In re September 11 Litigation

• Decision Date: 09 September 2003
• Docket Number: No. 21 MC 97(AKH).,21 MC 97(AKH).
• Citation: 280 F.Supp.2d 279
• Parties: In re SEPTEMBER 11 LITIGATION
• Court: U.S. District Court — Southern District of New York

Page 279

280 F.Supp.2d 279

In re SEPTEMBER 11 LITIGATION

No. 21 MC 97(AKH).

United States District Court, S.D. New York.

September 9, 2003.

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Paul J. Hanly, Jr., Jayne Conroy, Hanly & Conroy, LLP, New York City, Jody Westbrook Flowers, Ronald L. Motley, Motley Rice, LLC, Mount Pleasant, SC, for Deena Burnett, April D. Gallop, Lorne Lyles, Margaret Ann Cashman, Adelaide Maureen Driscoll, Catherine Powell.

Brian Vincent Otero, Michelle R. Parker, Hunton & Williams, New York City, for Burns Intern. Services Corp., Burns Intern. Security Services Corp.

Marc S. Moller, Kriendler & Kreindler, New York City, Timothy W. Triplett, Kristopher E. Kuehn, Michael Kuckelman, Michael E. Callahan, Warden, Triplett, Grier, Overland Park, KS, for Certain Underwriters at Lloyd's of London, Comprising Syndicates No 33, 1003, 2003, 1208, 1243, 0376, Great lakes Reinsurance, PLC, Subrogees of Silverstein Properties, Inc.Marc S. Moller, Kreindler & Kreindler, New York City, for Mayore Estates, LLC, 80 Lafayette Associates, LLC, Allainz Ins. Co., Fed. Ins. Co., Essex Ins. Co., Great Lakes Reinsurance UK PLC, Sumitomo Marine & Fire Ins. Co., Citicorp Ins. USA, Inc., All Providing Citigroup, Inc., Property for 7 World Trade Center, Subrogeer of Citigroup, Inc.Salomon Smith Barney Holdings, Inc., Aegis Ins. Services, Inc., Liberty Intern., Underwriters, Inc., Nat. Union Ins. Co. of Pittsburgh, Nuclear Elec. Ins. Ltd., Underwriters at Lloyd's, A/S/O/ Consolidated Edison Co. of New York, Inc., Consolidated Edison Co. of NY Inc., Karoon Capital Management, Inc., Wall Street Realty Capital, Inc., Barcley Dwyer Co., Inc., Tower Computer Service, Inc., US Fire Ins. Co.

Desmond T. Barry, Jr., Condon & Forsyth, LLP, New York City, for AMR Corp., American Airlines, Inc., Ual Corp., United Airlines, Inc., Colgan Air, Inc.

Richard P. Campbell, Kathleen M. Guilfoyle, Campbell, Campbell, Edwards & Conroy, Boston, MA, for US Airways Group, Inc., US Airways, Inc.

Bruce R. Wildermuth, Edward J. McMurrer, Ralph V. Pagano, Laurie Gallun, Max Tribble, Jonathan J. Ross, H. Lee Godfrey, Mendes & Mount, LLP, New York City, for Huntleigh USA Corp.

James P. Connors, Jones, Hirsch, Connors & Bull, PC, New York City, for Globe Aviation Services Corp.

John L. Altieri, Jr., Paul Robert Koepff, Marissa Bea Mole, Willard Mark Wood, O'Melveny & Myers, LLP, New York City, Paul F. Ware, Jr., F. Dennis Saylor, IV, Christopher D. Moore, Goodwin Proctor LLP, Boston, MA, for Mass Port Authority d/b/a Logan Intern. Airport.

Karen M. Berberich, Mark A. Dombroff, Dombroff & Gilmore, PC, New York City, for City of Portland.

Michael J. Crowley, James A. Gallagher, Jr., Gallagher, Gosseen, Faller, Kaplan & Crowley, Garden City, NY, Richard A. Williamson, Flemming, Zulack & Willaimson, LLP, New York City, for Port Authority of New York & New Jersey.

Charles E. Koob, Joseph F. Wayland, Simpson, Thacher & Bartlett, LLP, New York City, for Argenbright Security, Inc.

George S. Kolbe, Brown Gavalas & Fromm, LLP, New York City, for America West Airlines, Inc.

Percy M. Samuel, Percy M. Samuel, PC, Elmont, NY, for Wade B. Green, Estate of Roxanne Elizabeth Green, Danielle Tiffany Green.

Robert S. Murphy, Mineola, NY, for Tem Enterprises d/b/a Casino Express.

OPINION AND ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS

HELLERSTEIN, District Judge.

