MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
March 12, 2009
RE:
Requiring the recipients of emergency service by, but outside, the city to pay the
city for such service
You have the following question: Is it legal for a city in Tennessee to adopt a policy
under which the beneficiaries of emergency services rendered by the city outside of its
boundaries pay for such services? You e-mailed to me this information pertinent to the
question:
This is not mutual aid. The county has no rescue service and
would like for the city to provide it. They [the county] in turn will
“allow” the city to bill for services directly to the party needing
rescue. The city has no intention of billing city residents when
they are involved.
Although your e-mail says “This is not mutual aid....” there are several Tennessee mutual
aid statutes under which municipalities can enter into “one-way” emergency services (law
enforcement and/or fire) contracts with other governments, with private incorporated and
industrial fire departments, with organizations of residents and property owners of
unincorporated communities, and even with private citizens. [See Tennessee Code Annotated,
'' 12-9-112, 6-54-307, 6-54-601-603.] Those statutes give municipalities the right to go outside
their boundaries, and the right to contract for payment for their emergency services outside their
boundaries. I am not sure how a county is going to “allow” municipalities to charge the
recipients of emergency services for such services in light of those statutes, unless it does so by
contract with the city.
Common Law Municipal Cost Recovery Rule or Free Public Services Doctrine
Generally
But I mention the mutual aid statutes almost incidentally, because the major impediment
1
to a municipality charging for emergency services (whether inside or outside of the city) is the
common law “municipal cost recovery rule,” or the “free public services doctrine,” that I
mentioned in my October 12, 1994 letter. I recently updated the research contained in that letter,
aided by a 2008 ALR citation, 32 A.L.R 6th (2008): Construction and Application of “Municipal
Cost Recovery Rule,” or “Free Public Service Doctrine.” I think I have read or perused every
case in that citation. By whichever name that rule or doctrine is called, it is essentially the same
rule: Where police and fire services are concerned, absent a state statute authorizing a
municipality to recover the cost of such services, the recovery will be denied. Indeed, that is the
nearly universal rule. Moreover, it is also the nearly universal rule that applies to the provision
of emergency services where those services are claimed to have been used in the abatement of
nuisances.
Application of common law rule in Tennessee and Sixth Circuit courts
As far as I can determine, there are no state or federal, nor U.S. Sixth Circuit Court of
Appeals (in which Tennessee is located and whose cases apply to Tennessee), cases on your
question. However, it seems more than reasonably safe to predict that if they were faced with the
question of whether that common law rule applies in Tennessee, the Tennessee courts would
follow that rule. That rule provides an exception when a state statute allows a municipality to
recover the cost of providing the emergency service from the person responsible for the
emergency (“tortfeasor”). But even where the existence of such a statute is claimed, the courts
will generally not allow it to be bootstrapped to permit the recover of such costs except where it
is clearly intended to accomplish that result. In Tennessee there is no statute allowing for
municipalities to recover for emergency services rendered inside or outside the municipal limits,
except in the instance reflected in my opinion of October 12, 1994: spills of hazardous
substances. There may be other similar statutes that might allow municipalities to recover the
cost of providing emergency services where they are triggered. I intend to do some future
research on Tennessee statutes that might support that result.
I note that your question does not indicate whether the cost recovery for emergency
services can be had only from the person who caused the emergency, or can be had from
everyone who received the emergency service. But as I read the cases, the common law rule
applies in both instances. For that reason, we do not need to get into the thorny issue of whether a
municipality could recover the cost of emergency services from persons other than the tortfeasor,
even if there were a state statute permitting such a broad recovery.
Possible application of Tenn. Code Anno., '' 8-21-105(21A) and 9-27-108(8)
You cited two provisions of Tennessee Code Annotated, Title 9, Chapter 21, that may
reflect statutes authorizing Tennessee cities to recover the cost of providing emergency services.
However, both those citations are found in the Local Government Public Obligations Act
2
(LGPOA), which provide for the methods of constructing and financing local government public
works projects of various kinds. One citation is Tennessee Code Annotated, ' 9-21-105(21A),
which defines “Public works project” as:
.... includes any one (1) or any combination of the following:
abattoirs, acquisitions of land for the purpose of providing or
preserving open land, airports, alleys, ambulances, auditoriums,
bridges, city and town halls, local government stables or garages,
community houses, corrective, detention and penal facilities,
including but not limited to, jails, workhouses and reformatories,
courthouses, culverts, curbs, dispensaries, drainage systems,
including storm water sewers and drains, electric plants and
systems, expositions, facilities for the handicapped, including
physically and mentally handicapped, facilities for the indigent,
fairgrounds and fairground facilities, fire department equipment
and buildings, fire alarm systems...law enforcement and emergency
services equipment....
