A jury of six morons people has decided that the New York Port Authority is 68 percent responsible for the 1993 World Trade Center bombing. The terrorists’ percentage of responsibility? I’m so glad you asked. That would be 32 percent — less than half that of the Port Authority.
I didn’t hear the evidence and I don’t care. This is a stupid verdict which should be summarily reversed.
Pronounced "Patter-EE-koh"
E-mail: Just use my moniker Patterico, followed by the @ symbol, followed by gmail.com
Disclaimer: Simpsons avatar may resemble a younger Patterico...
The statements made on this web site reflect the personal opinions of the author. They are not made in any official capacity, and do not represent the opinions of the author's employer.
| M | T | W | T | F | S | S |
|---|---|---|---|---|---|---|
| 1 | 2 | |||||
| 3 | 4 | 5 | 6 | 7 | 8 | 9 |
| 10 | 11 | 12 | 13 | 14 | 15 | 16 |
| 17 | 18 | 19 | 20 | 21 | 22 | 23 |
| 24 | 25 | 26 | 27 | 28 | 29 | 30 |
| 31 | ||||||
Powered by WordPress.
The terrorists’ percentage is less than half that of the terrorists?
[Dang it. Silly error fixed; thanks. — P]
Greg Shannon (ab8c66) — 10/28/2005 @ 8:21 amWell, clearly since the Port Authority provided underground parking for the terrorists, and charged them for the privilege, that makes the PA responsible to some extent. We certainly owe the jury our thanks for determining the exact percentage. Without their help some uninformed dolt out in East Overshoe might have calculated PA responsibility at zero, but what else can you expect from Joe Citizen?
Black Jack (ee9fe2) — 10/28/2005 @ 8:47 amI hadn’t ever heard of this case, nor have I followed the link.
But, let me guess – there are lotsa monetary damages involved. How’d I know that?
ras (f9de13) — 10/28/2005 @ 9:31 amA character in Larry Niven’s known space series likes to remark, “Stupidity can be a capital crime”.If so,there are some jurors in trouble.
lincoln (d1b1c3) — 10/28/2005 @ 12:45 pmWhoa whoa whoa…back the truck up…let’s say for example, that Person A maliciously and evilly shoots Person B, in the leg. Person B, is rushed to the hospital where although shot, with reasonable care, Person B would have survived just fine, instead, Doctor X, negligently treats Person B and Person B dies.
Now granted, Person A (assuming only negligence for now) would have committed murder, but that doesn’t change the fact that Doctor X is also partly responsible for Person B’s death, and yes would also be appropriately on the hook for a portion of the liability in Person B’s death.
Now how is that so different from this case. Do I necessarily like it? No, but there certainly is the possibility that evidence existed to show that the port authority through its negligence contributed to the harm suffered at the WTC in 1993.
Joel B. (31d860) — 10/28/2005 @ 1:28 pmNow how is that so different from this case. Do I necessarily like it? No, but there certainly is the possibility that evidence existed to show that the port authority through its negligence contributed to the harm suffered at the WTC in 1993.
Strawman. The issue is the ridiculous percentages assigned.
Patterico (c7959e) — 10/28/2005 @ 1:36 pmPatterico, more your area than mine, but dumb jury? More like dumb nanny-state law, letting a case like this one get to a jury. Concurrent liability for concurrent negligence is one thing, but concurrent liability shared by a deep pocket tortfeasor who is merely negligent when the proximate cause of the harm is not a negligent act, but an act of terrorism, is nothing more than free insurance (except for the taxes we pay, of course), with the government and every other deep pocket within the vicinity as involuntary insurers. The act of terrorism should be considered a superseding cause. Whenever something like that occurs, there will always be some fault found in security measures. In hindsight, such a fault will always be found to be negligence. This is the sort of risk that insurance companies can underwrite. Governments and property owners shouldn’t have to.
