decided: September 19, 1972.
CITY OF CHICAGO, PLAINTIFF-APPELLANT,
GENERAL MOTORS CORPORATION ET AL., DEFENDANTS-APPELLEES
Before Kiley and Sprecher, Circuit Judges, and Durfee, Senior Judge.*fn*
The city of Chicago brought this diversity class action, based upon the Illinois common law of strict product liability, which seeks to have the federal court create standards requiring automobile manufacturers to equip all new, and to recall and furnish all old, vehicles operating within Chicago with tamper-proof emission control devices, thus solving a substantial portion of the city's air pollution problem in one bold, quick stroke.
On July 31, 1970, the city of Chicago, individually and on behalf of all Illinois citizens who are residents of Chicago, filed a 20-count complaint against the major automobile and truck manufacturers, alleging that the motor vehicles manufactured and sold by the defendants substantially contribute to air pollution in Chicago by their daily emissions of tons of carbon monoxide, hydrocarbons, oxides of nitrogen and particulate matter while being used in the usual and customary manner intended for such vehicles; that contamination of Chicago air by motor vehicles creates an unreasonable danger to public health, causing such vehicles to be unreasonably, inherently and imminently dangerous and defective; and that contamination of the air has injured and continues to injure Chicago 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 and endangered the health and welfare of its citizens. The complaint prayed that the court decree that motor vehicles are dangerous to the public health and order the defendants to cease the sale of motor vehicles within the city unless such vehicles are equipped with tamper-proof emission control devices. The complaint further prayed that the court order the defendants to furnish without charge to each plaintiff purchaser of any vehicle manufactured by the defendants in model years 1960 through 1970 a control device similar to that installed in new vehicles and meeting the court-created standards.
Defendants moved to dismiss the complaint for the reasons that Chicago was not a member of the class which it purported to represent; that the amount in controversy did not exceed $10,000 in respect to each alleged member of the plaintiff class; that plaintiff failed to state a claim for which relief could be granted under products liability law or improper design; that relief would conflict with federal regulation of motor vehicle emissions and would infringe upon an area of regulation specifically preempted by Congress and would constitute an undue burden on interstate commerce; that there was no basis for equitable relief; that the determination and enforcement of relief are matters best handled by an expert administrative agency; that the requested relief involving retroactive application of new standards would constitute a violation of due process; and that plaintiffs' claims were barred by the statute of limitations or by laches.
The city acknowledged in its brief in this court that "Chicago has filed this action as the first of its type in the country using the theory employed in the Complaint." The district court, in dismissing the complaint, agreed, saying:
"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." 332 F.Supp. 285, 289 (N.D.Ill.1971).
Before considering this theory, it will be helpful to summarize the legislative developments regarding air pollution.
As early as 1955, Congress enacted the Air Pollution Control Act,*fn1 which recognized the primary responsibilities and rights of the states, local governments, and other public agencies in controlling air pollution. The 1955 Act was replaced in 1963 by the Clean Air Act.*fn2 Under this Act, the Secretary of Health, Education and Welfare was directed to appoint a technical advisory committee to evaluate progress and recommend research on devices and fuels for the control of automotive vehicle emissions, which work was to be reported semi-annually to Congress by the Secretary. In 1965, Congress amended the Clean Air Act to include a section known as the Motor Vehicle Air Pollution Control Act,*fn3 which directed the Secretary to prescribe standards applicable to exhaust emissions from new motor vehicles.
The Air Quality Act of 1967*fn4 further amended the Clean Air Act and provided the basis for systematic control activities on a regional basis. The Act explicitly provided for preemption by the federal government of the entire field of standards for emissions from new motor vehicles.*fn5
After the complaint was filed in this case, Congress passed the Clean Air Amendments of 1970,*fn6 which included a substantial rewriting of the National Emissions Standards Act.*fn7 Prior to the 1970 legislation the National Emissions Standards Act provided that "actions to restrain such violations shall be brought . . . in the name of the United States." 42 U.S.C. § 1857f-3. The 1970 legislation amended this provision to provide that "any person may commence a civil action on his own behalf" against any person including the United States and any other governmental instrumentality who is alleged to be in violation of an emission standard of limitation under the Act. 42 U.S.C. § 1857h-2(a). The 1970 amendments also provided (42 U.S.C. § 1857h-2(e)):
"Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief. . . ."
