Young v. Bryco Arms
Case Date: 12/31/2001
Court: 1st District Appellate
Docket No: 1-01-0739,
0740,
0742 co
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FIRST DIVISION 1-01-0739, 1-01-0740, 1-01-0742 consolidated
Plaintiffs are the surviving relatives of five individuals who were shotand killed in Chicago by juveniles with access to handguns. The defendantsare various manufacturers, distributors and dealers of handguns. Three complaints, filed separately, were consolidated for the purpose ofthis appeal: (1) Stephen Young filed a complaint on behalf of his son, AndrewYoung, who was killed on the streets of Chicago by a juvenile street gangmember using a gun manufactured by defendant Bryco Arms (Bryco) (Young v.Bryco Arms, No. 98 L 6684); (2) Obrellia Smith filed a complaint on behalf ofher daughter, Salada Smith, who was killed in the course of a drive-byshooting by a juvenile gang member using a gun manufactured by defendantNavegar, Inc. (Navegar) (Smith v. Navegar, Inc., No. 98 L 13465); and (3)Anthony Ceriale filed a complaint on behalf of his son, Michael Ceriale, whowas killed in the course of his duties as a Chicago police officer by ajuvenile gang member using a .357 Magnum revolver manufactured by defendantSmith & Wesson Corporation (Smith & Wesson) (Ceriale v. Smith & Wesson Corp.,No. 99 L 05628). After a ruling issued by the trial court on May 11, 2000, plaintiffsYoung and Smith amended their complaints, in part, to include two additionalplaintiffs. Young added plaintiff Arlene Macias, suing on behalf of her sonMiguel Macias, who was killed in Chicago by a juvenile gang member using a .38caliber semi-automatic handgun that was never recovered. Smith addedplaintiff Rasell Bowman, suing on behalf of her son Willie Lee Lomax III, whowas killed in Chicago by a 14-year-old gang member using a .38 caliberrevolver that was also never recovered. The plaintiffs' complaints allege a public nuisance claim againsteighteen firearm manufacturers, four wholesale distributors and two suburbanretail gun dealers who, according to the complaints, are all individuallyresponsible for the public nuisance of widely available handguns that areaccessible to juveniles in the City of Chicago. The defendants filed various motions to dismiss plaintiffs' publicnuisance claims. On February 14, 2001, the trial court held in favor of theplaintiffs, ruling that the plaintiffs stated a cause of action in publicnuisance against the defendants. The trial court then certified the followingquestion pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) for immediateinterlocutory appeal: "Does plaintiffs' Fifth Amended Complaint in Young v. Bryco Arms, No.98 L 6684, and plaintiffs' Third Amended Complaint in Smith v. Navegar,Inc., No. 98 L 13465, and plaintiffs' Third Amended Complaint in Cerialev. Smith & Wesson Corp., No. 99 L 05628, state a viable public nuisancecause of action under Illinois law against the defendants in thoserespective cases?" On March 6, 2001, the defendants moved for leave to appeal the trial court'sorder of February 14, 2001, as certified on February 20, 2001. This motionwas granted on March 22, 2001. BACKGROUND Plaintiffs' Complaints The complaints assert that the plaintiffs and others possess a publicright to use the streets and other public places within the City of Chicagowithout fear, apprehension and undue risk of injury to themselves or to theirfamilies. Plaintiffs allege that defendants' marketing and distributionpractices have unreasonably interfered with this public right by virtue of thewide availability of handguns that are accessible to juveniles in Chicago. Specifically, plaintiffs allege that defendants produce and sellhandguns that are designed to appeal to criminally oriented juvenile streetgangs and other criminals. For example, defendant Navegar markets the TEC-DC9, a military-style assault weapon that features a silencer, a sling swivelto facilitate spray firing of the weapon and a finish that provides resistenceto fingerprints. Defendant Bryco Arms markets the Bryco 59, a semi-automatichandgun that is small, easily concealable and inexpensive. Defendant Smith &Wesson markets the .357 Magnum revolver as a "man stopper," which is capableof firing a longer than usual round and propelling a bullet more rapidly so asto do more damage to the intended target. Plaintiffs also allege that defendants: (1) distributed