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City of Chicago v. American Cyanamid Co.

January 14, 2005

THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT,
v.
AMERICAN CYANAMID COMPANY, ATLANTIC RICHFIELD COMPANY, BP CORPORATION NORTH AMERICA, INC., BP AMERICA, INC., CONAGRA FOODS, INC., CONAGRA GROCERY PRODUCTS COMPANY, E.I. DU PONT DE NEMOURS AND COMPANY, MILLENIUM CHEMICALS, INC., MILLENIUM INORGANIC CHEMICALS, INC., NL INDUSTRIES, INC., AND THE SHERWIN-WILLIAMS COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Nancy J. Arnold, Judge Presiding.

The opinion of the court was delivered by: Justice Gallagher

This is a public nuisance case. Plaintiff, the City of Chicago, has filed suit against American Cyanamid Company, Atlantic Richfield Company, BP Corporation North America, Inc., BP America, Inc., Conagra Foods, Inc., Conagra Grocery Products Company, E.I. du Pont de Nemours and Company, Millenium Chemicals, Inc., Millenium Inorganic Chemicals, Inc., NL Industries, Inc., and the Sherwin-Williams Company, which are entities that manufactured or sold lead pigments or lead-based paint at some time prior to 1978.*fn1 Plaintiff alleges that the continued presence of lead-based paint in the City of Chicago constitutes a public nuisance that defendants created by continuing to manufacture, market, and promote lead-based paint for use in areas accessible to children long after they knew or should have known that lead-based paint is hazardous to children. The trial court dismissed plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)) for failing to state a claim. We affirm.

[9]     I. BACKGROUND

On September 5, 2003, plaintiff filed a one-count complaint sounding in public nuisance against defendants, which was later amended. On October 7, 2003, the circuit court dismissed plaintiff's action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)) for failing to state a claim. Plaintiff filed this timely appeal. Pursuant to Supreme Court Rule 345 (155 Ill. 2d R. 345), we allowed the Alliance for Healthy Homes, American Public Health Association, Day Care Action Council of Illinois, Health and Disability Advocates, Infant Welfare Society of Chicago, Illinois Chapter of the American Academy of Pediatrics, Illinois Public Health Association, Lawyers' Committee for Better Housing, Metropolitan Tenants Organization, Uptown People's Law Center and Voices for Illinois Children to file a brief amici curiae in support of the plaintiffs. We also allowed the Illinois Manufacturers' Association and the Product Liability Advisory Council to file briefs amici curiae on behalf of the defendants.

On November 16, 2004, oral arguments were heard by this court. Two days later, on November 18, 2004, our supreme court filed its opinions in City of Chicago v. Beretta U.S.A. Corp., Nos. 95243, 95280, 95253, 95256 cons. (November 18, 2004), and Young v. Bryco Arms, Nos. 93678, 93685, 93728 cons. (November 18, 2004), which were public nuisance actions against gun manufacturers, distributors and dealers. In both cases, our supreme court affirmed the dismissals of the cases, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5.2-615 (2000)), for failing to state a cause of action. We allowed the parties to address the effect, if any, that Beretta had on their respective positions. Plaintiff has now conceded that under Beretta it is foreclosed from seeking economic damages here, in the absence of physical harm to city property or other direct injury. Beretta, slip op. at 57. Therefore, plaintiff no longer seeks monetary damages to compensate it for costs it incurred in past lead-abatement efforts. However, plaintiff contends that the holding in Beretta does not apply to the injunctive relief it seeks. Plaintiff requests an injunction to abate the alleged nuisance by having defendants establish and fund an abatement program to remove lead-based paint from areas accessible to children and to take any other step necessary to abate the alleged nuisance. Plaintiff also seeks punitive damages.

II. ANALYSIS

Our review of the circuit court's order granting defendants' motion to dismiss is de novo. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147-48 (2002). The Illinois Supreme Court recently reiterated the well-established principles that we must follow when reviewing the sufficiency of a complaint in a public nuisance action. City of Chicago v. Beretta U.S.A. Corp., slip op. at 7-8. As the Beretta court explained:

"A motion to dismiss under section 2-615 of the Code [citation] challenges the legal sufficiency of the complaint by alleging defects on its face. *** In reviewing the sufficiency of a complaint, we accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts. [Citation.] In addition, we construe the allegations in the complaint in the light most favorable to the plaintiff. [Citation.] When the plaintiff's theory of liability is public nuisance, the pleading requirements are not exacting because the 'concept of common law public nuisance *** elude[s] precise definition.' [Citation.] The existence of a nuisance ' "depends on the peculiar facts presented by each case." ' [Citations.]" Beretta, slip op. at 7-8.

In Beretta, the court first reviewed the general legal principles regarding the common law of public nuisance. Beretta, slip op. at 8-10. The court acknowledged some of the difficulties encountered in cases involving alleged public nuisances, citing one learned treatise as noting:

" 'There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance." It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition.' " Beretta, slip op. at 8, quoting W. Keeton, Prosser & Keeton on Torts §86, at 616 (5th ed. 1984).*fn2

The Beretta court stated, however, that the definitions of both private nuisance and public nuisance contained in the Restatement of Torts are consistent with Illinois law. Beretta, slip op. at 9. According to section 821B of the Restatement (Second) of Torts, a public nuisance is "an unreasonable interference with a right common to the general public." Restatement (Second) of Torts §821B(1) (1979); see also Lewis v. Lead Industries Ass'n, Inc., 342 Ill. App. 3d 95, 793 N.E.2d 869 (2003).

