precludes laws definition, reasonable, is, appellate by because it “compliance with the law is court concluded exists, a but dispositive whether an merely ‘guideline’ determining serves whether as 3d App. has Ill. unreasonable interference occurred.” 337 however, statement, authority at The cited for this 13. The court cited its own persuasive. appellate was not Arms, v. 327 Ill. 3d Young App. recent decision in Bryco (2001), virtually case present case identical by individuals, it brought private that was except (D. plaintiffs’ attorneys article one of own law review The Cases and the Ele Kairys, Handgun Governmental Law, Public Underlying ments Policies Nuisance (2000)). L. other only 32 Conn. Rev. authority appellate cited court for this proposition Edison, 632-33, 3d is Commonwealth 24 Ill. although the court concluded that the defendant which in compliance applicable demonstrated that it was with *28 standards, by air- the court was “not bound federal facility’s pollution deciding standards whether Rather, constitute common nuisance.” emissions law us stated, guidelines “those standards offer the court operation of the reasonableness the determination In Com any public.” harm to the and the extent however, affirmed Edison, appellate monwealth court city’s public trial dismissal of the court’s alleged polluter grounds, other against claim an specifically, lack of proof both injury substantial causation. Edison, Commonwealth 24 Ill. 3d at App. 633. Thus, the commentary in Commonwealth Edison on the relevance of defendant’s compliance with federal regula tions was dicta and of persuasive little value to this court.
As to the argument that comprehensive regulation of industry firearms against judicial cautions involve ment, the appellate court commented that defendant’s alleged of an fostering underground handgun market is “not lawful action.” [a] 337 Ill. 3d at App. appel 13. The late court acknowledged that “comprehensive legislation of a certain activity causes judicial courts to exercise restraint an declaring activity to be a public nuisance if it complies regulations.” with the Ill. App. 3d at However, 13. the court found unjustified such restraint “ ‘ in the present case because “there is no generally regulation of the quantity, frequency, or purpose of [,] firearm purchases or sales nor there any is national registration purchasers Multiple of firearms. sales and even purchases generally straw not unlawful and are ’ ” significantly regulated.” 13, 337 Ill. 3d at App. quoting Young, 327 Ill. 3d at quoting Kairys, D. The Governmental Cases and Handgun the Elements and Underlying Law, Policies Public Nuisance 32 Conn. L. Rev. at Again, 1183. this conclusion is taken from a law review article written one plaintiffs’ attorneys and, such, as little, any, is entitled to if consideration this addition, court. we find the appellate court’s conclu regarding regulation sion purchases firearms to be inaccurate. State and federal regulation handgun sales (2000) (Gun § is extensive. See 18 U.S.C. 921 et seq. (West 2002) Act); Control 430 ILCS et seq. 65/0.01 (Firearm Act). Indeed, Owners Identification Card complaint second amended acknowledges that “State of Illinois a high regulation state.” respond
Plaintiffs the federal Control Act Gun *29 preempt expressly provides or it does not state local that (2000). § They call attention U.S.C. 927 also our laws. 18 Village Grove, 2d v. 103 Ill. to Kalodimos Morton (1984), rejected argument the that in which this court regulating comprehensive that firearms are so state laws legislative municipalities they preclude intent to evince a imposing from other restrictions of firearms. however, Kalodimos, refer Control Act
The Gun municipal and, as local ordinances to state and laws judicial anticipate legislative such, action, not interven- They support that tion. offer for defendants’ observation equitable powers to to use its a court should impose reluctant activity injunctive remedy an that an already regulated by highly As drafters of statute. commented: the Restatement a set of comprehensive there
“[I]f has been established regulations governing legislative acts administrative conduct, kind courts are slow particular of a details activity complies an a nuisance if it to declare to be *** variety a regulations. complexity with feeling interests and the problem and involved part plan of an overall particular decision should be knowledge of matters not prepared presented with it, may not represented court and interests before also promote judicial ques- readiness restraint and a to leave capable agency an if there is one tion to administrative (Second) of handling appropriately.” it Restatement Torts f, (1979). 821B, § Comment at 91-92 apparently prefer Plaintiffs would other forms injunc- regulation, as demonstrated the nature they Litigation used to tive relief seek. should not be legislative goals. Nonetheless, turn to the we achieve argument nuisance li- merits of defendants’ ability compliance imposed not be their with because statutory existing conduct, renders their schemes definition, reasonable. point Meyers Kissner, 149 Ill. 2d
Defendants
v.
(1992),
authority
for their contention that
lawful
as
Meyers,
act cannot constitute a
nuisance. In
plaintiff
sought injunctive
against
landowner
relief
adjacent landowners who constructed a levee that altered
causing
the natural
flow water
land,
across his
ero
prohibited by
sion. The construction was not
law the
*30
specificallyprovided
Indeed,
time.
a statute
that a levee
existing before a certain date could be maintained and
repaired
permit. Meyers,
This
without a
Ill.
149
2d at 10.
by
“[I]t
court concluded that:
is
no means true that an
constituting
necessarily
act
a nuisance must
inbe
itself
public
unlawful.
aWhile lawful act will not constitute a
private
nuisance, it can nonetheless constitute a
nui
Meyers,
sance.”
ment to section IB82 of the Restatement: it fully would common law, be a nuisance at conduct that is by authorized statute, ordinance or administrative regulation subject liability.” not does the actor to tort (Second) § IB, Restatement of Torts 82 Comment at f, (1979).