Since the city explicitly abandoned its claim to new vehicles covered by the 1970 amendments and since citizen suits were first permitted by the 1970 amendments, the district court held that "we will not entertain any action by this plaintiff with respect to motor vehicles covered by the 1967 federal legislation"-that is, new motor vehicles commencing with the 1968 model year. 332 F.Supp. at 291. We agree with the district court that federal preemption extends that far. The city of Chicago has not sought here to enforce the federal legislative and administrative standards, but instead seeks to have the federal court create a competing set of standards based on Illinois common law. If Illinois is barred and Chicago is barred from enforcing "any standard relating to the control of emissions from new motor vehicles . . . subject to this subchapter [1967 National Emissions Standard Act]," 42 U.S.C. § 1857f-6a(a), Chicago cannot seek to enforce through the federal courts different standards purportedly based on Illinois common law.
Preemption does not apply to used motor vehicles in the model years 1960-1967.*fn8
In Illinois v. City of Milwaukee, 406 U.S. 91, at 103, 92 S. Ct. 1385, at 1392, 31 L. Ed. 2d 712 (1972), the Court stated: "When we deal with air or water in their ambient or interstate aspects, there is a federal common law. . ."*fn9 However, the complaint of the city of Chicago in this case was framed in the strict liability idiom of Illinois common law ("unreasonably dangerous").*fn10 And in this diversity case we are bound to follow Illinois common law.
The district court abstained from proceeding in regard to the city of Chicago's individual claim regarding used motor vehicles for the model years 1960-1967 because that claim extended into three "virgin areas of state law:" (1) "the extent of a motor vehicle manufacturer's duty to produce a reasonably safe product;" (2) "the right of a bystander to recovery;" and (3) application of "newly anticipated guidelines to . . . metropolitan vehicular air pollution." 332 F.Supp. at 290.
In view of the Congressional invitation to citizens generally to make use of common law remedies, we see no reason why a federal court in a diversity case could not anticipate that in due course all common law remedies, including strict liability, will be applied to air pollution and other environmental problems, assuming that the other common law elements of strict liability exist.
Although non-automobile owning bystanders were part of the city's proposed class in that their health was sought to be protected, the district court dismissed the class action aspects of the complaint.*fn11 Inasmuch as the city's own injury is in the maintenance of its property and the performance of its corporate functions of protecting the health and welfare of its citizens generally, the bystander problem is not directly involved in the absence of a bystander class. We note, however, that subsequent to the decision of the district court, an Illinois appellate court has held that a bystander may seek recovery from the manufacturer of a product. Mieher v. Brown, 3 Ill.App.3d 802, 278 N.E.2d 869 (5th Dist.1972). See also White v. Jeffrey Galion, Inc., 326 F.Supp. 751 (E.D.Ill.1971).
The district court was undoubtedly correct in its first assumption, however, that Illinois strict liability law has not been extended to embrace the city's claim in regard to vehicles manufactured from 1960-1967. In fact, we proceed a step further than the district court and conclude that unless the Illinois common law concept of strict liability is materially changed by the Illinois courts, the city's claim does not state a claim for relief under Illinois law. Hence we affirm the district court's dismissal of the claim, not on the district court's theory of abstention (which might as a matter of sound judicial administration require a stay and retention of jurisdiction rather than dismissal, Zwickler v. Koota, 389 U.S. 241, 244 n. 4, 88 S. Ct. 391, 19 L. Ed. 2d 444), but rather on the basis that the complaint fails to state a claim under Illinois products liability law.
Illinois became a strict liability jurisdiction in 1965 when it adopted in effect the Restatement, Second, Torts § 402A, in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). Section 402A provides in part:
"One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if . . . (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold."
The doctrine has been termed "strict liability" because the manufacturer may be held liable regardless of whether he is negligent and without regard to privity of dealings between the manufacturer and the ultimate injured user.
In Suvada, the Supreme Court of Illinois pointed out at 210 N.E.2d 188:
"The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control."
The test of what is "unreasonably dangerous" must be applied to each product (in this case to each automobile) and not to the gross effect of an indefinite conglomerate of products manufactured by several manufacturers. This is made reasonably clear by Comment i to § 402A of the Restatement, Second, Torts, which provides in part:
"Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involve some risk of harm, if only from overconsumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by 'unreasonably dangerous' in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous."
The city has not alleged that any particular motor vehicle is unreasonably dangerous because of defective design or manufacture nor that any vehicle has caused any particular injury to any particular person. To allege that an indeterminate number of persons are generally harmed by an atmosphere polluted and contaminated by an indeterminate number of sources*fn12 does not state a cause of action under Illinois law nor a claim upon which relief can be granted in this court.*fn13
This conclusion does not, of course, diminish in any way whatever police powers the city of Chicago or state of Illinois may possess*fn14 to deal with precisely the same problems involved in these proceedings.*fn15 In fact since the complaint was filed in this case, both Illinois*fn16 and Chicago*fn17 have taken steps to protect the public against motor vehicle emissions.
The district court's judgment of dismissal is affirmed.