TNugent (6128b4) — 10/28/2005 @ 2:25 pmIt’s hardly a strawman, it is a more extreme example, for sure, but you very much understand the point…bring it to a closer case. Wal-Mart has long store hours staying open until 1 AM. They are made aware of constant criminal activity near the periphery of their completely unlit and unsecured lot. Wal-Mart chose to disregard the risk, a criminal robs a man or woman headed out to his or her car from from Wal-Mart in the unlit lot. Not too different, especially considering that the Port Authority was made aware of the significant threats made against the parking lot structure, and was made aware of the need to close the lot before the incident occurred.
Sure, the terrorists are directly responsible for the harm cause, and they are morally responsible, but the port authority can hardly be excused if they were negligent in securing the WTC.
IF, if, a TSA agent fell asleep on the job allowing weapons to pass through security which were used in a terrorist act in the sky…Isn’t the security agent (and by extension if negligent in hiring) the TSA substantially responsible for the injury as well.
Joel B. (31d860) — 10/28/2005 @ 2:27 pmI’ll admit that you’re right Patterico unless there was no security at all. Wasn’t the explosion caused by a van full of explosives? I suppose every vehicle that enters the garage was supposed to be searched? That’s too much to ask. We can’t protect ourselves from every possible attack.
But where is the outrage based on our government giving billions of dollars in tax breaks to oil companies? To add insult to injury, there has been talk recently of more tax breaks to help them build more refineries. Meanwhile, Exxon is “earning” more than a Billion dollars a day in revenues. So much for the free market – it’s freer to some of us than most of us.
Tillman (1cf529) — 10/28/2005 @ 2:34 pmThe terrorists are primarily responsible for the bombing. Period. I don’t care how negligent the Port Authority was. Assigning more than 49% liability to the PA is indefensible under any circumstances imaginable, short of the PA actively conspiring to commit the bombing.
Patterico (c82584) — 10/28/2005 @ 2:50 pmI’ll admit that you’re right Patterico unless there was no security at all.
From my reading of the article that appears to have been pretty much no security at all, in 1984, the PA had a report strongly suggesting the closure of the garage or at least some “compromise measures,” the article made it seem few, if any, were undertaken.
The goal is not complete protection or security, but the question is whether or not the PA exercised reasonable care. PA chose to keep the garage open despite substantial warning from expert reports-commissioned by the PA I think-, (probably because of the substantial revenue generated from monthly and daily parking), they made that business choice, why should we carry water for them, when their business choice also involves not having adequate security (which would increase costs). The PA made the choice for concrete gain over risk of loss (not unreasonable), but the risk of loss materialized, the PA must therefore pay the piper.
Joel B. (31d860) — 10/28/2005 @ 2:53 pmTillman, why is a break for a particular purpose — that of encouraging the construction of more refineries — adding insult to injury? I undersand if you don’t approve of tax breaks (otherwise known as allowing people to keep their own money) generally, or if you think the oil companies have unfairly manipulated the markets and have profited by doing so (that would be a problem, I agree), but if more refineries are built, supply might be able to better keep up with demand, giving us lower prices, no?
TNugent (6128b4) — 10/28/2005 @ 2:58 pmThe terrorists are primarily responsible for the bombing. Period. I don’t care how negligent the Port Authority was. Assigning more than 49% liability to the PA is indefensible under any circumstances imaginable, short of the PA actively conspiring to commit the bombing.
I’ll readily admit that the terrorist are not only primarily responsible, but completely and solely responsible for the bombing.
That doesn’t change the fact, that the PA could have, and probably was negligent in allowing the conditions which set up the bombing to occur, and as a result, was more responsible than the terrorists in that the bombing occured at the PA than some other unguarded location, which as a result led to the injury of the people affected by the 1993 bombing.
To say that sure the terrorists are more responsible for the bombing is true, but you’re framing the question to arrive at the result you seek.
Joel B. (31d860) — 10/28/2005 @ 3:04 pmTNuget, what incentives do the oil companies have to build more refineries? All they have to do is not build them to drive the price of gas up. What a scam. So we’re supposed to foot the bill for these wealthy people? Surely there is a better way or capitalism is doomed to failure.
