dissenting:
As the amicus brief filed by the Illinois Trial Lawyers Association discusses, lead poisoning is one of the leading environmental health hazards facing our children. The risk of exposure is great, the difficulty of diagnosis is high, and the threat of harm is extreme. In the worst cases, lead poisoning can result in death. Even at lower levels, it can retard development and impair cognition. Its effects may be irreversible.
The major cause of lead poisoning in children is lead paint. The poisoning occurs as the lead paint deteriorates or is removed. Although all children are at risk for lead toxicity, it affects poor and minority children disproportionately.
The City of Chicago and the State of Illinois have been at the forefront of combating the risks posed by ingestion of lead paint. For 30 years, legal advances have been made. Statutes and ordinances have been enacted and then amended as the government searches for effective means to compel landowners to maintain their property free of lead hazards. The causes of action asserted by plaintiff in this case are fully consistent with those efforts and with the precedent of this court.
It is an understatement to say that I am disheartened by the way in which plaintiffs claims have been dismissed by my colleagues today. Despite the court’s disturbingly consistent record, I live in perpetual hope that some day, some child with a meritorious claim will be permitted by our court to have his or her pleas heard by a jury. I have begun to understand, however, that that day may not come soon.
What is most discouraging to me is the court’s growing disregard for even the most basic principles of judicial review. Adherence to the rules of court, to stare decisis, to established standards of review, to express statutory language and even to basic legal reasoning seems now to have become optional. I have complained of this trend before. Today’s decision is but the most recent example.
In upholding the circuit court’s dismissal of counts III and VII, the court writes that plaintiff should not be allowed to assert a private right of action under the Lead Poisoning Prevention Act (410 ILCS 45/1 et seq. (West 1996)) because she can bring a common law tort action against defendants based on violation of that statute. The problem with this analysis, as experienced practitioners will recognize immediately, is that it is premised on a basic theoretical error. It assumes that implying a private right of action under a statute and allowing a plaintiff to bring a common law tort action based on violation of that statute are distinct and mutually exclusive concepts. In reality, they are the same. Conceptually and as a practical matter, there is no difference.
Our recent decisions in Noyola v. Board of Education, 179 Ill. 2d 121, 129-31 (1997), and Lewis E. v. Spagnolo, 186 Ill. 2d 198, 231-32 (1999), should have made this clear. Significantly, those decisions are nowhere to be found in the majority’s disposition. They are absent because the majority decided this case backwards. Instead of following the law to the proper result, it reached the result it wanted, then cobbled together some legal principles to rationalize that outcome.
I make no pretense of being a great thinker or profound jurist, but I read the briefs and the law and I think I understand what the cases say. Illinois has long recognized the adjudicatory consequences of legislation. Our approach, which has its origins in English common law, differs from that followed by the federal courts. As in most states, we have come to view implied rights of action through the paradigm of common law tort actions. When we hold that a plaintiff has an implied right of action for violation of a statutory enactment, what we mean is that violation of that statute gives rise to an action based on the appropriate common law tort analog, such as negligence, battery, trespass, nuisance and intentional infliction of emotional distress. See, e.g., Lewis E. v. Spagnolo, 186 Ill. 2d at 231 (“[A]n implied private right of action under a statute is a means by which a plaintiff may pursue a tort action. If a statute is construed as providing an implied private right of action, the plaintiff may pursue a tort action against a defendant whose violation of the statute proximately caused injury to the plaintiff’).
As the case law has developed, the court has employed different formulations for describing the applicable principles. The connection between the concepts becomes apparent, however, when these formulations are compared. We say that a plaintiff may recover in negligence based on a defendant’s violation of a statute or ordinance (1) if the statute or ordinance was designed to protect human life or property, (2) if the plaintiff belongs to the class intended to be protected by the statute or ordinance, (3) if plaintiff’s injury is of the type the statute or ordinance was designed to protect against, and (4) if defendant’s violation proximately caused the injury. Noyola v. Board of Education, 179 Ill. 2d 121, 130-31 (1997). Likewise, we hold that a private right of action will be implied under a statute (1) if the plaintiff is a member of the class for whose benefit the statute was enacted, (2) if implication of the right of action is consistent with the underlying purpose of the statute, (3) if plaintiffs injury is one the statute was designed to prevent, and (4) if implication of an action is necessary to provide an adequate remedy for violations of the statute. Rodgers v. St. Mary's Hospital, 149 Ill. 2d 302, 308 (1992).
