of its residents," and that defendants' allegedly tortious
conduct has injured City "in the maintenance of its property
and the performance of its corporate functions of protecting
the health and welfare of its citizens and has reduced the
revenues of the city." (Complaint, ¶¶ 1, 20.) It seeks to
represent "all Illinois citizens who are residents of Chicago,"
all of whose health and welfare has been endangered by
defendants' activities. (Complaint, ¶¶ 2, 20.)
We do not believe that plaintiff City adequately represents
the class it purports to represent. Although plaintiff and its
class exist in a common atmospheric condition, we do not think
this action could be said to be in the interests of all
Chicago corporate and individual residents. There are many
motor vehicle dealerships, repair and service stations, and
gasoline outlets that would be adversely affected by some of
the relief plaintiff seeks. Obviously, some unemployment would
result if plaintiff successfully persuaded this Court to issue
an order banning the sale of certain motor vehicles. At least
these local residents and citizens have an interest adverse to
that of City. Moreover, we doubt whether the plaintiff,
charged with a community health problem, adequately represents
those residents and citizens who are strongly attached to the
motor vehicle as a recreational or luxury item and would not
want their individual activities curtailed or made more
expensive. In fact, given the great number of motor vehicles
involved in the local air pollution problem, and the
plaintiff's lack of control over them, we doubt that it can
reasonably claim that all class members have "exercised due
care in the operation and use" of defendants' vehicles.
(Complaint, ¶ 21.)
Essentially, we think that the situation about which
plaintiff complains is so complex that plaintiff cannot fairly
be said to represent "all Illinois citizens who are residents
of the City of Chicago." While our independent research has
revealed a few cases in which one governmental agency has been
allowed to bring a class action on behalf of other such
agencies, see, e. g., City of Philadelphia v. Emhart Corp., 50
F.R.D. 232 (E.D.Pa. 1970); State of Minnesota v. United States
Steel Corp., 44 F.R.D. 559 (D.Minn. 1968), we know of no case
and plaintiff has suggested none that allows a municipality to
bring a class action on behalf of all of its individual and
corporate citizens. See Philadelphia Housing Authority v.
American Radiator & Standard Sanitary Corp., 309 F. Supp. 1057,
1062-1063 (E.D.Pa. 1969). Consequently, whether or not City is
a member of the class it purports to represent, an issue on
which we make no finding, we find that its interests are not
co-extensive with nor representative of that gigantic and
extraordinarily diverse class. The class action aspects of the
Complaint are, therefore, dismissed.
We turn, then, to a consideration of defendants' contentions
that plaintiff has not adequately alleged the requisite
jurisdictional amount under 28 U.S.C. § 1332. Since the class
aspects of the controversy have been eliminated, no discussion
need be made of the value of the claims of the class members.
Plaintiff has alleged that the "amount in controversy is in
excess of $10,000," the jurisdictional amount, and that it
"has spent and will be required to spend large sums in the
mitigation of the damaging effects of * * * exhaust
emissions * * *." (Complaint, ¶¶ 6, 20.) We do not think that
it is a legal certainty that plaintiff would not recover in
excess of that $10,000 amount, if successful. In fact, we think
that plaintiff's right not to be harmed by dangerous motor
vehicle emissions and defendants' converse right to unfettered
manufacturing are both in excess of that amount. Compare
Biechele v. Norfolk & Western Railway Co., 309 F. Supp. 354, 355
(N.D.Ohio 1969). Since plaintiff's claim is in apparent good
faith, and there is a probability of the value being in excess
of the jurisdictional amount, the cause will not be dismissed
for failure to adequately plead
that amount. Jeffries v. Silvercup Bakers, Inc., 434 F.2d 310,
311-312 (7th Cir. 1970).
The last two procedural points raised in defendants' motion
to dismiss concerned the statute of limitations and laches.
Neither of the points was discussed in defendants' arguments,
and so we will give no consideration to either.
Finally, defendants moved to dismiss this cause because
plaintiff failed to state a valid claim under products
liability law and because relief would, for a variety of
reasons, be improper and inappropriate. We turn now to the
substance of plaintiff's claim and the propriety of evaluating
it in this forum.
Plaintiff's claim is not grounded in a statute, but in the
common law, the judicially manufactured law of products
liability. Yet, it is clear that this is not an ordinary
products liability case, that plaintiff's theory is by no
means common and not yet law. In fact, plaintiff's cause, in
theory and scope is unique.
