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City of Chicago v. American Cyanamid Co.1/14/2005
se of illegal firearms can constitute a public nuisance, we must determine whether defendants' conduct in selling firearms that eventually are taken into the city of Chicago is a legal cause of the nuisance. Legal cause will be found if reasonable persons in the retail business of selling firearms would have seen the creation of the nuisance in the city of Chicago as a likely result of their conduct. [Citation.] 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." [Citation.] Clearly, the individuals who illegally possess and use firearms in the city of Chicago are not under the control of the dealer defendants. The question then becomes entirely one of foreseeability - Is the creation of a public nuisance in the city of Chicago so clearly foreseeable that the sales practices of these dealers should be deemed a legal cause of the nuisance even though it results from the criminal acts of third parties?" Beretta, slip op. at 44.
The Beretta court ultimately concluded, based on public policy grounds, that legal cause could not be established with respect to the dealer defendants. Beretta, slip op. at 46. As the court further explained:
" he alleged public nuisance is not so foreseeable to the dealer defendants that their conduct can be deemed a legal cause of a nuisance that is the result of the aggregate of the criminal acts of many individuals over whom they have no control. This is one of those ' "instances in which a party may have contributed in some remote way [to the harm] and yet it is inappropriate to subject that party to tort liability."
' [Citation.]" Beretta, slip op. at 49.
The Illinois Supreme Court also decided Young v. Bryco Arms, Nos. 93678, 93685, 93728 cons. (November 18, 2004 ) which was the private plaintiff version of Beretta. Again, the court held that the business practices of gun manufacturers, distributors, and dealers did not constitute a public nuisance because they were not the proximate cause of injuries to individuals shot and killed by third parties. In so doing, the court stated as follows:
"Ultimately, our conclusion that the doctrine of public nuisance does not encompass the novel claim made by plaintiffs is a public policy determination. See W. Keeton, Prosser & Keeton on Torts ยง 41, at 264 (5th ed.1984) (proximate cause is merely a boundary used to set liability for the consequences of any act and is based upon 'some social idea of justice or policy'). We note that despite the existence of numerous statutes declaring various practices and conditions to constitute public nuisances, we have no indication from the legislature that it would be inclined to impose public nuisance liability for the manufacture and sale of a product that may be possessed legally by some persons, in some parts of the state. We are reluctant to interfere in the lawmaking process in the manner suggested by plaintiffs, especially when the product at issue is already so heavily regulated by both the state and federal governments. We, therefore, conclude that there are strong public policy reasons to defer to the legislature in the matter of regulating the manufacture, distribution, and sale of firearms." Young, slip op. at 16-17.
See also Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536, 540 (3d Cir. 2001) ("Whatever the precise scope of public nuisance law in New Jersey may be, no New Jersey court has ever allowed a public nuisance claim to proceed again
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