The parallels between these formulations derive from their common origin and theoretical basis, which we traced in Noyola v. Board of Education, 179 Ill. 2d 121, 129-31 (1997), and which is discussed more fully in H. Foy, Some Reflections on Legislation, Adjudication and Implied Private Actions in the State and Federal Courts, 71 Cornell L. Rev. 501 (1986), cited in Noyola. The common origin and theoretical basis of the formulations is also evident to anyone who traces back the implied right of action doctrine through cases such as Corgan v. Muehling, 143 Ill. 2d 296 (1991), and Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379 (1982). The path will lead directly to Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 155 (1955), which upheld the right to sue for damages for violation of a statute based on the principle that “[w]hen a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned therein.”
To the extent that the courts’ formulations differ, the difference is a matter of formality rather than substance. Items two and three of the “negligence” formulation correspond, respectively, with items one and three of the implied right of action formulation. Item one of the negligence formulation has its analog in item three of the implied right of action formulation. Although item four of the negligence formulation is not included in the listing of elements for implying a private right of action, there is no doubt that a plaintiff cannot prevail based on an implied right of action theory without a showing that the statutory violation proximately caused her injury. See Lewis E. v. Spagnolo, 186 Ill. 2d at 231 (and cases cited therein). Similarly, although item four of the implied right of action formulation is not included in the listing of elements for bringing a negligence action based on a statutory violation, the notion that allowing recovery is necessary in order to provide an adequate remedy for violation of the statute is implicit whenever the court holds that a plaintiff may sue in tort based on the violation of a statute.
A useful way to think of the implied right of action formulation under Illinois law is as a generic version of the negligence formulation under which liability may be imposed based on violation of a statute using tort theories in addition to negligence, such as battery, trespass, nuisance and intentional infliction of emotional distress. In an implied right of action case, as under the negligence formulation, the statute does not fix all of the elements of the cause of action. Rather, it serves to define the duty or standard of care owed by the defendant. The remaining elements for recovery in tort must still be established.
Under these circumstances, it makes no sense to hold, as the majority does now and as the circuit court did below, that we should not imply a private right of action under the Lead Poisoning Prevention Act because plaintiff may assert a common law negligence claim based on violation of that Act. If plaintiff has a viable negligence claim for violation of the Act, it is because we are willing to imply a private right of action under the statute. If we are willing to imply a private right of action under the statute, it means that plaintiff has a viable negligence claim for violation of the Act. Bier v. Leanna Lakeside Property Ass'n, 305 Ill. App. 3d 45 (1999), a recent appellate court decision, illustrates this point.
In fairness, plaintiff herself is partly to blame for the confusion. Her complaint is drafted so that it contains both common law negligence counts alleging violation of the Act (counts I and V) and counts seeking damages based on defendants’ breach of duty under the Act (counts III and VII). With respect to the Act and defendants’ liability for its violation, however, there is no substantive difference between the allegations in the various counts. The same statutory violations alleged in counts III and VII are included among the violations cited as grounds for relief in counts I and V Counts III and VII are simply a subset of the allegations in counts I and V set apart and restated. Accordingly, an argument can be made that counts III and VII should be stricken on the grounds that they are redundant and constitute nothing more than surplusage. Those counts are not subject to challenge, however, on the grounds that they fail to state a cause of action.
The majority’s handling of plaintiffs claims based on violation of Chicago’s Municipal Code suffers from the same infirmity. There is no dispute that municipal ordinances can establish a duty of care, violation of which can give rise to liability in tort. See, e.g., Noyola v. Board of Education, 179 Ill. 2d at 130; Martin v. Ortho Pharmaceutical Corp., 169 Ill. 2d 234, 240 (1996); Kalata v. Anheuser-Busch Co., 144 Ill. 2d 425, 434 (1991); French v. City of Springfield, 65 Ill. 2d 74, 79 (1976). Because we allow plaintiffs to sue in tort based on violation of a municipal ordinance, it is erroneous to say that an ordinance cannot serve as the basis for an implied private right of action. As in the case of statutes, there is no practical difference under Illinois law between allowing tort recovery based on an ordinance violation and implying a private right of action under the ordinance. It'amounts to precisely the same thing. As a result, if there is any flaw in plaintiffs attempt to assert an implied private right of action, it is that the claim merely duplicates the corresponding paragraphs in her common law negligence counts.
