Friday, May 2, 2008

Could this really be the ruling?
Mike Rappaport

According to the New York Sun:

It's hard to recall a decision that is more outrageous. Judge Lippman, whom Governor Spitzer appointed to the First Department, upheld the notion that the Port Authority was 68% liable for the 1993 World Trade Center bombing, while the terrorists were only 32% liable.

I am certainly willing to believe that a court reached this decision in order to promote loss spreading or placing damages on deep pockets or some other notion, but is that actually what happened in this case?  If anyone skims or reads the decision, feel free to leave a comment clarifying the story.  Hat tip: How Appealing

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Mike Rappaport


There are many ways a society could decide to help its own when they are victims of unfortunate events. It could create a government program to take care of them. It could establish a private-sector insurance industry to allow them to take care of themselves. It could contribute generously to charities that devote themselves to this task. And there are plenty more.

For reasons that no non-American can fathom, the American system works this way: when person A falls victim to an unfortunate event, he hires person B to find some person C who is (1) vaguely connected with the unfortunate event and (2) possessed of a great deal of money. Person B then tries to persuade 12 people, D through O, under the supervision of judge P, that person C should pay for the care of person A. Assuming that people D through O and judge P concur, the money is then confiscated from person C--and a third or more of it goes to person B, as a commission of sorts.

When placed in the context of this system, the fact that it sometimes produces bizarre judgments--such as that the first WTC terrorists were only 32 percent responsible for their bombing--seems like a minor twist in the overall insanity of the whole--does it not?

Posted by: Dan Simon | May 2, 2008 6:06:20 PM

I was a surprised to learn that the WTC had received not just one, but several unambiguous recommendations to improve security ten years before the bombing and did absolutely nothing. It's clear there was negligence, even recklessness, on the part of the the WTC. Those owners should be spanked pretty hard.

Posted by: David C. Brayton | May 3, 2008 11:56:12 AM

The court indeed declined to overturn the jury apportionment of liability, which was set at 68%. The decision relied heavily on the fact that the port authority did not follow several security recommendations provided by consultants.

Corkie the Dog

Posted by: Corkie the Dog | May 3, 2008 12:06:45 PM

After reading the decision it was clear that the Port was warned numerous times about the dangers and, in some cases, the warnings specified in detail, and accurately, how the threat might eventuate. The warnings were ignored, partly because the Port would be foregoing parking fees. So, apart from the criminal culpability of the terrorists, I don't find the civil liability of the Port outrageous at all. The only defense I can suggest for the Port would be the fact that it is a public agency and, therefore, should not be expected to be minimally effective.

Posted by: josil | May 3, 2008 4:55:32 PM

Oh, well, then--if it was pointed out to the Port Authority that the underground public parking garage was vulnerable to terrorist attack, and they didn't close it, then obviously they were mostly to blame for the 1993 bombing.

Of course, it was no doubt also pointed out to them, both before and after the 1993 bombing, that the entire WTC itself was a highly vulnerable and tempting terrorist target. Yet they didn't close the whole complex down. Clearly, then, they're mostly to blame for 9/11, as well. Right?

Posted by: Dan Simon | May 3, 2008 10:58:47 PM


The terrorists were 100% responsible for the bombing. That's not at issue. The issue is the apportionment of damages to compensate those who were injured. Legal liability and factual responsibility are not the same thing.

The Port Authority received several unambiguous reports from firms the Authority hired to assess security at the World Trade Center. The result of all the reports was the same: unattended public parking underneath the towers posed the threat of a car bomb severely damaging the towers. The Authority did *nothing* to alleviate the danger.

The mere fact that the WTC was a potential target is not relevant. The relevant facts are that there were specific warnings of this precise possibility and the Authority had made a business decision not to implement any of the possible countermeasures. This happens all the time when firms choose whether to insure against certain kinds of losses. The Authority has a special duty to those whom it invites onto its premises, and in this case the Authority breached that duty. Had there been manned checkpoints or random searches (as the reports recommended as a minimal countermeasure), it is likely the Authority would not have been found liable. The Authority chose to do nothing, and the only issue to them is whether the business decision was worth it (e.g. is the 10 years' worth of additional parking revenue worth more than the eventual damages?).

Posted by: John Jenkins | May 4, 2008 9:15:50 AM

"Legal liability and factual responsibility are not the same thing."

I'm well aware of that--in fact, this observation was the subject of my first comment above, about "legal liability" in America having been perverted into a dysfunctional insurance system of sorts.

"The mere fact that the WTC was a potential target is not relevant."

If it's not relevant, then why is the mere fact that the WTC *parking garage* was a potential target relevant? In both cases, the Port Authority refused to close down a facility that had previously been identified as a potential terrorist target. What's the difference? Is it that nobody's sued the Port Authority (yet) for failing to shut down the WTC before 9/11? Or that if someone did, there's a point beyond which even the most brazen defenders of America's insane tort system wouldn't dare go?

"The Authority has a special duty to those whom it invites onto its premises, and in this case the Authority breached that duty."

Really? There's an affirmative duty to protect invitees against terrorist attacks? Care to back that claim up with an actual citation? (Better yet, you should notify the TSA--they can quit the passenger screening business, and let airline liability take over...)

Posted by: Dan Simon | May 4, 2008 11:10:11 PM

Dan, if you don't know enough about the law to know that a business has a duty not to be negligent toward invitees, then you don't know enough to be having this discussion. Trying to narrow the duty the way you do is an attempt to avoid the principle involved. (yes, the duty of reasonable care applies to terrorism, just like it does to fire, also outside the control of the purveyor).

They did not have to shut down the WTC. The duty is reasonable care, not absolute protection. Willfully ignoring your own reports does not conform with reasonable care.

Seriously, are you just ranting, or do you know what you're talking about?

As to torts as an insurance system, well, in the sense that the tort system apportions loss (much like the insurance system) that is correct, but you would need to actually form an argument instead of ranting for me to respond to that.

Posted by: John Jenkins | May 5, 2008 8:59:03 AM

I'm certainly no expert on the law, but I'm familiar with the notion of "duty of care". You seem to be asserting that under the right circumstances, that duty might include protecting invitees from terrorist attacks--that is, that failing to do so might under certain circumstances be negligent. You have yet to provide any citations (prior to the case we're discussing) to back up this claim, nor have you explained (beyond an unsubstantiated appeal to a "reasonableness" standard whose gradations appear to emanate from your own nether regions) why failing to close the WTC parking garage was clearly negligent, but failing to close the rest of the WTC was not negligent.

Then again, you've now twice conceded that you consider it the responsibility of the tort system to "apportion loss", like an insurance scheme, rather than to assign factual responsibility fairly, like, say, a properly-functioning justice system. So we're really in complete agreement as to how the system works. We merely disagree over whether the justice system *should* be functioning as an insurance system, as opposed to a justice system.

Posted by: Dan Simon | May 5, 2008 2:18:25 PM