A Recent Hearing on September 11 Tort Cases Raises Difficult Questions of Who Owed a Duty to Whom

Last Thursday and Friday, the first oral argument before a court on the question of whether anyone other than the terrorists and those who aided them should be held liable for the attacks of September 11 was held.

The judge was U.S. District Judge Alvin K. Hellerstein of the Southern District of New York. The argument related to a number of consolidated cases - different lawsuits brought by very different kinds of plaintiffs, that are all being heard by Judge Hellerstein.

The Cases Before Judge Hellerstein, and Why They Were Consolidated

Pursuant to post-September 11 Congressional legislation, all lawsuits arising out of the attacks must be brought in the federal court of the Southern District of New York. Judge Hellerstein has been assigned all those cases, and he has exercised his discretion to combine similar cases into single, consolidated proceedings.

The main group of cases Judge Hellerstein has lumped together are claims arising from the families of those killed in the attack, those who were injured during the attack but survived (sadly, there are very few), and owners of property damaged during the attack.

These cases are being brought by a very disparate group of plaintiffs. The families of the victims of the destruction of the World Trade Center towers have a different set of concerns than, say, Citigroup, which is claiming for the loss of its offices at 7 World Trade Center, which collapsed after it was evacuated. Yet they are being handled in the same legal proceeding. Why?

The simple answer is that, from the perspective of New York tort law, all these plaintiffs have, in essence, the same claim. A tort claim requires proof of duty, breach, and damages. All these plaintiffs allege essentially the same kind of duty, and the same kind of breach, through negligence: A duty to take reasonable steps to keep them or their property safe, and the negligent failure to fulfill that duty.

All these plaintiffs claim that the defendants - the airlines, the manufacturers of the hijacked airplanes, the airports from which the hijackers embarked, and the owners of the towers that collapsed - owed them this duty. All the defendants have denied that - except that the airlines, airports and plane manufacturer concede that they owed a duty to the 266 persons on the four aircraft, though not to the persons on the ground.

The damages the plaintiffs are seeking compensation for will differ, but it is clear that if duty and breach are proven, damages will be compensated. Both personal injuries and property damage can be compensated under the tort law.

Congress's Compensation Plan And Its Advantages Over Suing

There is a difference between the plaintiffs, but it does not relate to the issue of consolidation of the cases. As I have detailed in a previous column, Congress offered personal injury claimants, and the heirs of those who were killed, a settlement via the "September 11, 2001 Victims Compensation Fund," if they agree to give up their right to sue. No such settlement was offered to property owners.

Furthermore, the Fund claimants' recovery was certain; Congress ensured that they would not have to share a limited pool of money with other defendants. In contrast, those families who have chosen to sue will have to do exactly that.

In addition to setting up the Fund, Congress also capped the total liability of all possible defendants (except the terrorists and those who aided them) at their insurance coverage or, in the case of municipal corporations, amounts in the neighborhood of a few hundred million dollars. That means the total pool of money available to the families is finite: the more plaintiffs sue and win, the less each will get, with each slice of the pie getting smaller.

The Importance of Judge Hellerstein's Initial Ruling on Duties

Despite the advantages of opting for the Fund settlement, only about half the eligible families have indicated that they are likely to opt in, and thereby given up their right to sue. A few have chosen to sue already. Many others are waiting in the wings, still trying to make up their minds; they have until the end of this year to do so.

Judge Hellerstein's initial ruling will make a huge difference to those who are still on the fence--they need to know whether, if they sue, they will win. The trial, if there is one, won't happen this year, but the ruling very probably will be issued this year; assuming it is, the families will be able to judge from it whether they should opt for the Fund or a lawsuit. The clearest message for the families would be sent if Judge Hellerstein simply dismissed the entire consolidated suit now. A more mixed ruling - perhaps dismissing some claims, and not others - would, at least, give them guidance as to their chances.

The Airlines' Arguments In Favor of Dismissal of the Entire Consolidated Suit

To dismiss the entire suit, Judge Hellerstein would have to take the extraordinary step of deciding that regardless of what facts might be uncovered in discovery, no jury could conclude that any of the defendants were responsible for the injuries suffered to people and property on September 11. Put another way, he would have to decide the plaintiffs' complaints were defective as a matter of law. That is exactly what the defendants are asking him to do.

