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After the Sept. 11, 2001, terrorist attacks, approximately 80 plaintiffs sought relief through the tort system rather than through the filing of claims under the Air Transportation Safety and System Stabilization Act of 2001. They alleged negligence on the part of the airlines, the aircraft manufacturers and the World Trade Center’s owners and operators. The defendants maintained that no duty of care existed and that the use of airplanes as weapons was not reasonably foreseeable. The court in In re September 11, however, found a duty of care and that the Sept. 11 attacks were foreseeable. How is it possible that the tort system can find the events of Sept. 11 foreseeable when the terrorist attacks were unprecedented and the public consensus was that the attacks were unimaginable? The victims of Sept. 11 undoubtedly deserve compensation but the tort system is not the answer. The question, which the district court would not certify for an interlocutory appeal, will not reach a court of appeals until after a lengthy and expensive trial; this trial and its appeal bear watching. In New York, the scope of a duty of care is determined by foreseeability. The defendants argued that the events were not reasonably foreseeable, for terrorists had not previously used a hijacked airplane as a suicidal weapon to destroy buildings and murder thousands. The judge found these acts foreseeable, reasoning: “There have been many efforts by terrorists to hijack airplanes, and too many have been successful. The practice of terrorists to blow themselves up in order to kill as many people as possible has also been prevalent. Although there have been no incidents before the ones of September 11, 2001 where terrorists combined both an airplane hijacking and a suicidal explosion, I am not able to say that the risk of crashes was not reasonably foreseeable.” Central to the judge’s finding was the willingness to find foreseeability when the general risk could be foreseen, although the specifics of airplanes as weapons may not have been foreseen. After Sept. 11, the media across the country recounted how no one had foreseen such a deadly attack. The U.S. government has said the same thing. President Bush told the nation, “Based on everything I’ve seen, I do not believe anyone could have prevented the horror of September 11.” Jane Garvey, who was responsible for ensuring safety at the Federal Aviation Administration, stated in an address to the National Press Club in Washington that Sept. 11 had created a new world for the aviation industry after “[a]cts outside the bounds of human behavior or imagination challenged our assumptions . . . .It changed the way we view aviation security.” Indeed, she noted that before Sept. 11, flight crews were trained to cooperate with hijackers and take a more passive role. Aviation security had been designed to face a different threat. In a joint report of the House Permanent Select Committee on Intelligence and the Senate Select Committee in Intelligence, dated July 24, 2003, the committees found that the intelligence community had produced at least 12 reports suggesting that terrorists might use airplanes as weapons, but had not produced any specific assessments of the likelihood that terrorists would in fact do so and the concept was not communicated to either government departments or to the private sector. No tangible precedent There were no suicide hijackings of aircraft before Sept. 11. Previously, hijackings had involved planes being flown to unintended destinations where the passengers were bartered for prisoners associated with the hijackers. An attack using airplanes as weapons was not taken seriously by intelligence and law enforcement authorities; the pieces of the puzzle hadn’t come together. Combining the threat of hijackings with suicide was not given credence because the ingredients for such an attack were not foreseen-well-funded fanatical terrorists, with the skill to fly commercial jets and using box cutters as weapons, and willing to murder pilots and commit suicide. Yet the tort system has found the attacks foreseeable, even though in public discourse there was agreement that they were not anticipated. Such differences are possible because the law only requires that the general risk be foreseeable, not the specific way in which harm is caused, so the court could find that airplanes as weapons only vary in degree from a plane crash or a serious fire. However, it was this very difference that was unanticipated and that made the attacks so devastating. An airplane as a missile is not the same as a hijacker seeking to divert a flight to exchange passengers for political prisoners. The fire in the World Trade Center from thousands of gallons of jet fuel was no normal fire. At some point the degree of variation becomes so great that two events are no longer alike. The madness of the hijacker’s method took the Sept. 11 attacks outside the foreseeable. Michael J. Legg is an associate in the litigation department at the New York office of Orrick, Herrington & Sutcliffe.

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