firearms througha market structure intentionally created by defendants by relying on low-endretailers who encourage purchasers to illegally transport weapons to Chicago;(2) failed to regulate or discipline known irresponsible dealers; (3) floodedthe market in areas surrounding Chicago, knowing and foreseeing that excessfirearm supply would be taken to Chicago and possessed and used illegally; and(4) created and maintained an underground market for handguns "knowing andintending this result." Chain of Distribution Plaintiffs allege the following facts regarding the circumstancessurrounding the death of plaintiffs' decedents. First, the Young complaintalleges that Andrew Young was shot and killed on June 10, 1996, at the cornerof Clark and Howard Streets in Chicago. The complaint asserts that MarioRamos shot Young at the instigation of Roberto Lazcalo, who was allegedlyassociated with the Latin Kings. The firearm used by Ramos was Bryco 59manufactured by defendant Bryco Arms. It was shipped to defendant distributorJennings Firearms, Inc., on July 23, 1993. On July 28, 1993, Jennings shippedthe weapon to defendant distributor Riley's, Inc. Riley's then shipped thegun to defendant retail seller Breit & Johnson Sporting Goods, Inc., on August6, 1993, located in Oak Park, Illinois. The complaint further alleges thatBryco was on notice that both Jennings and Riley's were among a core group of10 irresponsible distributors who acted as distributors for nearly half of thefirearms traced to crimes in Chicago. The complaint alleges that Riley's wasalso on notice that Breit & Johnson was one of a core group of 24irresponsible gun dealers operating in Chicago. On September 7, 1993, the gun was sold to Mariano DiVittorio undercircumstances which the plaintiffs allege should have alerted Breit & Johnsonthat this was a "straw purchase" (i.e. purchased not for DiVittorio himself,but for the benefit of Daniel Escobedo, a notorious convicted felon with tiesto the Latin Kings street gang). Escobedo then directly or indirectly causedthe gun to be transferred to the Latin Kings, making it available to RobertoLazcalo and Mario Ramos, who used it to kill Andrew Young. According to the Young complaint, coplaintiff Miguel Macias was shot andkilled on June 4, 1997, by Christopher Raygoza, age 19, Leslie Matos, age 18,and Raul Quezada, age 14, at a pizza shop. Although the complaint allegesthat Macias was shot with a .38-caliber semi-automatic handgun, the weapon wasnever recovered. Second, the Smith complaint alleges that Salada Smith was murdered onJune 22, 1997, and that Darnell Foxx was one of three juveniles arrested andcharged with her death. The complaint states that the TEC-DC9 used to killSmith was manufactured and marketed by defendant Navegar. On February 3,1992, Navegar shipped the gun to a distributor called RSR Wholesale Guns. RSRthen shipped the gun to retailer Perry's Trading Post in Greenwood,Mississippi on February 17, 1992. Approximately two and a half weeks beforeRSR shipped the weapon, the partners who owned Perry's were indicted by thefederal government for illegal gun sales. The complaint alleges that RSR anddefendant Navegar knew or reasonably should have known that the principals ofPerry's Trading Post were engaged in illegal gun sales at the time the weaponwas shipped to Perry's. Perry's then allegedly sold the gun to an unknown purchaser on March 28,1992. Following that sale, the weapon flowed into an underground market andwas owned by the Vice Lords street gang in Chicago. On June 22, 1997, it wasused by 15-year-old Darnell Foxx to kill Salada Smith and her unborn child ina gang-related drive-by shooting. The Smith complaint further alleges that co-plaintiff Willie Lee LomaxIII was murdered by 14-year-old Christopher Kronenberger, a member of the TwoSix street gang. The firearm used to kill Lomax was allegedly a .38 caliberrevolver, but was never recovered. Third, the Ceriale complaint alleges that police officer Michael Cerialewas shot on August 15, 1998, while he was conducting a narcotics surveillancein a vacant lot in Chicago. He died on August 21, 1998. Jonathan Tolliver,who was then 16 years old and a member of the Gangster Disciples, wasconvicted of the murder. Defendant Smith & Wesson marketed the .357 Magnum revolver used by Tolliver and sold it to distributor Camfour, Incorporated onApril 4, 1995. On April 10, 1995, Camfour shipped