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American and United Airlines, aviation security companies, and the Port Authority of New York and New Jersey had a duty of care to those who were injured, killed or suffered property damages as a result of the Sept. 11 hijackings and the attacks on the World Trade Center and the Pentagon, a Manhattan federal judge ruled Tuesday. Southern District Judge Alvin K. Hellerstein said the harm to those in the buildings and on the ground was reasonably foreseeable for airport screeners and the managers of the World Trade Center. In doing so, he rejected a motion to dismiss the lawsuits and paved the way for discovery and trial — or settlement — for those who have chosen, or will choose, to opt out of the federal Victim Compensation Fund. The decision in In re September 11 Litigation, 21 MC 97, dealt with cases that have been consolidated into four master complaints, one each for the victims of the two airplanes that hit the World Trade Center towers, the plane crash near Shanksville, Pa., and the plane that hit the Pentagon. The decision also involved a fifth master complaint for those who seek recovery for property damage. The decision stems from a two-day hearing in May in which Judge Hellerstein was obligated to credit the plaintiffs’ allegations as true for purposes of the motions to dismiss. It represents the second major ruling on liability issued by Judge Hellerstein in the cases this year. Hellerstein had already refused summary judgment motions by several operators of airports involved in the tragedy and three non-carrier airlines who share responsibility for security at the relevant terminals. Tuesday, Hellerstein considered the argument of “aviation defendants,” whether carriers or security companies, that while they owed a duty to the crew and passengers of the planes, they had no corresponding duty to the victims on the ground. The judge disagreed, saying the aviation defendants “could best control the boarding of airplanes, and were in the best position to provide reasonable protection against hijackings.” “Imposing a duty on the Aviation Defendants best allocates risk to ground victims posed by inadequate screening, given the Aviation Defendants’ existing and admitted duty to screen passengers and items carried aboard,” he said. The aviation defendants argued the hijackings were not foreseeable because, in the judge’s words, “terrorists had not previously used a hijacked airplane as a suicidal weapon to destroy buildings and murder thousands.” But the judge said, “In order to be foreseeable, the precise manner in which the harm was inflicted need not be perfectly predicted.” He added that the “crash of the airplanes was within the class of foreseeable hazards resulting from negligently performed security screening.” “While it may be true that terrorists had not before deliberately flown airplanes into buildings, the airlines could reasonably foresee that crashes causing death and destruction on the ground was a hazard that would arise should hijackers take control of a plane,” he said. “The intrusion by terrorists into the cockpit, coupled with the volatility of a hijacking situation, creates a foreseeable risk that hijacked airplanes might crash, jeopardizing innocent lives on the ground as well as in the airplane.” The Port Authority and defendant WTC Properties, the company that holds the trade center lease, argued 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 causation, excusing any negligence. The plaintiffs had claimed negligent design and construction of the World Trade Center, a failure to inspect and repair unsafe conditions, inadequate evacuation and emergency management plans, and failure to enforce existing safety codes. Finally, they blamed the managers of the buildings for the instruction to Tower Two occupants to return to their offices while the fires in Tower One were raging out of control. But the defendants said they could not have anticipated the suicide attacks. While acknowledging that “this is a very early point in the litigation,” Judge Hellerstein held “the WTC Defendants owed a duty to the plaintiffs,” and that the plaintiffs should be allowed to prove a failure to exercise reasonable care in providing a safe environment for the buildings’ occupants. The judge also declined “at this stage” to find the terrorists’ actions qualify as “extraordinary” intervening causes, saying the issue should at least proceed to discovery. The judge then found that the Port Authority “has not shown that it will prove its defense of governmental immunity as to the negligence allegations made by WTC occupants.” The final class of plaintiffs, those injured or the successors to those who died at the Pentagon and in the flight that crashed in Pennsylvania, sued Boeing claiming the company manufactured inadequate and defective cockpit doors. CLAIMS DISMISSED The judge dismissed some claims against Boeing, but also found that “the record at this point does not support” Boeing’s claim that the “risk of death to passengers and ground victims caused by a terrorist hijacking was not reasonably foreseeable.” “There have been many efforts by terrorists to hijack airplanes, and too many have been successful,” he said. “The practice of terrorists to blow themselves up in order to kill as many people as possible has also been prevalent.” The decision provides some clarity for victims or their survivors who have to make the decision whether to litigate or pursue the more limited — but more certain — recovery offered by the federal Victim Compensation Fund. The fund caps non-economic damages at $250,000, and applicants can not pursue punitive damages. Plaintiffs’ liaison counsel Marc S. Moller of Kreindler & Kreindler said the opinion will help because lawyers can now “compare a likely Victim Compensation Fund award with a risk-adjusted jury award.” “Only if that award is unsatisfactory should the litigation option be pursued,” Moller said. “This will be a long litigation road. But I believe that, based on what we now know, we can win.” Desmond T. Barry Jr. of Condon & Forsyth is defendants’ liaison counsel.

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