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Docket Nos. 93678, 93685, 93728 cons.-Agenda 11-September 2003.

STEPHEN YOUNG et al., Appellees, v. BRYCO ARMS et al., Appellants.

Opinion filed November 18, 2004.

JUSTICE GARMAN delivered the opinion of the court:

The five plaintiffs in these three consolidated actions are thespecial administrators, as well as surviving family members, ofindividuals who were killed in the City of Chicago in crimes involvingillegal firearms. In each case, the killer was either a minor or a youngadult who had obtained the weapon from a minor. In three instances(plaintiffs Young, Smith, and Ceriale), the illegal weapons wererecovered and traced to specific defendants. In the two remaininginstances (plaintiffs Macias and Bowman), the guns used in the fatalshootings were never recovered. Plaintiffs' theories of liabilityincluded negligence and public nuisance.

Each plaintiff named 21 manufacturers and distributors offirearms as defendants. This group of 21 defendants included themanufacturers of the three recovered weapons and two distributorswho handled one of the recovered weapons. In addition, plaintiffsYoung and Ceriale named the retail gun dealers who sold the weaponsused in the shootings of their sons. Plaintiff Smith named the 15-year-old gang member who shot and killed her pregnant daughter. Thus,the 24 named defendants included 8 who had been involved in themanufacture, distribution, sale, or use of the specific guns used in theshootings of Andrew Young, Salada Smith, and Michael Ceriale, aswell as 16 other manufacturers, distributors, and dealers. These 16others are the so-called "unrelated defendants," who, plaintiffs claim,are members of a core group of irresponsible businesses thatsignificantly contribute to the creation and maintenance of the allegedpublic nuisance.

The negligence counts (counts V and VI of all three complaints)were dismissed by the circuit court and are no longer at issue. Thecircuit court denied defendants' various motions to dismiss the publicnuisance counts, but certified for immediate interlocutory appeal (155Ill. 2d R. 308) the question of whether the plaintiffs had stated a causeof action for public nuisance.

The appellate court held that the two plaintiffs who could notidentify the defendants who manufactured, distributed, or sold thespecific firearms used in the killings of their loved ones lackedstanding altogether because their injury was not " 'fairly traceable' "to any named defendant. 327 Ill. App. 3d at 948, 972, quoting Glissonv. City of Marian, 188 Ill. 2d 211, 221. These plaintiffs, Macias andBowman, did not seek leave to appeal.

The appellate court also held that the three plaintiffs who couldidentify the specific firearms used in the shootings of their decedentshad stated a cause of action for public nuisance in count I of each oftheir complaints.⁽¹⁾ 327 Ill. App. 3d at 972-73. Because count I of eachcomplaint was directed at only the manufacturer of an identifiedweapon, this holding does not apply to the distributor defendants. Asa result, none of the distributor defendants are parties to this appeal.

Count II of each complaint alleged that the "unrelateddefendants" participated in the creation and perpetuation of a publicnuisance. The appellate court held that all five plaintiffs lackedstanding to press their claims against those defendants who did notmanufacture, distribute, or sell the three recovered firearms. 327 Ill.App. 3d at 972-73. Plaintiffs Young, Smith, and Ceriale did not seekleave to appeal the dismissal of their claims against the unrelateddefendants.

In counts III and IV, plaintiffs, as representatives of a class ofsimilarly situated individuals, sought to impose liability for the allegedpublic nuisance upon all named gun industry defendants. Count IIIsought damages; count IV sought injunctive relief. The appellate courtdid not address counts III and IV or the question of class certification.However, because the appellate court held that plaintiffs lackindividual standing to press their claims against the unrelated gunindustry defendants, it necessarily follows that they lack standing tosue as representatives of a class. Plaintiffs Young, Smith, and Cerialedid not seek leave to appeal the dismissal of their individual claimsagainst the unrelated defendants. Thus, the question of classcertification is moot.

Finally, the appellate court held that plaintiffs Young and Ceriale,in count VII of their complaints, had stated a claim for public nuisanceagainst the dealer defendants who sold the guns used to kill their sons.

Pursuant to Rule 315(a) (177 Ill. 2d R. 315(a)), we granted leaveto appeal to two of the manufacturer defendants, Bryco Arms, Inc.,⁽²⁾and Smith & Wesson Corporation, and two of the dealer defendants,Breit & Johnson Sporting Goods, Inc., and Chuck's Gun Shop.

We have permitted the National Association of Manufacturersand the Product Liability Advisory Council to file briefs amici curiaeon behalf of the defendants. We have also permitted the AttorneyGeneral of the State of Illinois and the Illinois Trial LawyersAssociation to file briefs amici curiae on behalf of the plaintiffs. 155Ill. 2d R. 345.

