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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
utory schemes renders their conduct, by definition, reasonable.
Defendants point to Meyers v. Kissner, 149 Ill. 2d 1, 10 (1992), as authority for their contention that a lawful act cannot constitute a public nuisance. In Meyers, the plaintiff landowner sought injunctive relief against adjacent landowners who constructed a levee that altered the natural flow of water across his land, causing erosion. The construction was not prohibited by law at the time. Indeed, a statute specifically provided that a levee existing before a certain date could be maintained and repaired without a permit. Meyers, 149 Ill. 2d at 10. This court concluded that: " t is by no means true that an act constituting a nuisance must necessarily be in itself unlawful. While a lawful act will not constitute a public nuisance, it can nonetheless constitute a private nuisance." Meyers, 149 Ill. 2d at 10.
In addition, defendants call our attention to a comment to section 821B of the Restatement: "Although it would be a nuisance at common law, conduct that is fully authorized by statute, ordinance or administrative regulation does not subject the actor to tort liability." Restatement (Second) of Torts ยง821B, Comment f, at 91 (1979).
Finally, defendants offer Gilmore v. Stanmar for the proposition that when the defendant's conduct is governed by comprehensive laws and regulations, a public nuisance may be found only if the plaintiff establishes that the defendant failed to comply with the law or was otherwise negligent in carrying out the activity. The alleged nuisance in Gilmore was a pedestrian canopy adjacent to a construction site, which extended into the street, obstructing motorists' vision and their ability to maneuver. Gilmore, 261 Ill. App. 3d at 653. The defendants had obtained the proper permit for construction of the canopy and argued that they, therefore, could not be held liable for a resulting accident. Gilmore, 261 Ill. App. 3d at 654. The appellate court concluded that plaintiffs' claims for negligence and common law public nuisance were improperly dismissed by the trial court. Gilmore, 261 Ill. App. 3d at 659, 662. With regard to the nuisance claim, the court said:
" he existence of an ordinance or other law purportedly making a nuisance legal does not automatically destroy a common law nuisance action where the defendant's conduct was not in compliance with the law, where the defendant was otherwise negligent, or where the law itself is invalid for allowing a nuisance." Gilmore, 261 Ill. App. 3d at 661.
We conclude that it is possible to create a public nuisance by conducting a lawful enterprise in an unreasonable manner. If, however, as in the present case, the enterprise is highly regulated by state or federal law, the Gilmore rule provides the proper framework for addressing the unreasonable interference element of a public nuisance claim. Under the Gilmore rule, this element can be met only by the plaintiff's pleading and proving that (1) the defendant violated the applicable statutes or regulations, (2) the defendant was otherwise negligent in carrying out the enterprise, or (3) the law regulating the defendant's enterprise is invalid. Gilmore, 261 Ill. App. 3d at 661.
As there is no suggestion that state and federal regulations regarding firearms are invalid, we consider whether plaintiffs have properly pleaded the unreasonable interference element under either the first or second prongs of the Gilmore rule.
The second amended complaint contains no specific factual allegations of actual violations of applicable statutes and regulations by any of the named defendants. The complaint asserts that " bsent effective enforcement and prosecution
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