The other citation is Tennessee Code Annotated, ' 9-21-107(8), which provides that
among the powers of local governments is the power to:
Fix, levy and collect fees, rents, tolls or other charges for the use of
or in connection with any public works project and, in the event of
any agreements with holders of bonds or notes shall have been
made as hereinafter provided, to fix, levy and collect such fees,
rents, tolls and other charges in accordance with and subject to
such agreements. Such fees, rents, tolls and other charges may also
include any revenues derived by a local government from a lease,
agreement or contract with any other local government, local
government instrumentality, the state, or federal agency for the use
of or in connection with a public works project. The power to fix,
levy and collect such rents, tolls or other charges includes the
power to impose charges for the privilege of parking motor
vehicles in or upon any on-street or off-street parking facilities, and
the power to facilitate the collection of such parking fees or other
charges by the use of parking meters.
The definition of “public works project” in the first statute includes police and fire and
emergency facilities and equipment, and the municipal powers statute includes the authority for a
municipality to levy and collect fees, tolls and rents, and other charges “for the use of or in
connection with any public works project.” If we assume only for the purposes of argument that
those statutes are ambiguous in relation to your question, the cardinal rule of statutory
3
construction that applies to the interpretation of ambiguous statutes is the intention of the
Legislature. [See City of Lenoir City v. State ex rel. City of Loudon, 571 S.W.2d 297 (Tenn.
1978); City of Humboldt v. Morris, 579 S.W.2d 860 (Tenn. Ct. App. 1978).] It appears to me
that few people, reading those two statutes, even generously, separately or together, can seriously
argue that, in the context of the LGPOA, they were intended to give municipalities the authority
to finance police, fire and emergency services by providing emergency services outside the city
in the county, and charging its recipients for such service.
But the main impediment to reading those two statutes broadly enough to accommodate
the recovery of the cost of emergency services by municipalities is that under the rules of
statutory construction, while the common law can be abrogated or modified by statute in
Tennessee, “Statutes do not alter the common law any further than they expressly declare or
necessarily imply.” [Davenport v. Chrysler Credit Corporation, 818 S.W.2d 23 (Tenn. Ct. App.
1991). Also see In re Deskins’ Estate, 611 S.W.2d 921 (1964), Fowler v. Knox County Merit
System Council, 798 S.W.2d 762 (Tenn. Ct. App. 1990); Linder v. Metropolitan Life Insurance
Co., 255 S.W. 43 (1923).] Neither of the two statutes cited from the LGPOA expressly or
impliedly alter the common law rule barring the recovery by municipalities of the cost of
providing emergency services. In that respect, the rules of statutory construction in other states
are undoubtedly similar to the rules of statutory construction that apply to the abrogation of the
common law in Tennessee. That would explain why a statutory exception to the municipal cost
recovery rule or the free public services doctrine claimed by a municipality must clearly abrogate
that rule or doctrine.
Cases Analyzing And Applying Common Law Rule In Actual Emergencies
Here we turn to an analysis of the cases on the common law rule restricting municipal
recovery of the costs of providing emergency services, whether inside or outside the city.
One of the best explanations of the municipal cost recovery rule or free public service
doctrine, and the policy supporting it, is found in City of Flagstaff v. Atchison, Topeka and Santa
Fe Railway Company, 719 F.2d 322 (9th Cir. 1983). In that case, several of the railroad’s tank
cars carrying liquid petroleum gas derailed “near” Flagstaff, Arizona. Language in that case
suggests that some emergency services provided by the city occurred outside its boundaries. The
city sued the railroad, alleging that its expenditures were compensable damages arising either
from the latter’s negligence or its conduct of an ultra hazardous activity.
The Court rejected the city’s claim, declaring that:
Although precedent on the point is limited, we conclude 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. See
City of Bridgeton v. BP Oil, Inc., 146 N.J. Super. 169, 369 A.2d 49
4
(1976). Where such services are provided by the government and
the costs are spread by taxes, the tortfeasor does not expect a
demand for reimbursement. This is so even though the tortfeasor
is fully aware that private parties injured by its conduct, who
cannot spread their risk to the general public, will have a cause of
action against it for damages proximately or legally caused by it ....
That is not to say that a governmental entity may never recover the
cost of its services. Recovery is permitted where it is authorised by
statute or regulation. [At 324]
The Court listed some instances where both federal and state legislation has authorized
the recovery of the governments cost, most of them not involving emergencies, but none of them
applied to the emergency situation at issue.