The airlines have taken the largest role in framing the motion to dismiss, and it is their argument that I will explore. They claim, as noted above, that their duty extended only to their passengers - not to everyone who could have been injured or killed if their planes were commandeered and deliberately crashed.

At first glance, this seems a strange argument. It seems obvious - and New York tort law has made clear - that if a carelessly flown plane misses a runway and strikes buildings near an airport, the airline owes a duty not only to its passengers, but also to those on the ground.

The Larger Issue: A Duty to Prevent Criminal Misuse of One's Property?

The airlines thus have raised an issue that has been hotly debated in tort law for the past twenty-five years: Do the owners of property have a duty to prevent criminals from using that property to injure strangers?

The law has expanded the range of owners' duty in fits and starts. Until the 1970's, landlords owed very few duties to strangers to ensure that they were not assaulted by criminals who took advantage of dimly lit stairwells and poorly guarded parking lots. Landlords now have something of an obligation, but it is very circumscribed.

Similarly, there was a time when a suit by the victim of a stolen car's hit and run could never prevail against the car owner who'd carelessly left his keys in his car. Now, in contrast, many states would allow such a suit to proceed to discovery and to a jury.

New York's Ambivalent View of "Enabling Torts": The Gun Decisions

New York, in particular, has an ambivalent attitude towards these sorts of torts, which have been called "enabling torts" by Professor Robert Rabin of Stanford Law School. It permits them, but very grudgingly.

For example, in cases involving handgun violence, New York tort law has been interpreted to exclude a duty to prevent foreseeable criminal activity. In McCarthy v. Olin, the U.S. Court of Appeals for the Second Circuit, applying New York law, held that a bullet manufacturer who had alleged produced bullets designed to maim did not have a duty to the victims of Colin Ferguson's murderous rampage on the LIRR - even if it were foreseeable that the bullets could have been used that way. And in Hamilton v. Beretta USA Corp., the New York Court of Appeals - the state's highest court - held that gun manufacturers had no duty to take steps to prevent the common and general practice of black marketing of handguns by handgun purchasers, even if it was foreseeable that some of those guns would be used by criminals.

In numerous decisions, the New York courts have emphasized that we do not have a legal obligation to act whenever we could somehow reduce the risk others pose. Rather, we have a legal obligation to act only when we have a special relationship to the injury suffered by the victim. And a defendant whose negligence happens to enable criminality does not necessarily have such a relationship to the injury that results.

These New York decisions seem to be guided by the view that a duty to prevent third party conduct cannot be imposed on a defendant if that duty would oblige the defendant "to the world," and open the door to "unlimited liability."

Thus, ironically, these decisions seem to imply that the bigger the range of plaintiffs who could be harmed by the defendants conduct, the less likely it is that the court will find a duty - because the greater the courts' anxiety as to "unlimited liability" will be.

Suppose, for instance, that Judge Hellerstein were to hold that the airlines had a duty both to passengers in the air, and persons on the ground, because he believes both were owed protection from the hijackers' criminal acts. The judge then will likely have to say that Citibank - and other property owners whose property was damaged - were owed the very same duty.

Indeed, he will have to say, in effect, that the airlines owed a duty to act reasonably to prevent criminal actions from harming the whole world (or at least any part of the world that could have been reached by those planes).

That's where some of the moral and philosophical issues Judge Hellerstein may have to confront come in. After all, what does it mean to say that someone owes a "duty to the world" to protect it from the acts of others? What moral or social function would be served by announcing such a duty?

Would announcing such a duty really make the world a safer place? Or would the duty be so vast and ill-defined that each of us would feel there was nothing we could do to fulfill it?

Meanwhile, what concrete improvements in safety would announcing such a duty achieve? What kind of safety protocols must airlines adopt if they have a duty to all the world, and a responsibility for all the damage hijackings of their planes may cause on the ground?

Would saying that such a duty exists capture the reason why the families of the victims who died in the twin towers feel that they were wronged on September 11? Do we really think that the obligations of the airlines to the strangers killed that day are more concrete than the obligations that you and I had towards those killed?

Judge Hellerstein's answers to all these questions will mean a great deal to the many families trying to decide whether to sue or to seek compensation from the Fund. Accordingly, the answers he reaches should be informed by a deep and searching examination of the very foundations and purposes of tort law, and its basic concepts of duty and breach.