World Trade Ctr. Props. LLC v. Am. Airlines, Inc. (In re September 11 Litig.)

• Decision Date: 21 November 2012
• Docket Number: Nos. 21 MC 101(AKH), 08 Civ. 3722(AKH).,s. 21 MC 101(AKH), 08 Civ. 3722(AKH).
• Parties: In re SEPTEMBER 11 LITIGATION World Trade Center Properties LLC et al., Plaintiffs, v. American Airlines, Inc. et al., Defendants.
• Court: U.S. District Court — Southern District of New York

905 F.Supp.2d 547

In re SEPTEMBER 11 LITIGATION

World Trade Center Properties LLC et al., Plaintiffs,

v.American Airlines, Inc. et al., Defendants.

Nos. 21 MC 101(AKH), 08 Civ. 3722(AKH).

United States District Court,

S.D. New York.

Nov. 21, 2012.

Richard Arthur Williamson, Alexander Fellows Powell, Thomas A. Egan, Flemming Zulack Williamson Zauderer LLP, New York, NY, Gregg Herbert Kanter, Gregg H. Kanter Law Office LLC, Philadelphia, PA, for Plaintiffs.

Desmond Thomas Barry, Jr., Condon and Forsyth LLP, Loretta Anne Redmond, Quirk and Bakalor, P.C., New York, NY, Eric Scott Lent, Perkins Coie LLP, Seattle, WA, for Defendants.

ORDER AND OPINION GRANTING UNITED'S MOTION FOR SUMMARY JUDGMENT THAT IT HAD NO DUTY FOR FLIGHT 11

ALVIN K. HELLERSTEIN, District Judge.

I. INTRODUCTION

On September 11, 2001, terrorists hijacked American Airlines Flight 11 (“Flight 11”) and crashed it into 1 World Trade Center, the northern Twin Tower. As 1 World Trade Center collapsed, it spewed debris, some of which pierced the facade of 7 World Trade Center (“Tower 7”), causing fires and, eventually, Tower 7's collapse.¹

7 World Trade Company, L.P. (“7WTCo.”), lessee of Tower 7, sued United Airlines, American Airlines and others (collectively, “Aviation Defendants”), alleging that Tower 7 would not have been destroyed but for Aviation Defendants' negligence. Aviation Defendants have moved for summary judgment on the basis that 7WTCo.'s insurance recovery has fully compensated 7WTCo. for any possible tort recovery against Aviation Defendants.

Independent of that motion, two Aviation Defendants, United Continental Holdings, Inc. and United Airlines, Inc. (together, “United”), move for summary judgment on the basis that they bear no responsibility for Tower 7's destruction because they bear no responsibility for Flight 11 or its hijacking. For the reasons stated below, United's motion is granted.

II. FACTUAL BACKGROUND

On September 11, Portland International Jetport (“PWM”) in Portland, Maine, had a single security screening checkpoint that screened all departing passengers, regardless of air carrier. “Th[e] checkpoint was under the custodial responsibility of Delta Air[ Lines, which contracted for security screening services with Globe Aviation Services.” The National Commission on Terrorist Attacks Upon the United States, Staff Report on the Four Flights and Civil Aviation Security 3 (September 12, 2005) (“Staff Report”). On August 9, 2001, the air carriers participating in security screening at PWM, including United, executed a “Shared Responsibility Agreement,” pursuant to which Delta Air Lines assumed responsibility “for the overall operation of the passenger security screening checkpoint ... for the purpose of avoiding a multiplicity of civil penalty actions, as well as to allocate the administrative and financial responsibility for any civil penalties levied by the Federal Aviation Administration.” Delta Air Lines also assumed responsibility for “any alleged non-specific violation of the Air Carrier Standard Security Program (‘ACSSP’) occurring at the passenger security screening checkpoint,” while “[e]ach air carrier remained] solely responsible for any civil penalties levied against it individually resulting from violations of that air carrier's ACSSP or resulting from any alleged specific violation of the ACSSP.” ²

In the early the morning of September 11, Mohamed Atta and Abdul Aziz al Omani arrived at PWM, planning to take Colgan Air Flight 5930 (“Flight 5930”) to Boston's Logan International Airport (“Logan”), where they planned to board Flight 11, bound for Los Angeles International Airport. At 5:43 a.m., they received their Flight 5930 boarding passes at the U.S. Airways ticket counter in the unsecure area of the PWM terminal.³ At 5:45 a.m., Atta and Omani entered the security screening checkpoint to access the secure area of the PWM terminal, They passed through the checkpoint and proceeded to Gate 11, where they boarded Flight 5930 for its on-time 6:00 a.m. departure. United bore no responsibility for Flight 5930's ticketing, passenger check-in and boarding, or for the operation of the flight itself.