The District of Columbia sued Air Florida Airlines for the money it spent on the
emergency created when one of its airliners crashed into a bridge over the Potomac River after
take-off. The city rescued survivors, recovered bodies and helped raise the airplane from the
river. In District of Columbia v. Florida Airlines, 750 F.2d 1077 (1984), the U.S. Court of
Appeals for the D.C. Circuit, denied the District the recovery of its costs, declaring that:
The question of whether a governmental entity may recover the
costs of tax-supported emergency services from negligent
tortfeasors appears to be one of first impression in the District of
Columbia. Precedent from other jurisdictions, however, persuade
us that, in the absence of authorizing legislation or a governmental
proprietary interest protected by the services, these expenses may
not be recovered from tortfeasors. [At 1078]
The District of Columbia attempted to recover under several theories, including the
rational cost allocation theory, and the public trust doctrine. I will not discuss any of those
theories because the Court rejected all of them. It reasoned that:
Whether a municipality may recover the cost of police and other
emergency services from a tortfeasor is governed by local law.
Because this issue apparently has never been decided by the
District of Columbia courts, we look to other jurisdictions for
assistance in determining how the District courts would rule, were
they to face this question. [At 1079]
The Court continued that:
The common law rule in force in other jurisdictions provides that,
5
absent authorizing legislation, Athe 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
created the need for the service. We think that the Ninth Circuit, in
City of Flagstaff v. Atchison, Topeka and Santa Fe Railway Co.,
has offered a persuasive rationale for this common law rule, and
we adopt both their reasoning and the rule here... [At 1080]
Similarly, in Town of Freetown v. New Bedford Wholesale Tire, Inc.,423 N.E.2d 997
(S.J.Ct. Mass. 1981), a city sought to recover its expenses in fighting a fire that started in the
defendant’s huge tire dump. The Court held against the town’s recovery, declaring that:
There seems to be no authority for common law recovery by a
town of its expenses in fighting a fire. See People v. Wilson, 240
Cal.App.2d 574, 576, 49 Cal.Rptr. 792 (1966); Portsmouth v.
Campanella & Cardi Constr. Co., 100 N.H. 249, 253, 123 A.2d
827 (1956); Howard v. Soo Line R.R., 63 Wis.2d 500, 503, 217
N.W.2d 329 (1974); Allenton Volunteer Fire Dep't v. Soo Line
R.R., 372 F.Supp. 422, 423 (E.D.Wis.1974); Annot., 90 A.L.R.2d
873 (1963). No claim is made for fire damage to town property of a
type that would give rise to damage liability to a private owner for
negligence or nuisance. G.L. c. 111, s 145. See Dartmouth v. Silva,
325 Mass. 401, 404, 90 N.E.2d 832 (1950); Hanifin v. C & R
Constr. Co., 313 Mass. 651, 48 N.E.2d 913 (1943); cf. United
States v. Chesapeake & O. Ry., 130 F.2d 308, 310 (4th Cir. 1942)
(expense of protecting public property from advancing fire).
Expense incurred by the town in extinguishing a fire on private
land stands on a different footing. See State v. Boston & Me. R. R.,
99 N.H. 66, 71, 105 A.2d 751 (1954). Once a town establishes a
fire department under G.L. c. 48, s 42, as amended by St.1973, c.
1048, s 1, the fire chief has charge of extinguishing fires in the
town and the protection of life and property in case of fire.
Safeguards against fire are maintained for the benefit of the
public and without pecuniary compensation or emolument Tainter
v. Worcester, 123 Mass. 311, 316 (1877).
Under these authorities the right of the town to recover firefighting
expenses depends on statute. See, e. g., G.L. c. 48, s 59A, providing
for a written agreement for reimbursement in case of aid to another
municipality; G.L. c. 148, s 5, abatement of fire hazard at owner's
expense on twenty-four hour notice. [At 997-98]
There was no Massachusetts statute designed to allow the city to recover the cost of
6
emergency service with respect to its particular claim against the defendant, said the Court.
The City of New York attempted to recover its costs for wages, salaries, overtime and other
benefits of police, fire, sanitation and hospital personnel from the electric utility that supplied the city
power, in coping with a city-wide blackout that occurred in 1977. The New York Court of Appeals
(New York’s Supreme Court) rejected that claim in Koch v. Consolidated Edison, 468 N.E.2d 1
(1984), reasoning that:
