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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
use of land and the resulting invasion a plaintiff's property rights. The "Scope Note" preceding section 834 states that the defendant's activity "may be the direct cause of the invasion or it may create a physical condition that ultimately results in the invasion." (Emphasis added.) Restatement (Second) of Torts §834 (1979). All of the illustrations that follow section 834 involve invasions of property rights caused by the defendant's use of land and are clearly predicated on a view of nuisance as a physical condition brought about by the wrongful use of real property.
Similarly, the assertion in manufacturer defendants' brief that a " `product which has caused injury cannot be classified as a nuisance to hold liable the manufacturer or seller for the product's injurious effects' " (quoting 63A Am. Jur. 2d Products Liability §927, at 105 (1997)) is not entirely helpful when a public nuisance is alleged. The cited authority also states that:
"Because a seller in a commercial transaction relinquishes ownership and control of its products when they are sold, it lacks the legal right to abate whatever hazards its products may pose. Under these circumstances, the purchaser's proper remedies are products liability actions for negligence or breach of warranty rather than a nuisance action." 63A Am. Jur. 2d Products Liability §927, at 106 (1997).
Clearly, this authority is considering whether the purchaser of a product may state a nuisance claim for injuries caused by the product. Neither the plaintiffs in the present case, nor the citizens injured by the firearms that have been manufactured, distributed, and sold by the defendants, are purchasers seeking to assert a public nuisance claim when an action for products liability or breach of warranty would be more appropriate.
Plaintiffs concede that their public nuisance claim, based on the alleged effects of defendants' lawful manufacture and sale of firearms outside the city and the county, would extend public nuisance liability further than it has been applied in the past. Nevertheless, they, and the amici in support of their position, argue that extending the doctrine of public nuisance in this manner is a proper exercise of this court's inherent authority to develop the common law. Further, they claim, the legislature has expressed no intent to foreclose common law liability for marketing, distribution, and sales practices that create a public nuisance.
The Supreme Court of Indiana has agreed with this approach, holding in City of Gary v. Smith & Wesson Corp., 801 N.E.2d 1222, 1234 (Ind. 2003), that "a nuisance claim may be predicated on a lawful activity conducted in such a manner that it imposes costs on others." We do not find City of Gary convincing, however, because the authority cited for this statement, Yeager & Sullivan, Inc. v. O'Neill, 163 Ind. App. 466, 474-75, 324 N.E.2d 846, 852 (1975), involved a nuisance created by the keeping of hogs, a lawful enterprise, in a manner that invaded the rights of others. Again, it was the manner in which the defendant used his real property, and the effect of his conduct on plaintiff's use and enjoyment of his real property, that resulted in imposition of nuisance liability in Yeager & Sullivan.
The other authorities offered by plaintiffs do not directly address defendants' contention that plaintiffs' claim is, in effect, a products liability claim repackaged as public nuisance. Because a products liability claim against one who lawfully manufactures and sells a non-defective product must fail (see Riordan v. International Armament Corp., 132 Ill. App. 3d 642 (1985); Linton v. Smith & Wesson, 127 Ill. App. 3d 676 (1984)), defendants u
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