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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
y extend for conduct that did, in fact, cause the harm? Simmons, 198 Ill. 2d at 558. See W. Keeton, Prosser & Keeton on Torts ยง41, at 264 (5th ed. 1984) ("As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy"). The proper inquiry regarding legal cause involves an assessment of foreseeability, in which we ask whether the injury is of a type that a reasonable person would see as a likely result of his conduct. Lee, 152 Ill. 2d at 456.
Although proximate cause is generally a question of fact (Lee, 152 Ill. 2d at 455), the lack of proximate cause may be determined by the court as a matter of law where the facts alleged do not sufficiently demonstrate both cause in fact and legal cause (Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 476 (2001)).
The appellate court briefly addressed the question of causation, concluding that a "reasonable trier of fact could find that the criminal misuse of guns to kill persons were occurrences that defendants knew would result or were substantially certain to result from the defendants' alleged conduct." 337 Ill. App. 3d at 18. It is unclear whether this statement is intended to refer to cause in fact, or legal cause, or to both. The mention of the trier of fact suggests that the appellate court was considering the question of cause in fact, but the appellate court did not determine whether plaintiffs had properly pleaded cause in fact by alleging that defendants' conduct was a material element and a substantial factor in bringing about the alleged harm, or that the harm would not have occurred absent defendants' conduct. On the other hand, the appellate court's mention of defendants' ability to foresee certain results suggests that the appellate court was engaging in the policy-based legal cause inquiry. However, because this inquiry looks at what a reasonable person would foresee as the result of his conduct, not at what this specific defendant knew or should have known, the appellate court's conclusion does not properly dispose of the question of legal cause.
The dealer defendants make a number of arguments under the general heading of causation. We consider two of them here. First, they argue that Illinois law does not permit liability to be imposed for public nuisance unless the defendant is in control of the instrumentality causing the nuisance at the time of injury . Second, they argue that their conduct is too remote from the alleged injury to be deemed a legal cause. Because we are reviewing a dismissal pursuant to a section 2-615 motion, our standard of review is de novo. Wakulich, 203 Ill. 2d at 228.
1. Control
Relying on the decision of the Ohio Supreme Court in City of Cincinnati, the appellate court addressed the argument that defendants cannot be held liable in public nuisance for the harms alleged because they do not have control over the instrumentality at the time of injury :
" t is not fatal to the public nuisance claim that defendants did not control the actual firearms at the moment that harm occurred. [Citation.] The Ohio Supreme Court stated: ` ppellant alleged that appellees control the creation and supply of this illegal secondary market for firearms, not the actual use of the firearms that cause injury. * Just as the individuals who fire the guns are held accountable for the injuries sustained, appellees can be held liable for creating the alleged nuisance.' " 337 Ill. App. 3d at 17,
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