the revolver to a gundealer listed in an invoice as Strictly Shooting, located in Merrionette Park,Illinois. The complaint further alleges that Smith & Wesson was on noticethat Camfour was among a core group of 55 irresponsible distributors who actedas initial distributors for nearly 80% of the firearms traced to crimes inChicago. The complaint alleges that Camfour was also on notice that StrictlyShooting was one of 65 irresponsible gun dealers located in close proximity toChicago. Strictly Shooting sold the revolver some time later to an unknownpurchaser. It then reached the possession of a Chicago resident, LauraCrowell, who sold it to a suburban retail store located in Cook County calledChuck's Gun Shop in September 1997. On December 28, 1997, Chuck's sold therevolver to Ezra Evans in circumstances that the complaint alleges should havealerted Chuck's that this was a straw purchase made for the benefit of theGangster Disciples street gang. The gun was then used by Tolliver to shootCeriale on August 15, 1999. The complaints allege that each of the five named plaintiffs hassuffered the death of a relative as a consequence and the proximate result ofthe public nuisance. Count I of all three complaints alleges public nuisanceclaims for damages against the specific manufacturers of the guns used in themurders. Thus, plaintiff Young claims damages against Bryco, Smith suesNavegar, and Ceriale asserts damages against Smith & Wesson. Count II involves allegations of public nuisance by plaintiffs Young andMacias, Smith and Bowman, and Ceriale against all of the handgun manufacturersand distributors named in the complaints, including those manufacturers anddistributors who did not manufacture, sell or distribute the firearmsidentified in the killings. Plaintiffs assert counts III and IV as class actions for public nuisanceon behalf of themselves and as representatives of the class of persons whosedecedents have been killed or who have themselves been physically injured orthreatened with a handgun. Count III claims damages against all of thehandgun manufacturers and distributors named in the complaint, while count IVseeks injunctive relief. Count V asserts negligence against the specific manufacturers of theguns used in the killings and was dismissed by the trial court. Count VI inthe Young and Ceriale complaints is also a negligence claim against the gundealers who sold the guns used in the killings and was dismissed by the trialcourt. Count VI of the Smith complaint alleges assault and battery. Finally, count VII of the Young and Ceriale complaints alleges publicnuisance against the specific gun dealers who sold the firearms used in themurders (Breit & Johnson and Chuck's Gun Shop, respectively). Procedural History After plaintiffs filed their three complaints, on July 1, 1999, certainmanufacturer defendants submitted motions to dismiss plaintiffs' publicnuisance claims. On November 30, 1999, the trial court denied defendants'motion to dismiss the public nuisance claims. The plaintiffs then amendedtheir complaints to add the "unrelated defendants" -- a term coined bydefendants to describe those who did not manufacture, distribute or sell thefirearms identified in the shootings. On January 13, 2000, defendants movedto dismiss these complaints pursuant to section 2-615 of the Code of CivilProcedure (735 ILCS 5/2-615 (West 1998)). On May 11, 2000, the trial courtdismissed plaintiffs' negligence claims. Finding no special relationshipbetween the parties that could support the imposition of a duty on themanufacturers to protect plaintiffs from the criminal acts of remote,unrelated third parties, the court concluded that: "Under the current status of Illinois law, the manufacturers anddistributors owed no duty to plaintiffs to control the distribution ofhandguns based upon the allegations in plaintiffs' Complaints." The trial court further reserved ruling on the sufficiency of the plaintiffs'public nuisance claims against the "unrelated defendants," reasoning that if aclass were certified, certain class members may have a claim against thesemanufacturers. On July 25, 2000, plaintiffs moved to amend the complaints. Plaintiffsadded allegations concerning the specific chain of distribution and ownershipof identified firearms; statistical data; and Young and Smith sought to joinplaintiffs Macias and Bowman, respectively. On December 13, 2000, defendantsbrought