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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
ation in nuisance cases that must be pleaded and proven in addition to cause in fact and legal cause. It is, rather, a relevant factor in both the proximate cause inquiry and in the ability of the court to fashion appropriate injunctive relief. When the nuisance results from a condition or conduct upon land, control over the land is generally a necessary prerequisite to the imposition of liability. See Brockman, 143 Ill. 2d at 373. However, when the nuisance results from the use or misuse of an object apart from land, or from conduct unrelated to a defendant's use of land, lack of control of the instrumentality at the time of injury is not an absolute bar to liability.
In the present case, the dealer defendants had ownership and control of firearms at some point in the distribution chain. If a public nuisance later results from the illegal use of the firearms by third parties, liability in public nuisance is not necessarily precluded simply because defendants no longer control the objects. The types of injunctive relief sought (i.e., requiring these defendants to obtain proof that a Chicago resident making a gun purchase has a place outside the city in which he can legally maintain the firearm; prohibiting repeat sales to the same customer within 30 days of a previous purchase) do not require them to be able to exert control over the firearms that have already left their possession.
As for the question of cause in fact, the second amended complaint contains detailed allegations regarding the dealer defendants' participation in bringing about the alleged nuisance, specifically their conduct leading up to and at the point of sale. Dealer defendants remark that these allegations pertain only to police "sting" operations and not to actual sales of firearms that were subsequently used illegally in the city. The relevant inquiry is whether the harm would have occurred absent the defendants' conduct or, in the alternative, whether defendants' conduct was a material element and a substantial factor in bringing about the harm. Lee, 152 Ill. 2d at 455. Where reasonable minds could differ, the question of whether the defendant's conduct was a substantial factor or a material element is for the jury to decide. Lee, 152 Ill. 2d at 455. We are unwilling to state as a matter of law that plaintiffs have failed to raise an issue of material fact with regard to cause in fact.
As for the question of legal cause, defendants' lack of control over the firearms at the time of injury is related to their argument that their conduct was so far removed from the eventual criminal acts that, as a matter of policy, it would not be appropriate to hold them legally responsible. We now turn to that argument.
2. Remoteness
Dealer defendants argue that any nuisance resulting from the possession and use of firearms in the city is caused not by their conduct but by the independent, criminal acts of third parties. Defendants assert that their selling of firearms merely furnishes a condition by which the criminal acts of others are made possible and is, thus, too remote to constitute legal cause of a nuisance that results from the aggregate effect of many such acts. They further argue that under Riordan and Linton, the criminal misuse of a firearm is not a foreseeable consequence of the lawful sale of firearms to the general public.
In response to defendants' remoteness argument, the appellate court ruled that plaintiffs sufficiently pleaded "resulting injury" by alleging "facts that, notwithstanding actual knowledge that the guns would be brought into Chicago and used in crimes, the manufacturers, distributors, and dealers failed to alter their actions, thereby creating a public
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