Finally, defendants offer Gilmore v. Stanmar for the proposition gov that when the defendant’s conduct is by comprehensive regulations, public erned laws only plaintiff nuisance be found if the establishes comply that the defendant failed to with the law or was negligent carrying activity. otherwise out the The al leged pedestrian canopy nuisance in Gilmore was a adjacent to a site, construction which extended into the obstructing ability street, motorists’ vision and their App. Gilmore, maneuver. 261 Ill. 3d at 653. The defen proper permit dants had obtained the for construction of canopy argued they, the therefore, could not be resulting App. held Gilmore, liable for a accident. 261 Ill. appellate plaintiffs’ 3d at 654. The court concluded that negligence claims for and common law nuisance improperly were Gilmore, dismissed the trial court. App. regard to the nuisance Ill. 662. With 3d claim, the court said: purportedly or law of an ordinance other
“[T]he existence automatically destroy making does not legal a nuisance the defendant’s action where common law law, with the where compliance conduct was itself negligent, or where law defendant was otherwise Gilmore, App. allowing a Ill. invalid for nuisance.” is 3d at 661. possible that it to create conclude is We by conducting enterprise in an unrea a lawful present case, the If, however, as in the manner. sonable enterprise regulated highly law, federal state or proper provides for address rule framework Gilmore ing of a the unreasonable interference element rule, this nuisance claim. Under the Gilmore element only by pleading proving can be met (1) applicable or the defendant statutes violated (2) negligent regulations, was defendant otherwise (3) enterprise, regulating carrying law out the enterprise Gilmore, 261 is invalid. Ill. defendant’s *31 3d at 661. suggestion and no state federal
As there is that regulations regarding invalid, we firearms consider pleaded plaintiffs properly the unreason- whether have interference element either the first or second able under prongs of the Gilmore rule. complaint specific no
The second amended contains allegations applicable factual of actual violations of regulations any and of the named defendants. statutes complaint “[a]bsent The asserts that effective enforce- gun prosecution laws, control firearms are ment anyone readily to use them.” We available who wishes question accuracy it statement, the do not this but specificallyimplicate does not these defendants. Plaintiffs plead also that “data recovered firearms and from Department Police undercover work systemic reflect numerous violations of aforemen- allege particular statutes,” tioned but do not that these plaintiffs committed Further, defendants the violations. espite gun “[d] protecting claim that strict control laws plaintiffs’ Chicago, citizens in there are thousands of illegal City Chicago.” firearms in existence Again, complaint alleges the second amended lawbreak- ing, by any Finally, but not of these defendants. the al- legations regarding specific sales transactions stop alleging individual dealer defendants short of viola- applicable regulations. tions of conclude, statues We therefore, that have not stated a claim for public predicated applicable nuisance on violations law. argue they sufficiently alleged
Plaintiffs that have negligent that caused conduct has unreasonable interfer- rights. public application ence with Under our of the Gil- highly regulated industry, a more rule in context of public claim for stand nuisance if the defendant was negligent operation enterprise. in his appellate plain court did consider whether properly pleaded tiffs had predicated a claim for nuisance negligently,
on defendants’ therefore unreasonably, creating significant effect on a (“[Pllaintiffs right. 337 Ill. 3d at 13 here do not al lege negli that liable defendants are under theories gence liability. Instead, or strict their allege claims defendants’ intentional and unreasonable conduct”). disputes conclusion, Plaintiffs’ brief this as serting they properly pleaded public have predicated negligence. agree claim We second complaint allegations amended does contain that sound negligence. Thus, turn to the of defendant manufac- we assertion *32 negligence, a claim on turers and distributors that based liability any theory of or whether the is nuisance other
391 liability, may species in a tort not lie the absence of of Washington City duty by the v. Chi defendant. owed (1999) (stating cago, that, as a mat 235, 2d 239 188 Ill. negligence plaintiff in a ac law, ter of a not recover defendant). duty by the tion is owed to her unless they App. Specifically, rely at Riordan, Ill. 3d 647 on (manufacturers handguns owed no and distributors duty wrongful-death action to control the in products), Ill. Linton, and of their distribution (manufacturer firearm has of nondefective 3d 678-79 injury duty plaintiff personal action control no general public), product to the the which, of its distribution argue, allegations they preclude any reliance on negligence underpinning of a as claim. question duty of care is a law to
“Whether exists Bajwa Metropolitan v. be determined the court.” Life (2004). question Co., 208 Ill. 2d Insurance public policy largely considerations, informed turns (1) four traditional factors: consideration of (2) foreseeability injury; of the the likelihood reasonable (3) guard injury; magnitude burden (4) against plac ing injury; consequences ing Bajwa, Ill. on the defendant. 2d at burden 427. complaint asserts,
Plaintiffs’ second amended Action,” defendants headed “Nature of the section duty supply or “have to not sell firearms breached their they Chicago who[m] know or have reason residents illegally possess, use, transfer, or resell the to know will Chicago thus circumvented the firearms have govern- gun and other control laws ordinances Chicago.” ing possession Under use of firearms in heading NUISANCE,” the “COUNT PUBLIC ONE: alleges complaint that: second amended duty City Chicago of care to the “Defendants owe County and the of Cook and its residents its residents *33 living Chicago within to exercise reasonable care to prevent ending their up persons firearms from in the hands of who possess illegally City use and them the in Chicago in of direct, light foreseeable, of the of consequences and serious their actions.” regard complaint factors, With to the four traditional the (1) alleges reasonably further that: “it is to foreseeable the their defendants that conduct will cause and deaths injuries Chicago significantly to residents and otherwise safety unreasonably public health, and interfere with (2) “strong welfare”; and defendants’ conduct creates a illegal likelihood that these will firearms cause deaths (3) injuries Chicago residents”; and to of burden “taking illegal weapons to stem of measures the flow consisting only undue,” into of is not of the loss likely possess weapons illegally; sales to to those use or (4) guns city stemming illegal flow into the prevent injuries, will “save and it will lives make City Chicago County places safer Cook to live.” court not
Plaintiffs’ brief this does return to this analysis duty, factor-based of a existence nor does applied analysis it cite cases that have this to find that public policy weighs judicial recognition in a favor of unrecognized duty. e.g., Bajwa, See, heretofore 2d 208 Ill. duty upon (placing at a 427-28 care an due insurance company proposed policy of a taken advise insured life). plaintiffs distinguish Instead, out another his simply Riordan and Linton on the basis that these negligence public cases, cases, not and that their very duty nuisance claim made “under is different than duty private negligence at in stake these actions.” duty complaint, they in the second asserted amended argue, duty public large, at is a owed to the rather than specific public, to a member of the as was case Riordan and Linton.
Applying (Bajwa, the four traditional factors Ill. 427), light policy, duty 2d at findwe no owed respect large, at least with It reason- defendants. manufacturer and distributor private nation that owner- foreseeable, permits in a ably guns and it is firearms, that will obtain criminals ship inevitable, injuries that and death only likely, but that It foreseeable to these defendants will result. is less who take illegally the criminal conduct of individuals community will into a result particular firearms Further, despite there. creation of they only burden would plaintiffs’ suggestion criminals, is the of sales place on defendants loss impose seek to magnitude the burden *34 alter- by and defendants on manufacturer distributor immense. Finally, is ing practices plaintiffs their business recog- if this only positive consequences duty is predict city be safer and will be Such nized—the will fives saved. best, are at positive consequences speculative being based criminals not to assumption on will be able guns by companies manufactured other and sold obtain negative consequence judicially other dealers. The a imposing duty upon enterprises guard commercial against products by the criminal misuse of their others unprecedented expansion an of the of public will be law 104-05, See Spitzer, nuisance. A.D.2d N.Y.S.2d common (expanding public at 202-03 reach of law in reach urged by plaintiff the manner would beyond types well these defendants to “countless other a enterprises, myriad of commercial order address problems”). of societal hold, therefore, that defendant respect
We with distributors, failed to manufacturers have predicated a cause of state action no negligence, duty because these defendants owe firearms city prevent or its residents to their “ending up persons from hands of who use them This is with possess illegally.” result consistent liability Linton, Riordan and in which the theories of negligence, products liability, included, negligent alia, inter distribution, but did not include private appellate nuisance. The court in these cases held that the defendant firearms manufacturers and distribu duty tors owed no to individual members of the handguns. control the distribution of Riordan, 132 Ill. App. 647; Linton, 3d at 127 Ill. 3d at 679. complaint specific
The second amended
does contain
allegations regarding
engaged
factual
transactions
although
illegal,
sug
that,
dealer defendants
gestive
willingness
of a
to serve customers who
intend
Thus,
to circumvent the law.
factor,
the first
foreseeability
injury (Bajwa,
reasonable
E. Proximate Cause Leaving question duty, remaining aside the ele present ment nuisance claim that must be injunctive against before may relief the dealer defendants (see “resulting injury” Gilmore, be available is 261 661), App. precisely, proximate or, Ill. at3d more cause.
395
two distinct
encompasses
cause”
“proximate
The term
Lee v.
legal
cause.
cause in fact
requirements:
(1992).
432,
Ill. 2d
455
152
Authority,
Transit
fact,
present
is
“when
cause in
requirement,
The first
a defendant’s acts
certainty that
there
a reasonable
In
Ill. 2d at 455.
Lee, 152
injury
damage.”
or
caused the
injury
first ask whether
this
we
deciding
question,
conduct.
the defendant’s
occurred absent
would have
when,
here, there
addition,
as
Lee,
Ill. 2d at 455.
