9/11 SUITS TO PROCEED AGAINST AIRLINES, BOEING & PORT AUTHORITY.

A federal judge ruled Sept. 9 lawsuits filed by victims of the Sept. 11 terrorist attacks can proceed against United and American Airlines, Boeing, the Port Authority of New York and New Jersey, and World Trade Center Properties LLC.

Judge Alvin Hellerstein of the U.S. District Court of the Southern District of New York rejected the defendants' argument they "could not reasonably have anticipated terrorists would hijack several jumbo jet airplanes and crash them, killing passengers, crew, thousands on the ground, and themselves."

The defendants said they would appeal.

The plaintiffs alleged the airlines, airport security companies and airport operators negligently failed to fulfill their security responsibilities which resulted in the terrorists being able to hijack and airplanes and crash them into the WTC, Pentagon and field in Shanksville, PA, killing thousands of people and causing extensive property damage.

They alleged the port authority and WTC Properties negligently designed, constructed, maintained and operated the WTC towers and failed to provide adequate and effective evacuation routes and plans.

They alleged Boeing should be held liable for strict tort liability, negligent design of the cockpit doors and breach of warranty for the American Airline crash into the Pentagon and the United Airline crash into the field at Shanksville.

The aviation defendants conceded they owed a duty to the passengers on the planes but no duty to "ground victims."

The port authority and WTC Properties argued they did not owe a duty to protect occupants in the towers against injury from hijacked airplanes and, even if they did, the terrorists' actions broke the chain of proximate causation, excusing any negligence on their part.

Boeing moved to dismiss the claims of negligent design, arguing the design of the cockpit was not unreasonably dangerous in relation to reasonably foreseeably risks and the attacks by terrorists were not reasonably foreseeable.

It moved to dismiss the breach of warranty claim on grounds it did not owe a duty to prevent the use of the plane as a weapon and it was the independent, supervening acts of the terrorists, not those of Boeing, which caused the plaintiffs' injuries.

Hellerstein refused to dismiss any of the plaintiffs' claims other than the strict tort liability claims against American Airlines, saying Virginia does not permit recovery on a strict liability theory.

As for the aviation defendants, after noting nothing he said should be construed as a ruling on the reasonableness of the aviation defendants' conduct, he wrote these defendants, "and plaintiffs and society generally, could reasonably have expected that the screening methods at Logan, Newark, and Dulles airports were for the protection of people on the ground as well as for those on board the airplanes that the terrorists hijacked."

Although the number of plaintiffs "may be large, tragically large, and the potential liability may be substantial if negligence and cause is proven," he wrote, "the class is not indefinite and claims at this point cannot proliferate."

He also noted the Air Transportation Safety and System Stabilization Act of 2001, which Congress passed immediately after the attacks, capped limits of liability at the plaintiffs' liability insurance coverage.

After reviewing existing cases finding no duty to protect against third-party conduct, he concluded those cases were distinguishable from the case before him because the aviation defendants "could best control the boarding of airplanes, and were in the best position to provide reasonable protection against hijackings and the dangers they presented, not only to the crew and passengers, but also to ground victims."

He also found the cases on foreseeability distinguishable, writing the aviation defendants "controlled who came onto the planes and what was carried aboard" and "had the obligation to take reasonable care in screening precisely because of the risk of terrorist hijackings, and the dangerous consequences that would inevitably follow."

As for the Port Authority and WTC Properties claims, he found the defendants clearly owed a duty because "the severity and likelihood of potential injuries of people unable to escape from a heavily occupied building before fires envelope evacuation routes is high."

But he found it more difficult to determine whether the injuries arose from a reasonably foreseeable risk.

Although no discovery had taken place yet, he noted the plaintiffs had pointed out the defendants should have known of the fire safety defects in the towers because of prior litigation about their inadequate fireproofing, the possibility of having the towers hit by a plane because an Aerolineas Argentinas Boeing 707 had just missed the towers in 1981 and the risk of terrorist attack because of the 1993 terrorist explosion in the garage under one of the towers.

"It is enough to have foreseen the risk of serious fires within the buildings and the goal of terrorists to attack the building," he said.

As for whether the Port Authority had governmental immunity because it was performing its governmental functions and responding to a public emergency, he found the Port Authority had not proven its defense in regard to the WTC negligence claims and said the record had to be developed further in regard to its immunity as operator of Newark Airport.

As for the negligent design and breach of warranty claims against Boeing in connection with the crash into the Pentagon, he found the record did not support Boeing as "there have been many efforts by terrorists to hijack airplanes, and too many have been successful."

"Although there have been no incidents before the ones of Sept. 11, 2001, where terrorists combined both an airplane hijacking and a suicidal explosion," he wrote, "I am not able to say that the risk of crashes was not reasonably foreseeable to an airplane manufacturer."

As for the cockpit door design, he said, "given the critical nature of the cockpit area, and the inherent danger of crash when a plane is in flight, one cannot say that Boeing could not reasonably have foreseen the risk flowing from an inadequately constructed cockpit door."

As for the crash in the field at Shanksville, he noted Pennsylvania requires a plaintiff to prove the produce was defective, the defect existed when it left the defendant and the defect proximately caused the harm.

"Boeing may be able to show that the cockpit doors were not unreasonably dangerous, and that it was not unreasonable to design them to provide privacy without making them impenetrable," he wrote.

"At this point, it would be inappropriate for a judge to make this determination."

In order to prevail on the strict liability and breach of warranty claims, he added, "the plaintiffs must also show that the defect was the proximate cause for the injuries."

He concluded, "the terrorists' unauthorized entry into the cockpit was not unforeseeable, and did not constitute an 'intervening' or 'superseding' cause that could, as a matter of law, break the chain of causation.

He scheduled a prehearing discovery conference on Sept. 26.

Hellerstein's decision came two days before the second anniversary of the terrorist attacks and the deadline for residents from outside New York to meet the statute of limitations for filing wrongful death claims. Under New York law, in-state residents have until March 2004 to file.

At least 60 more claims were filed prior to the deadline, but Hellerstein ruled on July 22 the claims could be suspended until Dec. 22, the deadline for plaintiffs to file a claim with the special Victim Compensation Fund, established by Congress immediately after the attacks to provide families of victims a basic award for every death without regard to negligence or any other theory of liability.

By electing to file a claim with the Fund, a claimant does not have to prove fault and is guaranteed receipt of an award without a relatively short space of time in comparison to the typical time it takes for a final award with a lawsuit.

But those who file with the Fund have their non-economic damages limited to $250,000 and their economic damages determined by Special Master Kenneth R. Feinberg, who was appointed by Attorney General John Ashcroft to make the award determinations.

With a little more than three months to go before the deadline to file with the Fund, approximately 1,700 of the 3,016 Hellerstein estimated had died in the attacks still have not filed with the Fund or Hellerstein.

So far the Fund has paid out $623.1 million of the $3 billion it has to award. About 800 claims have been approved for payment, with the average tax-free amount per award totaling $1.6 million.