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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
sances §1, at 1-3 (3d ed. 1893).
The promulgation of the Restatement of Torts in 1939 was the first "significant attempt to determine some limits to the types of tort liability" associated with nuisance. W. Keeton, Prosser & Keeton on Torts §86, at 617 (5th ed. 1984). Two lines of development in the case law were noted, one "narrowly restricted to the invasion of interests in the use or enjoyment of land," which has come to be known as private nuisance; the other "extending to virtually any form of annoyance or inconvenience interfering with common public rights," which is known as public nuisance. W. Keeton, Prosser & Keeton on Torts §86, at 618 (5th ed. 1984). While private nuisance is "a civil wrong, based on a disturbance of rights in land," public nuisance is "a species of catch-all criminal offense, consisting of an interference with the rights of the community at large." W. Keeton, Prosser & Keeton on Torts §86, at 618 (5th ed. 1984).
The Restatement definitions of public and private nuisance are consistent with Illinois law. See Wheat v. Freeman Coal Mining Corp., 23 Ill. App. 3d 14, 18 (1974) (citing Illinois cases from 1901 to support conclusion that Illinois courts have adopted the Restatement definition of nuisance); Gilmore v. Stanmar, Inc., 261 Ill. App. 3d 651, 660 (1994) (summarizing cases). See also Donaldson, 199 Ill. 2d at 101 (adopting language contained in the then-draft of section 821B of the Restatement (Second) of Torts), quoting Commonwealth Edison, 24 Ill. App. 3d at 631.
With regard to public nuisance, section 821B of the Restatement (Second) of Torts states: "(1) A public nuisance is an unreasonable interference with a right common to the general public." Restatement (Second) of Torts §821B (1979). Thus, it is generally recognized that:
"A public nuisance, unlike a private nuisance, does not necessarily involve an interference with the use and enjoyment of land, or an invasion of another's interest in the private use and enjoyment of land, but encompasses any unreasonable interference with a right common to the general public. Thus, an action for public nuisance may lie even though neither the plaintiff nor the defendant acts in the exercise of private property rights." 58 Am. Jur. 2d Nuisances §31, at 592 (2002).
See also Festival Theatre, 91 Ill. 2d at 313-15 (equitable jurisdiction to abate public nuisances exists even where such is not conferred by statute, offender is amenable to criminal law, and no property right is involved).
We therefore reject plaintiffs' argument that their claim "squarely attacks the manner in which the defendants use their property, namely, the way in which they sell firearms from their various plants, offices, and stores." The mere fact that defendants' conduct in their plants, offices, and stores puts guns into the stream of commerce does not state a claim for public nuisance based on their use of land. It is the presence and use of the guns within the city of Chicago that constitutes the alleged nuisance, not the activities at the defendants' various places of business. However, because it is clear that neither the use or misuse of land nor the invasion of property rights of another is required for a public nuisance to be found, plaintiffs' theory of liability is not absolutely foreclosed by the existing common law of public nuisance. We, therefore, proceed to consider the legal adequacy of the second amended complaint and to address the issues raised by defendants.
B. Pleading Requirements
The manufacturer defendants argue that the appellate court, relying on the proposition that the pleading requirements in an action for public nuisance ar
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