152
to cause
have combined
factors that
multiple
are
a
conduct was
defendant’s
we ask whether
injury,
bringing
factor
and a substantial
material element
Lee,
1. Control
Court
Supreme
of the Ohio
on the decision
Relying
court addressed the
Cincinnati,
the appellate
in City in public
cannot be held hable
that defendants
argument
they do not have
alleged
the harms
because
nuisance for
*37
injury:
at the time of
instrumentality
over the
control
claim that defen
fatal to the
nuisance
“[I]t is not
the moment
the actual firearms at
dants did not control
Supreme
Ohio
Court
[Citation.]
that harm occurred.
The
the
alleged
appellees
that
control
‘[A]ppellant
stated:
for
illegal secondary
market
supply
creation and
this
firearms, not the actual
of the firearms that cause
use
***
guns
fire the
injury.
Just as the individuals who
sustained,
injuries
appellees
can
held accountable for
”
creating
alleged
for
nuisance.’ 337 Ill.
be held liable
App.
17,
Cincinnati,
quoting City
3d at
Plaintiffs
when a
subsequent
defendant
is blameless for the
misuse of its
product,
legal responsibility
it bears no
nuisance
created
subsequently
purchased
those who have
See,
Freund,
198,
Ill.
product.
e.g.,
Traube v.
3d
(2002)
pesticide
201-02
that manufacturer
(holding
in public
cannot be held liable
nuisance for contamina
resulting
pesticide
tion of lake
from farmers’ use
that “the
of a
adjacent property;
noting
absence
product
control over a
at the time the
manufacturer’s
generally
any
nuisance
created
is fatal to
nuisance or
is
claim”).
negligence
argue, however,
Plaintiffs
that
imposes
neither the
nor the
case law
Restatement
requirement
require-
control
in addition to the causation
proven,
and, further,
ment
in fact
when cause
substantially partici-
if he
defendant
be held liable
pated
nuisance,
in the creation or maintenance of the
longer
instrumentality.
even if he no
controlled the
In ef-
plaintiffs’
fect,
contention is that because defendants
participate
eventually
gun
in
lead
transactions
Chicago,they
city
violence in the
are not “blameless”
subsequent
they
for the
misuse of the firearms
sell.
question
This court has discussed
control
only
People
once,
the context of a nuisance claim
v.
acknowledged
Brockman, in which we
the “oft-stated
liability “requires
rule” that
that the defendant
***
ownership
through
in control
or control of
either
property.” People Brockman,
v.
143 Ill. 2d
(1991) (citing
appellate
cases from the
court and from
jurisdictions).
other
issue
*38
pollution
illegal disposal
Brockman was
caused
hazardous
in a landfill. The defendant landfill
substances
operator
third-party complaint against
a
certain of
filed
who had
the source of the hazardous
his customers
been
seeking
substances,
contribution towards
costs
although
We concluded that
the customers’
removal.
differing policy
argument
compelling, “the
control
was
require
attendant
to our
statute
interests
contribution
regard
consider
that we not
‘control’ as
dominant
Brockman,
in
one
ation
cases such as the
before us.”
Thus,
concluded that:
Ill. 2d at 373.
we
that
“[P]rinciples
equity support
our conclusion
claim based
operate
control
to bar a contribution
does
of the Act
create a
nuisance.
on violations
which
stated,
may be
proper
a
claim for contribution
Where
contributing polluter
lacked control over
fact that a
holding
By
claim.
our
we do
premises will not defeat that
control,
for it
disregard of the issue
not advocate total
apportioning
may properly be a consideration
Brockman,
Plaintiffs Brockman separate control not a element of apportion- and, claim if even control is consideration ing fault, it should not be the dominant consideration instrumentality when defendants had control over they the nuisance when sold firearms that subse- quently alleged created the nuisance. analogy
We find the between the defendants this contributing polluters unper- case and the in Brockman holding equitable suasive. Our in Brockman was based on specifically, unjust considerations, concern about enrich- ment:
“So
are principles
valued
and the
fairness
avoidance of
unjust
person
enrichment
if
might
even
who
otherwise be immune has contributed as a cause to the
injury he should be hable in contribution. This is so even
though
directly
he cannot be
plaintiff.”
hable to the
Brock
man,
Plaintiffs have not from these theory They defendants under a suggest of contribution. do not apportioned that fault be between these defen- dants and the individuals direct control of the instrumentality possessed lawbreakers who —the city. *39 used the in firearms the Defendants not be will unjustly pay enriched if the lawbreakers are made to for their crimes without defendants’ contribution.
400 relaxing
Finding support in the no Brockman for requirement, requirement exists, control if indeed such a to determine whether the we look to other authorities appellate properly lack court concluded that defendants’ point after the of sale does of control over the firearms liability participation preclude imposition of for their not alleged public of the nuisance. the creation law doctrine of nuisance has Because the common traditionally resulting from the use of been tied to harms question most often when land, the of control has arisen any “completely from defendant has divested himself the property Maisenbach v. involved.” connection with (1971). App. Maisenbach, Buckner, Ill. 2d 55 injured by tripping fence, a minor over where was property, not of the who had installed former owners years, actively could maintained it for fence but had held liable in nuisance because: “Where not be clearly right property to control the has no landowner duty another, have no he likewise can after he sells it to property injured persons connection with to third App. Maisenbach, Ill. 2d at 56. This the sale.” after in which “an owner in contrast to the case situation sits property with a nuisance and then leases who creates App. Maisenbach, 2d at 133 Ill. nuisance attached.” injuries responsible held 54. an owner will be Such though by he does not have even caused the nuisance injury. possession Maisen time of the and control at the App. bach, 133 Ill. 2d at 54. City Stern, Ill. later, v. A decade (1981), city sought injunctive relief to abate
3d 264 by “bawdy operation named house” several of a by premises However, were owned defendants. appellate corporation, the named individuals. of the the trial court’s dismissal court affirmed ownership, operation, proof of “In claim: the absence any premises defendant, the trial or control *40 properly equity court found that could not intervene to alleged existing premises,” abate the nuisance on the though corpora even the named individuals formed the operated tion, it, owned the “club” that featured dancing nude Stern, and other erotic entertainment. App. Ill. 3d at 267. In Restaurant, v. Mineola & Inc., Hotel Brunsfeld (1983), App. plaintiff
119 Ill. 3d 337 failed to state a against cause action for nuisance owners property adjacent upon to the frozen lake which he was injured snowmobiling.Although property while own cooperated ers with individuals who constructed a motorcycle lake, racetrack on the and even them allowed equipment to use their track, create and maintain the plaintiff pointed act, “to no structure, or device within public] [a defendant’s control which could constitute App. nuisance.” Brunsfeld, 119 Ill. 3d at 345. The court explained:
“The creator of the [citation], nuisance is liable therefor as a person who or continues maintains a nuisance [citation]; created another but where it is not shown person that a nuisance, created or continued a or that he owned, maintained, or controlled the premises on which it exists, person such responsibility has no therefor.” Brunsfeld, 119 Ill. 3d at 345.
In cases, each of these the issue of control was inextricably ownership linked to the of land and to the rights property of a duties owner. Control was proximate relevant, not as an element of cause, but as a remedial issue. These cases stand for the unremarkable proposition injunction ordering that an issue, will upon defendant to authority, by land, abate a nuisance if he has no ownership possession, reason of to enter upon support such, the land. As these cases offer scant imposition separate requirement for the of a control predicated nuisance cases that are not on the defendant’s use of land. Bloomington,
Defendants call our attention
City (7th
Indiana v.
