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An appellate court yesterday upheld a jury’s finding that the Port Authority of New York and New Jersey was more than two-thirds responsible for the 1993 terrorist bombing of the World Trade Center that killed six and injured more than 1,000 people. The Port Authority’s failure to implement adequate security measures in the face of repeated warnings that the structure’s underground parking garage was vulnerable to an “event of potentially catastrophic magnitude” amounted to negligence, the Appellate Division, First Department, held in an unanimous opinion. The absence of previous attacks did not absolve the Port Authority of its duty as a commercial landlord to use reasonable measures to “minimize the risk of harm from criminality upon its premises,” Presiding Justice Jonathan Lippman ( See Profile) wrote for the panel in Nash v. Port Authority of New York and New Jersey, 2617. The panel noted that the jury’s 68 percent apportionment of negligence to the Port Authority should not be construed as “absolving” the terrorists of blame. However, the court held that while “[t]errorism has for decades posed a dire threat to ordered life in free and open societies . . . its spectre cannot justify the view that performance of the duties we have traditionally relied upon as essential to the preservation of our security may be generally excused as futile,” the panel wrote. David J. Dean of Sullivan Papain Block McGrath & Cannavo, who tried the case, characterized the affirmance of the jury’s apportionment of blame as “key” to the court’s ruling. The panel’s decision on liability sets the stage to try the plaintiffs’ individual damages claims, Mr. Dean added. On Feb. 26, 1993, terrorists drove a Ryder rental van laden with explosives into the public parking garage of the Twin Towers. The terrorists fled the subterranean lot after lighting a 10-minute fuse, which “wrought devastation over an area about half the size of a football field,” according to the opinion. Justice Lippman noted that the attack occurred despite internal and external reports “advising” the Port Authority that the World Trade Center garage was not only susceptible to attack, but “detailing, with exact prescience, the manner by which” terrorists could carry out a car bombing. In July 1985, an outside engineering consultant, retained by the Port Authority’s Office of Special Planning, warned that a terrorist bombing was “probable” and called for “urgent” measures to shore up the security of the “highly vulnerable” parking lot. Months later, the special planning office, in its own report, cautioned that the parking garage provided “an enormous opportunity” for a car bombing. The report suggested ways to stave off an attack, all of which were rejected by the Port Authority. Between 1985 and the 1993 bombing, these reports and others, including one by a Scotland Yard consultant, appeared to “have fallen into oblivion; so much so that” the Port Authority’s director only learned of their existence after the bombing, Justice Lippman wrote. In October 2005, following a month-long trial, a six-person jury found that the authority was “negligent in not maintaining the World Trade Center parking garage in a reasonably safe condition.” ( NYLJ, Oct. 27, 2005) A year and a half later, Manhattan Supreme Court Justice Nicholas Figueroa rejected the Port Authority’s motion to set aside the jury’s verdict. Specific Warnings The appellate court agreed. The panel rejected the authority’s argument that it had no duty to increase the parking garage’s security in the absence of a showing that a “likelihood” existed that the bombing would occur. While “no remotely comparable precedent event” had occurred at the time of the bombing, the Port Authority had “ample notice that a car bombing such as that one that occurred was not merely possible, but could very well occur if obvious, specifically identified vulnerabilities were not addressed,” Justice Lippman noted. The Port Authority did not dispute that its management “had been strongly advised” by both Scotland Yard and its own consultants that the garage was particularly vulnerable to attack, Justice Lippman wrote. And none of the consultants concluded that the garage had sufficient security measures or suggested that the Port Authority could “prudently adopt a wait-and-see attitude,” he added. In light of these warnings, the authority’s “insistence that notice be invariably conditioned on a premises-specific history, apart from being empirically insupportable on this record, would, if made a basis for law, result in a definition of duty bearing no sound relation to the nature of the risk,” Justice Lippman wrote. The judge also rejected the Port Authority’s argument that it only needed to take “minimal” security measures. While the “vast majority” of cases call for landlords to institute “minimal” actions to make their premises reasonably safe, some cases “require heightened precautions,” Justice Lippman wrote. The extent of a landlord’s duty to “reasonably secure its premises against foreseeable criminal intrusion” will vary depending on the specific nature of the risk and the burden in minimizing the risk, the judge wrote. “Here, of course, the jury had before it evidence that the risk reasonably to be perceived by defendant was of an event potentially monstrous, both in dimension and character,” he wrote. The possibility that the terrorists would have launched a similar attack, even if the Port Authority had instituted the suggested precautions, did not preclude a finding that the alleged negligence caused the bombing, the judge wrote. The panel also affirmed the jury’s finding that the Port Authority was 68 percent to blame for the attack. Even though the terrorists, as intentional tortfeasors, were also at fault, the authority could not escape liability, Justice Lippman wrote. “[A] jury’s failure properly to evaluate the weight of the evidence is not demonstrated simply by its determination to assign less fault to an intentional tortfeasor than it has assigned to a joint tortfeasor answerable only for negligence,” the judge concluded. While Mr. Dean was unable to specify the precise number of claims pending by individual plaintiffs, he noted that many “serious claims” remain to be tried. Steven Coleman, a Port Authority spokesman, said, “We’ve resolved all but a few dozen of the remaining cases from the 1993 World Trade Center bombing and look forward to resolving those as well.” The panel, which included Justices Luis A. Gonzalez ( See Profile), John W. Sweeny Jr. ( See Profile), and Rolando T. Acosta ( See Profile), heard oral arguments on Jan. 9. John J. Gibbons and Jeffrey L. Nagel of the Gibbons firm and Calrene V. McIntyre and Arnold D. Kolikoff of Milton H. Pachter represented the Port Authority. Louis A. Mangone served as plaintiff Linda P. Nash’s attorney. In addition to Mr. Dean, Brian J. Shoot and Andrew J. Carboy from Sullivan Papain Block McGrath & Cannavo represented the plaintiffs’ steering committee. Victor A. Kovner, Sharon L. Schneier, Edward J. Davis, and Peter Karanjia of Davis Wright Tremaine, and Blair C. Fensterstock of Fensterstock & Partners also served on the steering committee. - Noeleen G. Walder can be reached at [email protected].

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