multiple 2-615 and 2-619 motions, seeking a reconsideration of thetrial court's November 30, 1999, ruling. Individual manufacturers alsobrought separate 2-619 motions, arguing that they should be dismissed from theactions because there was no claim that their specific products were used inany of the shootings. On February 14, 2001, the trial court denied the defendants' multiplemotions to dismiss the public nuisance claims. The trial court found thatplaintiffs stated a viable public nuisance cause of action against thedefendants who actually manufactured, distributed or sold the identifiedfirearms. The court rejected defendants claims that lawful conduct could notconstitute nuisance, reasoning that plaintiffs' core allegation was notwhether defendants lawfully sold guns, but that defendants' marketing anddistribution practices allowed an underground gun market to flourish. Thecourt also found that by releasing weapons into a chain of distribution, thedefendants created and controlled conditions which made guns freely availableto juveniles. The trial court further held that plaintiffs stated a cause of actionagainst the "unrelated defendants." Relying on Cook v. City of Du Quoin, 256Ill. App. 452 (1930), the court held that defendants could be held jointly andseverally liable where their actions, although separate and distinct in timeand conduct, culminated in producing the public nuisance that enabled theunderground handgun market to flourish. The court further found the inclusionof the claims of plaintiffs Macias and Bowman to be proper. The courtdistinguished Smith v. Eli Lilly & Co., 137 Ill. 2d 222 (1990), indicatingthat unlike plaintiffs in Smith, Macias and Bowman were not claiming that oneparticular gun caused their injuries. According to the court, the plaintiffswere instead claiming that defendants caused a saturation of guns in Chicagoand these guns, in turn, allegedly caused the death of plaintiffs' decedents. On February 20, 2001, the trial court certified the question noted abovefor interlocutory appeal. The petition for interlocutory appeal was grantedby this court on March 22, 2001. ANALYSIS I. STANDARD OF REVIEW The question certified for interlocutory appeal asks whether theplaintiffs' complaints "state a viable public nuisance cause of action underIllinois law against the defendants." This question of law challenges thelegal sufficiency of the complaints and, as such, is appropriately examinedunder the standard of review applicable to a section 2-615 motion to dismiss. 735 ILCS 5/2-615 (West 1998). A motion to dismiss a complaint pursuant to section 2-615 attacks thelegal sufficiency of the complaint. Joseph v. Chicago Transit Authority, 306Ill. App. 3d 927, 930, 715 N.E.2d 733 (1999). In reviewing the sufficiency ofa complaint, the court must accept as true all well-pleaded facts in thecomplaint and all reasonable inferences which can be drawn from those facts. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86, 672 N.E.2d 1207(1996). "Pleadings are to be liberally construed and a pleader is notrequired to set out 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 court must determine whether the allegations of the complaint, whenconsidered in the light most favorable to the plaintiff, are sufficient tostate a cause of action upon which relief can be granted. Board of Directorsof Bloomfield Club Recreation Ass'n. v. Hoffman Group, Inc., 186 Ill. 2d 419,424, 712 N.E.2d 330 (1999). A cause of action will not be dismissed on thepleadings unless it clearly appears that no set of facts can be proved whichwill entitle the plaintiff to relief. Van Horne v. Muller, Ill. 2d 299, 305,705 N.E.2d 898 (1998). The sufficiency of a complaint is an issue of law andis reviewed de novo. People ex rel. Devine v. $30,700.00 United StatesCurrency, 316 Ill. App. 3d 464, 474, 736 N.E.2d 137 (2000). II. ELEMENTS OF PUBLIC NUISANCE Illinois courts have adopted the Restatement (Second) of Tortsdefinition of public nuisance. Wheat v. Freeman Coal Mining Corp., 23 Ill.App. 3d 14, 18, 319 N.E.2d 290 (1974); City of Chicago v. Commonwealth EdisonCo., 24 Ill. App. 3d 624, 631, 321 N.E.2d 412 (1974). Section 821B of theRestatement (Second) of Torts defines a public nuisance as "an unreasonableinterference with a right common to the general public." Restatement (Second)of Torts |
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