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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
ublic services described in City of Flagstaff. In Wyandotte Transportation Co. v. United States, 389 U.S. 191, 19 L.Ed. 2d 407, 88 S.Ct. 379 (1967), for example, the government was permitted to recover the costs of removing a sunken vessel from an inland waterway because such recovery was consistent with a federal statute that contained specific, but not exclusive, remedies for violations.
In City & County of San Francisco v. Philip Morris, Inc., 957 F. Supp. 1130 (N.D. Cal. 1997), plaintiffs were permitted to maintain an action for fraud against tobacco defendants in effort to recover costs of medical care provided to indigent residents for smoking-related illness. This result, however, was not reached as an exception to the municipal cost recovery rule. Rather, the court ruled that the California law, which bars recovery by one who pays medical expenses of another who has been negligently injured, does not apply to intentional torts such as fraud. City & County of San Francisco, 957 F. Supp. at 1141.
Plaintiffs also rely on Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99 (Mo. App. 1984), in which the State of Missouri was permitted to sue the firefighters' union in tort to recover the cost of deploying the state militia during an illegal strike. Authority for the award of damages was found in the state statute making such strikes illegal, which "implicitly consign " the recognition of a cause of action for violation of the statute and the creation of the proper remedy to the courts. Ashcroft, 672 S.W.2d at 109. The Missouri court, however, expressly disclaimed any liability for damages under the theory of public nuisance on these facts. Ashcroft, 672 S.W.2d at 114.
Plaintiffs also cite City of New York v. Taliaferrow, 144 Misc. 2d 649, 544 N.Y.S.2d 273 (1989), in which the trial court ruled the operation of a house of prostitution a public nuisance and awarded $1 in compensatory damages and $100,000 in punitive damages to the city, pursuant to a state statute authorizing the imposition of civil penalties. No "municipal costs" were at issue because no compensatory damages were demonstrated. Taliaferrow, 144 Misc. 2d at 653, 544 N.Y.S.2d at 277.
Plaintiffs also argue that the exception acknowledged in City of Flagstaff, applicable to matters "unrelated to the normal provision of police, fire, and emergency services" (City of Flagstaff, 719 F.2d at 324), should apply when ongoing misconduct is so pervasive that it creates a public nuisance. They cite City of Cincinnati, in which the Supreme Court of Ohio permitted the city to maintain an action for damages in tort against a group of defendants similar to those in the present case:
"Although a municipality cannot reasonably expect to recover the costs of city services whenever a tortfeasor causes harm to the public, it should be allowed to argue that it may recover such damages in this type of case. Unlike the train derailment that occurred in the Flagstaff case, which was a single, discrete incident requiring a single emergency response, the misconduct alleged in this case is ongoing and persistent. The continuing nature of the misconduct may justify the recoupment of such governmental costs. * Moreover, even the Flagstaff court recognized that recovery by a governmental entity is allowed `where the acts of a private party create a public nuisance which the government seeks to abate.' " City of Cincinnati, 95 Ohio St. 3d at 428, 768 N.E.2d at 1149-50, quoting City of Flagstaff, 719 F.2d at 324.
See also City of Boston v. Smith & Wesson Corp., No. 199902590 (Mass. Super. July 13, 2000) (distinguishing City of Flagstaff on basis that it involved a discrete emergency
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