BACKGROUND

State law prohibits minors from owning firearms (720 ILCS5/24-3 (West 2000)), and municipal ordinances generally prohibitpossession of handguns within the City of Chicago. Nevertheless,numerous violent crimes are committed each year in the City ofChicago by juveniles armed with illegal weapons.

On June 10, 1996, Andrew Young, son of plaintiff StephenYoung, was shot and killed by 19-year-old Latin Kings gang member,Mario Ramos. Ramos obtained the semiautomatic 9mm Bryco 59handgun used in the shooting from a juvenile gang member. Theweapon was manufactured by defendant Bryco Arms and shipped todistributor B.L. Jennings, Inc., and then to distributor Riley's, Inc.⁽³⁾ InSeptember 1993, defendant dealer Breit & Johnson Sporting Goods,Inc., sold the gun to Mariano DiVittorio. Previously, DiVittorio hadpurchased over 40 guns from Breit & Johnson. Plaintiff Young assertsthat Breit & Johnson had reason to know that DiVittorio wasengaging in straw purchases for the benefit of Daniel Escobedo, aconvicted felon with ties to the Latin Kings street gang. Escobedothen allegedly made the gun available to other Latin Kings, includingat least one juvenile gang member.

Michael Ceriale, a police officer and the son of plaintiff AnthonyCeriale, was killed while conducting narcotics surveillance in Chicago.Jonathan Tolliver, the 16-year-old gang member who shot Ceriale,used a .357 Magnum revolver manufactured by defendant Smith &Wesson. This gun, after passing through the hands of a distributor, aretail dealer, and at least two owners, was purchased from a privateparty by Chuck's Gun Shop and later resold. Thereafter, the gunchanged hands at least twice, in illegal transactions, before it was usedby Tolliver to kill Michael Ceriale.

The complaints do not allege that Bryco, Smith & Wesson, Breit& Johnson, or Chuck's Gun Shop violated any applicable state orfederal law or municipal ordinance governing the manufacture or saleof firearms. Rather, plaintiffs Young and Ceriale allege that these fourremaining defendants have substantially contributed to the creation ofa public nuisance in the City of Chicago by designing, manufacturing,marketing, and selling guns that are intended to appeal to criminals ingeneral and to juvenile gang members in particular.

ANALYSIS

Interlocutory appeal was taken to the appellate court pursuantRule 308 (155 Ill. 2d R. 308). In the certified question, the appellatecourt was asked to determine whether plaintiffs had stated a cause ofaction for public nuisance. Thus, the certified question was similar innature to a motion to dismiss under section 2-615 of the Code of CivilProcedure (735 ILCS 5/2-615 (West 2000)), which challenges thelegal sufficiency of a complaint by alleging defects on its face. Wereview de novo an order granting or denying a section 2-615 motion(Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003)), and, therefore, weapply the same standard of review to the appellate court's answer tothe certified question in the present case.

In reviewing the sufficiency of a complaint, we accept as true allwell-pleaded facts and all reasonable inferences that may be drawnfrom those facts. Jarvis v. South Oak Dodge, Inc., 201 Ill. 2d 81, 86(2002). In addition, we construe the allegations in the complaint in thelight most favorable to the plaintiff. Wakulich, 203 Ill. 2d at 228.When the plaintiff's theory of liability is public nuisance, the pleadingrequirements are not exacting because the "concept of common lawpublic nuisance *** elude[s] precise definition." City of Chicago v.Festival Theatre Corp., 91 Ill. 2d 295, 306 (1982). The existence ofa nuisance " 'depends on the peculiar facts presented by each case.' "Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 101(2002), quoting City of Chicago v. Commonwealth Edison Co., 24 Ill.App. 3d 624, 632 (1974). A sufficient pleading in a cause of action forpublic nuisance will allege a right common to the general public, thetransgression of that right by the defendants, and resulting injury.Feder v. Perry Coal Co., 279 Ill. App. 314, 318 (1935). Because theelement of "resulting injury" requires two separate findings-actualinjury and a cause creating this result-the complaint must allege fourdistinct elements of a public nuisance claim: the existence of a publicright, defendants' substantial and unreasonable interference with thatright, proximate cause, and injury.

Standing

Section 821C of the Restatement (Second) of Torts addresses theissue of standing to bring an action for public nuisance and states thatan individual, as opposed to a governmental entity, may recoverdamages in an action for public nuisance only if he or she has"suffered harm of a kind different from that suffered by other membersof the public exercising the right common to the general public thatwas the subject of interference." Restatement (Second) of Torts