Electric
891 F.2d
Westinghouse
Corp.,
1989),
Cir.
as an
case in which nuisance li-
example
instrumentality
was
ability
precluded because
was no
of the defendant.
longer
control
City
appeals, applying
the court of
Bloomington,
law,
Indiana
affirmed the trial court’s dismissal of
Monsanto,
against
the manu-
other claims
(PCBs).
polychlorinated biphenyls
facturer of
Monsanto
Westinghouse
manufacturing
sold the PCBs
use
of the toxic
Westinghouse improperly disposed
capacitors.
landfills,
in various local
and small amounts of
waste
*41
plant’s
also
in the
sewer effluent.
discharged
PCBs were
at
Bloomington,
city sought
891 F.2d
613. The
City of
injunctive
Westinghouse
and
relief
damages
against both
Monsanto,
liability
and
under various theories of
includ-
City Bloomington,
and
nuisance.
ing public
private
of
the
the nuisance
affirming
F.2d at 612.
dismissal of
Monsanto,
that
the court
the
against
counts
observed
any
holding
not
to find
cases
city had
“been able
private
or
nuisance claims
manufacturers
liable
product subsequent
the
of their
the
arising from
use
at
Bloomington, 891 F.2d
614.
City
of sale.”
point
of
Further,
did not
forth facts from
since the
“set
pleadings
retained the
it could be concluded
Monsanto
which
beyond
of sale to
point
to control
the PCBs
the
right
agreed with the district court’s
Westinghouse,” the court
on
could
held liable
a
that Monsanto
not be
conclusion
F.2d at 614.
theory.
Bloomington, 891
City
Indeed,
City Bloomington unpersuasive.
findWe
facts,
following
precedent
court
similar
an Illinois
(
Control is not a element of causation in proven pleaded nuisance cases that must be in addi legal is, rather, in It tion cause fact cause. a proximate inquiry relevant factor both cause ability injunc appropriate of the court to fashion tive relief. the nuisance from a condition or When results upon generally land, conduct control over the land necessary prerequisite imposition liability. to the See Brockman, However, 143Ill. 2d 373. the nuisance when object apart results from the use misuse of an from land, or from conduct unrelated to a defendant’s use of instrumentality land, lack of control at the time of injury liability. is not an absolute bar to present case,
In the the dealer defendants had owner- ship point in and control of firearms at some distribu- tion chain. If a legal nuisance later results from the il- liability parties, use of the firearms third necessarily precluded simply nuisance is longer objects. no because defendants types control the injunctive sought (i.e., requiring relief these proof defendants to obtain ing gun purchase that a resident mak- place city has a outside in which legally prohibiting repeat he can firearm; maintain the days previous sales same customer within *42 purchase) require do not them to to be able exert control already possession. over the firearms that have their left question fact, As for the of cause in the second complaint allegations regard- amended contains detailed ing participation bringing the dealer defendants’ in about alleged specifically leading nuisance, the their conduct up point to and at the of sale. Dealer remark defendants pertain allegations only police “sting” that these to operations and not to actual sales of firearms that were subsequently city. illegally used in the relevant
inquiry have occurred absent is whether the harm would inor, alternative, whether the defendants’ conduct a and a defendants’ conduct was material element bringing Lee, factor in about the harm. substantial could differ, Ill. 2d at 455. reasonable minds Where question a conduct was of whether the defendant’s jury for factor or a material element is substantial unwilling Lee, Ill. 455. to state decide. 2d at We plaintiffs an a of law that have failed to raise as matter regard to cause fact. issue of material fact with question legal cause, lack of As defendants’ injury related control the firearms at time of is over argument their that their conduct was so far removed policy, that, from criminal acts as matter the eventual legally respon- appropriate it to hold them would not be argument. now turn that sible. We 2. Remoteness any resulting argue Dealer that defendants city possession of firearms from the and use by independent, by their conduct but caused not parties. of third Defendants assert criminal acts merely selling furnishes condition possible their firearms made criminal of others are which the acts legal cause of a nuisance is, thus, remote constitute too many aggregate acts. effect of such from the results They argue Linton, the that under Riordan further conse- of a firearm is not a foreseeable criminal misuse general quence of firearms of the lawful sale public. argument, response remoteness to defendants’ sufficiently pleaded
appellate ruled that court injury” alleging “resulting that, “facts notwithstand brought guns ing knowledge that the would actual manufacturers, crimes, into and used actions, their distributors, and dealers failed to alter thereby creating public Ill. 3d nuisance.” 337
405 reaching appellate conclusion, 17-18. In this court upon relied 824 of section the Restatement and comment b thereto. 824, however,
Section does address element proximate type Instead, of cause. it deals with of liability private conduct for or essential nuisance. An will if actor be held hable for a nuisance his “(a) (b) act; conduct of: an failure consists to act duty under circumstances which actor is under positive prevent take action or abate the interfer- ence” that constitutes the nuisance. Restatement (Second) (1979). § “ordinary 824 In case,” Torts liability instructs, comment b for nuisance “arises person’s because one motion acts set a force or chain resulting events the invasion.” Restatement (Second) (1979). § “[s]o 824, Further, Torts Comment b liability concerned, far as the actor’s is it is immaterial solely pursuit he whether does acts of his own acting gratuitously, another, interests or he whether is agent. under contract or as the other’s servant or It is enough legal that his acts are a cause the invasion.” added.) (Second) (Emphasis § 824, Restatement of Torts (1979). Thus, Comment b section 824 and comment b do provide question not leged the answer to whether the al- legal
conduct of defendants constitutes a cause of merely poses the claimed Rather, nuisance. comment b question legal the conduct of these defendants —Is alleged public right? cause of the interference with a question answer to this must be found elsewhere. involving negligence In cases or nuisance, claims Illinois courts draw a distinction between condition and Springfield Galman, cause. First & Trust Bank v. 188 (1999). duty 252, Ill. 2d If a defendant’s breach of injury possible furnishes a condition which is made person, acting independently, subsequently and a third injury, causes the the defendant’s creation of the condi- injury. proximate v. Briske Vil tion not a cause (1942). lage Burnham, Ill. urged ap Galman, to abandon this this court was apply proximate proach cause standard Lee and to involving question proximate cause, *44 a of to all cases even injury is in immediate cause of the the those which the independent person. e.g., subsequent, See, of a third act § 42, at Keeton, & Keeton on Torts 278 W. Prosser (“ find in ‘condition’ occasionalmention ‘Cause’and still entirely decisions; now but the distinction is almost discredited”). long-standing than abandon our Rather analysis proximate cause, we framework for the of proximate precedents with the harmonized our instead Galman, Ill. 2d at Lee. See 188 cause test articulated City Chicago, 211 2d also Abrams v. Ill. 257-58. See of (2004) (restating applicability 251, of cause 259 analysis special proximate a subset of condition versus intervening involving injuries by the caused cause cases parties). of third acts above, standard, Lee noted cause fact
Under the
as
if
is “a material element
the defendant’s conduct
exists
injury.”
bringing
factor in
about
substantial
Legal cause, however,
Lee,
is “es
“If the act
a third
party
immediate cause of the
is
injury and
such as in
diligence
the exercise
reasonable
*45
anticipated
would not be
the
person
and
third
is not under
the
the
guilty
original wrong,
control of
one
the
the
of
con
nection
act or
is broken
the first
omission is not the
proximate
injury.
