City of Chicago v. Beretta U.S.A. Corp.
Case Date: 11/04/2002
Court: 1st District Appellate
Docket No: 1-00-3541 Rel
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FIRST DIVISION
No. 1-00-3541
The City of Chicago (City) and the County of Cook (County)(collectively, plaintiffs) filed suit against 18 firearm manufacturers, 4firearm distributors and 11 firearm dealers (collectively, defendants). Plaintiffs' original complaint asserted one count for public nuisance and onecount for negligent entrustment. The negligent entrustment count wasdismissed. Plaintiffs' second amended complaint, inter alia, alleges that thedefendants' marketing practices unreasonably facilitate the unlawfulpossession and use of firearms in Chicago, and that the defendants are liablefor participating in the creation and maintenance of a public nuisance. Following oral argument, the trial court's September 15, 2000, order granteddefendants' motions to dismiss "pursuant to 735 ILCS 5/2-615 and/or 2-619." Plaintiffs' second amended complaint was dismissed with prejudice. The issuepresented on review is whether the complaint properly pled a cause of actionfor public nuisance under Illinois law. BACKGROUND Plaintiffs filed suit against the defendants in November 1998. Plaintiffs filed a first amended complaint in April 1999. Defendants moved todismiss plaintiffs' first amended complaint. On February 10, 2000, the trialcourt dismissed count II (negligent entrustment) and reserved ruling on countI (public nuisance). Following the dismissal of count I, plaintiffs moved forleave to file a second amended complaint to add data from the Bureau ofAlcohol, Tobacco and Firearms (ATF). Specifically, plaintiffs' second amended complaint alleges: "35. Defendant dealers sell firearms to Chicago residents even whenthe purchasers' words and/or behavior indicate that they intend topossess or use the firearms illegally. 36. Defendant dealers sell handguns that are designed and marketed tobe carried as concealed weapons even though Illinois law prohibitscarrying concealed weapons, and do not inquire of buyers whether theyare authorized to carry concealed weapons nor warn them of the legalrestrictions on carrying concealed weapons. * * * 38. Despite their knowledge that Chicago residents purchase gunsoutside the City of Chicago and then bring them back into the City, andtheir knowledge both of the harm done in Chicago and of Chicago's strictgun control ordinances, defendant firearms dealers make no meaningfuleffort to prevent or limit the traffic of firearms into Chicago, butinstead choose to profit from such traffic. They do not refuse to sellto Chicago residents and do not require proof that Chicago residentsintend to maintain the firearms outside Chicago. They do not notify theChicago Police Department of sales to residents of Chicago. 39. *** Defendant gun dealers consciously fail to take any action toprevent violations of law when Chicago residents and others makemultiple purchases of guns, or otherwise purchase guns in a manner thatwould make it plainly foreseeable that the purchaser is not buying thoseweapons for himself, but instead for purposes of illegal resale. * * * 50. The defendant gun dealers' actions and omissions in sellingfirearms to Chicago residents that are illegal in the City of Chicagounreasonably facilitate violations of City ordinances, and contribute tophysical harm, fear and inconvenience to Chicago residents, and areinjurious to the public health and safety of Chicago residents. * * * 59. Defendant manufacturers and distributors knowingly oversupply or'saturate the market' with their products in areas where gun control laware less restrictive, knowing that persons will illegally bring theminto the jurisdictions where they are illegal and then possess orillegally resell them. * * * 64. The defendant gun manufacturers and distributors distributequantities of their firearms through low-end retailers such as pawnshops and gun stores that are known to be frequented by criminals andgang members. * * * 68. The defendant firearms manufacturers and distributors fail tosupervise, regulate or set standards for dealers' conduct, insteadrelying on the mere fact that the dealers are licensed by the federalgovernment. * * * 78. Defendant manufacturers design and advertise their guns to appealto the significant market for illegal firearms, including to those whowish to use them for criminal purposes. * * * 85. Defendants intentionally and recklessly design, market,distribute and sell firearms to persons whom defendants should know willbring those firearms into Chicago, causing thousands of firearms to bepossessed and used in Chicago illegally, which results in a higher levelof crime, death and injuries to Chicago citizens, a higher level offear, discomfort and inconvenience to the residents of Chicago, andincreased costs to the plaintiffs to investigate and prosecute crimescaused by the illegal possession and sue of the firearms brought intoChicago. Their conduct thereby causes a significant and unreasonableinterference with the public health, safety, welfare, peace, comfort andconvenience, and ability to be free from disturbance and reasonableapprehension of danger to person and property. * * * 93. The defendants' conduct is the direct and proximate cause ofdeaths and injuries to Chicago residents and a significant andunreasonable interference with public safety and health and the public'sright to be free from disturbance and reasonable apprehension of dangerto a person and property." The City requests allocated monetary damages attributable to each defendant tocompensate the City for the costs it bears as a result of the public nuisance,including costs of emergency medical response, police department programs, andthe prosecution of gun control ordinance violations. The County seekscompensation for the costs that it bears as a result of the defendants'conduct, including costs for treatment of victims of firearm violence and thecosts to prosecute and defend the criminal misuse of a firearm. The City and County also seek punitive damages to "punish and deter conduct thatintentionally and recklessly endangers the people of Chicago" and permanentinjunctive relief to abate the public nuisance caused by the defendants. Defendants