The Beretta court then turned to the legal adequacy of the complaint before it and discussed pleading requirements in a public nuisance action. Beretta, slip op. at 10. In order to adequately state a cause of action for public nuisance, a complaint must allege facts that show the following four elements: (1) the existence of a public right; (2) a substantial and unreasonable interference with that right by the defendant; (3) proximate cause, and (4) injury. Beretta, slip op. at 12.

As to the first element, plaintiff contends that it has sufficiently alleged a right common to the public because its complaint alleges that the presence of lead-based paint in more than a million Chicago homes unreasonably threatens public safety because lead deteriorates over time. Plaintiff further contends that, given the overwhelming prevalence of lead-based paint in Chicago's housing stock, it is exceptionally difficult to find affordable housing without running an unreasonable risk of exposing children to the hazards of lead-based paint and that this amounts to an unreasonable threat to public health, safety, and welfare. Defendants argue that plaintiff has failed to allege facts supporting the existence of a cognizable public right.

Our supreme court has generally defined a public nuisance as " ' "the doing of or the failure to do something that injuriously affects the safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public." ' [Citations.]" (Emphasis added.) Beretta, slip op. at 13. "Thus, the first element that must be alleged to state a claim for public nuisance is the existence of a right common to the general public." Beretta, slip op. at 13.

As the Restatement states:

"Interference with public right. Conduct does not become a public nuisance merely because it interferes with the use and enjoyment of land by a large number of persons. There must be some interference with a public right. A public right is one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured. Thus the pollution of a stream that merely deprives fifty or a hundred lower riparian owners of the use of the water for purposes connected with their land does not for that reason alone become a public nuisance. If, however, the pollution prevents the use of a public bathing beach or kills the fish in a navigable stream and so deprives all members of the community of the right to fish, it becomes a public nuisance." Restatement (Second) of Torts §821B, Comment g, at 92 (1979).

Defendants assert that plaintiff's complaint has failed adequately to allege a public right because the alleged nuisance does not affect an indivisible resource shared by the public at large, like air, water, or public rights of way. Plaintiff does not allege that the presence of paint containing lead pigment harms individuals in the exercise of their public rights. Rather, plaintiff alleges that the nuisance, if one exists, occurs in unidentified buildings owned by private property owners. Defendants argue that plaintiff's allegations implicate an assortment of claimed private individual rights that do not belong to the public at large because the alleged conditions exist within private homes, which the general public has no right to enter, and therefore do not interfere with any "public right." Compare Gilmore v. Stanmar, Inc., 261 Ill. App. 3d 651, 662 (1994) (pedestrian canopy that abutted street was public nuisance where it was "clear that the plaintiffs and all members of the public have a right to use the public streets").

On the other hand, a private nuisance that interferes with a public right can also constitute a public nuisance. Chicago National League Ball Club, Inc. v. Thompson, 108 Ill. 2d 357, 483 N.E.2d 1245 (1985). A public nuisance is actionable even where the nuisance is present on private property. City of Chicago v. Latronica Asphalt and Grading, Inc., 346 Ill. App. 3d 264, 270, 805 N.E.2d 281, 287 (2004), citing Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 100-02, 767 N.E.2d 314 (2002) (privately owned site of coal tar gas plant), and City of Chicago v. Cecola, 75 Ill. 2d 423, 389 N.E.2d 526 (1979) (privately owned establishment for prostitution). Moreover, a "governmental body need not be asserting an interest affecting everyone in the State in order for it to qualify as a public right." Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 474, 546 N.E.2d 580, 601 (1989). Nevertheless, there must be sufficient interest in the general public. A, C & S, Inc., 131 Ill. 2d at 474, 546 N.E.2d at 601 (toxic asbestos fibers present throughout public school buildings used for mandatory classroom attendance as well as other public functions).

Although the legislature has declared that the presence of intact lead-based paint does not alone constitute a lead hazard,*fn3 plaintiff alleges that the presence of intact lead-based paint constitutes a public nuisance because it will inevitably deteriorate. Citing Village of Wilsonville v. SCA Services, Inc., 86 Ill. 2d 1, 26 (1981), and People ex rel. Difanis v. Futia, 56 Ill. App. 3d 920, 926 (1978), defendants assert that nuisances cannot be "contingent." Defendants argue that plaintiff's claim that intact lead-based paint is a nuisance today is insufficient because it depends upon the possibility that property owners will allow the intact lead-based paint to deteriorate in the future.

Because we believe that defendants' points are well taken, we question whether plaintiff has adequately alleged the existence of a public right. In posing the question of whether the case before it involved a public right, our supreme court in Beretta explained that it did not "intend to minimize the very real problem of violent crime and the difficult tasks facing law enforcement and other public officials." Beretta, slip op. at 16. The court additionally noted that it did not "intend to dismiss the concerns of citizens who live in areas where gun crimes are particularly frequent." Beretta, slip op. at 16. Similarly here, by considering whether plaintiff ...


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