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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
d v. Mineola Hotel & Restaurant, Inc., 119 Ill. App. 3d 337 (1983), the plaintiff failed to state a cause of action for public nuisance against owners of property adjacent to the frozen lake upon which he was injured while snowmobiling. Although the property owners cooperated with individuals who constructed a motorcycle race track on the lake, and even allowed them to use their equipment to create and maintain the track, plaintiff pointed "to no act, structure, or device within defendant's control which could constitute [a public] nuisance." Brunsfeld, 119 Ill. App. 3d at 345. The court explained:
"The creator of the nuisance is liable therefor [citation], as may be a person who continues or maintains a nuisance created by another [citation]; but where it is not shown that a person created or continued a nuisance, or that he owned, maintained, or controlled the premises on which it exists, such person has no responsibility therefor." Brunsfeld, 119 Ill. App. 3d at 345.
In each of these cases, the issue of control was inextricably linked to the ownership of land and to the rights and duties of a property owner. Control was relevant, not as an element of proximate cause, but as a remedial issue. These cases stand for the unremarkable proposition that an injunction will not issue, ordering a defendant to abate a nuisance upon the land, if he has no authority, by reason of ownership or possession, to enter upon the land. As such, these cases offer scant support for the imposition of a separate control requirement in public nuisance cases that are not predicated on the defendant's use of land.
Defendants call our attention to City of Bloomington, Indiana v. Westinghouse Electric Corp., 891 F.2d 611 (7th Cir. 1989), as an example of a case in which nuisance liability was precluded because the instrumentality of the nuisance was no longer in the control of the defendant. In City of Bloomington, the court of appeals, applying Indiana law, affirmed the trial court's dismissal of nuisance and other claims against Monsanto, the manufacturer of polychlorinated biphenyls (PCBs). Monsanto sold the PCBs to Westinghouse for use in manufacturing capacitors. Westinghouse improperly disposed of the toxic waste in various local landfills, and small amounts of PCBs were also discharged in the plant's sewer effluent. City of Bloomington, 891 F.2d at 613. The city sought damages and injunctive relief against both Westinghouse and Monsanto, under various theories of liability including public and private nuisance. City of Bloomington, 891 F.2d at 612. In affirming the dismissal of the nuisance counts against Monsanto, the court observed that the city had not "been able to find any cases holding manufacturers liable for public or private nuisance claims arising from the use of their product subsequent to the point of sale." City of Bloomington, 891 F.2d at 614. Further, since the pleadings did not "set forth facts from which it could be concluded that Monsanto retained the right to control the PCBs beyond the point of sale to Westinghouse," the court agreed with the district court's conclusion that Monsanto could not be held liable on a nuisance theory. City of Bloomington, 891 F.2d at 614.
We find City of Bloomington unpersuasive. Indeed, on similar facts, an Illinois court following the precedent established by this court in Brockman (143 Ill. 2d at 373-74) might have held that the city of Bloomington had stated a claim against Monsanto. See also City of Bloomington, 891 F.2d at 619 (Cudahy, J., dissenting) (suggesting that the majority had confused participation in the creation of the nuisance with control over the instrumentality).
Control is not a separate element of caus
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