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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
of this marketing strategy, which "intentionally and recklessly causes thousands of illegal firearms to end up in Chicago."
Based on these allegations, the second amended complaint states in "Count I: Public Nuisance" that the residents of Chicago "have a common right to be free from conduct that creates an unreasonable jeopardy to the public's health, welfare and safety, and to be free from conduct that creates a disturbance and unreasonable apprehension of danger to person and property." The defendants' conduct of "intentionally and recklessly" designing, marketing, distributing, and selling firearms that they "should know" will be taken to Chicago causes "thousands of firearms to be possessed and used in Chicago illegally" and causes "a significant and unreasonable interference" with the rights of the public. Further, the complaint alleges that the conduct is of a continuing nature and has created an on-going nuisance.
The complaint also alleges that defendants "owe a duty of care to the City of Chicago and its residents and the County of Cook and its residents living within Chicago to exercise reasonable care to prevent their firearms from ending up in the hands of persons who use and possess them illegally" in the city. In addition to this allegation, which sounds in negligence, the complaint alleges that defendants' conduct is "outrageous" and is "committed with a reckless and wanton indifference to the rights and safety of others."
With regard to the remedy sought, the complaint states that the defendants' conduct causes increased expenditures by the city and county that should be compensated by money damages. In addition, because money damages "will not adequately compensate" plaintiffs for the harm suffered, they do not have an adequate remedy at law. Injunctive relief is proper, plaintiffs claim, because they and the residents of the city will continue to suffer irreparable harm in the absence of an injunction.
In sum, plaintiffs' theory is that the defendants' conduct in designing, manufacturing, distributing, and selling certain models of handguns is done with the knowledge, if not the intent, that a significant number of the guns will ultimately find their way into an illegal secondary gun market and then into hands of persons who cannot legally possess those guns within the city of Chicago . Further, the plaintiffs allege that this conduct is unreasonable, even if it may be generally in compliance with applicable state and federal laws governing the sale of firearms, because the presence and use of these guns by the people who possess them illegally, with the substantial participation of the defendants, violates the right of the general public to be free from the threat of gun violence and from jeopardy to health and safety. Finally, plaintiffs allege that the defendants' unreasonable conduct is the proximate cause of a substantial interference with the ability of Chicago residents to live in the city without fear, inconvenience, or undue risk of physical injury , and of the resulting demand on the plaintiffs' limited resources.
II. ISSUES PRESENTED
Before this court, the manufacturer defendants argue that the trial court properly dismissed the second amended complaint because: (1) plaintiffs' complaint alleges conclusions, not specific underlying facts, and thus does not conform to the fact-pleading standard; (2) the lawful sale of a non-defective product cannot, as a matter of law, constitute a public nuisance; (3) their conduct is so remote from the alleged injury that, as a matter of law, the plaintiffs cannot establish proximate cause; (4) they are not liable under public nuisance law for a situation over which they have no
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