The general rule is that public expenditures made in the performance
of governmental functions are not recoverable (see, generally, Matter
of TMI Litigation Governmental Entities Claims, 544 F.Supp. 853,
855, mod sub nom. Pennsylvania v. General Public Utilities Corp.,
710 F.2d 117 [caused by nuclear incident]; City of Bridgeton v. B.P.
Oil, 146 N.J.Super. 169, 178-179, 369 A.2d 49 [caused by oil spill];
Town of Freetown v. New Bedford Wholesale Tire, 384 Mass. 60, 423
N.E.2d 997 [caused by dumping of large quantity of tires] ). The
general rule is grounded in considerations of public policy, and we
perceive nothing in the different and somewhat closer relationship
between Con Edison and plaintiffs in this case which would warrant
departure from that rule. We additionally note that certain exceptions
to the general rule have been created by statutory enactment to give a
municipality a claim for expenditures for fire fighting and other
police power services. (See, e.g., General Municipal Law, ' 207-c
[municipality given a cause of action for reimbursement against
third-party tortfeasor for any sums paid to injured policemen as salary
and medical expenses]; id., ' 209 [local fire department given claim
for reimbursement for fire fighting costs against municipality which
issued call for outside assistance]; id., ' 209-g [municipality
providing fire or police aid pursuant to ' 209-e or ' 209-f given
claim against municipality requesting such aid]; State Finance Law, '
54-e [municipality whose fire department has responded to a fire on
property under jurisdiction of New York State given right to submit
claim for State reimbursement of fire fighting costs] ). No statute is
called to our attention which would accord a comparable benefit to
plaintiffs in the circumstances of this case. [At 8]
Once again, notwithstanding various statutes the Court cited that authorized municipal claims
for reimbursement for fire fighting and other police power services, those did not cover the claims in
this case. Indeed, the Court suggests that the fact that there were state statutes authorizing municipal
recovery for emergency services in some situations was evidence of the legislature’s intent that no
recovery was intended in the situation at issue.
In City of Bridgetown v. B.P. Oil, Inc., 369 A.2d 49 (Super. Ct. N.J. 1976), the city attempted
7
to recover its costs in preventing the spread of leaks from B.P.’s oil tanks, located inside the city.
The Court held that the city was not a proper plaintiff and could not recover from B.P., because:
it [the city] merely asserts a common law premise that when one's
action causes excessive use of its fire department, that person should
pay for its services. It was proposed by counsel for the city that such
justification for charging for services of the fire department would
also apply to the situation of a person causing a fire by smoking in
bed.
It has been stated that It cannot be a tort for government to govern
Amelchenko v. Freehold, 42 N.J. 541, 550, 201 A.2d 726, 731
(1964). Neither is government a saleable commodity. N.J.S.A.
40A:14-7 authorizes local government to establish fire departments.
While at one time it was a private function, in 1976 one of
governments duties is that of fire protection.
Governments, to paraphrase the Declaration of Independence, have
been instituted among men to do for the public good those things
which the people agree are best left to the public sector. Since our
country was founded there has devolved a widening horizon of public
activity. True, certain activities have developed in areas from which
revenue has been derived, such as turnpikes, water or power supply,
or postal services. Nevertheless, there remains an area where the
people as a whole absorb the cost of such services-for example, the
prevention and detection of crime. No one expects the rendering of a
bill (other than a tax bill) if a policeman apprehends a thief. The
services of fire fighters are within this ambit and may not be billed as
a public utility.
For these reasons the city cannot be considered a proper plaintiff in
attempting to recover damages from a party who used the services of
its fire department.
To summarize, this court holds that the possessor of a pollutant keeps
it on his premises at his peril. If it escapes he is answerable to one
who suffers a provable loss thereby. The policy of the law in this
State and of society in general makes this a case of strict liability
rather than of negligence. The court further holds that a municipal
corporation may not recover as damages the costs of its governmental
operations which it was created to perform, but it is not to be denied a
recovery for other losses by reason of its status as a municipal
corporation. Cost accounting must have a limiting factor somewhere,
and that limit is reached when the function affected is a part of the act
8
of government.
Thus, if the city were the owner of adjacent land damaged by
escaping oil, it like all landowners, may recover damages caused by
this escape. It cannot, however, recover costs incurred in fire
prevention or extinguishment. That is the very purpose of government
for which it was created. [At 54-55]
The case of City of Pittsburgh v. Equitable Gas Company, 512 A.2d 83 (Pa. Cmwlth. 1986),
citing several of the above cases, held that a city could not recover the cost of police services arising
from a gas explosion on a city street, because:
Our review of the limited case law on the point leads us to conclude
that the trial court correctly held that a municipal corporation may not
recover as damages the costs of services the provision of which was
an important reason for its creation and maintenance by the people.
[District of Columbia v. Air Florida, Inc. ... City of Flagstaff v.
Atchison, Topeka & Santa Fe Railway Co., ... City of Bridgeton v.
B.P. Oil, Inc., ... The cost of public services for protection from a
safety hazard is to be borne by the public as a whole, not to be
assessed against a tortfeasor whose negligence creates the need for
the service.
We are unaware of any Act of the General Assembly authorizing a
municipality to recover the cost of providing emergency service and
the city cites none.... [At 84]
The city argued that a statute authorizing the Superintendent of Police to provide police at
events attracting large crowds provided the necessary statutory authority for the recovery, but the
Court declared that the explosion of a gas line was not embraced by that statute.