Flight 5930 arrived at Gate B9(A) in Pier B of Terminal B at Logan at approximately 6:45 a.m. American Airlines Flight 11 was scheduled to depart at 7:45 a.m. from Gate 32 in Pier A of Terminal B. Piers A and B were separated by the Terminal B Parking Garage. Traveling from Gate B9(A) to Gate 32 required exiting both the secure and unsecure areas of Pier B, crossing the Terminal B Parking Garage, entering the unsecure area of Pier A, passing through a security screening checkpoint to enter the secure area of Pier A, and, finally, proceeding to Gate 32. See Staff Report at 3, 5.

Upon exiting Flight 5930, Atta and Omari followed this route to the unsecure area of Pier A. After obtaining their Flight 11 boarding passes from American Airlines, Atta and Omani entered a security screening checkpoint to access the secure area of Pier A. There were two such security screening checkpoints providing access to the secure area of Pier A, both operated by Globe Aviation Services under a contract with American Airlines. Staff Report 5; The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 2 (2004) (“9/11 Commission Report”). United had no responsibility for either checkpoint; United's checkpoint and gates were in Terminal C of Logan Airport, a substantial distance removed from the American checkpoints and gates. Staff Report at 18. Atta and Omari each passed through one of these checkpoints before boarding Flight 11,⁴ The other Flight 11 hijackers, Wail al Shehri, Waleed al Shehri and Satam al Suqami, arrived at Logan via automobile and each passed through one of the same two checkpoints before boarding Flight 11.⁵ Flight 11 pushed back from the gate at 7;40 a.m. and by 8:00 a.m. was airborne.

At approximately 8:15 a.m., the hijackers began their takeover of the aircraft. At 8:46 a.m., Flight 11 crashed into the upper stories of I World Trade Center. The 110–story structure collapsed at 10:28 a.m., spewing flaming debris as it fell. The debris, expelled to the north, pierced the facade of Tower 7, starting fires inside the building. The fires burned unchecked, and at 5:21 p.m., Tower 7 collapsed.

III. Lawa. Standard of Review

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In ruling on a motion for summary judgment, the court must view all evidence in the light most favorable to the nonmoving party, Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir.2004), and must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004).

b. Choice of Law

7WTCo brought this action pursuant to the Air Transportation Safety and System Stabilization Act, 49 U.S.C. § 40101 note et seq. (“ATSSSA”), which creates a federal cause of action for damages arising from the terrorist-related aircraft crashes of September 11. ATSSSA provides the United States District Court for the Southern District of New York with original and exclusive jurisdiction over such actions, with the substantive law to 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.” Under New York choice of law rules, the state in which a tort occurred has the strongest interest in applying its conduct-regulating rules. See Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985). As neither party has shown New York law to be inconsistent with or preempted by federal law, New York law governs the issue of duty with respect to the crash of Flight 11 and the destruction of Tower 7. See In re Sept. 11 Litig., 280 F.Supp.2d 279, 289–90 (S.D.N.Y.2003).

c. Duty

“To establish a prima facie case of negligence under New York law, ‘a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.’ ” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir.2006) (quoting Solomon ex rel. Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 (1985)). “The existence of a duty is thus a sine qua non of a negligence claim: In the absence of a duty, as a matter of law, no liability can ensue.” Alfaro v. Wal–Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.2000) (internal quotation marks omitted); Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985); Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 341, 162 N.E. 99 (1928).

“[T]he existence of a duty is an issue of law for the courts,” while “whether a particular defendant owes a duty to a particular plaintiff is a question of fact.” Kimmell v. Schaefer, 89 N.Y.2d 257, 263, 652 N.Y.S.2d 715, 675 N.E.2d 450 (1996); Alfaro, 210 F.3d at 114. In determining the existence of a duty, “not only logic and science, but policy play an important role. The common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss. While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that the legal consequences...