 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
City of Chicago v. Beretta U.S.A. Corp.11/18/2004
y contributed to the creation of the nuisance by depositing the substances in the landfill.
Plaintiffs rely on Brockman for the proposition that control is not a separate element of a public nuisance claim and, even if control is a consideration in apportioning fault, it should not be the dominant consideration when defendants had control over the instrumentality of the nuisance when they sold the firearms that subsequently created the alleged nuisance.
We find the analogy between the defendants in this case and the contributing polluters in Brockman unpersuasive. Our holding in Brockman was based on equitable considerations, specifically, concern about unjust enrichment:
"So valued are principles of fairness and the avoidance of unjust enrichment that even if a person who might otherwise be immune has contributed as a cause to the injury he should be liable in contribution. This is so even though he cannot be directly liable to the plaintiff." Brockman, 143 Ill. 2d at 373-74.
Plaintiffs have not sought recovery from these defendants under a theory of contribution. They do not suggest that fault be apportioned between these defendants and the individuals in direct control of the instrumentality-the lawbreakers who possessed and used the firearms in the city. Defendants will not be unjustly enriched if the lawbreakers are made to pay for their crimes without defendants' contribution.
Finding no support in Brockman for relaxing the control requirement, if indeed such a requirement exists, we look to other authorities to determine whether the appellate court properly concluded that defendants' lack of control over the firearms after the point of sale does not preclude imposition of liability for their participation in the creation of the alleged public nuisance.
Because the common law doctrine of nuisance has traditionally been tied to harms resulting from the use of land, the question of control has arisen most often when the defendant has "completely divested himself from any connection with the property involved." Maisenbach v. Buckner, 133 Ill. App. 2d 53, 55 (1971). In Maisenbach, where a minor was injured by tripping over a fence, the former owners of the property, who had not installed the fence but had actively maintained it for 14 years, could not be held liable in nuisance because: "Where a landowner clearly has no right to control the property after he sells it to another, he likewise can have no duty to third persons injured in connection with the property after the sale." Maisenbach, 133 Ill. App. 2d at 56. This situation sits in contrast to the case in which "an owner who creates a nuisance and then leases the property with the nuisance attached." Maisenbach, 133 Ill. App. 2d at 54. Such an owner will be held responsible for injuries caused by the nuisance even though he does not have possession and control at the time of the injury . Maisenbach, 133 Ill. App. 2d at 54.
A decade later, in City of Chicago v. Stern, 96 Ill. App. 3d 264 (1981), the city sought injunctive relief to abate the operation of a "bawdy house" by several named defendants. However, the premises were owned by a corporation, not by the named individuals. The appellate court affirmed the trial court's dismissal of the nuisance claim: "In the absence of proof of ownership, operation, or control of the premises by any defendant, the trial court properly found that equity could not intervene to abate the alleged nuisance existing on the premises," even though the named individuals formed the corporation, owned it, and operated the "club" that featured nude dancing and other erotic entertainment. Stern, 96 Ill. App. 3d at 267.
In Brunsfel
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Illinois Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|