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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
ave reason to know will illegally use, possess, transfer, or resell the firearms in Chicago and have thus circumvented the Chicago ordinances and other gun control laws governing use or possession of firearms in Chicago." Under the heading "COUNT ONE: PUBLIC NUISANCE," the second amended complaint alleges that:
"Defendants owe a duty of care to the City of Chicago and its residents and the County of Cook and its residents living within Chicago to exercise reasonable care to prevent their firearms from ending up in the hands of persons who use and possess them illegally in the City of Chicago in light of the direct, foreseeable, and serious consequences of their actions."
With regard to the four traditional factors, the complaint further alleges that: (1) "it is reasonably foreseeable to the defendants that their conduct will cause deaths and injuries to Chicago residents and otherwise significantly and unreasonably interfere with public health, safety and welfare"; (2) defendants' conduct creates a "strong likelihood that these illegal firearms will cause deaths and injuries to Chicago residents"; (3) the burden of "taking measures to stem the flow of illegal weapons into Chicago is not undue," consisting only of the loss of sales to those likely to use or possess weapons illegally; and (4) stemming the flow of illegal guns into the city will "save lives and prevent injuries, and it will make the City of Chicago and County of Cook safer places to live."
Plaintiffs' brief to this court does not return to this factor-based analysis of the existence of a duty, nor does it cite cases that have applied this analysis to find that public policy weighs in favor of judicial recognition of an heretofore unrecognized duty. See, e.g., Bajwa, 208 Ill. 2d at 427-28 (placing a duty of due care upon an insurance company to advise a proposed insured of a policy taken out by another on his life). Instead, plaintiffs distinguish Riordan and Linton on the basis that these are simply negligence cases, not public nuisance cases, and that their nuisance claim is made "under a very different duty than the duty at stake in these private negligence actions." The duty asserted in the second amended complaint, they argue, is a duty owed to the public at large, rather than to a specific member of the public, as was the case in Riordan and Linton.
Applying the four traditional factors (Bajwa, 208 Ill. 2d at 427), in light of public policy, we find no duty owed to the public at large, at least with respect to the manufacturer and distributor defendants. It is reasonably foreseeable, in a nation that permits private ownership of firearms, that criminals will obtain guns and it is not only likely, but inevitable, that injuries and death will result. It is less foreseeable to these defendants that the criminal conduct of individuals who illegally take firearms into a particular community will result in the creation of a public nuisance there. Further, despite plaintiffs' suggestion that the only burden they would place on defendants is the loss of sales to criminals, the magnitude of the burden that plaintiffs seek to impose on the manufacturer and distributor defendants by altering their business practices is immense. Finally, plaintiffs predict only positive consequences if this duty is recognized-the city will be safer and lives will be saved. Such positive consequences are speculative at best, being based on the assumption that criminals will not be able to obtain guns manufactured by other companies and sold by other dealers. The negative consequence of judicially imposing a duty upon commercial enterprises to guard against the criminal misuse of their products by others will be an unprecedented expa
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