moved to dismiss the plaintiffs' second amended complaintpursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615(West 2000)). The Sports Authority, Inc. (Sports Authority), a gun dealer,filed a separate motion to dismiss pursuant to section 2-619 (735 ILCS 5/2-619(West 2000)). In its oral ruling on September 15, 2000, granting defendants'motions to dismiss plaintiffs' second amended complaint, the trial courtstated: "With regard to the public nuisance count, to a large extent theplaintiffs rely on statistical data which really, even in statisticalterms, defines only a portion of the universe of experience andparticipants in the experience with regard to hand guns and hand gunviolence. At best, in terms of immediacy and proximity, both in terms of injuryand causation, contrary to the situation that was presented in caseslike Wilsonville, which both parties made allusion to and relied upon inargument, they suggest facts in my opinion that a legislative body couldtake notice of and consider and which a court, given Illinois's aversionto statistical bases for cause of actions, for example, in the marketshare area that relates to product liability, not directly germane butin some way instructive, in the Supreme Court's holding in the Lillycase, which I still believe is good law. This is not the basis that anIllinois court can *** use as essentially almost the sole basis fordeciding whether individual parties *** are responsible for a publicnuisance. I think the situation is somewhat distinct between the manufacturersand distributors and the individual dealers. With regard to the dealersin particular, I would be remiss in stating that the allegations in thecomplaint with regard to the majority of the dealers assert[] seriousallegations of fact which suggest evasion and violation of applicablelaw. * * * But consistent with the holding by the Illinois Supreme Court inFestival Theater [sic] and in numbers of cases, no showing has been madenor has an assertion even been made that applicable enforcement ofcriminal sanctions [has] been attempted and, if attempted, [has] beenshown to be inadequate. Accordingly, it's my decision that thecomplaint in toto with regard to all three classes, manufacturers,distributors and dealers, is dismissed." The trial court's September 15, 2000, order granted defendants' motionsto dismiss "pursuant to 735 ILCS 5/2-615 and/or 2-619." Plaintiffs' secondamended complaint was dismissed with prejudice. Pursuant to Rule 304(a) (155Ill. 2d R. 304(a)), the order was final and appealable. Plaintiffs' jointnotice of appeal seeks a review of the September 15, 2000, order dismissingcount I (public nuisance) of plaintiffs' second amended complaint withprejudice and the order of February 10, 2000, which dismissed count II(negligent entrustment) of plaintiffs' first amended complaint. However, theappellate briefs submitted by plaintiffs only address the dismissal of thepublic nuisance count of the second amended complaint, and the dismissal ofthe negligent entrustment count is not challenged on appeal. On appeal, Sports Authority contends: (1) plaintiffs' second amendedcomplaint does not demonstrate how Sports Authority knew or should have knownthat any purchaser would use the guns for an unlawful purpose; (2) SportsAuthority stopped selling guns in April 1999 and, therefore, the plaintiffs'claims are moot; and (3) the plaintiffs have waived any arguments in responseto Sports Authority's section 2-619 motion by not addressing the issues raisedin that motion or rebutting the accompanying affidavits in their opening briefhere. Before we begin our analysis of the public nuisance issue, we willaddress issues raised by Sports Authority. We disagree with Sports Authority's contention that the issues raised bythe plaintiffs in its second amended complaint have been waived. The secondamended complaint related to all named defendants, including Sports Authority. In its ruling, the trial court did not specifically refer to SportsAuthority's separate motion. Rather, the trial court opined that thesituation was somewhat distinct between the manufacturers and distributors andindividual dealers. However, the trial court used the same basis to dismissthe complaint against all defendants. Therefore, we will review the issue ofwhether plaintiffs stated a cause of action for public nuisance. ANALYSIS I. STANDARD OF REVIEW A motion to dismiss a complaint pursuant to section 2-615 (735 ILCS5/2-615 (West 2000)) attacks the legal sufficiency of the complaint byalleging defects on the face of the complaint. Weatherman v. Gary-WheatonBank of Fox Valley, N.A., 186 Ill. 2d 472, 491, 713 N.E.2d 543 (1999). Inreviewing the sufficiency of a complaint, the court must accept as true allwell-pleaded facts in the complaint and all reasonable inferences that can bedrawn from those facts. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 86, 672 N.E.2d 1207 (1996). The court must determine whether theallegations of the complaint, when considered in the light most favorable tothe plaintiff, are sufficient to state a cause of action upon which relief canbe granted. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490, 675 N.E.2d 584(1996). A cause of action will not be dismissed on the pleadings unless itclearly appears that no set of facts can be proved that will entitle theplaintiff to relief. Board of Directors of Bloomfield Club Recreation Ass'nv. The Hoffman Group, Inc., 186 Ill. 2d 419, 424, 712 N.E.2d 330 (1999). "Pleadings are to be liberally construed, and a pleader is not required to setout his evidence but only the ultimate facts to be proved." Gilmore v.Stanmar, Inc., 261 Ill. App. 3d 651, 654, 633 N.E.2d 985 (1994). The standardof review on appeal from an order granting a section 2-615 motion to dismissis de novo. Weatherman, 186 Ill. 2d at 491. II. ELEMENTS OF PUBLIC NUISANCE Illinois courts have adopted the Restatement (Second) of Tortsdefinition of public nuisance. Young v. Bryco Arms, 327 Ill. App. 3d 948,958, 765 N.E.2d 1 (2001), citing Wheat v. Freeman Coal Mining Corp., 23 Ill.App. 3d 14, 18, 319 N.E.2d 290 (1974). "A public nuisance is an unreasonableinterference with a right common to the general public." Restatement (Second)of Torts |
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