Speaking of tax breaks – they’re wonderful if they’re distributed equitably, but this administration throws us crumbs and expects us to love them for it while giving huge tax breaks to the most wealthy among us. But we can’t afford the tax breaks in the first place – not with this deficit.
Tillman (1cf529) — 10/28/2005 @ 3:22 pmYou *must* be a personal injury attorney, because that made no sense to me — at all.
Who is primarily responsible for the deaths of these people? The terrorists. Period.
I’d be perfectly fine with a system that assigns 100% blame to the terrorists under circumstances like these, since that’s how I feel. But if we must have comparative fault, I am going to bitterly mock any jury that apportions 1/2 of the blame or more to a party that didn’t commit the terrorist act. And no amount of lawyer-speak is going to change my opinion.
Patterico (c82584) — 10/28/2005 @ 3:24 pmOur host, to whom honor and respect must attend (despite the assessed value of his website), said:
In conceding the concept of comparative fault, and being willing to accept fault on the part of the non-terrorist party as long as it didn’t exceed 49.9%, aren’t you accepting the logic of the jury, and simply quibbling about the percentage?
Let’s be honest here: the jury assigned that percentage for the sole purpose of inflating the amount of money the petitioners would receive. That’s all it meant.
Dana R. Pico (a9eb8b) — 10/28/2005 @ 4:10 pmYou *must* be a personal injury attorney, because that made no sense to me — at all.
Who is primarily responsible for the deaths of these people? The terrorists. Period.
Well, I don’t mean to be so confusing, for which I apologize…I’m not a personal injury attorney, and this case means nothing to me…if anything, maybe it’s just because I’ve had torts more recently and am being more “generous” to the jury.
You’re absolutely right that the terrorists are more responsible for the bombing than anyone else. Like I said though that’s not really the question, this is pretty much a simple landowner liability for criminal acts of 3rd persons question, and my impression is that it pretty easily falls withing the description.
The 2nd restatement of torts, seems to fall pretty squarely within this situation
§ 344 Business Premises Open to Public: Acts of Third Persons or Animals
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
I’d be perfectly fine with a system that assigns 100% blame to the terrorists under circumstances like these, since that’s how I feel.
Are you telling me that you’d be okay with a system were businesses are not responsible for the acts of third persons on their property, even when the business has knowledge of the acts, if Wal-Mart does nothing to stop drug-dealing in their parking lot and you as a patron get injured there, your only recourse should be to go to the drug dealer and sue him?
Look, I’m a pretty big anti-most lawsuits type of guy. But I do believe businesses have a duty to their customers, as the PA did to those injured here, the PA breached their duty, they have to pay up. That’s the way it should be.
Joel B. (31d860) — 10/28/2005 @ 4:17 pmYa got to love the law:
So, Joel, if I get your drift, the hijacked airlines would have some liability here as well?
Black Jack (ee9fe2) — 10/28/2005 @ 4:28 pmI quote from Ortiz v. New York City Hous. Auth., 22 F. Supp. 2d 15, consider especially how the Arizone Supreme Court, addressed your concerns.
3. Apportionment of Liability
The Housing Authority maintains that the jury’s apportionment of 60 percent of the liability for Ortiz’s injuries to the Housing Authority and 40 percent to Henriques is irrational and requires a new trial on the issue of apportionment. This argument is without merit.
The New York Court of Appeals has held that HN13the inquiry into the proximate cause of an injury depends upon the facts of each individual case, and that “given the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established.” Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 414 N.E.2d 666, 670, 434 N.Y.S.2d 166, 169 (1980). “Where . . . the [**47] evidence supports a finding that [two] parties bear substantial responsibility for the injury, the determination of whose fault played the more critical role in its causation is properly left to the fact finder.” Facci v. General Elec. Co., 192 A.D.2d 991, 992, 596 N.Y.S.2d 928, 929 (3rd Dep’t 1993).
