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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
roperty or other direct injury. The Restatement appears to limit recovery of economic damages in public nuisance suits to individual plaintiffs so affected by the public nuisance that they have standing to bring the action. Restatement (Second) of Torts ยง821(C)(1) (1979). We need not decide in the present case whether we agree with this approach, which has been adopted in other jurisdictions (One Meridian Plaza, 820 F. Supp. at 1481; Stop & Shop Cos. v. Fisher, 387 Mass. 889, 897, 444 N.E.2d 368, 373 (1983) (individual plaintiff who suffered no damage to property may recover solely economic damages in public nuisance claim for obstruction of public way by demonstrating "special pecuniary harm," not common to the general public)), because the plaintiffs here are public entities. In Chicago Flood, this court concluded that there is no reason to treat claims of private nuisance differently from other torts. In re Chicago Flood, 176 Ill. 2d at 207. In the end, we see no reason to treat claims of public nuisance differently than claims of private nuisance. The Moorman doctrine does not permit an award of solely economic damages to the plaintiff public entities in this public nuisance action.
b. Municipal Cost Recovery Rule
The result we reach on the application of the economic loss doctrine is consistent with the result mandated by the municipal cost recovery rule, also called the "free public services doctrine," under which public expenditures made in the performance of governmental functions are not recoverable in tort. The rule, where it has been adopted, is based, in part, on the constitutional doctrine of separation of powers. See, e.g., United States v. Standard Oil Co. of California, 332 U.S. 301, 314-15, 91 L.Ed. 2067, 2075, 67 S.Ct. 1604, 1611 (1947) (declining to recognize cause of action by federal government to recover costs of injured soldier's hospitalization and pay resulting from negligence of defendants; noting that Congress, not the Court, "is the custodian of the national purse," and the "exclusive arbiter of federal fiscal affairs").
This court has not had occasion to consider adoption of the municipal cost recovery rule. The single appellate court case to employ the rule, County of Champaign v. Anthony, 33 Ill. App. 3d 466 (1975), held that the county could not recover from a criminal defendant the cost of providing protection to a witness against him. This court affirmed on other grounds. County of Champaign v. Anthony, 64 Ill. 2d 532 (1976).
The seminal case on this doctrine is City of Flagstaff v. Atchison, Topeka & Santa Fe Ry. Co., 719 F.2d 322, 324 (9th Cir. 1983), in which the city attempted to recover from the railway the costs associated with emergency response after the derailment of tank cars carrying explosive gas. The city's theories of liability were negligence and conduct of an ultrahazardous activity. City of Flagstaff, 719 F.3d at 323. Affirming the district court's dismissal of the complaint, the court of appeals held that "the cost of public services for protection from fire or safety hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose negligence creates the need for the service." City of Flagstaff, 719 F.2d at 323 (applying Arizona law in a case of first impression). See also Koch v. Consolidated Edison Co. of New York, Inc., 62 N.Y.2d 548, 468 N.E.2d 1, 479 N.Y.S.2d 163 (1984) (in absence of statutory authority, city cannot recover wages, salaries, and overtime paid to police, fire, and other municipal employees as a result of citywide blackout caused by defendant's negligence).
The decision in City of Flagstaff did not turn on the underlying theory of tort liability, or on
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