cause of the
There
be more than one
proximate
of an
if
injury.
wholly independent
cause
But
two
acts, by independent parties, neither
to the
bearing
other
any
control,
injury by
creating
relation or
an
cause
one
the
upon
operates,
occasion or condition
the other
which
the
dangerous agency
act or
which
the
places
omission
in
operation
intervening
is the efficient
breaks
cause that
the
causal connection and
the other act
omission
makes
the
proximate
Merlo,
remote
not the
injury.”
cause of the
Applying analysis, in this this court Galman determined parked that an truck was a in fact illegally tanker cause decedent, the fatal of not the injury of but was Galman, legal cause. at 259-60. Ill. 2d Having assumed, the arguendo, presence nuisance, illegal use of firearms can constitute a in defendants’ conduct sell we must determine whether eventually city ing into taken the of firearms that Legal Chicago legal cause a cause of nuisance. will is persons if in the retail business of be found reasonable selling have the creation firearms would seen Chicago likely city of their in the as result nuisance legal However, Galman, 188 Ill. 2d 259. conduct. See criminal of third found where the acts cause will parties and the result have broken the causal connection ing exercise reasonable “is such as nuisance anticipated person diligence and the third would not be original guilty one of the not under the control of the wrong.” Clearly, the individuals Merlo, Ill. at 317. city illegally possess firearms and use who Chicago of the dealer defen are not under the control entirely question one of foresee dants. The then becomes city ability of a creation —Is practices clearly that the sales so foreseeable legal deemed cause these dealers should be though from criminal acts of even it results parties? third question argue that was
Dealer defendants this by appellate court in Riordan and Linton. resolved personal injury the court held Linton case which was duty no a firearm had that the manufacturer of party. plaintiff particular Linton, a third who was shot wrongful- App. 3d at Riordan involved 127 Ill. 678-79. against and distributors death claims the manufacturers shootings. guns appellate court held used in fatal duty had no victims these defendants parties. Riordan, Ill. crimes committed third element of causa at 646. Neither case discussed the 3d gun who sold the tion and in neither case was dealer *46 defendant, informative, but not so we find these cases a dispositive, present
of the
case.
legal
City
question
responds
cause and
The
argument by stating that
the related remoteness
object
alleged
complaint
“entire
of the scheme
in
is
exploit
illegal
Chicago.
the demand for
firearms within
complaint pleads
only foreseeability,
The
not
but that
market and
in
defendants intend to
distribute firearms
posses-
than
their
use and
manner
facilitates
unlawful
acknowledges
Chicago.”
city
multiple
in
The
sion
links
chain
causal
between defendants’ actions
alleged
complaint
nuisance, but claims that the
“demon-
exactly
participated
each
strates
how
defendant has
in
supply grossly disproportion-
distribution channels that
guns
Chicago.”
ate numbers
criminals in
city
argues
also
that Rowe v.
Bank
State
Lom
(1988), dispositive
bard, 125 Ill. 2d
this case. In
Rowe, this court
that a
stated
defendant
be held li
negligence
if he
able
creates a condition conduciveto a
intervening
Rowe,
foreseeable
criminal act.
A familiar on treatise torts warns that must be remembered that the mere fact that misconduct on the part might of another foreseen is of itself suf- place responsibility upon ficient to the defendant.” (5th § Keeton, Prosser Keeton W & at 305 Torts 1984). though “[e]ven intervening Further, ed. cause
may
regarded
foreseeable, the
is
li-
be
as
defendant
not
able unless the defendant’s conduct has created or
through
an
risk of harm
its
increased
unreasonable
Keeton,
&
on Torts
intervention.” W.
Prosser Keeton
(5th
1984).
§
comments,
44, at 305
ed.
These
contained
discussing intervening
in the section of the treatise
causes, refer
reader to the earlier
of the
the
discussion
ordinary
all
and
standard
conduct: “Under
normal
expect
any
circumstances, in the absence of
reason to
the
proceed upon
contrary,
may reasonably
the
as-
actor
obey
sumption
that others will
criminal law. W.
(5th
§
Keeton,
33, at 201
ed.
Prosser & Keeton on Torts
1984).
situations,” however, the actor
In “other
duty
protection
of others. Such
have a
care
a
in which the actor has
situations include situations
special
plaintiff,
responsibility
protection
for the
perhaps
by
upon
special
arising
founded
a
contract or
relationship
two,
and where there is “an
between
especial temptation
opportunity
for criminal miscon-
by
brought
Keeton,
the defendant.” W.
duct
about
(5th
1984).
§ 33,
ed.
on Torts
at 201-03
Prosser & Keeton
excerpts
link
from the treatise illustrate the
These
duty
questions
and the
of the existence of
between
legal
depend
analysis
an
cause. Both
existence
foreseeability.
present
question
case,
In the
given
defendants,
the nature of
dealer
whether
product
they
ordinances
sell, their awareness
knowledge
regarding
that
firearms, and their
some
reasonably
Chicago residents, could
their
customers
lawfully
they
illegally
guns
sell
that the
would
foresee
city
in
in such numbers and used
such
taken into
they
public nuisance.
create a
manner
agree
conclusion of the
not. We
with the
We conclude
appellate
supreme
in
court of New York
division of
activity, having
Spitzer:
lawful commercial
“defendants’
property
person
caused
harm
been followed
directly
principally by
activity
the criminal
intervening
parties, may
third
be considered
proximate
Spitzer,
cause of such harm.”
This result is consistent with other
Illinois cases
which a defendant’s conduct was found to be
remote
so
resulting injury
legal
from the
cause was not
e.g., Thompson,
See,
established.
The court single expect company foresee a ac- to the car rental to by teenage an intoxicated driver took cident caused who permission person keys of the to the car without present case, claim of rented the In the who had car. negligent and its entrustment has been dismissed appealed. Thus, are not faced has not been we dismissal gun might question held a dealer with the whether entrusting negligently weapon to an individual liable for allow a buyer might that the it is foreseeable buyer when Instead, gun illegally. or use the possess third to party defendants it foreseeable to these argue is transactions effect of numerous sales aggregate that the different locations multiple time and in occurring over to each other will with no ties operated by businesses city. in another of a result in the creation cre- weapons these dealers’ sales of Finally, although by harm possible ate a condition that makes eventual hands, it not at all is weapons private these putting if to exist even these the condition would cease clear that selling firearms. entirely ceased defendants particular man- teenager intoxicated Watson, in which the Just as intend keys, to a set of car those who aged gain to access city Chicago and use firearms illegally possess The manufacture and able to obtain them. would still be market for these legal. There is a sale of firearms all across by thousands of dealers that is served products have been that would otherwise country. sales Ulti- would be made others. made these dealers in market share between mately, there would be shift and, an increase in the and others perhaps, these dealers those intent weapons “on the street” as price illegal go further afield had to illegal gun ownership weapons buy. search of neither a conclusion that policy supports
Public
also
regard
with
duty
legal
nor
cause can be established
Shannon,
Based
alleged public
is not so foreseeable to the
dealer defendants that their conduct can be deemed
ag
legal
of the
cause of a nuisance that is
result
many
gregate of the criminal acts of
individuals over
“
they
one of
‘in
whom
have no control. This is
those
party
have contributed
some
stances which
way
yet
inappropriate
harm]
[to
it
remote
is
”
subject
liability.’
party
Spitzer,
A.D.2d
to tort
(quoting
at 202
the lower court
761 N.Y.S.2d
case).
