Public Services Meet Private Law


Some plaintiffs' lawyers believe that expenses incurred by governments after the criminal use of their products take issue with the claim that the government services for which compensation is claimed are "free" for all, and therefore ineligible for tort recovery.  They argue that government services should not "subsidize" tortfeasors, and that proper accounting requires tortfeasors to "internalize" the social costs of their alleged misbehavior. They would do away with what they call the "free public services doctrine" ("FPSD"), which one author described as holding that "a governmental entity may not recover from a tortfeasor the costs of public services occasioned by the tortfeasor's wrong. On the other side of the political spectrum, proponents of federal "tort reform" have sought to specifically immunize certain defendants from cost recoupment suits. Of course such legislation, if enacted, would imply that the recoupment suits could have been allowed as a general common law matter in its absence.

This article contends that both camps would benefit from a more thorough understanding of the Free Public Services Doctrine's place within the common law of tort. FPSD is in reality, contra its critics' claims, a universally applied illustration of fundamental common law tort concepts: duty, proximate cause and damages. Wherever these elements remain requirements for common law liability, public service cost recoupment should be denied.