The District Court Decision in the Remaining 9/11 Litigation: Why Judge Hellerstein Was Wise to Dismiss Some of the Property Damage Claims

By ANTHONY J. SEBOK
Tuesday, Jan. 27, 2009

Last week, the federal district court judge who is handling all the remaining 9/11 litigation dismissed some of the claims that had been brought by plaintiffs whose property was destroyed in the attack. The ruling, in In re September 11 Litigation, while minor in its practical impact, provides a fascinating glimpse into the difficult tort issues this case has raised. In this column, I will praise the decision and explain why Judge Alvin Hellerstein got it right.

The Theory Put Forth by the Owner of the World Trade Center: American Airlines Could Have Prevented Tower Two From Being Hit

Now that 97% (or more) of the personal injury plaintiffs arising from 9/11 have accepted the compensation offered by the federal government or settled their cases, the only parties left in the litigation are property owners and businesses who suffered economic harms. These suits are huge; billions of dollars are at stake. Last week, Judge Hellerstein dismissed one small piece of that litigation.

More specifically, Judge Hellerstein held that the owner of the World Trade Center ("WTCP") could not sue American Airlines ("American") and the security service it employed at Logan Airport, Globe Aviation Services Corp. ("Globe") for the damage caused to WTC Tower Two.

WTCP's suit might seem a little odd at first glance, since American's Flight 11 crashed into WTC Tower One – not Tower Two. Indeed, in an earlier decision, handed down in 2003, Judge Hellerstein had held that a jury could find that American could be held liable for the loss of Tower One—and that United Airlines ("United") could be held liable for the loss of Tower Two, since its Flight 175 (also from Logan) struck that tower.

So how did WTCP seek to also bring American before a jury for the loss of Tower Two, despite that Tower's only having been struck by a United plane? It argued as follows: Had American alerted the government as soon as it knew its plane had been seized, the government would have had enough time to scramble jets to shoot down United Flight 175 before it struck Tower Two.

The Specifics of the World Trade Center Owner's Theory

In support of its theory, WTCP could have cited the following facts: American learned that its plane was hijacked at 8:21 a.m.. That plane struck Tower One at 8:46 a.m. The hijacking of United Flight 175 began at 8:42 a.m. That second plane struck Tower Two at 9:03 a.m. WTCP's theory, in essence, is that had American informed the government at 8:21 a.m. that its plane had been hijacked, then the government would have been able to surmise that another plane was going to be hijacked, and would have been able to intercept that plane (shooting it down and killing its passengers) in order to protect Tower Two.

As we will see below, Judge Hellerstein found WTCP's theory implausible for a number of reasons. Before I review them, I think it is important to recognize, however, why WTCP thought it had a good case. At the center of its claim is an allegation that American concealed for twenty minutes from the government that Flight 11 had been hijacked. The allegations, if true, make American look pretty bad: While the tragedy of 9/11 was unfolding, WTCP alleges, American's manager did not tell the FAA everything the airline knew, but instead actively concealed what was occurring until the FAA discovered on its own that the plane had been hijacked.

However, even if these bad acts indeed occurred as WTCP alleges, bad acts do not make a tort, even if they are the basis for some other kind of disciplinary action by the government. As Judge Hellerstein noted, it did not matter if American had concealed the hijacking from the FAA, since the FAA figured out that Flight 11 had been hijacked six minutes after American first learned of the hijacking from one of the flight attendants on the plane.

In other words, unless those six minutes would have made a difference, it is hard to see how American's conduct could have made a difference to the fate of Tower Two. And Judge Hellerstein was "unwilling to entertain the notion that history would have been any different had American told government authorities what they had already known."

Judge Hellerstein Not Only Rejected the Claim of Causation, But Also – And Alternatively – Found that the Tower Two Risk Was Unforeseeable At the Time

Has Judge Hellerstein stopped there, his decision would have been simple and complete. Without evidence upon which a jury could find causation, American could not be held liable, no matter how unsavory their alleged conduct. But Judge Hellerstein also offered another reason to dismiss WTCP's suit: He held that even if a jury could find that the six- minute period of time that was lost by American's actions was a cause of the destruction of Tower Two, American still could not be held liable -- because it owed no duty to the passengers on United Flight 11, or to anyone in the buildings or on the ground -- to report the hijacking of Flight 175.

It is undisputed that American owed a duty to its own passengers, but the suit by WTCP does not allege a breach of duty to the passengers on Flight 175. Judge Hellerstein had held in his 2003 ruling that American had a duty to prevent personal injury and property damage in Tower One, which its plane had hit. But the suit the judge dismissed last week was not about damage to Tower One. What Judge Hellerstein held last week is that an airline whose plane was hijacked on 9/11 did not, based on the circumstances in place on 9/11, owe a duty to anyone who might be harmed by a second hijacking.

Judge Hellerstein's reason for denying that such a duty could exist was simple: He held that from where American stood on 9/11, while some risks were foreseeable (such as risks arising from the hijacking of American's own plane), other risks were unforeseeable, and the risk that another plane would be hijacked was exactly such an unforeseeable risk.

I agree with Judge Hellerstein that proper duty analysis in New York (the jurisdiction whose law ought to apply) requires that the plaintiff allege more than a mere possibility of a risk (to borrow Justice Cardozo's expression). The risk that another hijacking would occur on the same morning with the same goal might seem unsurprising today, but it surely would have been a very remote possibility in the minds of American's manager on the morning of 9/11.

Yet I cannot help but note the irony of Judge Hellerstein's invoking the practical unforeseeability of a second plane's being hijacked as the basis for dismissing a claim of duty on the part of American to the passengers of United Flight 11 and/or the ground victims of United Flight 11. Such a duty, he said, would be "sweeping" and would "eliminate every conception of the notion of duty in tort law." That is, however, the very argument Judge Hellerstein rejected in 2003 when United and American (as well as other defendants) argued that they owed no duty to the ground victims on 9/11. They argued that, while it may have been foreseeable before 9/11 that hijackings might imperil the passengers of a plane, no one could have foreseen that a hijacking would result in planes being turned into missiles by suicide-pilots.

In defense of Judge Hellerstein, it is perfectly correct for him to say that just because some risks are unforeseeable does not mean that all risks are unforeseeable, and vice- versa. Of course, it is hard to see why he chose to hold the risks posed by American Flight 175 to ground victims in Tower One to be foreseeable, and also to hold the risk posed by that plane to ground victims in Tower Two to be unforeseeable. That is to say, given that he trusted a jury to decide the breach and causation issues in the former case, why not also trust a jury to decide the parallel issues in the latter case?

Judgment—the art of drawing lines—is one of the hardest skills in law to master. It is even harder to explain (and to defend). For a trial judge, drawing the lines in the right place is more important than explaining precisely why the boundaries were chosen. Overall, I applaud Judge Hellerstein for doing his job well. I only wish that he had taken more time to explain last week's decision in the context of his earlier 2003 decision on duty.


Anthony J. Sebok, a FindLaw columnist, is a Professor at Benjamin N. Cardozo School of Law in New York City. His other columns on tort issues may be found in the archive of his columns on this site.