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City of Cincinnati v. Beretta U.S.A. Corporation6/12/2002
ppellees for these damages. Under the third factor, Holmes asks whether "the general interest in deterring injurious conduct" will be better served by requiring that suit be brought by more directly injured victims. Id., 503 U.S. at 269, 112 S.Ct. 1311, 117 L.Ed.2d 532. Although appellant is indirectly attempting to protect its citizens from the alleged misconduct by the gun manufacturers and trade associations, appellant is seeking recovery for its own harm. Under these circumstances, the general interest will be best served by having this plaintiff bring this lawsuit. We believe that appellant can withstand scrutiny under the Holmes test. Consequently, we find that the court of appeals erred in concluding that appellant's claims were too remote for recovery.
III. Recoupment of Cost of Governmental Services
. Appellant alleged in its complaint that due to the misconduct of appellees, it has sustained damages, including "significant expenses for police, emergency, health, corrections, prosecution and other services." Appellees contend that the cost of these public services is nonrecoverable, since these are services the city is under a duty to provide.
. For support, appellees rely in part on Flagstaff v. Atchison, Topeka & Santa Fe Ry. Co. (C.A.9, 1983), 719 F.2d 322, a case in which the city sought to recoup police, fire, and other expenses associated with protecting the public from a petroleum gas spill arising from a train derailment. In that case, the court stated 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. Where such services are provided by the government and the costs are spread by taxes, the tortfeasor does not expect a demand for reimbursement." (Citation omitted.) Id. at 323. The court of appeals accepted this position and held that a municipality may not recover for expenditures for ordinary public services that it has the duty to provide.
. 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. Therefore, if appellant can prove all the elements of the alleged torts, it should be able to recover the damages flowing from appellees' misconduct. 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." Flagstaff, 719 F.2d at 324. We therefore reject the court of appeals' holding that appellant cannot recover its governmental costs.
IV. Constitutional Arguments
. Appellees further argue that appellant is attempting to regulate a national firearms industry and, therefore, its claims are barred under the Commerce Clause and the Due Process Clause of the United States Constitution.
. The Commerce Clause " `precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State.' " Healy v. Beer Inst. (1989), 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275, quoting Edgar v. MITE Corp. (1982), 457 U.S. 624, 642-643, 102 S.Ct. 2629, 73 L.Ed.2d 269. Despite the fact that
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