City of Chicago v. American Cyanamid Co.

Decision Date14 January 2005
Docket NumberNo. 1-03-3276.,1-03-3276.
Citation823 N.E.2d 126,291 Ill.Dec. 116,355 Ill. App.3d 209
PartiesThe 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.
CourtUnited States Appellate Court of Illinois

Corporation Counsel, City of Chicago (Mara S. George, Lawrence Rosenthal, Benna Ruth Solomon, Suzanne M. Loose, of counsel), Environmental Law Program Chicago Legal Clinic, Chicago (Keith Harley, of counsel), Lawyers Committee for Civil Rights Under Law, Inc., Chicago (Sarah Vanderwicken, Amy L. Zimmerman, of counsel), for Appellant.

Wildman, Harrold, Allen & Dixon, LLP, Chicago (James P. Dorr, Sarah L. Olson, Lisa S. Simmons, of counsel), for Appellee E.I. du Pont de Nemours and Company.

Amicus Curiae of 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, Kinoy, Taren & Geraghty P.C., Chicago (Jeffery L. Taren, of counsel), for Appellant.

Amicus Curiae of the Illinois Manufacturers' Association, Vedder, Price, Kaufman & Kammholz, P.C., Chicago (Andrew M. Gardner, James A. Spizzo, of counsel), for Appellees.

Amicus Curiae of the Product Liability Advisory Council, Product Liability Advisory Council, Inc. (Hugh F. Young, Jr., of counsel), Dechert LLP (James M. Beck, of counsel), Segal McCambridge Singer & Mahoney, Ltd., Chicago (Paul E. Wojcicki, of counsel), for Appellees.

Justice GALLAGHER delivered the opinion of the court:

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 1978.1 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.

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., 213 Ill.2d 351, 290 Ill.Dec. 525, 821 N.E.2d 1099 (2004), and Young v. Bryco Arms, 213 Ill.2d 433, 290 Ill.Dec. 504, 821 N.E.2d 1078 (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, 213 Ill.2d at 423-24, 290 Ill. Dec. 525, 821 N.E.2d 1099. 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, 267 Ill.Dec. 14, 776 N.E.2d 151 (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., 213 Ill.2d at 363-65, 290 Ill.Dec. 525, 821 N.E.2d 1099. 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, 213 Ill.2d at 363-65, 290 Ill.Dec. 525,821 N.E.2d 1099.

In Beretta, the court first reviewed the general legal principles regarding the common law of public nuisance. Beretta, 213 Ill.2d at 364-67, 290 Ill.Dec. 525, 821 N.E.2d 1099. 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, 213 Ill.2d at 364-65, 290 Ill.Dec. 525, 821 N.E.2d 1099, quoting W. Keeton, Prosser & Keeton on Torts § 86, at 616 (5th ed.1984).2

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, 213 Ill.2d at 365-66, 290 Il.Dec. 525, 821 N.E.2d 1099. 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, 276 Ill.Dec. 110, 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, 213 Ill.2d at 366-67,290 Ill.Dec. 525,821 N.E.2d 1099. 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, 213 Ill.2d at 368-70,290 Ill.Dec. 525,821 N.E.2d 1099.

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, 213 Ill.2d at 370-71, 290 Ill.Dec. 525, 821 N.E.2d 1099. "Thus, the first element that must...

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