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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
forcement and other public officials. Nor do we intend to dismiss the concerns of citizens who live in areas where gun crimes are particularly frequent. Rather, we are reluctant to state that there is a public right to be free from the threat that some individuals may use an otherwise legal product (be it a gun, liquor, a car, a cell phone, or some other instrumentality) in a manner that may create a risk of harm to another.
For example, the purchase and consumption of alcohol by adults is legal, while driving under the influence is a crime. If there is public right to be free from the threat that others may use a lawful product to break the law, that right would include the right to drive upon the highways, free from the risk of injury posed by drunk drivers. This public right to safe passage on the highways would provide the basis for public nuisance claims against brewers and distillers, distributing companies, and proprietors of bars, taverns, liquor stores, and restaurants with liquor licenses, all of whom could be said to contribute to an interference with the public right.
Similarly, cell phones, DVD players, and other lawful products may be misused by drivers, creating a risk of harm to others. In an increasing number of jurisdictions, state legislatures have acted to ban the use of these otherwise legal products while driving. A public right to be free from the threat that other drivers may defy these laws would permit nuisance liability to be imposed on an endless list of manufacturers, distributors, and retailers of manufactured products that are intended to be, or are likely to be, used by drivers, distracting them and causing injury to others.
We conclude that there is no authority for the unprecedented expansion of the concept of public rights to encompass the right asserted by plaintiffs. Further, because we conclude, below, that plaintiffs' claim does not meet all of the required elements of a public nuisance action, we need not decide whether to break new ground by creating such precedent.
D. Unreasonable Interference
"Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or
(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right." (Emphases added.) Restatement (Second) of Torts ยง821B(2) (1979).
We understand plaintiffs' claim of unreasonable interference to be based on section 821B(2)(c), because their complaint alleges that defendants' "conduct in designing, marketing, distributing, and selling firearms to Chicago residents or to persons whom defendants know will cause those firearms to end up in Chicago is of a continuing nature." (Emphasis added.) The second amended complaint describes the "significant effect" of defendants' conduct as: "a higher level of crime, death and injuries to Chicago citizens, a higher level of fear, discomfort and inconvenience to the residents of Chicago, and increased costs to the plaintiffs." The complaint also avers that illegal firearms "are used in the commission of crimes, including crimes in which residents of Chicago are killed, maimed, or terrorized." In addition, the complaint contains data regarding the number of homicides, robberies, and other crimes involving handguns, both in t
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