(Internal quotation marks omitted.) City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 370, 290 Ill.Dec. 525, 821 N.E.2d 1099 (2004). In order for there to be a sufficient pleading in a public nuisance cause of action, the pleading must βallege a right common to the general public, the transgression of that right by the defendant, and resulting injury.β
Breit Johnson argues, further, that even if such a public right were to be recognized, plaintiffs are not seeking redress for a violation of the public right. Rather, as evinced by their prayers for relief seeking damages pursuant to the Wrongful Death Act ( 740 ILCS 180/1 et seq. (West 1998)), they seek a remedy in tort for injuries to specific individuals. In City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351 (2004), we expressed reservations regarding the existence of a public right to use the public space without undue risk of injury. Although we continue to doubt the wisdom of recognizing such a broad and ill-defined public right, we assume without deciding that plaintiffs have properly pleaded the existence of a public right that is affected by the alleged nuisance and turn to our consideration of the elements of unreasonable interference and proximate cause. Unreasonable Interference
See also Lopez, 362 Ill. App. 3d at 981-82 (legal cause was alleged in a malpractice action where it was reasonably foreseeable that a plaintiff would wait to retain another attorney after the defendant attorney misinformed him about the length of the statute of limitations).ΒΆ 127 Defendants cite in support: Abrams v. City of Chicago, 211 Ill. 2d 251 (2004); and City of Chicago v. Beretta USA Corp., 213 Ill. 2d 351 (2004). In both of these cases, our supreme court found there was no legal cause due to intervening criminal acts by third parties.
Illinois courts use two tests to determine if there is cause in fact: (1) the βbut forβ test; and (2) the βsubstantial factorβ test. City of Chi. v. Beretta U.S.A. Corp., 213 Ill.2d 351, 395, 290 Ill.Dec. 525, 821 N.E.2d 1099, 1127 (2004). First, under the βbut forβ test, courts ask whether the injury would have occurred absent the defendant's conduct.
Proximate cause consists of two separate requirements: cause in fact and legal cause. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 395, 821 N.E.2d 1099, 1127 (2004); LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d 806, 828, 893 N.E.2d 949, 970 (2008). Cause in fact exists " 'when there is a reasonable certainty that a defendant's acts caused the injury or damage.
The proximate-cause element consists of two separate requirements: cause in fact and legal cause. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 395, 821 N.E.2d 1099, 1127 (2004). Cause in fact exists "`when there is a reasonable certainty that a defendant's acts caused the injury or damage.'"
With respect to causation, "[t]he term 'proximate cause' [under Illinois law] encompasses two distinct requirements: cause in fact and legal cause." City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1127 (Ill. 2004). In determining whether a plaintiff has established cause in fact, the Court asks "whether the injury would have occurred absent the defendant's conduct." Id.
We agree with the Illinois Supreme Court that "[t]he proper inquiry regarding legal cause involves an assessment of foreseeability, in which we ask whether the injury is of a type that a reasonable person would see as a likely result of his conduct." City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 290 Ill.Dec. 525, 821 N.E.2d 1099, 1127 (2004) (citing Lee v. Chicago Transit Authority, 152 Ill.2d 432, 178 Ill. Dec. 699, 605 N.E.2d 493, 503 (1992)). Accordingly, "[l]iability cannot be predicated on a prior and remote cause which merely furnishes the condition or occasion for an injury resulting from an intervening unrelated and efficient cause, even though the injury would not have resulted but for such a condition or occasion * * *."
ΒΆ 30 Our supreme court has also stated "time and again" that Illinois is a fact-pleading jurisdiction. Weiss v. Waterhouse Securities, Inc., 208 Ill.2d 439, 451 (2004); City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 367 (2004). In a notice-pleading jurisdiction, such as the federal courts, "a plaintiff is not required to plead operative facts with particularity."
Sheahan concludes that no special relationship existed with Josh and that he did not perform any voluntary undertaking to create a duty to protect Josh. Sheahan argues that the recent trend in cases has identified a fear of the expansion of liability and the special relationship rule. See City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351 (2004); Young v. Bryco Arms, 213 III. 2d 433 (2004); Charleston v. Larson, 297 III. App. 3d 540 (1998). Sheahan notes that, though the Rule 23 order affirming the delinquency adjudication was not included in the record, the trial court cited to the order.