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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
control, specifically, the criminal acts of others after the firearms have left their possession; (5) plaintiffs are barred from any recovery of damages in this case based on the economic loss doctrine and the doctrine prohibiting a municipality from recovering the expenses of local governmental services from alleged tortfeasors in the absence of statutory authority; and (6) the state and federal constitutions forbid the imposition of civil liability for the purpose of regulating extraterritorial commercial conduct.
The distributor defendants adopt these arguments and, with respect to (4) above, make the related argument that the claim against them sounds in negligent entrustment, not public nuisance, and because they provide firearms only to licensed dealers, not to individual consumers, they cannot be held liable for the actions of the ultimate purchaser based on negligent entrustment.
The dealer defendants make the additional argument, related to (2) above, that their practices cannot be deemed unreasonable if they are in compliance with all applicable state and federal regulations.
III. ANALYSIS
A motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2000)) challenges the legal sufficiency of the complaint by alleging defects on its face. We, therefore, review de novo an order granting or denying a section 2-615 motion. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). In reviewing the sufficiency of a complaint, we accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. Jarvis v. South Oak Dodge, Inc., 201 Ill. 2d 81, 86 (2002). In addition, we construe the allegations in the complaint in the light most favorable to the plaintiff. Wakulich, 203 Ill. 2d at 228. When the plaintiff's theory of liability is public nuisance, the pleading requirements are not exacting because the "concept of common law public nuisance * elude precise definition." City of Chicago v. Festival Theatre Corp., 91 Ill. 2d 295, 306 (1982). The existence of a nuisance " `depends on the peculiar facts presented by each case.' " Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 101 (2002), quoting City of Chicago v. Commonwealth Edison Co., 24 Ill. App. 3d 624, 631-32 (1974).
A. The Common Law of Public Nuisance
Because the concept "elude precise definition," public nuisance has been " `negatively defined' " by distinguishing it from other tort actions, such as trespass. Festival Theatre, 91 Ill. 2d at 306, quoting O. Reynolds, Public Nuisance: A Crime in Tort Law, 31 Okla. L. Rev. 318, 318 (1978). As one learned treatise notes:
"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance.' It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition." W. Keeton, Prosser & Keeton on Torts ยง86, at 616 (5th ed. 1984).
It is well settled, however, that public nuisance encompasses:
"that class of wrongs that arise from the unreasonable, unwarrantable or unlawful use by a person of his own property, real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction of, or injury to, a right of another or of the public. * It is a part of the great social compact to which every person is a party, a fundamental and essential principle in every civilized community, that every person yields a portion of his right of absolute dominion *." H. Wood, A Practical Treatise on the Law of Nui
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