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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
ary facts tending to prove such ultimate facts." Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 348 (2003). Plaintiffs contend that they have set out such ultimate facts and suggest that if they are permitted to conduct discovery, additional supporting facts will come to light. Plaintiffs rely heavily on the facts underlying the trace data and the "time to crime" statistics which, they claim, point to these defendants as contributing to the problem of illegal guns to a degree that is not merely a function of their sales volume.
A sufficient pleading in a public nuisance cause of action will allege a right common to the general public, the transgression of that right by the defendant, and resulting injury . Feder v. Perry Coal Co., 279 Ill. App. 314, 318 (1935). To be more precise, facts must be alleged in support of four distinct elements of a public nuisance claim: the existence of a public right, a substantial and unreasonable interference with that right by the defendant, proximate cause, and injury.
A close examination of the second amended complaint reveals that factual allegations are sparse, particularly with respect to the individual manufacturer and distributor defendants. We note, however, that factual allegations with regard to the individual dealer defendants are somewhat more detailed. Although we have reservations regarding the adequacy of the second amended complaint under our fact-pleading standard, we decline to dispose of this case on a procedural issue. The questions of law raised by this appeal are of great importance, have been fully briefed and argued, and provide a substantive basis for resolving this case.
Turning to these substantive issues, we consider each of the required elements of the public nuisance cause of action in turn, beginning with the existence of a public right. Under the heading of "Unreasonable Interference," we consider the argument that the lawful sale of a non-defective product cannot, as a matter of law, constitute a public nuisance and the related argument that defendants' compliance with applicable state and federal laws precludes liability for public nuisance. Under heading of "Proximate Cause," we address the argument that defendants may not be held liable in public nuisance when they have no control over the instrumentality at the time the alleged harm results from the criminal acts of third parties, as well as the argument that their conduct is too remote from the alleged injury for liability to attach. After addressing each of the elements of the claim, we consider the remedial issues raised by the defendants.
We now turn to our examination of the elements of the public nuisance cause of action to determine whether plaintiffs have stated a cause of action in which, if they were to prevail, the remedies they seek might be available.
C. Public Right
A public nuisance has been defined as " `the doing of or the failure to do something that injuriously affects the safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public.' " Village of Wilsonville v. SCA Services, Inc., 86 Ill. 2d 1, 21-22 (1981), quoting W. Prosser, Torts §88, at 583 n.29 (4th ed. 1971). Thus, the first element that must be alleged to state a claim for public nuisance is the existence of a right common to the general public. Such rights include the rights of public health, public safety, public peace, public comfort, and public convenience. Restatement (Second) of Torts §821B(2)(a) (1979).
In the second amended complaint, plaintiffs allege that the residents of Chicago have "a common right to be free from conduct that creates an unreasonable jeopard
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