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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
he city and nationwide. Data are offered regarding the ready availability of handguns to those who are forbidden by law to possess them. The significance of the problem is further demonstrated by citations to numerous state statutes intended to curb gun violence.
Defendants assert that in more than 2,500 reported cases in the over-100-year history of public nuisance law in Illinois , a public nuisance has been found to exist only when one of two circumstances was present: either the defendant's conduct in creating the public nuisance involved the defendant's use of land, or the conduct at issue was in violation of a statute or ordinance. Thus, they argue, even though an action for public nuisance may lie without allegations that the nuisance emanates from the defendants' use of land, the law of public nuisance does not encompass conditions that eventuate from the lawful manufacture, distribution, and sale of a non-defective product.
Although we have not attempted to verify defendants' claim that the body of law on this topic in state and federal courts applying Illinois law exceeds 2,500 cases, we have found no Illinois case in which a public nuisance was found in the absence of one of these two conditions. While no case law in this jurisdiction expressly limits application of the doctrine of public nuisance to these two circumstances, no case law expressly authorizes its application in the absence of either condition. To do so would be to expand the law of nuisance to encompass a third circumstance-the effect of lawful conduct that does not involve the use of land. We are reluctant to allow such an expansion.
With this reluctance in mind, we turn to the two arguments made by defendants challenging the appellate court's conclusion that plaintiffs have properly pleaded the element of unreasonable interference.
1. Lawful Sale of Non-defective Product
Defendants argue that, as a matter of law, the lawful production and sale of a non-defective product is per se reasonable and, thus, cannot result in liability for creation of a public nuisance. The appellate court responded to this argument by citing section 834 of the Restatement: " `One is subject to liability for a nuisance caused by an activity, not only when he carries on the activity but also when he participates to a substantial extent to carrying it on.' " 337 Ill. App. 3d at 15, quoting City of Bloomington, Indiana v. Westinghouse Electric Corp., 891 F.2d 611, 614 n.5 (7th Cir. 1989), citing Restatement (Second) of Torts ยง834 (1979). The appellate court also noted that a federal court deciding a case of first impression under Illinois law had previously declined to impose public nuisance liability against a gun manufacturer in the absence of state decisional law. 337 Ill. App. 3d at 14, citing Bubalo v. Navegar, Inc., No. 96-C-3664 (N.D. Ill. March 20, 1998). Then, relying on City of Cincinnati, the appellate court rejected defendants' argument. The Supreme Court of Ohio, in City of Cincinnati, allowed a public nuisance claim against a similar group of defendants to stand, holding that, "under the Restatement's broad definition, a public-nuisance action can be maintained for injuries caused by a product if the facts establish that the design, manufacturing, marketing, or sale of the product unreasonably interfere[ ] with a right common to the general public." City of Cincinnati, 95 Ohio St. 3d at 520, 768 N.E.2d at 1142.
Plaintiffs' novel application of the cause of action of public nuisance renders authorities such as the Restatement less than helpful in answering this question. Section 834, for example, focuses primarily on private nuisance and its common law basis tied to a defendant's
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