specially concurring upon denial of petition of
rehearing:
I concur with the decision of the majority to affirm the dismissal of the complaint and with the reasons stated for dismissal of counts II and IV, which are based upon strict liability. I cannot agree that counts i I, III, and V charging negligent or wilful and wanton distribution of the red light are defective because the plaintiff admitted in the pleading he was then unable to determine how the alleged murderers ob- | tained possession of the light.
The complaint was dismissed pursuant to a defense motion under I section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), which merely tests the sufficiency of the complaint I to state a cause of action. The counts allege the defendant manufactured the light and distributed it without restriction. The counts also allege defendant knew or should have known the light was likely to be used to impersonate police officers in the facilitation of the commission of a crime if no restrictions were placed on distribution. They further allege the unrestricted distribution was a proximate cause of the murderers obtaining the light and their use of the light was a proximate cause of the rape and murder. I do not deem allegation of how the light came into the possession of the murderers to be a necessary element of the statement of a cause of action. Plaintiff did not have to make allegation negating the possibility that the murderers obtained possession of the light by virtue of an intervening factor which would destroy the proximate aspect of the causal relationship between the distribution of the light and its possession by the murderers.
I deem the method by which the murderers obtained the possession of the light to be an evidentiary detail not needed to be alleged and therefore neither the failure to allege it nor the lack of present ability to then prove it was fatal to the statement of a cause of action. Moreover, the element of how possession was obtained would seem to be an example of the type of evidence that might later be obtained with discovery. Wait v. First Midwest Bank (1986), 142 Ill. App. 3d 703, 491 N.E.2d 795.
I concur in the dismissal of counts I, III, and V because the ultimate facts set forth do not constitute the breach of a common law duty. The parties correctly point out that the question of whether a duty exists under given circumstances is a question of law for the court (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 493 N.E.2d 1022) and that the existence of duty depends upon “[t]he likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.) No case has been called to our attention which has placed a common law burden upon the manufacturers and original distributor of products which might be used to imitate law enforcement officers to restrict the distribution so that the items do not come in to the possession of others. While such produces might be held to anticipate that these items will be used to facilitate a serious crime, the difficulties in guarding against it would be most difficult, as the majority opinion indicates. As pointed out by defendant, even in regard to items as dangerous as firearms, producers have been held to have no common law duty to place restriction on their distribution to prevent the firearms from getting in the possession of persons likely to use them to harm others. Riordan v. International Armament Corp. (1985), 132 Ill. App. 3d 642, 477 N.E.2d 1293; Linton v. Smith & Wesson (1984), 127 Ill. App. 3d 676, 469 N.E.2d 339.