The same result was reached in Township of Cherry Hill v. Conti Construction Company,
527 A.2d 921 (N.J. Super. 1987), a case that involved the city’s attempted recovery of costs for
emergency services in a gas line rupture.
One case on this subject is probably particularly important because it arose in Tennessee’s
mother state of North Carolina. In State Highway and Public Works Commission, 2 S.E.2d 565
(1939), the North Carolina State Highway and Public Works Commission sued to recover the cost of
capturing a state prison escapee. The Court noted that it was a novel claim, but rejected it, declaring
that:
It does not appear that the defendant has invaded any property right of
plaintiff except that which may be involved in the expenditure of the
9
State's public funds for his apprehension after his escape. Since his
recapture was a public duty required by law under a general system
which the State has established, the position of the sovereign towards
such a public expenditure can scarcely be that of a private individual
who has been compelled to spend money because of the tortuous
conduct of another. Indeed, in point of legal logic, defendant's yen for
the open spaces and his heeding of the call of the wild was rather the
occasion than the cause of the expenditure, or, at least, did not afford
the compulsion. While his flight was contrary to the will of the
sovereign, as expressed in its law, the expenditure for his recapture
was voluntary.
No crime against the sovereignty of the State violates any of its
property right, and no governmental expenditure paid out for
apprehension of a criminal or the maintenance or recovery of his
custody incident to the punishment or correction of such a crime can
be construed into a tortuous invasion of the property rights of the
State, since it is voluntarily made by the State, although a mandatory
duty on the custodial agency, C.S. ' 7742, for the protection of the
people of the State at large in preserving the integrity of the penal
system. The offense was against the sovereignty of the State, the
penalty fixed by law, C.S. ' 4404, and the exactions because of it do
not go to the sovereign in any proprietary capacity justifying an
application of the law of torts. [At 567]
Cases Analyzing And Applying Common Law Rule In Nuisance Cases
The cases differ on allowing governments to recover the cost of abating nuisances, many of
which do not involve what most observers would call emergencies. But Tennessee’s sister state of
Georgia in Walker County v. Tri-State Crematory, 643 S.E.2d 324 (Ga. Ct. App. 2007) (appeal to
Georgia Supreme Court denied June 7, 2007), strictly applied the free municipal services doctrine to
refuse to allow Walker County to recover from Tri-State Crematory the cost of abating the nuisance
created when “Walker County discovered hundreds of bodies in an uncremated, decayed state that
were ‘stacked, stored, dumped, buried in septic tanks, commingled in common graves and
scattered about the service of the property of Tri State Crematory.’” [At 325] That case received
extensive national attention as well as the attention of Tennessee, having occurred just south of
Chattanooga.
In rejecting Walker County’s claim, the Court reasoned that:
Based on the reasoning and holding of Torres, we conclude that
Georgia, like many jurisdictions, has adopted the common-law free
public services doctrine. Stated succinctly, the doctrine provides that
10
absent specific statutory authorization or damage to
government-owned property, a county cannot recover the costs of
carrying out public services from a tortfeasor whose conduct caused
the need for the services. See Dist. of Columbia v. Air Florida, Inc.,
750 F.2d 1077, 1080 (D.C.Cir.1984); City of Flagstaff v. Atchison,
Topeka & Santa Fe R. Co., 719 F.2d 322, 323-324 (9th Cir.1983);
Baker v. Smith & Wesson Corp., No. Civ. A. 99C-09-283-FS, 2002
WL 31741522, at 4-5 (Del.Super.Ct. Nov.27, 2002); Koch v.
Consolidated Edison Co. of N.Y., 62 N.Y.2d 548, 479 N.Y.S.2d 163,
468 N.E.2d 1, 8 (N.Y.1984); Bd. of Supervisors of Fairfax County v.
U.S. Home Corp., No. 85225, 1989 WL 646518, at 1-2 (Va. Cir. Ct.
Aug.14, 1989). See also Torres, 246 Ga.App. 544, 541 S.E.2d 133.
The primary rationale behind the doctrine is that state legislatures
establish local governments to provide core services for the public
and pay for these services by spreading the costs to all citizens
through taxation. Baker, 2002 WL 31741522,. See also City of
Flagstaff, 719 F.2d at 323-324. And, any decision over whether to
reallocate how those costs are spread necessarily implicates fiscal
policy, a matter best left to the legislature and its public deliberative
processes, rather than the court. (Citation omitted.)
Applying these principles to the case at hand, we note that Walker
County seeks to recover the facility, equipment, and employment
costs associated with recovering, identifying, and properly disposing
of the human remains discovered at the crematorium property. As
such, Walker County clearly is not seeking to recover costs associated
with injury to its own property, but rather the costs it incurred in
performing the public services of cleaning up the crematorium site
and providing disaster relief. See generally Ga. Const. of 1983, Art. I,
Sec. I, Par. II (Protection to person and property is the paramount
duty of government and shall be impartial and complete.).
