9/11 Lawsuits Survive First Judicial Scrutiny
In a decision with few surprises, the U.S. District Court for the Southern District of New York (Judge Alvin K. Hellerstein) denied motions to dismiss filed by the United Airlines, American Airlines, Airport Security Companies (the “Aviation Defendants”); the Port Authority of New York and New Jersey and the lessees of the World Trade Center (the “WTC Defendants”), and the Boeing Company (“Boeing”) relating to the terrorist attacks of September 11, 2001.[1]  As noted in the Spring edition of our newsletter, approximately seventy plaintiffs, consisting of individuals injured in the 9/11 attacks and the representatives of those killed, opted to forego the Victims Compensation Fund and initiate traditional civil law suits against these defendants.  In an approximately twenty-five page opinion, the Court ruled that all lawsuits against these defendants could proceed because the allegations against these defendants stated legitimate legal claims which, if proven, would entitle plaintiffs to remedies at law.  Three separate motions to dismiss were denied by the Court: one by the Aviation Defendants; a second by the WTC Defendants, and the third by the Boeing Company.

In sum: The Aviation Defendants argued that their duty of care did not extend to persons killed or injured or property damaged or destroyed on the ground as a result of terrorist acts.  The WTC Defendants argued that they owed no duty to protect occupants of the towers from terrorist attacks by aircraft and that these attacks were unforeseeable and superceding causes of all damages, even if such a duty existed.  Finally, Boeing argued that it owed no duty to either the passengers or ground victims and that no conduct of Boeing was a proximate cause of the damages, deaths, and injuries.

The 12(b)(6) Standard.  All of the defendants brought motions under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the modern iteration of the common law demurrer.  It is important to understand the scope of this rule and what this decision does, and does not mean.  A 12(b)(6) motion can perhaps best be thought of as the “Even If” motion.  A party moving to dismiss a claim under this rule is arguing, in effect that even if, all of the claims made by plaintiffs in a complaint are true, the pleaded facts/allegations do not support a recognized legal claim.  In deciding this motion, the role of the judge is to accept all of the allegations of the complaint as if true and to determine whether, if proven, these allegations fit an existing legal theory.  The denial of such a motion is not generally appeal able.  Granting such a motion, which terminates all or part of the case, is likely immediately appeal able.

The Aviation Defendants.  The Court ruled that the Aviation Defendants had a duty of care that extended to persons and property on the ground, noting a series of aviation accidents resulting in death, injury and damage to persons and property on the ground.  The duty of adequately screening passenger and of preventing terrorist activity similarly extends beyond airline passengers to potential victims on the ground, Hellerstein wrote.

The Aviation Defendants also argued that the manner of the 9/11 terrorist attacks was not foreseeable and hence, that their negligence, if any, could not constitute a proximate or “legal cause” of the damage and injuries on the ground.  In ruling that damages to persons and property on the ground was foreseeable, the Court essentially distinguished between general and specific foresee ability.  Although the precise manner of attack and targets were likely not foreseeable to the airlines, the Court held that the general risk posed by highjackers in the cockpit “coupled with the volatility of a highjacking situation creates a foreseeable risk that the hijacked airplanes might crash.”

The WTC Defendants.  The claims against the WTC Defendants alleged that buildings were inadequately constructed and maintained, did not conform to fire codes, and lacked adequate evacuation plans.  Plaintiffs also alleged that the WTC Defendants had failed to timely evacuate Tower Two after Tower One had been struck.  The WTC Defendants argued that they had no duty to anticipate terrorist attacks of that nature and that any alleged negligence was not a proximate cause of the plaintiffs’ losses.  The Port Authority also argued that the conduct complained of was a governmental function from which it was immune from liability.

On the issue of duty, the Court again essentially focused on general versus specific duty.  The Court agreed with plaintiffs that the WTC Defendants had a duty to construct buildings that were safe and adequately protected from fire hazards.  The Court also ruled that the WTC Defendants could foresee the risk of being struck by aircraft.  On the issue of foresee ability, the Court ruled that the terrorist acts, although horrific, were not, on the record before it, so extreme as to necessarily cut off the WTC Defendants from potential liability based upon the allegations of the complaint.  With respect to the Port Authority, the Court ruled that, in acting in a commercial context as a landlord, the Port Authority would not be entitled to governmental immunity for the negligent performance of its duties to its tenants.

The Boeing Company.  Boeing was also sued for deaths and injuries related to the two Boeing 757 aircraft involved in attacks at the Pentagon and Shanksville, Pennsylvania.  Plaintiffs alleged that the aircraft cabin doors provided insufficient protection.  Judge Hellerstein declined to rule, as a matter of law, that Boeing could not foresee forced entry into the cockpit by terrorists.  Again, looking to the general rather than the specific risk, Judge Hellerstein wrote that Boeing did have a duty to prevent unauthorized access to the cockpit, which could present risks to persons on the ground.  The Court also declined to rule that the failure of the FAA to mandate sturdier doors before the 9/11 terrorist attacks established that manufacturers had no higher duty to provide such protection before the post-9/11 government mandate.  The Court also declined to rule that the terrorist acts were unforeseeable intervening causes.

Commentary.  As noted at the onset of this newsletter, with the possible exception of the seemingly harsh ruling with respect to Boeing, this decision is not particularly surprising.  A motion to dismiss under Rule 12(b)(6) is a test of the plaintiff’s ability to craft a sustainable pleading; it is not a test of the strength of the underlying claims.  Given the sophistication of plaintiff’s counsel and general reluctance of the judiciary to take risks and “close the doors to the courthouse,” defendants prevailing at this stage would have been an extraordinary (and appeal able) decision.  Plaintiffs can now take discovery, attempt to build their case, and may well be subject to Rule 56 motions for summary judgment years from now.  If those motions are made and plaintiffs prevail again, these cases may go to trial.  Unlike the current Rule 12(b)(6) motion, an eventual Rule 56 motion will test whether the actual evidence collected in discovery potentially supports a legal claim.  Plaintiffs will be held to more than simply what they can allege.  Rather, the court would test whether the actual facts (giving plaintiffs the benefit of every inference) support the allegations of the complaint.

In the short term, Judge Hellerstein’s decision presents choices for the hundreds of victims who have not sued or filed claims with the Victims Compensation Fund.  They must file their claim under the fund by 22 December 2004, or be relegated to a law suit [or no claim at all].  They now know that, at a minimum, the legal actions state claims which, if proven, may entitle them to recoveries at some later date.  They should also understand just what this decision means.  As Judge Hellerstein wrote:

The defendants may well be able to show at a later stage in this litigation that the conduct of the terrorists “so attenuates defendants’ negligence from the ultimate injury that the responsibility for the injury may not be reasonably attributed to the defendant.  Discovery will either supply evidence to substantiate or eviscerate the parties’ divergent claims about foresee ability.  At this point, however, both plaintiffs and defendants should be allowed to proceed to discovery on these issues of causation.   (citations omitted)

Having passed this first hurdle, plaintiffs still, in this writer’s view, face an uphill battle.  However, how many of us felt that plaintiffs would never prove willful misconduct related to the KAL007 shoot down or in the aftermath of Pan Am 103?  Upon hearing that Pan Am 103 had been brought down by a terrorist’s bomb, many, myself included, viewed the case of having a near zero probability of breaching the Warsaw limitations.  Time and trial proved otherwise.  We cannot even begin to know what discovery may yield, and discovery related to the 9/11 attacks will be nothing short of epic in scope, duration, and depth.

Much more to follow.                                                                                      
FPA

[1] In Re September 11, 2002, 2003 WL 220777747 (S.D.N.Y. September 9, 2003)