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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
reat nuisance differently than any other tort, recovery of damages for solely economic loss would not be permitted. In re Chicago Flood, 176 Ill. 2d at 207. We based this holding on the policy underlying the economic loss rule: that because "the economic consequences of any single accident are virtually endless," a defendant who could be held liable for every economic effect of its tortious conduct would face virtually uninsurable risks, far out of proportion to its culpability. The economic loss rule operates to prevent such open-ended tort liability. In re Chicago Flood, 176 Ill. 2d at 207 (referring to earlier discussion in the opinion). The present case, however, is distinguishable from Chicago Flood, in which the theory of liability was private nuisance and the harm was the result of a single accident, rather than a course of conduct.
Plaintiffs cite Board of Education of City of Shepard v. A, C & S, Inc., 131 Ill. 2d 428 (1989), as an example of a case in which this court allowed a tort action to proceed, notwithstanding the fact that the plaintiff school boards were seeking damages from the defendant manufacturers and distributors of asbestos-containing materials. Recovery of the costs of asbestos abatement would not have been possible under a contract theory. After all, the defendants provided and satisfactorily installed a product that adequately performed its intended fireproofing and insulation functions. A, C & S, 131 Ill. 2d at 451.
Moorman directed that a court consider the "nature of the defect and the manner in which the damage occurred" as a means of distinguishing between property damage, which would support a claim for economic damages, and purely economic loss, which would not. Moorman, 91 Ill. 2d. at 82. Applying this two-part inquiry in A, C & S, this court found that the nature of the defect was the presence of carcinogenic asbestos fibers on school premises. A, C & S, 131 Ill. 2d at 445. The manner in which damage occurred was contamination, which was deemed a type of property damage on which a claim for economic damages could be based. A, C & S, 131 Ill. 2d at 449. This court, therefore, declined to dismiss the school boards' negligence and strict liability claims as barred by the Moorman doctrine. A, C & S, 131 Ill. 2d at 451.
"Perhaps it is difficult, and may appear somewhat artificial, to fit a claim for asbestos damage within the framework which has been established for more traditional tort or contract actions. Indeed, the nature of the `defect' and the `damage' caused by asbestos is unique * . Nonetheless, we do believe that this complaint has alleged sufficient facts to establish a tort action under the principles established in Moorman; however, the holding in this case should not be construed as an invitation to bring economic loss contract actions within the sphere of tort law through the use of some fictional property damage." A, C & S, 131 Ill. 2d at 445.
Despite this warning, plaintiffs urge us to read A, C & S as creating an exception to the Moorman doctrine whenever it is alleged that a defendant's conduct "creates an unreasonable threat to public health, safety, and welfare." A, C & S, however, does not represent an exception to Moorman. Instead, A, C & S merely stands for the proposition that because contamination is a form of property damage, the cost of asbestos removal from a plaintiff's property does not constitute a solely economic loss subject to the bar of Moorman. See also Tioga Public School District #15 of Williams County, State of North Dakota v. United States Gypsum Co., 984 F.2d 915 (8th Cir. 1993) (holding that the economic loss doctrine did not bar plaintiff's claim for damag
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