In this jurisdiction, the law of which we are bound to
follow in a diversity matter, the theory of products liability
holds that a manufacturer must design and produce a product
that is reasonably safe for its intended use. Beetler v. Sales
Affiliates, Inc., 431 F.2d 651, 653 (7th Cir. 1970); Juenger
v. Bucyrus-Erie Co., 286 F. Supp. 286, 288 (E.D.Ill. 1968); see
Zahora v. Harnischfeger Corporation, 404 F.2d 172, 175-176
(7th Cir. 1968). The manufacturer is held strictly liable
where plaintiff's injury results from an unreasonably
dangerous defective condition in the product supplied by the
manufacturer. Cunningham v. MacNeal Memorial Hospital,
47 Ill.2d 443, 457, 266 N.E.2d 897 (1970); Sweeney v. Max A. R.
Matthews & Co., 46 Ill.2d 64, 69, 264 N.E.2d 170 (1970);
Schmidt v. Archer Iron Works, Inc., 44 Ill.2d 401, 402,
256 N.E.2d 6 (1970).
The intended use of defendants' products, motor vehicles, is
the transportation of people and things on streets and
highways. Although Illinois courts apparently have not
construed the extent of this concept, see Stammer v. General
Motors Corp., 123 Ill.App.2d 316, 319, 259 N.E.2d 352 (1970),
some courts have held that manufacturers must do more than
provide a transportation platform and some have not.
Compare Larsen v. General Motors Corp., 391 F.2d 495, 501-503
(8th Cir. 1968); Grundmanis v. British Motor Corp., 308 F. Supp. 303,
305-306 (E.D.Wis. 1970); Dyson v. General Motors Corp.,
298 F. Supp. 1064, 1073 (E.D.Pa. 1969) with Schemel v. General
Motors Corp., 384 F.2d 802, 804-805 (7th Cir. 1967); Evans v.
General Motors Corp., 359 F.2d 822, 824-825 (7th Cir. 1966).
However, even those courts which have extended the scope of
an automobile manufacturer's duty have done so only in
attempts to minimize the effect of vehicular accidents. While
references were made to the environment in which motor
vehicles were used, i. e., roads with many vehicles moving at
fast speeds, social realism never extended beyond the highway
to a problem not exclusively related to vehicular use, i. e.,
air pollution. Larsen, Grunmanis and Dyson were concerned
specifically with a limited component of a particular
automobile model, e. g., the steering shaft of the 1963
Corvair, the roof of the 1965 Buick Electra two-door hardtop,
the gas tank of the 1962 MGB. By contrast, plaintiff is
alleging that a defective condition exists in all models of all
motor vehicles produced since 1960. Plaintiff is seeking relief
for the damage allegedly done by no fewer than 1,000,000 motor
vehicles in the Chicago area over the last decade.
In addition, plaintiff would have this Court assess
liability not only for that damage done to the users of
defendants' products, but also for that damage to bystanders
as well, While other courts have to one degree or another
permitted bystanders to recover from a manufacturer, Sills v.
Massey-Ferguson, Inc., 296 F. Supp. 776, 780-781 (N.D.Ind.
1969); Caruth v. Mariani, 11 Ariz. App. 188, 463 P.2d 83, 84-85
Darryl v. Ford Motor Co., 440 S.W.2d 630, 633 (Tex. 1969),
again Illinois courts have not to the best of our knowledge.
Thus, plaintiff would have us anticipate the direction of
the Illinois judiciary with respect to two delicate areas of
products liability law: the extent of a motor vehicle
manufacturer's duty to produce a reasonably safe product and
the right of a bystander to recovery. Moreover, plaintiff
would have us apply the newly anticipated guidelines to a
situation which no court, in or out of this jurisdiction, has
contemplated, i. e., metropolitan vehicular air pollution.
In situations that have warranted it, this Court has
abstained from settling virgin areas of state law, deferring
rather to the state courts. See, e. g., Ashland Savings & Loan
Ass'n v. Aetna Ins. Co., 322 F. Supp. 82, 85-86 (N.D.Ill.
1971). See also, Ohio v. Wyandotte Chemicals Corp.,
401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971). For this and other
reasons explained below, we have concluded that this Court
should not exercise its jurisdiction over this matter.
