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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
127 Ill. App. 3d at 678-79. Riordan involved wrongful-death claims against the manufacturers and distributors of guns used in fatal shootings. The appellate court held that these defendants had no duty to the victims of crimes committed by third parties. Riordan, 132 Ill. App. 3d at 646. Neither case discussed the element of causation and in neither case was the dealer who sold the gun a defendant, so we find these cases informative, but not dispositive, of the present case.
The City responds to the question of legal cause and the related remoteness argument by stating that the "entire object of the scheme alleged in the complaint is to exploit the demand for illegal firearms within Chicago . The complaint pleads not only foreseeability, but that defendants intend to market and distribute firearms in a manner than facilitates their unlawful use and possession in Chicago." The city acknowledges multiple links in the causal chain between defendants' actions and the alleged nuisance, but claims that the complaint "demonstrates exactly how each defendant has participated in distribution channels that supply grossly disproportionate numbers of guns to criminals in Chicago."
The city also argues that Rowe v. State Bank of Lombard, 125 Ill. 2d 203 (1988), is dispositive of this case. In Rowe, this court stated that a defendant may be held liable in negligence if he creates a condition conducive to a foreseeable intervening criminal act. Rowe, 125 Ill. 2d at 224. The condition at issue in Rowe was a criminal's ability to gain entry to an office by using a master key that he had obtained while working as a construction laborer on the site. Rowe, 125 Ill. 2d at 225. Under the circumstances alleged, which included previous crimes committed on the premises with no sign of forcible entry, this court held that an assault and murder "were within the scope of the foreseeable risk created by the inadequate control with regard to the master and grandmaster keys." Rowe, 125 Ill. 2d at 227. Because the issue under discussion in Rowe was the existence of a duty, not the existence of legal cause, Rowe is not dispositive of the present case.
A familiar treatise on torts warns that " t must be remembered that the mere fact that misconduct on the part of another might be foreseen is not of itself sufficient to place the responsibility upon the defendant." W. Keeton, Prosser & Keeton on Torts §44, at 305 (5th ed. 1984). Further, " ven though the intervening cause may be regarded as foreseeable, the defendant is not liable unless the defendant's conduct has created or increased an unreasonable risk of harm through its intervention." W. Keeton, Prosser & Keeton on Torts §44, at 305 (5th ed. 1984). These comments, contained in the section of the treatise discussing intervening causes, refer the reader to the earlier discussion of the standard of conduct: "Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. W. Keeton, Prosser & Keeton on Torts §33, at 201 (5th ed. 1984). In "other situations," however, the actor may have a duty of care for the protection of others. Such situations include situations in which the actor has a special responsibility for the protection of the plaintiff, perhaps arising by contract or founded upon a special relationship between the two, and where there is "an especial temptation and opportunity for criminal misconduct brought about by the defendant." W. Keeton, Prosser & Keeton on Torts §33, at 201-03 (5th ed. 1984).
These excerpts from the treatise illustrate the link between the questions of the existence of a duty and
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