Airlines owed duty of care to September 11 victims on ground

Law Reporter, Mar 2004

In re September 11 Litig., No. 21 MC 97 (AKH), 2003 WL 22251325 (S.D.N.Y. Sept. 9, 2003).

Airlines, airport security, and airplane manufacturers owed a duty of care to those killed or injured on the ground in the September 11 terrorist attacks on the World Trade Center and the Pentagon, a U.S. district court has held.

Here, people who were injured or who are survivors of victims killed on the ground in the September 11 attacks sued the airlines that own and operate the aircraft that struck the World Trade Center and the Pentagon on September 11,2001, as well as an airport security company and an airplane manufacturer. Plaintiffs alleged defendants negligently failed to maintain security. Defendants moved to dismiss, arguing that they did not owe a duty of care to victims on the ground and that it was not reasonably foreseeable that terrorists would hijack and crash the aircraft, causing plaintiffs injury.

The court cited 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr, Inc., 750 N.E.2d 1097 (N.Y. 2001), which gives five balancing factors in determining the existence of a duty to a plaintiff: the reasonable expectations of the parties and society, the proliferation of claims, the risk of unlimited liability, disproportionate allocation of risk, and public policy considerations.

First, the court noted that airplane crashes in populated areas are not unknown. Security screening in airports is for the benefit of people on the ground as well as for passengers, the court said. Thus, viewing the facts in the light most favorable to plaintiffs, the court found the September 11 crashes reasonably foreseeable.

Second, since all claimants here have suffered personal injury or property damage, the high number of plaintiffs is not material. There is not an impermissible proliferation of claims nor-because federal law caps defendants' liability at their insurance coverage limits-is their liability unlimited. Moreover, since defendants are in a position to minimize acts of terrorism through good safety practices, the allocation of risk to them is in the public interest. Finally, recognizing a duty on defendants' part would not be against public policy by creating or greatly expanding channels of liability, the court said. Courts have previously found that aircraft owners and operators have a duty to persons on the ground who are harmed by airplane crashes.

Furthermore, harm to people on the ground is a reasonably foreseeable consequence of negligent security. For a harm to be foreseeable, the exact manner in which it occurred need not be foreseeable, the court noted. That hijackers could cause an aircraft to crash is one of the risks that airport security is intended to reduce, the court said.

Accordingly, the court denied defendants' motion.

Plaintiffs' Counsel

*Marc S. Moller,

*Brian J. Alexander,

*Frank H. Granito Jr.,

*Kenneth P. Nolan,

*Paul J. Hanly Jr.

*Jayne Conroy,

Andrea Bierstein,

*Michel F. Baumeister, and

*Douglas A. Latto, all of New York, N.Y.

Mary F. Schiavo, Washington, D.C.

John A. Greaves, Washington, D.C.

Timothy W. Triplett, Overland Park, Kan.

Michael J. Kuckelman, London, England, U.K.

Comment: For another case arising from the September 11 attacks, see Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217 (S.D.N.Y. 2003). Here, the families of two victims of the attacks sued the governments of Iraq and Afghanistan, Osama bin Laden, the Taliban, and al-Qaida under the Antiterrorism Act of 1991, 18 U.S.C. § 2333. Suit against the government of Iraq alleged that it provided support to terrorists with knowledge and intent to further terrorism. The court entered default judgment for plaintiffs and awarded $104 million in damages. *James E. Beasley, *James E. Beasley Jr., and *Slade H. McLaughlin, all of Philadelphia, represented plaintiffs.