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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
age's placement of barricade across vacated street was condition, not legal cause, of automobile's collision with the barricade where intervening efficient cause was driver's negligence); Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300 (1942) (height and condition of wires was condition, not legal cause, of injury where efficient intervening cause was negligence of crane operator who caused crane to come into contact with wires); Thompson v. County of Cook, 154 Ill. 2d 374 (1993) (county's failure to post warning sign at dangerous curve was condition, not legal cause, of injury where efficient intervening cause of death of passenger was recklessness of drunken driver); see also Abrams, 211 Ill. 2d at 260. This court concluded in Galman that when, as in these cases, plaintiff's injury directly results from the subsequent, independent act of a third person, the "material and substantial element" test of Lee is applied by asking "whether the intervening efficient cause was of a type that a reasonable person would see as a likely result of his or her conduct." Galman, 188 Ill. 2d at 259. As the Merlo court noted over 60 years ago:
"If the act of a third party is the immediate cause of the injury and is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the original wrong, the connection is broken and the first act or omission is not the proximate cause of the injury. There may be more than one proximate cause of an injury. But if two wholly independent acts, by independent parties, neither bearing to the other any relation or control, cause an injury by one creating the occasion or condition upon which the other operates, the act or omission which places the dangerous agency in operation is the efficient intervening cause that breaks the casual connection and makes the other act or omission the remote and not the proximate cause of the injury." Merlo, 381 Ill. at 317.
Applying this analysis, this court in Galman determined that an illegally parked tanker truck was a cause in fact of the fatal injury of plaintiff's decedent, but was not the legal cause. Galman, 188 Ill. 2d at 259-60.
Having assumed, arguendo, that the presence and use of illegal firearms can constitute a public nuisance, we must determine whether defendants' conduct in selling firearms that eventually are taken into the city of Chicago is a legal cause of the nuisance. Legal cause will be found if reasonable persons in the retail business of selling firearms would have seen the creation of the nuisance in the city of Chicago as a likely result of their conduct. See Galman, 188 Ill. 2d at 259. However, legal cause will not be found where the criminal acts of third parties have broken the causal connection and the resulting nuisance "is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the original wrong." Merlo, 381 Ill. at 317. Clearly, the individuals who illegally possess and use firearms in the city of Chicago are not under the control of the dealer defendants. The question then becomes entirely one of foreseeability-Is the creation of a public nuisance in the city of Chicago so clearly foreseeable that the sales practices of these dealers should be deemed a legal cause of the nuisance even though it results from the criminal acts of third parties?
Dealer defendants argue that this question was resolved by the appellate court in Riordan and Linton. Linton was a personal injury case in which the court held that the manufacturer of a firearm had no duty to the particular plaintiff who was shot by a third party. Linton,
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