(not
Abrams,
We defendants. Sought by Plaintiffs
F. Remedies generally that a nuisance is remedi “It is conceded damages.” Village by injunction or a suit for able Wilsonville,Ill. 2d at 22. Damages
1. argument has two facets. We remoteness Defendants’ their conduct is too remote considered, above, whether parties to be considered the criminal acts of third from facet of harm. The second resulting cause legal any is that because argument defendants’ remoteness derivative merely county city harm to the affected directly *51 who have been injuries to individuals to from the harm violence, are too remote plaintiffs gun monetary damages. seek action for nuisance in an damages
An of award if conduct,” proper and is “retroactive, past to applying in the conduct without engage to “it is unreasonable (Second) of done.” Restatement for the harm paying (1979). of 821C i Under section 821B, § Torts Comment in an damages recover Restatement, may a plaintiff the if he only nuisance “suffered public action for individual other that suffered different from harm of a kind common exercising right public of the members interference.” subject that was general public (1979). 821C(1) (Second) The abil- § of Torts Restatement damages in a to recover ity plaintiff of an individual remedy tort [hav- the result of “a nuisance suit is public crime,” remedy being the tort onto a engrafted ing] been being the common and the crime damages trespass (Second) of nuisance. Restatement public law crime (1979). mention is made 821C, § No Torts Comment ability follow of the the comments that section 821C or in an ac- damages recover entity official or public general of the on behalf brought tion for nuisance public. operating million in claim more than $433
Plaintiffs nuisance dur- alleged public attributable to expenses expenses includes the This amount ing years 1994-98. emergency response, emergency communications violence, police gun provided health care victims defense of those prosecution investigations, and use illegal possession involving of crimes accused damages against punitive seek Plaintiffs also firearms. difficulty acknowledging Although defendant. each apportioning damages among defendants, the individual plaintiffs damages speculative insist that are neither nor particularly suggest difficult calculate. Plaintiffs also premature that it is to consider issues related to dam- ages pleading stage litigation. at the of this Plaintiffs as- damages they properly money sert that seek because their claim nuisance “is not based economic flowing damage person losses property, from to someone else’s properly rights
but instead asserts the collective public.” short,” state, of the “In “in a government action, the a remote or is never plaintiff.” position derivative Plaintiffs’ is that because alleged by collecting unlawful abatement they feasible, firearms is not ages “representing are entitled to recover dam- governmental providing cost necessary by widespread pos- made unlawful services session and use of firearms.”
a. Economic Loss Doctrine
*52
that the economic loss doctrine
Defendants assert
adopted by
Manufacturing
in Moorman
Co. v.
this court
(1982),
Co.,
Tank
After (1965), Rptr. 17 this court Co., tor 403 P.2d 45 Cal. reasoning adopted Seely that claims to conclude products regarding “qualitative “are defects” in best by tort,” the tort contract, rather than whether handled theory liability negligence.Moorman, or asserted is strict
417
allowing
75-76,
Further,
a manufacturer
Plaintiffs that their claim is not based type the Moorman of commercial interests for which damages they recovery. are not The seek doctrine bars “disappointed type with of economiclosses associated (In expectations” Chicago Flood, commercial Ill. re “ 200), ‘damages inadequate value, costs 2d such as for replacement product, repair and of the defective ” “ profits,’ consequent ‘the diminution loss product quality it is inferior in value because general purposes it not work for for which does [Citation.]” Moorman, was manufactured and sold.’ Ill. 2d at 82. by present case does not involve a claim
purchaser product against of a or seller manufacturer “qualitative product of that losses caused distributed, Indeed, manufactured, defect.” firearms alleged performed and sold defendants have provide properly. Moorman, therefore, does complete answer. in In court the economic loss doctrine
This
revisited
privity
Chicago Flood,
there
re
a case in which
was no
allegation
parties
no
that a
contract
between
*53
product
of
The
included a class
was defective.
by
flooding of a
and businesses affected
individuals
Chicago
allegedly
River,
caused
tunnel beneath
Chicago
negligence
city
its
of
and one of
company,
addition,
In
an insurance
ITT
contractors.
subrogee
claimants,
Hartford,
of several other
brought
separate
action in nuisance. In re
Applying
Flood,
doctrine,
This court held that a in a damages flowing consequential all action recover injury plaintiffs person property. In re from an Chicago Flood, However, 2d at 207. because this 176 Ill. differently than court found no reason to treat nuisance solely any recovery damages tort, economic other permitted. Chicago Flood, In re 176 Ill. loss would not be holding policyunderlying 2d at this on the 207. Webased the economic rule: that because “the economic loss any single virtually consequences end accident are every less,” a defendant who could be held liable for effect of conduct would face virtu economic its tortious proportion ally risks, uninsurable far out of its culpability. operates prevent rule The economic loss open-ended liability. Chicago Flood, such tort re (referring Ill. 2d at 207 to earlier discussion in the distinguishable opinion). present case, however, theory liability Chicago Flood, in was from which private single and the harm was the result of a accident, rather than a course conduct. City Shepard cite Board Education Plaintiffs (1989), example A, S, Inc.,
v. C &
“Perhaps
it is
artificial,
damage
for asbestos
within
to fit a claim
for more traditional
has
established
framework which
been
Indeed,
nature of the ‘defect’
actions.
tort or contract
***.
unique
‘damage’
caused
asbestos
alleged
Nonetheless,
complaint
that this
has
we do believe
under
facts to
a tort action
sufficient
establish
however,
Moorman;
holding in
principles established
bring
as an invitation
this case should
be construed
sphere
of tort
contract actions within
economic loss
A,
damage.”
property
fictional
through the use of some
law
C & S,
421 special who suffer exorbitant; only those thus added.) Meridian One (Emphasis may recover.” harm 1481. Plaza, Supp. F. at neither avail can case present
Plaintiffs
individuals
upon
conferred
standing
themselves
821C(2)
on the basis
of the Restatement
under section
harm,
escape
nor
particular
having suffered
they have
doctrine, because
Moorman
strictures
property.
injury
person
no
pleaded
Airlines,
v.
Inc.
Express
People
reliance on
Plaintiffs’
(1985),
246,
The 100 N.J. Express, foreseeability. People that of court was rule, “a defendant the new 256, A.2d at 112. Under 495 the risk of of care to avoid duty his who has breached 422 injury
economic
to particularly
plaintiffs may
foreseeable
be held liable for actual economic losses that are proxi-
mately
caused
its breach of duty.” People Express, 267,
N.J. at
The exception to the economic loss doctrine formulated Jersey New court in People Express has not been widely adopted. addition, In although People Express was decided several years after Moorman, it was decided more than a decade before In re Flood. Chicago When this court ruled in In re Chicago Flood that the Moorman doctrine bars the recovery solely damages economic in private nuisance, it implicitly rejected approach taken in People are Express. We not persuaded adopt it now.
Although the economic loss doctrine is rooted in the theory contract, of freedom of it has grown beyond its original justifications contract-based policy of maintain ing the fundamental distinction between contract and protecting tort and parties freedom of to allocate risk by contract. In re Starlink Corn Products Liability Litiga (N.D. 2002). tion, 212 F. Supp. 2d Ill. One of the early expansions of the beyond economic loss doctrine involving cases the parties to a contract was in the so- called “bridge” Starlink, or “access Supp. cases.” F. cases, at 840. these the plaintiff sought businesses damages profits for lost after places access to their business prevented by bridge was the closure of a or road. liability negligence theories of were or nuisance. In re Flood Starlink, was such a case. 212 F. Supp. at 840.