As noted above, HN14New York permits juries to apportion fault between negligent and intentional tortfeasors. See Siler, supra. It is apparently the Housing Authority’s position that any verdict that apportions a greater degree of fault to a negligent tortfeasor than an intentional tortfeasor is per se irrational. Neither the parties nor the Court have been able to locate any New York authority that deals precisely with this point. However, the Supreme Court of Arizona recently considered a similar factual scenario in the case of Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449 (Ariz. 1998) (“Hutcherson II”). In Hutcherson II, the plaintiffs’ decedents — a woman and her new boyfriend — were shot and killed by the woman’s ex-boyfriend. Before the shooting, the woman had placed a call to the 911 operator reporting that the ex-boyfriend had [**48] tried to assault her the night before and had threatened to kill her and her family. The 911 operator assigned the call its lowest priority, and 22 minutes later, the ex-boyfriend broke through the front window of the apartment, shooting the woman and her new boyfriend [*33] to death and then fatally shooting himself. The victims’ families brought a wrongful death action against the City of Phoenix based upon its mishandling of the 911 call. After trial, the jury apportioned 75 percent liability for the shooting to the City of Phoenix, and only 25 percent to the assailant. The intermediate appellate court, while affirming the liability and damage verdicts, reversed and remanded for a new trial on the apportionment of fault, concluding that “the evidence does not justify a verdict that the 911 operator was three times as much at fault for the wrongful deaths of Plaintiffs’ decedents as [the assailant], who intentionally shot and killed Plaintiffs’ decedents.” Hutcherson v. City of Phoenix, 188 Ariz. 183, 187, 933 P.2d 1251, 1255 (Ariz. Ct. App. 1996) (“Hutcherson I”).
The Supreme Court of Arizona, in an en banc decision, reversed. The court endorsed the permissibility of comparing [**49] negligent and intentional conduct for purposes of apportioning responsibility for tortious conduct, noting that “different types of tortious conduct, ranging from negligent to intentional, are merely points along a fault continuum and should be thought of not as ‘different-in-kind,’ but rather ‘different-in-degree.'” Hutcherson II, 961 P.2d at 452 (citing Blazovic v. Andrich, 124 N.J. 90, 590 A.2d 222, 231 (N.J. 1991); J. Dear & S. Zipperstein, Comparative Fault and Intentional Torts: Doctrinal Barriers and Policy Considerations, 24 Santa Clara L. Rev. 1, 5 (1984)). The court noted that “no compelling authority has been cited for the proposition that intentional conduct must be given more weight than negligent conduct in the apportionment of fault.” Hutcherson II, 961 P.2d at 452-53. Rather, the court found that the jury could properly have determined that while the assailant’s moral culpability was greater than that of the City of Phoenix, the City bore greater responsibility for anticipating the occurrence of the crime and yet failing to prevent it. Id. at 453. The court quoted from the dissenter in the intermediate appellate court:
The murderer’s culpability [**50] is enormous, the [911] operator’s is slight. He committed deliberate homicide; she misjudged the severity of the call. And when it comes to contribution to causation, at first blush, the imbalance again weighs heavily toward the murderer. When you add relative timing into the picture, however, the balance starts to shift. The operator has notice of a potentially imminent harm and a chance to avoid it. This is a proper factor for the fact finder to weigh. It is also proper for the fact finder to weigh the operator’s responsibility for foresight and avoidance . . . [in the] weighing of relative degrees of fault.
Hutcherson I, 188 Ariz. at 197, 933 P.2d at 1265 (Grant, J., dissenting). The court determined that it was the province of the jury to evaluate the relative degrees of fault, and concluded that “because the jurors could have found that an opportunity to avert [the] harm was lost by virtue of the operator’s negligence, we will not second-guess their allocation of fault.” Hutcherson II, 961 P.2d at 454.
Joel B. (31d860) — 10/28/2005 @ 4:30 pmBlackjack-
Why do you think that the entire 9/11 fund was created, which by the way foreclosed tort remedies if you accept payment from the fund. Look, if the security agencies and the like knew that the plantiffs had no case, would they have been so quick to buy out potential plaintiffs?