Nor has Walker County pointed to any specific statute authorizing the
recovery of such costs as compensatory damages in a tort action
alleging negligence or public nuisance claims. While Walker County
cites to its general authority under OCGA ' 36-1-3 to sue or be sued
in any court, this Court in Torres specifically considered that statute
and rejected it as a basis for the county's tort claims for damages. 246
Ga.App. at 547-548, 541 S.E.2d 133. Walker County also cites to
OCGA ' 31-21-26, which provides in part that [n]either the state,
county, municipality, nor officers thereof shall be placed at any
expense by reason of delivery or distribution of bodies. However,
even if OCGA ' 31-21-26 could be construed as providing a county
11
an affirmative right to sue and recover costs associated with the
delivery or distribution of certain dead bodies, the statute-when read
in context with surrounding provisions-refers to the delivery or
distribution of unclaimed bodies for purposes of medical research, a
situation clearly different from the one here. Finally, Walker County
cites two statutory provisions authorizing liens on private property on
which public nuisances are found and abated (see OCGA ''
31-5-10(d); 41-2-9(a)(7)), but those provisions do not separately and
specifically authorize Walker County to do what it seeks to do
here-obtain compensatory damages in a tort action as a means of
redress for abating a public nuisance.
Under these circumstances, we conclude that Walker County's tort
claims are barred by the free public services doctrine. See Torres, 246
Ga.App. at 548, 541 S.E.2d 133. See also Air Florida, 750 F.2d at
1080; City of Flagstaff, 719 F.2d at 323-324. [At 327-28]
Note that in this case, the Court equated the services he county provided with “disaster
relief,” and rejected Walker County’s attempt to bootstrap several statutes that related to the
distribution of dead bodies and the abatement of nuisances into statutes that authorized the county to
recover damages for the cost of abating nuisances:
[B]ut those provisions do not separately and specifically authorize
Walker County to do what it seeks to do hereBobtain compensatory
damages in a tort action as a means of redress for abating a public
nuisance. [At 328]
It made no difference, said the Court, whether Walker County’s decision to carry out the
public service was mandatory or discretionary; “in either case the question of whether the costs of
providing the public service should be spread among all taxpayer or reallocated in some other
manner necessarily implicates fiscal policy, and, therefore falls with the special preview of the
legislature, not this Court.” [At 328]
In the unreported case of Canyon County v. Syngenta Seeds, Inc., 2005 WL 3440474
(D.Idaho), Canyon County sued Syngenta under the RICO statute, alleging that the defendants had
engaged in an illegal immigrant hiring scheme, that had forced the county to spend money to provide
medical and criminal justice system services for the illegal immigrants. The county sought to do an
end run around the municipal cost recovery rule, pointing to Atchison Topeka & Santa Fe’s
observation that “[r]ecovery has also been allowed where the acts of a private party create a public
nuisance which the government seeks to abate.” In that context, the county cited Town of East Troy
v. Soo Line Railway Company, below, for the proposition that a 1907 Idaho case made any criminal
conduct a public nuisance.
The Court refused to accept Canyon County’s argument that criminal conduct could be a
12
nuisance under Idaho law, declaring that since 1907 the Idaho nuisance statute had been amended,
and did not expressly include criminal conduct, and had not been interpreted by the Idaho courts to
include such conduct. More pointedly, the Court declared that
Second, Canyon County is not bringing a public nuisance lawsuit, it
is a plaintiff in a federal RICO civil action. Consequently, it is not
acting in its governmental capacity but instead as a private party to a
civil lawsuit. [Citation omitted by me.]. Because of that, Canyon
County is not attempting to “abate” any activity but only seeks to
recover monetary damages. City of Philadelphia v. Beretta U.S.A.
