City of Chicago v. American Cyanamid Co.1/14/2005
This is a public nuisance case. Plaintiff, the City of Chicago, has filed suit against American Cyanamid Company, Atlantic Richfield Company, BP Corporation North America, Inc., BP America, Inc., Conagra Foods, Inc., Conagra Grocery Products Company, E.I. du Pont de Nemours and Company, Millenium Chemicals, Inc., Millenium Inorganic Chemicals, Inc., NL Industries, Inc., and the Sherwin-Williams Company, which are entities that manufactured or sold lead pigments or lead-based paint at some time prior to 1978. Plaintiff alleges that the continued presence of lead-based paint in the City of Chicago constitutes a public nuisance that defendants created by continuing to manufacture, market, and promote lead-based paint for use in areas accessible to children long after they knew or should have known that lead-based paint is hazardous to children. The trial court dismissed plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)) for failing to state a claim. We affirm.
I. BACKGROUND
On September 5, 2003, plaintiff filed a one-count complaint sounding in public nuisance against defendants, which was later amended. On October 7, 2003, the circuit court dismissed plaintiff's action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)) for failing to state a claim. Plaintiff filed this timely appeal. Pursuant to Supreme Court Rule 345 (155 Ill. 2d R. 345), we allowed the Alliance for Healthy Homes, American Public Health Association, Day Care Action Council of Illinois , Health and Disability Advocates, Infant Welfare Society of Chicago , Illinois Chapter of the American Academy of Pediatrics, Illinois Public Health Association, Lawyers' Committee for Better Housing, Metropolitan Tenants Organization, Uptown People's Law Center and Voices for Illinois Children to file a brief amici curiae in support of the plaintiffs. We also allowed the Illinois Manufacturers' Association and the Product Liability Advisory Council to file briefs amici curiae on behalf of the defendants.
On November 16, 2004, oral arguments were heard by this court. Two days later, on November 18, 2004, our supreme court filed its opinions in City of Chicago v. Beretta U.S.A. Corp., Nos. 95243, 95280, 95253, 95256 cons. (November 18, 2004), and Young v. Bryco Arms, Nos. 93678, 93685, 93728 cons. (November 18, 2004), which were public nuisance actions against gun manufacturers, distributors and dealers. In both cases, our supreme court affirmed the dismissals of the cases, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5.2-615 (2000)), for failing to state a cause of action. We allowed the parties to address the effect, if any, that Beretta had on their respective positions. Plaintiff has now conceded that under Beretta it is foreclosed from seeking economic damages here, in the absence of physical harm to city property or other direct injury . Beretta, slip op. at 57. Therefore, plaintiff no longer seeks monetary damages to compensate it for costs it incurred in past lead-abatement efforts. However, plaintiff contends that the holding in Beretta does not apply to the injunctive relief it seeks. Plaintiff requests an injunction to abate the alleged nuisance by having defendants establish and fund an abatement program to remove lead-based paint from areas accessible to children and to take any other step necessary to abate the alleged nuisance. Plaintiff also seeks punitive damages.
II. ANALYSIS
Our review of the circuit court's order granting defendants' motion to dismiss is de novo. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147-48 (2002). The Illinois Supreme Court recently reiterated the wel
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