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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
each of duty." People Express, 100 N.J. at 267, 495 A.2d at 118. With regard to the nuisance claim, the court stated, the ability of an individual to recover solely economic losses under the new rule would be dependent on his standing to bring an action for public nuisance. People Express, 100 N.J. at 259-60, 495 A.2d at 113-14.
The foreseeability exception to the economic loss doctrine formulated by the New Jersey court in People Express has not been widely adopted. In addition, although People Express was decided several years after Moorman, it was decided more than a decade before In re Chicago Flood. When this court ruled in In re Chicago Flood that the Moorman doctrine bars the recovery of solely economic damages in private nuisance, it implicitly rejected the approach taken in People Express. We are not persuaded to adopt it now.
Although the economic loss doctrine is rooted in the theory of freedom of contract, it has grown beyond its original contract-based policy justifications of maintaining the fundamental distinction between contract and tort and protecting the freedom of parties to allocate risk by contract. In re Starlink Corn Products Liability Litigation, 212 F. Supp. 2d 828, 842 (N.D. Ill. 2002). One of the early expansions of the economic loss doctrine beyond cases involving the parties to a contract was in the so-called "bridge" or "access cases." Starlink, 212 F. Supp. at 840. In these cases, the plaintiff businesses sought damages for lost profits after access to their places of business was prevented by the closure of a bridge or road. The theories of liability were negligence or nuisance. In re Chicago Flood was such a case. Starlink, 212 F. Supp. at 840.
"Although they are nominally under the same economic loss rule, there are really some different policy issues driving the doctrine in access cases. The usual concerns about interfering with contract law and the parties' freedom to allocate risks are not present because there is no contractual relationship. The parties are typically strangers and, with no foreknowledge of each other's activities, had no opportunity to assess and allocate risks ex ante. What these cases share in common with traditional economic loss doctrine jurisprudence is the lack of property damage. Moreover, because the only harms alleged were profits lost due to customer's inability to access the premises, these damages fit neatly within the rubric of `disappointed commercial expectations.' Courts also emphasize the speculativeness and potential magnitude of damages in access cases. * So, although the original policy bases for the economic loss doctrine are not present, because of the type of injury , these cases seem to fit, at least linguistically, within the economic loss doctrine." Starlink, 212 F. Supp. at 840.
The damages sought by the plaintiffs in the present case are not lost profits and, thus, do not "fit neatly" within the rubric of the economic loss doctrine as applied in the access cases. However, the concerns regarding speculativeness and potential magnitude of damages that are present in the access cases are present here. We conclude that the damages sought by the plaintiffs are "solely economic damages" in the sense that they represent costs incurred in the absence of harm to a plaintiff's person or property. See Starlink, 212 F. Supp. at 841 (plaintiff cannot rely on harm to property belonging to others to demonstrate economic injury ).
In sum, this court has never before been asked to determine whether the Moorman doctrine bars a claim for solely economic damages incurred by a city when it brings a claim of public nuisance on behalf of the general public, in the absence of physical harm to city p
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