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05/05/95 GERALD MILLER v. CIVIL CONSTRUCTORS

May 5, 1995

GERALD MILLER, PLAINTIFF-APPELLANT,
v.
CIVIL CONSTRUCTORS, INC., D/B/A CIVIL CONSTRUCTORS, AND OTHER UNKNOWN OWNER OR OWNERS; AND THE CITY OF FREEPORT POLICE DEPARTMENT, DEFENDANTS-APPELLEES (SAM VOLKERT, AS SHERIFF OF STEPHENSON COUNTY; AND STEPHENSON COUNTY SHERIFF'S DEPARTMENT, DEFENDANTS).



Appeal from the Circuit Court of Stephenson County. No. 92-L-65. Honorable Lawrence A. Smith, Jr., Judge, Presiding.

As Amended September 28, 1995.

The Honorable Justice Bowman delivered the opinion of the court: Rathje and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Gerald Miller, appeals from the orders of the circuit court of Stephenson County which dismissed the strict liability counts of his complaint against defendants, Civil Constructors, Inc., d/b/a Civil Constructors (Constructors) (count I), and the City of Freeport (City) (count V). Counts I and V of the complaint filed October 22, 1992, alleged essentially that defendants were strictly liable for injuries to plaintiff arising from purportedly "ultrahazardous" activity for which defendants were legally responsible either because of their control of the premises or their discharge of firearms. In each instance, plaintiff stated that the defendant, through its officers, agents or employees, knew (alternatively in count I, "or in the exercise of reasonable care should have known") that "discharging firearms is an ultrahazardous, highly dangerous activity" which was the proximate cause of plaintiff's injuries. The complaint averred that plaintiff was injured when a stray bullet ricocheted during the course of firearm target practice in a nearby gravel pit and caused him to fall from a truck. There is no legal cause of action available to plaintiff under a theory of strict liability. We affirm the orders of the circuit court.

The record shows that the court struck from the complaint references to the defendant Freeport police department and granted summary judgment, without opposition, to Sam Volkert and the Stephenson County sheriff's department; none of these defendants are parties to the appeal. Count IV, alleging negligence by the City, remained pending. We have appellate jurisdiction under Supreme Court Rule 304(a). Official Reports Advance Sheet No. 26 (December 22, 1993), R. 304(a), eff. February 1, 1994; see Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 891, 38 Ill. Dec. 264, 403 N.E.2d 495.

The issue before us is whether, consonant with Illinois law, the trial court properly dismissed the counts where plaintiff attempted to state a cause of action premised on a theory of strict liability by asserting that the discharge of firearms in a quarry shooting range is an ultrahazardous activity. Under the circumstances presented, we hold as a matter of law that the discharge of firearms is not an ultrahazardous activity which would support plaintiff's strict liability claims.

A section 2-615 motion to dismiss for failure to state a cause of action (735 ILCS 5/2-615 (West 1992)) attacks the legal sufficiency of the complaint, and the relevant inquiry is whether sufficient facts are contained in the pleadings which, if proved, could entitle the plaintiff to relief. ( OnTap Premium Quality Waters, Inc. v. Bank of Northern Illinois (1994), 262 Ill. App. 3d 254, 258, 199 Ill. Dec. 586, 634 N.E.2d 425.) Plaintiff's complaint is legally insufficient to state a cause of action on the basis of strict liability.

The precise issue raised appears to be one of first impression for this court. Unfortunately, plaintiff's counsel has failed to provide much in the way of legal authority or even persuasive legal analysis to show that the discharge or use of firearms must be classified as an ultrahazardous activity (sometimes called abnormally dangerous activity) which demands the imposition of strict liability on a defendant. Plaintiff's counsel relies either on obiter dictum or he quotes matters out of context from the cases cited. In view of the dearth of authority on the subject, the importance of the issue, and the adequacy of defendants' briefs, we will fully address the question presented.