The injured, and the representatives of the thousands who died from the terrorist-related aircraft crashes of September 11, 2001, are entitled to seek compensation.By act of Congress, they may seek compensation by filing claims with a Special Master established pursuant to the Air Transportation Safety and System Stabilization Act of 2001, Pub.L. No. 107-42,115 Stat. 230(2001)(codified at 49 U.S.C. § 40101)("the Act").Or they may seek compensation in the traditional manner, by alleging and proving their claims in lawsuits, with the aggregate of their damages capped at the limits of defendants' liability insurance.If they choose the former alternative, their claims will be paid through a Victim Compensation Fund from money appropriated by Congress, within a relatively short period after filing.Claimants will not have to prove fault or show a duty to pay on the part of any defendant.The amount of their compensation, however, may be less than their possible recovery from lawsuits, for non-economic damages are limited to $250,000, economic damages are subject to formulas that are likely to be less generous than those often allowable in lawsuits, and punitive damages are unavailable.I have discussed, and upheld, certain portions of the Act and regulations related to the Fund in Colaio v. Feinberg,262 F.Supp.2d 273(S.D.N.Y.2003), appeal filed,June 6, 2003.

Approximately seventy of the injured and representatives of those who died, and ten entities which sustained property damage, have chosen to bring lawsuits against defendants whom they claim are legally responsible to compensate them: the airlines, the airport security companies, the airport operators, the airplane manufacturer, and the operators and owners of the World Trade Center.¹The motions before me challenge the legal sufficiency of these lawsuits, and ask me to dismiss the complaints because no duty to the plaintiffs existed and because the defendants could not reasonably have anticipated that terrorists would hijack several jumbo jet airplanes and crash them, killing passengers, crew, thousands on the ground, and themselves.I discuss in this opinion the legal duties owed by the air carriers, United and American Airlines, and other airlines and airport security companies affiliated with the air carriers to the plaintiffs who were killed and damaged on the ground in and around the Twin Towers and the Pentagon; by the Port Authority of New York and New Jersey ("Port Authority") and World Trade Center Properties LLC("WTC Properties") to those killed and injured in and around the Twin Towers; and by the Boeing Company, the manufacturer of the "757" jets that were flown into the Pentagon and the field near Shanksville, Pennsylvania, to those killed and injured in the two crashes.I hold in this opinion that each of these defendants owed duties to the plaintiffs who sued them, and I reject as well defendants' alternative arguments for dismissal.

I.Background

A.Exclusive Jurisdiction and the Governing Law

The Air Transportation Safety and System Stabilization Act of 2001, Pub.L. No. 107-42,115 Stat. 230(2001)(codified at 49 U.S.C. § 40101)("the Act"), passed in the weeks following the September 11 attacks, provides that those who bring suit "for damages arising out of the hijacking and subsequent crashes" must bring their suits in the United States District Court for the Southern District of New York.The Southern District has "original and exclusive jurisdiction""over all actions brought for any claim (including any claim for loss of property, personal injury, or death) resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001," with the exception of claims to recover collateral source obligations and claims against terrorists and their aiders, abettors and conspirators, Act§ 408(c).The Act provides that the governing law shall be "derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law."Act§ 408(b)(2).Thus, all cases, whether arising out of the crashes in New York, Virginia, or Pennsylvania, must be brought in the Southern District of New York, to be decided in accordance with the law of the state where the crash occurred.

B.The Complaints

Plaintiffs' individual pleadings have been consolidated into five master complaints, one for the victims of each crash and one for the property damage plaintiffs.Plaintiffs allege that the airlines, airport security companies, and airport operators negligently failed to fulfill their security responsibilities, and in consequence, the terrorists were able to hijack the airplanes and crash them into the World Trade Center, the Pentagon, and the field in Shanksville, Pennsylvania, killing passengers, crew, and thousands in the World Trade Center and the Pentagon and causing extensive property damage.The complaints allege that the owners and operators of the World Trade Center, World Trade Center Properties LLC and the Port Authority of New York and New Jersey, negligently designed, constructed, maintained, and operated the buildings, failing to provide adequate and effective evacuation routes and plans.Plaintiffs who died in the crashes of American flight 77 and United flight 93 also sue Boeing, the manufacturer of the two "757" airplanes, for strict tort liability, negligent product design, and breach of warranty.

C.Motions to Dismiss

I heard oral argument on May 1 and 2, 2003 on six motions by the several categories of defendants.I previously have decided three of the motions, by most of the airport operators,² by three airlines that did not carry any of the victims or alleged hijackers,³ and by Fiduciary Trust Company International and Franklin Templeton Investments, an employer of one of the victims.⁴The three motions which remain, and which I now decide are: by the airlines and airport security companies (the "Aviation Defendants");⁵ by the Port Authority and World Trade Center Properties LLC(together, the "WTC Defendants"); and by Boeing.

The Aviation Defendants concede that they owed a duty to the crew and passengers on the planes, but contend that they did not owe any duty to "ground victims."The Port Authority and WTC Properties argue that they did not owe a duty to protect occupants in the towers against injury from hijacked airplanes and, even if they did, the terrorists' actions broke the chain of proximate...