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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
of gun control laws, firearms are readily available to anyone who wishes to use them." We do not question the accuracy of this statement, but it does not specifically implicate these defendants. Plaintiffs also plead that "data from recovered firearms and the undercover work of the Chicago Police Department reflect numerous systemic violations of the aforementioned statutes," but do not allege that these particular defendants committed the violations. Further, plaintiffs claim that " espite strict gun control laws protecting the plaintiffs' citizens in Chicago, there are thousands of illegal firearms in existence in the City of Chicago." Again, the second amended complaint alleges lawbreaking, but not by any of these defendants. Finally, the allegations regarding specific sales transactions by the individual dealer defendants stop short of alleging violations of applicable statues and regulations. We conclude, therefore, that plaintiffs have not stated a claim for public nuisance predicated on violations of applicable law.
Plaintiffs argue that they have sufficiently alleged negligent conduct that has caused unreasonable interference with public rights. Under our application of the Gilmore rule in the context of a highly regulated industry, a claim for public nuisance may stand if the defendant was negligent in his operation of the enterprise.
The appellate court did not consider whether plaintiffs had properly pleaded a claim for public nuisance predicated on defendants' negligently, and therefore unreasonably, creating a significant effect on a public right. 337 Ill. App. 3d at 13 (" laintiffs here do not allege that defendants are liable under theories of negligence or strict liability. Instead, their public nuisance claims allege defendants' intentional and unreasonable conduct"). Plaintiffs' brief disputes this conclusion, asserting that they have properly pleaded a public nuisance claim predicated on negligence. We agree that the second amended complaint does contain allegations that sound in negligence.
Thus, we turn to the assertion of defendant manufacturers and distributors that a claim based on negligence, whether the theory of liability is nuisance or any other species of tort liability, may not lie in the absence of a duty owed by the defendant. Washington v. City of Chicago , 188 Ill. 2d 235, 239 (1999) (stating that, as a matter of law, a plaintiff may not recover in a negligence action unless a duty is owed to her by the defendant). Specifically, they rely on Riordan, 132 Ill. App. 3d at 647 (manufacturers and distributors of handguns owed no duty to plaintiffs in wrongful-death action to control the distribution of their products), and Linton, 127 Ill. App. 3d at 678-79 (manufacturer of non-defective firearm has no duty to plaintiff in personal injury action to control the distribution of its product to the general public), which, they argue, preclude any reliance on allegations of negligence as the underpinning of a public nuisance claim.
"Whether a duty of care exists is a question of law to be determined by the court." Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 422 (2004). The question turns largely on public policy considerations, informed by consideration of four traditional factors: (1) the reasonable foreseeability of the injury ; (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. Bajwa, 208 Ill. 2d at 427.
Plaintiffs' second amended complaint asserts, in the section headed "Nature of the Action," that defendants "have breached their duty to not sell or supply firearms to Chicago residents who they know or h
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