Now, it’s not likely that United or American would bear responsibility but whoever operated La Guardia’s security etc.
Joel B. (31d860) — 10/28/2005 @ 4:33 pmJoel:
Given the criteria you stated,
i>§ 344 Business Premises Open to Public: Acts of Third Persons or Animals
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
I have to ask where the Port Authority failed. “Likely” means “having a high probability of occurring or being true : very probable.” Given that there had not been an al Qaeda terrorist attack in the United States, ever, prior to the first WTC bombing, and that such attacks were extremely rare by other groups in our history, how could the Port Authority have ever discovered that terrorist acts were likely to be committed in the WTC parking garage?
We need to admit the truth here: the concept of making property owners liable for the acts of third parties is simply a mechanism by which injured people have recourse to the presumedly deeper pockets of the property owners than of the people actually responsible for their injuries.
Dana R. Pico (a9eb8b) — 10/28/2005 @ 4:34 pmI don’t think it makes sense to assign percentages of liability in this sort of case. Obviously the terrorists should have to pay all the damages if they can. However if they can’t I don’t think everyone else should automatically be in the clear. Suppose for example you pay to have bullet proof glass installed in your car, a terrorist shoots you and it turns out ordinary glass was installed. I think you should be able to collect your full damages from either the terrorist or the glass installer (but not both).
I doubt the Port Authority should be liable in this case but I don’t think a blanket rule that third parties are never liable for terrorism damages makes sense.
James B. Shearer (fc887e) — 10/28/2005 @ 4:39 pmDana,
The lack of a prior event is a factor in likelihood, but it is certainly not determinative. From the article, in the mid-80s there was already a growing concern about terrorist activity in the US. It was specifically noted in the report that given the WTC high-profile status it was especially likely to be a target. Additionally, if the port authority had been made aware of threats or plots made against the WTC, even if they had all been averted or not materialized, it would seem to fall under the category of likely.
I readily admit your truth, and that’s feature of the tort system. In some ways, this somewhat odd apportionment system is the result of the death of joint and several liability. Which of course, had its problems, but would have stopped one here.
Joel B. (31d860) — 10/28/2005 @ 4:44 pm“[N]o compelling authority has been cited for the proposition that intentional conduct must be given more weight than negligent conduct in the apportionment of fault.”
Fine. I can imagine plenty of cases where an intentional act is far less blameworthy, and far less a cause of an accident, than a negligent act. Say a building negligently maintained an open elevator shaft behind closed elevator doors that the management knew randomly opened from time to time. A man and a woman get into an argument on the 30th floor, and the man shoves the woman into the elevator doors — which randomly open, and she falls to her death. His act was intentional; theirs negligent (actually reckless). I would apportion more liability to the building owners.
But this was a bombing. It was an act of terrorism. It is utter insanity and stupidity to apportion more than twice the liability to the PA than to the terrorists who did the bombing. You have to look at the facts, and in this case, the facts are clear.
It reminds me of our local jury who, when a criminal defendant (and later civil plaintiff) was shot by police and framed for attempted murder (and later freed), assessed 100% fault for his imprisonment to his public defender, and 0% — literally 0% — to the criminal cops who framed him. Another stupid verdict. Another stupid jury. Summarily reversed by the trial judge, and good on her.
Same should happen for this utterly insane verdict.
Patterico (4e4b70) — 10/28/2005 @ 4:55 pmJoel:
The lack of a prior event is a factor in likelihood, but it is certainly not determinative. From the article, in the mid-80s there was already a growing concern about terrorist activity in the US. It was specifically noted in the report that given the WTC high-profile status it was especially likely to be a target. Additionally, if the port authority had been made aware of threats or plots made against the WTC, even if they had all been averted or not materialized, it would seem to fall under the category of likely.
So, an event never previously having occurred (which under any rational definition would mean zero) can be considered as likely (meaning: more probable than not) to occur in a specific place?