Corp., 126 F. Supp.2d 882, 894-95 (E.D. Pa. 2000) (explaining that
the City cannot have it both ways; it is either suing in its
“governmental capacity to abate a public nuisance” or “[i]f it sues for
costs it has itself incurred ... the action is barred under the municipal
cost recovery rule..]” If County was granted all the relief it requested
it would do nothing to stop or “abate” the Defendant’s alleged
criminal conduct. For all these reasons, the Court concludes that the
RICO action by Canyon County is not within the public nuisance
exception to the City of Flagstaff municipal cost recovery rule. See
719F.2d at 323-24. [At 3]
As do all the above cases where the question of whether a statute overcomes the municipal
cost recovery rule, this one reads the statute alleged by the county to have accomplished that purpose
narrowly:
At common law, a governmental entity generally was not allowed to
recover the cost of its services from a non-contracting party. City of
Flagstaff, 719 F.2d at 323-24; City of Grangeville v. Haskin, 116
Idaho 535, 777 P.2d 1208, 1211-12 (Idaho 1989).Statutes which
invade the common law are to be read with a presumption favoring
the retention of long-established and familiar principles, except when
a statutory purpose to the contrary is evident. Kasza v. Browner, 133
F.3d 1159, 1167 (9th Cir.1998) (quoting United States v. Texas, 507
U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993)). Section
1964(c) of RICO provides statutory standing to persons injured in
[their] business or property. The Ninth Circuit has determined that
this language has restrictive significance, Oscar, 965 F.2d at 786,
and should be interpreted in tandem with the similar language
found in the Clayton Act, Mendoza, 301 F.3d at 1168. The Supreme
Court has construed the Clayton Act to preclude standing for recovery
of cost associated with general governmental functions. Hawaii, 405
U.S. at 264-65; Reiter, 442 U.S. at 341-42. Consequently, the courts
have reasoned that the same language in ' 1964(c) of RICO bars a
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governmental entity from suing for the costs of municipal services.
See, e.g., Town of West Hartford, 915 F.2d at 103-04. Canyon County
has not advanced any argument, case, or statutory interpretation to
distinguish or challenge this analysis. Accordingly, the Defendants'
motions to dismiss must be granted.
Because Canyon County's RICO action is predicated on recovery for
the costs of municipal services, it cannot cure this basic flaw in its
pleading and therefore any further amendment to its Amended
Complaint would be futile and will not be permitted. Chaset v.
Fleer/Skybox Int'l, 300 F.3d 1083, 1087-88 (9th Cir.2002) (denying
plaintiff leave to amend where he lacked standing to sue under
RICO). [At 6]
Atchison, Topeka & Santa Fe Railway Co., above, cites a number of cases in which recovery
by the government for the cost of providing emergency services is allowed, including those where
recovery is supported by a statute, and one where the recovery was for such services provided in the
case of a public nuisance: Town of East Troy v. Soo Line Railroad Company, 653 F.2d 1123 (7th
Cir. 1980 ). In that case, the town sued the railroad to recover its expenses (the town services at
issue are not disclosed ) of $543,000 it incurred as a result of the railroad’s spill from a tank car of
20,000 gallons of phenol. A jury awarded the town $500,000 for causing a nuisance (but rejected the
city’s claim that the railroad was guilty of wilful and wanton conduct). The town’s nuisance action
was brought under a Wisconsin statute that provided:
Any person, county, city, village or town may maintain an action to
recover damages or to abate a public nuisance from which injuries
peculiar to the complainant are suffered, so far as necessary to protect
the complainant’s rights and to obtain an injunction to prevent the
same.
The Court found that the town had suffered injuries peculiar to itself with respect to its
expenses incurred in the cost of assisting its residences affected by the phenol spill, and with respect
to its cost of constructing a water system as a result of the spill (The city had no water system prior to
the spill). Surprisingly, the free municipal cost recovery rule and the free public services doctrine
were never mentioned in that case. In any event, I can find no other case that has allowed a
government to recover the cost of providing emergency services on the ground that it was abating a
nuisance, absent a statute that clearly provided for such a recovery. It does not appear to me that the
above statute allows a municipality to sue to recover damages for the costs of abating a nuisance, but
obviously the Court concluded otherwise.
It completely escapes me how a municipality in Tennessee could use generally and routinely
use nuisance theory to justify an agreement with a county to provide emergency services outside its
boundaries, and bill the recipients for the cost of providing such services. As far as I can determine,
Tennessee nuisance law, whether the state nuisance law, [Tennessee Code Annotated, ' 29-3-101 et
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seq.], common law nuisance, or the authority granted to municipalities by the General Assembly to
abate nuisances, has never been usedBor allowed to be used in that or a similar fashion. [See 20
TENNESSEE JURISPRUDENCE 107 (Nuisances)]. Walker County v. Tri-State Crematory, and to
a lesser extent, Canyon County v. Sygenta Seeds, reflect unusual facts, but neither government got
far traveling on nuisance theory to obtain recovery of the costs of municipal services, the courts
seeing the claims for what they were.
Case Involving Strict Liability Statute That Overcame Common Law Rule
Kodiak Island Borough v. Exxon Corporation, 991 P.2d 757 (Alaska 1999), was decided on
the basis of a “strict liability” statute the court found abrogated the free public services doctrine with
respect to unpermitted hazardous substance spills in Alaska. In that case, Kodiak Island Borough and
a number of other municipalities sued Exxon to recover for the costs of what the Court called
“diverted services:” the diversion by those municipalities of employee time and municipal services
for the clean-up operation caused by the Exxon Valdez’s spill of 11 million gallons of crude oil into
Prince William Sound in Alaska in 1989. Many of those municipalities’ diverted services appear to
have occurred outside their boundaries. Exxon raised several arguments against those municipalities’
claims, one of which was the free public services doctrine.