The reluctance to adjudicate this matter arises only in part
from our belief that the common law of a state should be
developed primarily by the local courts of that state. Of
greater significance is the thrust of recently enact ed
federal legislation which essentially pre-empts the motor
vehicle pollution field.
Under the Air Quality Act of 1967, 42 U.S.C. § 1857 et seq.,
and, more specifically, the National Emissions Standards Act,
42 U.S.C. § 1857f-1 et seq., regulation of emissions standards
for new motor vehicles is lodged with the Department of Health,
Education and Welfare of the federal government. The statute
"No State of any political subdivision thereof
shall adopt or attempt to enforce any standard
relating to the control of emissions from any new
motor vehicles * * * subject to this subchapter.
No State shall require certification, inspection,
or any other approval relating to the control of
emissions from any new vehicle * * * as condition
precedent to the initial retail sale, titling (if
any), or registration of such motor
vehicle * * *." 42 U.S.C. § 1857f-6a(a).
Applicable state and local legislation was superseded in this
direct fashion "in order to prevent a chaotic situation from
developing in interstate commerce in new motor vehicles" and
"(r)ather than leav(ing) this question (of pre-emption) to the
uncertainties involved in litigation * * *." H.R.Rep.No.728,
90th Cong., 1st Sess. 1956 (1967) [U.S.Code Cong. &
Admin.News, 90th Cong. 1st Sess. (1967), at p. 1956].
Motor vehicle emissions have been regulated to some extent
under this section, beginning with the 1968 model year. See
generally, 45 C.F.R. § 85 (1970). Stricter standards and
control have been imposed through new regulations and the Clean
Air Act of 1970, Pub.L. 91-604, which amended the National
Emissions Standards Act, among other things. Apparently, in
view of this existing legislation, plaintiff is willing to
modify its prayer for relief with respect to new vehicles.
(Brief of Plaintiff in Opposition, p. 24.) No amendment to the
Complaint has been filed, however. In any event, with respect
to new motor vehicles, we think any action by this Court would
only upset a carefully laid plan by Congress to deal with an
important aspect of interstate commerce and public health.
We note that plaintiff's modification does not seem to
extend to those models covered under the 1967 legislation
since plaintiff does not believe that the 1967 regulations
were adequate or, at least, adequately supervised.
Nevertheless, the Congressional prohibition of piecemeal
action applies to this group of
vehicles, too, and we think it inappropriate to interfere with
that mandate. We would also point out that while the most
recent legislation provides for the institution of citizens
suit to enforce the new emission standards, 42 U.S.C. § 1857h-2,
prior legislation limited the bringing of actions to
restrain violations of emission standards to the United States,
42 U.S.C. § 1857f-3. Consequently, we will not entertain any
action by this plaintiff with respect to motor vehicles covered
by the 1967 federal legislation.
Of course, plaintiff has also sought relief for older models
extending back to 1960. We are currently persuaded that
judicial interference would not be appropriate for this aspect
of the vehicular pollution problem either. Although the
vehicles in question are not covered by recent federal
legislation, the Chicago area has been designated an air
quality control region, 42 U.S.C. § 1857c-2(a),
42 C.F.R. § 81.14, for which pollution standards and enforcement programs
are being considered in a cooperative state and federal
program. 42 U.S.C. § 1857d. Moreover, Illinois has recently
enacted its own Environmental Control Act, Ill.Rev.Chap. 111
1/2, §§ 1001 et seq. (1970 Supp.), part of which deals directly
with air pollution, id. §§ 1008-10, in order to protect the
environment. Under the Illinois legislation, a Pollution
Control Board is to "define and implement" applicable
environmental control standards, id. § 1005(b), including
standards with respect to vehicular air pollution, id. §§
1009(a), 1010(c, d), as part of a unified state plan dealing
with different kinds of pollution, id. §§ 1002(a)(ii,
While the state and federal governments may not be moving as
swiftly as plaintiff would like in this area, the fact remains
that legislative and administrative guidelines and programs
have been initiated. It would be improper for this Court to
exercise its equitable jurisdiction to interfere with the
comprehensive programs designed to solve a complex social,
economic and technological problem. Quite simply, we choose
not to pollute the scene with still more studies and
Defendants' motion to dismiss is granted.
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