I guess that this is why I’m not a lawyer.
Dana R. Pico (a9eb8b) — 10/28/2005 @ 5:07 pmWell, of course, if one opened a store on a vacant lot, where business had never been transacted before, one could reasonably state that once the store opens it is reasonably likely that business activity will occur at that specific place.
If, terrorism had been on the rise internationally, and there had been threats or whatever made against the WTC, it may eventually with some amount of evidence rise to the level of likely to occur.
If I’ve never been married, but become engaged, I suppose most would say that I’m reasonably likely to become married. Again, prior events shed light, but so do many other things.
Joel B. (31d860) — 10/28/2005 @ 5:12 pm“[N]o compelling authority has been cited for the proposition that intentional conduct must be given more weight than negligent conduct in the apportionment of fault.”
I can see how a federal district court, applying Arizona law, would have to follow the Arizona Supreme Court’s jurisprudence on the question of whether intentional conduct must be given more weight than negligent conduct in the apportionment of fault. That doesn’t make the Arizona Supreme Court right.
I also see the appeal of Patterico’s elevator example. So the rule should not be an automatic one – i.e., it should not be that intentional tortious actors always must be 50% or more responsible than negligent actors. Patterico, you nailed the rationale by pointing out that this was a bombing. However, you do not articulate the rule you are advocating. Let me give it a shot.
When the negligence merely allows the intentional tortious conduct to occur, rather than exacerbate the harm, then it is utterly irrational to apportion more than 50% fault to the negligent actor. In the elevator example, the negligence greatly exacerbated the harm. The act of pushing someone against elevator doors normally causes little but annoyance at being rudely touched, maybe some bruises. The negligence, however, turned the ordinarily forseeable consequences of the intentional tort into a vastly more harmful and destructive result.
With the bombing of the WTC in 1993, the ordinarily forseeable consequences of the bombing were actually less than what occurred. The WTC did not come down, far fewer people were killed than could have been. The Port Authority’s negligence merely allowed the bombing to happen when there is a chance that it could have been prevented.
I am perfectly comfortable with such a system and in fact think any other system irrational. I even believe this in the context of some other examples described above. I’ll give you an obvious one. Suppose I have received multiple death threats from a particular individual, that individual has in fact attempted to kill me several times and failed (yet gotten away) and I hire a team of security guards to protect me. Suppose the team of security guards are grossly negligent, all fall asleep, the assailant sneaks into my home and shoots me dead. My wife and daughter sue for wrongful death.
The security guards should be no more than 50% responsible, and here’s where it all makes sense, under the common law. I am fully free to contract with my security guard company that they will accept 100% of the blame if their negligence allows my assailant to kill me. Without such a prior agreement, the common law should not assess more than 50% blame to the merely negligent actor(s).
Ben Pugh (1527b3) — 10/28/2005 @ 6:02 pmBen-
But see, here’s the thing, I can construct an equally reasonable scenario where had the PA exercised due care, it is more likely that some other structure might have been bombed, or perhaps the bomb might have been caught. This other location, could very well resulted in far less damage to people and property.
The thing is…the PA authority’s negligence was “responsible” at least in part for where and how the bombing took place, had the PA not been negligent it’s very likely the where and how could have been very different, and perhaps, the PA would then have been found to have met their duty of reasonable care.
You’re point about the common law, is interesting, but one also has to note that at common law the negligent and intentional tortfeasor would bear joint and several liability. Thus meaning that the security guard’s insurance company would end up picking up the whole tab anyways.
One other note, the Federal District Court, was over a case situated in New York.
Joel B. (568776) — 10/28/2005 @ 8:00 pmIt might be the law, but where’s the justice?
Black Jack (ee9fe2) — 10/29/2005 @ 9:31 amTerrorist Bomb WTC, only 32% responsible, huh?
From L.A. lawyer Patterico comes this fine example of the jury system at work.
Citizens Kane (891874) — 10/29/2005 @ 11:18 am