The doctrine of strict liability, sometimes called absolute liability, has its genesis in the English rule of Rylands v. Fletcher (1868), L.R. 3 H.L. 330, wherein strict liability was imposed on the defendant owners of land for harm resulting from the abnormal or nonnatural use of the defendants' land which arose when water from defendants' reservoir flooded the adjoining mine of the plaintiff. Subsequent decisions interpreted the rule to be confined to things or activities which were "extraordinary," or "exceptional," or "abnormal" so that there was some special use bringing with it increased danger to others. (W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on the Law of Torts § 78, at 545-46 (5th ed. 1984).) From the decisions of the English courts the "rule" of Rylands which has emerged is that "the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings." Prosser, § 78, at 547-48.

Most jurisdictions in this country have adopted the rule of Rylands to impose strict liability on owners and users of land for harm resulting from abnormally dangerous conditions and activities. ( Ruggeri v. Minnesota Mining & Manufacturing Co. (1978), 63 Ill. App. 3d 525, 528, 20 Ill. Dec. 467, 380 N.E.2d 445.) The best-known applications of the Rylands rule imposing strict liability on a defendant involve the storing and use of explosives and flammable materials. See Continental Building Corp. v. Union Oil Co. (1987), 152 Ill. App. 3d 513, 515-16, 105 Ill. Dec. 502, 504 N.E.2d 787 (cases cited); Opal v. Material Service Corp. (1956), 9 Ill. App. 2d 433, 133 N.E.2d 733 (use of explosive such as dynamite in residential area was intrinsically dangerous and gave rise to strict liability for the blaster regardless of degree of care or skill exercised in using the explosive).

Illinois has recognized strict liability principally in two instances: (1) when, under certain circumstances, a defendant introduces a product into the community which is unreasonably dangerous to the user, consumer, or to his property (product liability cases) ( Martin v. Harrington & Richardson, Inc. (7th Cir. 1984), 743 F.2d 1200, 1202); and (2) when a defendant engages in ultrahazardous or abnormally dangerous activity as determined by the courts, giving particular consideration, inter alia, to the appropriateness of the activity to the place where it is maintained, in light of the character of the place and its surroundings ( Continental, 152 Ill. App. 3d at 516-17). See Riordan v. International Armament Corp. (1985), 132 Ill. App. 3d 642, 87 Ill. Dec. 765, 477 N.E.2d 1293 (distinguishing product liability from ultrahazardous activity liability); see also Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (N.D. Ill. 1981), 517 F. Supp. 314 (concluding that transporting acrylonitrile, a dangerous and toxic substance, was inherently dangerous or ultrahazardous activity so that complaint stated cause of action in strict liability under Illinois law).

We are concerned here only with determining as a matter of law whether the use of firearms is an ultrahazardous activity giving rise to strict liability. ( Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill. App. 3d 931, 102 Ill. Dec. 479, 500 N.E.2d 101 (holding as a matter of law that use of trampoline is not abnormally dangerous instrumentality); Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 763-64, 43 Ill. Dec. 892, 410 N.E.2d 1025 (demolition held ultrahazardous as a matter of law).) Plaintiff concedes that ordinarily the manufacture or the sale of nondefective handguns has been held not to be an ultrahazardous activity. ( Riordan, 132 Ill. App. 3d at 649-50, citing with approval Martin v. Harrington & Richardson, Inc. (7th Cir. 1984), 743 F.2d 1200.) Nevertheless, in a misleading argument, plaintiff quotes out of context a fragment of a sentence from Riordan (underscored in the quotation below) in urging this court to find the use of firearms is ultrahazardous. The complete quotation of the sentence is this:

"As it is not the manufacture of and sale of handguns that is ultrahazardous, but their use or misuse that is alleged in plaintiffs' claim here, the plaintiffs have no grounds for recovery under the doctrine of strict liability for engaging in ultrahazardous activities. To accept plaintiffs' contention, we would be considerably extending the ultrahazardous activity ...


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