As basic as these mistakes are, they are not the only problems with my colleagues’ analysis. The Sawyer Realty test, upon which the majority bases its decision, pertains only to implied rights of action. It has no bearing on the viability of express rights of action. As even a cursory examination of the pleadings reveals, however, plaintiff has asserted an express right of action under Chicago’s Municipal Code in addition to an implied right of action. Specifically, plaintiff seeks recovery under section 5—12—110(e) of the Code, which expressly allows tenants to “recover damages by claim or defense” when the landlord is in material noncompliance with the rental agreement or section 5—12—070 of the Municipal Code, the ordinance provision that requires landlords to maintain premises in compliance with the applicable provisions of the Municipal Code, including the ordinances prohibiting the use of lead-bearing substances in dwelling units.
Because plaintiff has asserted an express right of action under the Municipal Code, as well as an implied one, the Sawyer Realty test would not be dispositive of the entire case even if the majority’s application of that test were correct. With respect to plaintiffs express right of action, an issue would still remain as to whether allowing recovery under the Code provisions invoked by plaintiff would violate the home rule provisions of the Illinois Constitution. If the court reached this issue on the merits, as it should, it would have to conclude that no constitutional violation exists.
Under the Illinois Constitution of 1970, home rule units can basically do anything the state can do. Ill. Const. 1970, art. VII, § 6. Their powers and functions are to be construed liberally (Ill. Const. 1970, art. VII, § 6(m); City of Chicago v. Roman, 184 Ill. 2d 504, 513 (1998)), and they have “the broadest powers possible” (Scadron v. City of Des Plaines, 153 Ill. 2d 164, 174 (1992)). Included among their powers is the power to enact ordinances designed to protect public health, safety, morals and welfare. Ill. Const. 1970, art. VII, § 6(a).
This grant of power has been construed to encompass the power to regulate the relationship between landlords and tenants. In particular, home rule units have been held to have the power to enact ordinances which govern the termination of tenancies and provide for recovery of civil damages (City of Evanston v. Create, Inc., 85 Ill. 2d 101 (1981)), impose restrictions for the eviction of tenants (City of Evanston v. O'Leary, 244 Ill. App. 3d 190 (1993)), and allow plaintiffs to recover damages from landlords who take retaliatory action against them (Reed v. Burns, 238 Ill. App. 3d 148 (1992)). There is no legitimate basis for distinguishing those situations from the one before us here.
It is true that matters of statewide interest may be so compelling as to preclude home rule power, but the mere existence of state interest and activity in a particular field does not preclude home rule activity absent legislative action to limit or exclude home rule power or to declare it one of exclusive state control. We said so specifically in City of Evanston v. Create, Inc., 85 Ill. 2d at 113, where we upheld the right of home rule units to enact landlord-tenant ordinances containing provisions authorizing recovery of damages. In the matter before us today, the legislature most definitely did not act to limit or exclude home rule power. To the contrary, when the legislature enacted the Lead Poisoning Prevention Act, it specifically provided that the legislation was not to be “interpreted or applied in any manner to defeat or impair the right of any person *** to maintain an action or suit for damages sustained or for equitable relief, or for violation of an ordinance” in connection with any violation of the Act and that the Act “shall not prohibit any city *** or other political subdivision from enacting and enforcing ordinances establishing a system of lead poisoning control which provide the same or higher standards than those set forth in this Act.” 410 ILCS 45/15 (West 1996). In light of these provisions and our own precedent, it is clear that Chicago did not overstep its authority in enacting the ordinances at issue here.
For the foregoing reasons, I would affirm the judgment of the appellate court. I therefore dissent.