“Although they nominally under the same economic rule, really policy loss there are different some issues driv- *57 ing in The usual concerns about the doctrine access cases. to interfering parties’ contract law and the freedom with is no present are not because there contrac- allocate risks and, strangers relationship. parties typically tual The are activities, had no foreknowledge no of each other’s with What these to assess allocate risks ex ante. opportunity economic loss cases in common with traditional share damage. property is the lack of jurisprudence doctrine profits Moreover, only alleged harms lost because the were inability premises, to the these due to customer’s access neatly ‘disappointed rubric of com- damages fit within the specula- expectations.’ emphasize Courts also mercial in magnitude damages access potential tiveness *** So, original bases for the although policy cases. present, type are not because economic loss doctrine fit, linguistically, to at least injury, these cases seem Starlink, 212 F. Supp. economic doctrine.” within the loss at 840. present in the sought by plaintiffs damages and, thus, “fit profits neatly”
case are not lost do not as applied the rubric of the economic loss doctrine within However, regarding cases. the concerns access damages that potential magnitude speculativeness are cases are here. We present present access sought by plaintiffs conclude damages that “solely they economic the sense damages” costs incurred in the absence of harm to represent Starlink, F. plaintiffs person property. Supp. See (plaintiff rely property belong- at 841 cannot on harm to injury). economic ing others demonstrate sum, this court never before been asked to has doctrine bars a determine whether the Moorman claim solely city incurred when it damages economic general brings claim of behalf city harm to public, physical property in the absence of injury. appears or other The Restatement to limit direct recovery damages nuisance suits of economic affected individual so they bring action. Restatement standing have (Second) 821C(1) (1979). § of Torts need decide in We the present case whether we agree approach, with this (One which adopted jurisdictions has been in other *58 Plaza, Meridian & Stop Cos. 1481; 820 F. at Shop Supp. (1983) Fisher, v. 889, 897, 444 368, 387 Mass. N.E.2d 373 (individual plaintiff who damage suffered no to property may recover solely damages public economic nuisance claim public way by demonstrating for obstruction of “special harm,” pecuniary general not common to the public)), because the here are public entities. Flood, Chicago this court concluded that there is no reason to treat of private differently claims Flood, other torts. In re from Ill. 176 2d 207. end, In the see no public we reason to treat claims of differently than private claims of nuisance. The Moorman doctrine permit solely does not an award of economic damages plaintiff public entities this public nuisance action. Municipal Recovery
b. Cost Rule The result we reach on the of the application eco- nomic loss doctrine is consistent man- with result rule, municipal recovery dated cost called the also doctrine,” “free services under which expenditures performance governmental made in the of rule, functions are not recoverable in tort. The where it based, has been on the adopted, part, is constitutional States e.g., United separation See, doctrine of of powers. v. Standard Oil Co. California, 301, 314-15, 332 U.S. (1947) (declin- 2067, 2075, 1604, 91 L. Ed. Ct. 1611 67 S. ing recognize government cause of action federal injured hospitalization pay recover costs of soldier’s resulting negligence defendants; noting from Court, Congress, not the “is the custodian of the national and the af- purse,” “exclusive arbiter federal fiscal fairs”).
This court has not had occasion to consider adoption
single appellate
recovery
municipal
The
rule.
cost
of the
County Champaign
employ
v.
rule,
case to
court
county
(1975),
Anthony,
held that the
3d 466
33 Ill.
the cost of
a criminal defendant
not recover from
could
against
providing protection
him. This court
ato witness
Champaign
grounds. County
v. An
other
affirmed on
(1976).
thony,
Ill. 2d 532
Flagstaff
City
case on this doctrine
The seminal
Ry.
Topeka
Co.,
F.2d
Atchison,
& Santa Fe
v.
(9th
1983),
city attempted to
Cir.
in which
railway
associated with
from the
the costs
recover
emergency response
cars
the derailment of tank
after
liability
city’s
carrying explosive gas.
theories
negligence
an ultrahazardous activ-
and conduct of
were
ity. City
Affirming
Flagstaff,
underlying
of tort
or on the
proximate
legal
expenditures. Rather, of the
or
cause
identity
the claimant and the nature of the cost
deny recovery.City Flagstaff,
F.2d at
combined to
explained:
324. As the court
and
government
are
provided
“Where such services
taxes,
expect
spread by
the tortfeasor does not
costs
though the
a demand for reimbursement. This is so even
fully
private parties
tortfeasor is
injured by
aware
its
conduct,
spread
general
who cannot
their
public,
risk
will have a
against
damages proxi-
cause of action
it for
mately
legally
City
Flagstaff,
caused.”
cost in
have taken no
it
action
shift
government
If the
elsewhere.
has chosen to bear the cost
efficiency,
for
of economic
subsidy
reasons
or even as a
business[es],
and their
implicates
citizens
the decision
policy;
legislature
fiscal
its
deliberative
court,
processes, rather than the
is the
forum
appropriate
City
to address such fiscal
Flagstaff,
concerns.”
719 F.2d
Oil,
314-17,
citing
at
Standard
at
U.S.
L. Ed.
2075-76,
at
67 S. Ct.
1611-12.
agree
system
We
that where a
already exists for
costs,
rational allocation of
society
and where
as a whole
upon
relies
there
little
system,
reason
a court
an
impose
entirely
system
new
of allocation. This is
where,
particularly
here, allowing recovery
true
as
police
emergency
costs of routine
and other
services could
significant
consequences.
have
unintended
stating
In addition to
that such
would
recovery
if
permitted
regulation,
it were authorized
statute or
appeals
court of
noted that
City
Flagstaff
recovery
private
has been allowed “where the acts of a
*60
party
government
create a
nuisance which the
***
government
to
incurs
seeks
abate
where
expenses
protect
property.” City
Flagstaff,
its own
of
distinct,
427 provision to the normal categories defined unrelated ap- fire, services, and none emergency police, F.2d at 324. City Flagstaff, here.” 719 plicable A, by the is S, plaintiffs, & one of the cases cited C approved that this court suggest Plaintiffs such case. of a consequence of costs as a recovery the school boards’ However, school plaintiff wrongdoing. defendant’s A, ordinary tort under suing C & S were boards govern not as damaged property, as owners of principles the costs of seeking to recover mental entities A, S, C & public. they routinely provide services ex rel. People Department 2d at 450-51. See also 131 Ill. 712, Ill. 3d City Chicago, v. Transportation (1976) (“it the State well established when damages property, it an action to recover for brings and remedies as position rights in the same as to stands litigant”). any other various forms by plaintiffs
Other cases cited
involve
for which the costs of abate-
pollution,
of environmental
recoverable;
damage
public property,
ment are
owner; and,
city
property
sues in tort as a
which
“distinct,
thus,
fall
one of the
well-defined
within
provision”
to the normal
categories unrelated
In
Flagstaff.
Wyandotte
in City
services described
States,
191, 19 L.
v. United
389 U.S.
Transportation Co.
