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Young v. Arms11/18/2004
).
Thus, although the cases cited by plaintiffs do not support their theory, their claim is not foreclosed simply because it is not predicated on defendants' use of land. See City of Chicago , slip op. at 10.
Defendants respond that even if liability for public nuisance may be imposed in the absence of an interference with the use and enjoyment of land, they still may not be held liable for the criminal acts of third parties. They invoke a "long-standing rule of Illinois law that civil liability for the criminal acts of third parties will not be imposed unless there is a special relationship" between the parties.
This court has, indeed, recognized such a rule. See, e.g., Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 503 (1988) (stating that, in general, one has no duty to control the conduct of another to prevent him from causing harm to a third party, absent a special relationship with either the person causing the harm or the injured party). See also Restatement (Second) of Torts ยงยง315 through 321 (1965) (duty to control conduct of third persons). The existence of a special relationship, however, goes to the question of duty, not to proximate cause.
Turning, then, to the question of proximate cause, legal cause will be found if reasonable persons in the businesses of manufacturing and selling firearms would have seen the creation of a public nuisance in the City of Chicago as a likely result of their conduct. City of Chicago, slip op. at 44, citing Galman, 188 Ill. 2d at 259. However, legal cause will not be found where the criminal acts of third parties have broken the causal connection and the resulting nuisance "is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the original wrong." City of Chicago, slip op. at 44, citing Merlo v. Public Service Co. of Northern Illinois , 381 Ill. 300, 317 (1942).
Even if defendants are guilty of an "original wrong," that is, a breach of duty, it is clear that the gun-wielding killers of Young and Ceriale were not under defendants' control. Thus, the question of legal cause is entirely one of foreseeability-Is the creation of a public nuisance in the City of Chicago so clearly foreseeable that the business practices of these defendants should be deemed a legal cause of the nuisance, even though it results from the cumulative effect of numerous criminal acts by many third parties? See City of Chicago, slip op. at 44.
We conclude not. In City of Chicago, we noted that we had found no reported cases in which a nuisance claim was dismissed at the pleading stage based on lack of legal cause. However, we found the case of Watson v. Enterprise Leasing Co., 325 Ill. App. 3d 914 (2001), in which the theory of liability was negligent entrustment, to be instructive. City of Chicago, slip op. at 47. The defendant was a merchant who leased a vehicle to one party with the knowledge that it was likely to be driven by one or more third parties. The lessor entrusted the vehicle to a friend, from whom it was taken by a third person. Eventually, a fourth person-an intoxicated minor-took the keys and caused an accident that killed his passenger. Watson, 325 Ill. App. 3d at 917-20. Affirming the trial court's grant of summary judgment for the defendant, the appellate court noted that the element of cause in fact had been satisfied. Absent the leasing of a car to the first individual, the death would not have occurred-at least not in an accident involving this particular vehicle. Watson, 325 Ill. App. 3d at 924. The intoxicated driver would either not have driven at all and there would have been no accident, or he woul
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