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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
).
In James v. Arms Technology, Inc., 359 N.J. Super. 291, 820 A.2d 27 (2003), a New Jersey appellate court offered several reasons for declining to apply the municipal cost recovery rule to a public nuisance claim against gun manufacturers, distributors, and dealers. First, the case upon which the New Jersey rule was based had subsequently been abrogated, at least in part, by statute. Second, the ongoing course of conduct alleged against these defendants was distinguishable from the single incident at issue in City of Flagstaff. Third, the rule does not apply where a municipality seeks to recover the costs of abatement of a nuisance. And, finally, the rule has been "subject to recent criticism, given the economic realities faced by cities." James, 359 N.J. Super. at 327, 820 A.2d at 49-50.
We do not find these reasons persuasive. Unlike New Jersey, no Illinois statute authorizes the recovery sought by plaintiffs. Second, we reject the distinction between single, discrete disasters, such as fires and explosions, and the unfortunately frequent incidents of handgun violence as a meaningful basis for abrogating the rule. If anything, the need for emergency response to shootings is a day-to-day occurrence, well within the predictable need for law enforcement and other municipal resources, while the risk of an explosion or other disaster is unpredictable and may impose devastating costs on a local government. Such a "single incident" does not result in a merely "nominal expense" (James, 359 N.J. Super. at 326, 820 A.2d at 48) that can be spread across the tax base without difficulty, as these cases would suggest. Nevertheless, as a matter of public policy, the cost of responding to such disasters is borne by the taxpayers, absent any legislative authorization otherwise. It defies common sense to suggest that the more predictable the expense, the greater the ability of the city to recover its costs in tort. The potential unintended consequences of such a rule are staggering. We agree with defendants that when the need for emergency services in response to an alleged nuisance is ongoing, the municipal cost recovery rule is stronger, not weaker, because the legislature is better able to consider need for cost-recovery legislation than in cases of sudden disaster. If the legislature concludes that the costs of a certain public service should be borne by the parties whose conduct necessitates that service, rather than by the taxpayers in general, it has the ability to enact a statute expressly authorizing recovery of such costs. Third, since plaintiffs admit that abatement is not feasible and that the damages they seek do not represent the cost of abatement, the exception in City of Flagstaff for such recovery does not apply. And, finally, we are not persuaded by scholarly and judicial criticism of the rule, as reflected in plaintiffs' argument that " ompensatory damages may * constitute the most effective relief available for past misconduct, both to compensate the City and the County and to establish a rule providing the firearms industry with an economic incentive to utilize more responsible marketing practices." They may be correct, but this is a question for the legislature. We will not abandon the principles of Moorman and its progeny, and the sound logic underlying the municipal cost recovery rule, in order to create such an incentive.
We conclude, therefore, that even if plaintiffs properly pleaded a cause of action in public nuisance, money damages would not be available because the claimed damages do not represent the actual cost of abatement of the nuisance or compensation for actual harm to the city's or county's property.
2. Injunctive Relief
The issuan
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