(1967),
govern-
for
example,
Ed. 2d
Inc., F. Cal. Supp. against to maintain an action for fraud tobacco permitted of medical care in an effort to recover costs defendants ill- smoking-related indigent residents provided *61 428 excep- result, however, municipal an
ness. This was reached as recovery Rather, tion to the cost rule. the court recovery by law, ruled that the California which bars one pays expenses of who medical another who has been injured, negligently apply does not to intentional torts City County Francisco, such as fraud. & San 957 F. of Supp. at 1141. rely City v. Plaintiffs also Kansas Fire Ashcroft (Mo. 1984),
fighters 42, in Local No. 672 S.W.2d99 permitted which the State of Missouri was to sue the firefighters’ deploying union in tort to recover the cost of during Authority illegal militia an for state strike. damages the ing found in the state statute mak award was illegal, “implicitly consign[ed]” such strikes which recognition of a cause of action for violation of the proper remedy statute and the creation of the to the court, courts. 672 at 109. The Missouri Ashcroft, S.W.2d expressly any liability damages however, disclaimed theory under the nuisance on these facts. Ash 672 at 114. croft, S.W.2d City York v. Taliaferrow,
Plaintiffs also cite Newof (1989), 649, 144 Misc. 2d 544 N.Y.S.2d273 which the operation prostitution a trial court ruled the of house of compensatory dam- a ages nuisance and awarded in$1 city,pursu- punitive damages $100,000in authorizing imposition of civil ant to a state statute penalties. “municipal no costs” were at issue because No compensatory damages Taliaferrow, were demonstrated. 2d at at 277. Misc. N.Y.S.2d exception acknowledged argue that the
Plaintiffs also
City Flagstaff, applicable
to matters “unrelated
emergency
provision
police, fire,
the normal
324),
ap-
(City Flagstaff,
F.2d at
should
services”
ongoing
pervasive
ply
that it cre-
when
misconduct is so
They
City Cincinnati, in
cite
ates a
nuisance.
city
Supreme
permitted
Court of Ohio
which the
against
group
maintain an action for
in tort
a
damages
present
similar to those in the
case:
defendants
“Although municipality
reasonably expect
cannot
city
whenever a tortfeasor
recover
costs
services
argue
it
public,
causes harm to the
should be allowed
damages
type
that it
recover such
this
of case. Un-
Flagstaff
like the train derailment
that occurred
case,
single,
requiring
incident
which was
discrete
single
response,
alleged
in this
emergency
misconduct
continuing
nature of
ongoing
persistent.
case is
of such
may justify
recoupment
the misconduct
*** Moreover,
Flagstaff court
governmental costs.
even the
*62
al-
recognized
recovery by
governmental entity
is
private party
of a
create a
lowed ‘where the acts
”
government
City
the
seeks to abate.’
nuisance which
of
1149-50,
Cincinnati,
428,
291,
(2003),
court of-
Jersey appellate
We do not find these reasons the Jersey, recovery sought no Illinois statute authorizes Second, the distinction between reject we by plaintiffs. disasters, explosions, as fires and such single, discrete handgun incidents of frequent unfortunately If the rule. abrogating for meaningful basis as a violence shootings response to emergency need for anything, occurrence, predictable within the well day-to-day ais resources, municipal and other law enforcement need for is or other disaster explosion of an the risk while lo- devastating costs on a may impose unpredictable does not result “single incident” Such government. cal (James, Super, N.J. expense” “nominal merely in a 48) across the tax spread that can be A.2d at suggest. cases would difficulty, as these base without the cost Nevertheless, public policy, matter of as a taxpayers, is disasters borne to such responding It defies otherwise. authorization any legislative absent predictable the more suggest common sense its city to recover ability greater expense, consequences unintended potential in tort. The costs agree with defendants We staggering. a rule are such response emergency services the need that when cost municipal ongoing, is alleged an weaker, because stronger, recovery rule for cost- need able consider legislature is better If disaster. than in cases of sudden recovery legislation *63 of a certain that the costs legislature concludes conduct whose by parties be borne service should in service, by taxpayers than that rather necessitates expressly to enact a statute ability it has the general, Third, since of such costs. authorizing recovery the dam- not feasible and that abatement is admit abatement, not the cost they represent seek do ages recovery does for such City Flagstaff the exception scholarly And, are not finally, persuaded we apply. not rule, plaintiffs’ reflected criticism of the as judicial *** damages “[cjompensatory argument constitute past most effective relief available for misconduct, to compensate City County both and the and to establish a rule providing industry firearms with an economic incentive to utilize more responsible marketing They may correct, practices.” but this is a question legislature. for the not We will abandon the of Moorman and its principles progeny, and the sound logic underlying municipal recovery rule, cost order to create such an incentive. conclude, therefore, if
We that even plaintiffs properly pleaded nuisance, a cause of action in public money dam- ages would not be available because the claimed damages do represent the actual cost of abatement of the compensation or for actual harm city’s county’s property.
2. Injunctive Relief The issuance of an injunction contingent plaintiffs’ prevailing at trial on the merits of their claim. Concerns raised defendants about the of a availability remedy at law and injunctive breadth of the sought relief are, therefore, merely speculative and we decline to ad- dress them.
Similarly, because this case has been resolved on grounds, other we have not considered defendants’ argu ments that dismissal of this action is warranted on the the injunctive basis relief sought by plaintiffs would violate the commerce and process due clauses of the (U.S. United Const., States Constitution I, 8, 3; § art. cl. XIV) V, amends. and the state constitutional provision (Ill. addressing powers of home rule units Const. 6). Lyon v. Department 1970, VII, § Children & art. (2004). Family Services, 209 Ill. 2d IV CONCLUSION amici Plaintiffs and the supporting their position expansion advocate the common law of *64 They encompass anticipate to their claim. our novel expand liability highly in an reluctance to nuisance area regulated by urge and federal that it both state law only authority, is not within our inherent but it is also duty, to a local our to construe the common law aid government’s protect gun effort to its citizens from violence.
To so, we would have had decide each of the is do appeal plaintiffs’ effect, in this favor. In we sues raised every would had to “close call” in favor of have resolve entirely species public creating li an new ability. Instead, consideration, after careful we conclude for that have not stated claim nuisance. arguendo, right granting, Even that a has been negligent infringed, that their we conclude assertions any supported by recognized duty conduct are not part of defendants and the manufacturer distributor (Gilmore, that, 261 Ill. under the Gilmore rule 3d 661), allegations of intentional conduct are insuf their liability In ficient a matter law. as proximate addition, hold cause cannot be we dealer because the established as defendants aggregate claimed harm is the result numerous intervening by parties criminal acts third unforeseeable By implication, proximate not control. under defendants’ lacking cause to the manufacturer and distribu is also as defendants, removed from the tor who are even further Finally, plaintiffs’ intervening criminal acts. we hold damages the Moorman doctrine action for is barred municipal recovery rule. cost magnitude affecting Any change in the law this highly regulated industry the work of must be process, legislature, brought political about response suggestion of the courts. work abdicating responsibility declare our amici that we judicial point law, to the virtue of the common we restraint.
We, therefore, reverse the of the judgment appellate court, court and affirm the judgment circuit which properly granted defendants’ motion to dismiss. *65 reversed;
Appellate court judgment circuit judgment court affirmed. FREEMAN, JUSTICE specially concurring: For the given my reasons special concurrence in Young Arms, v. Bryco 433, (2004), 213 Ill. 2d I specially concur.
CHIEF JUSTICE McMORROW JUSTICES FITZGERALD, KILBRIDE and join RARICK in this special concurrence.
(Nos. 93678, 93685, 93728 cons . STEPHEN al., YOUNG et Appellees, v. BRYCO ARMS al.,
et Appellants.
Opinion November 2004. filed