The Alaska Supreme Court declared that while it had never had an occasion to consider that
doctrine, it assumed that doctrine was the law in Alaska, unless it had been abrogated by statute,
citing the cases repeatedly included in the above cases. [At 761] But the Court held that the free
public services doctrine had been abrogated in Alaska in the area of unpermitted release of
hazardous substances, by Alaska Statute 46.03.822(a), which provided that:
(a) Notwithstanding any other provision or rule of law and subject
only to [various defenses not pertinent in this case], the following
persons are strictly liable, jointly and severally, for damages, for the
cost of response, containment, removal or remedial action incurred by
the state, a municipality, or a village, and for the additional costs of a
function or service, including administrative expenses for the
incremental costs of providing the function or services, that are
incurred by the state, a municipality or village, and the costs of
projects or activities that are delayed or lost because of the efforts of
the state, the municipality, or the village, resulting from an
unpermitted release of a hazardous substance or, with respect to
response costs, the substantial threat of an unpermitted release of a
hazardous substance.
(1) the owner of, and the person having control over, the hazardous
substance at the time of the release or the threatened release....
(2) the owner and the operator or a vessel or factory, from which
there is a release, or a threatened release that causes the incurrence of
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response costs, of a hazardous substance[.] [At 760]
An interesting aspect of this case is that until after the Exxon Valdez tanker oil spill in 1989,
the above statute read:
To the extent not otherwise preempted by federal law, a person
owning or having control over a hazardous substance which enters
into or upon the waters, surface or subsurface lands of the state is
strictly liable, without regard to fault, for damages to persons or
property, public or private, caused by the entry. [At 762]
That statute did not define “damage,” but it was amended in 1989 (after the Exxon Valdez oil spill)
to read:
(a) Notwithstanding any other provision or rule of law... the following
persons are strictly liable, jointly and severally, for damages to
persons or property, whether public or private, including damage to
the natural resources of the state or municipality, and for the cost of
response, containment, removal or remedial action incurred by the
state or municipality, resulting from unpermitted release of hazardous
substance or, with respect to response costs, the substantial threat of
an unpermitted release of a hazardous substance. [At 762]
In 1991, obviously also after the Exxon Valdez tanker oil spill, the statute was amended again
to reflect its current language first quoted above. According to the Court, the Alaska legislature
provided that both amendments were to be applied retroactively (obviously to the Exxon Valdez oil
spill). The Court upheld those retroactive applications, reasoning that when they were read together
with the definition of “damage” in other statutes governing hazardous substance, those amendments
simply clarified the 1972 strict liability statute. [At 764]
In this case, the Court found a broad strict liability hazardous substance statute. Although
one can argue that the court used some creative legislative interpretation to justify its retroactive
application of the 1989 and 1991 amendments to the statute, its interpretation has some legal and
logical support In any event, the Court followed the same rule as have other courts faced with
circumventing the free municipal services doctrine: required that a statute claimed by municipal
plaintiff to abrogate the free municipal services doctrine must clearly support the recovery of
municipal costs with respect to the particular costs sought. .
[This case also considers the municipalities’ claims for damages other than “diverted
service”damages, and the effect of admiralty law upon all their claims, which I have not analyzed.]
Summary of Common Law Rule And What it Probably Means in Tennessee
Here let me reiterate two rules that derive from the above cases:
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- The common law rule prohibiting a municipality to recover the costs of providing
emergency services has never been at issue in Tennessee, but the law supporting that rule is so
overwhelming that if they are ever faced with that issue, it is likely that the Tennessee Courts would
follow that rule. Indeed, a good argument can be made that it is the intent of the General Assembly
that the common law rule is in place because in Tennessee Code Annotated, ' 68-212-121, which
allows governments to recover the cost of spills of hazardous substances on the state’s highways;
otherwise, there would be no need for that statute.
- The statutes contained in the LGPOA that are advanced as authorizing municipalities to
recover the cost of providing emergency services outside the city from the recipients of such service
do not abrogate the common law prohibiting such recovery. They neither expressly nor impliedly
accomplish that job. In order for the courts to find that a statute abrogates the common law municipal
cost recovery rule, it must plainly support the municipality’s contention that it abrogates that rule, as
to the particular emergency services sought by it. The same thing is true with respect to a
municipality’s claims that the costs sought to be recovered were incurred in the abatement of a
nuisance. In addition, Tennessee’s nuisance laws contain no record nor indication that they have
ever been used, or are intended to be used, to routinely require the recipients of emergency services
who live outside the city to pay for such services.
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