November 16, 2011
On September 22, 2011, the New York State Court of Appeals issued a decision reversing a major tort award. In In re World Trade Center Bombing Litigation Steering Committee v. Port Authority of New York and New Jersey,1 the basic underlying facts were not in dispute. The Port Authority was a public entity created in a 1921 compact between New York and New Jersey to oversee critical centers of commerce, trade, and transportation hubs (e.g., airports, bridges, tunnels, etc). It is a financially self-reliant public entity.2 One of the properties it developed, constructed, and operated was the World Trade Center. The Port Authority operated a security force of forty police officers within the confines of the World Trade Center.
On numerous occasions during the decade of the 1980s internal security reports indicated that the World Trade Center was highly vulnerable to terrorist attack. The underground security garage was deemed vulnerable to car bombs, but the Port Authority never undertook any action as to the parking garage in response to the warnings in the reports.
In February 1993 terrorists drove a van containing a fertilizer bomb into the B-2 level of the parking garage and parked on the side of one of the access ramps.3 They then detonated the bomb, which created a blast crater six stories deep and killed six people. 648 plaintiffs commenced 174 actions against the Port Authority for injuries due to the bombing.4 The gravamen of the plaintiffs’ claims was that the Port Authority was negligent in providing security because it failed to take action in response to its own internal reports warning of this possible threat. The Port Authority claimed it was entitled to the defense of governmental immunity.5 The lower court held that the Port Authority was acting in a proprietary capacity, and as such was not entitled to the governmental immunity defense.6 A jury found that the Port Authority was 68% liable for failing to maintain the parking garage in a reasonably safe condition, and the terrorists were 32% liable.7
The two main issues raised on appeal were whether the Port Authority’s decision as to where to allocate its police resources was the performance of a governmental function, thus meriting immunity, or more similar to that of a commercial landlord, thus implementing a proprietary function that does not receive tort immunity.8 If the latter view is adopted, then another issue raised would be whether the allocation of fault between the Port Authority and the terrorists established by the jury was incorrect.
The New York Court of Appeals reversed the lower-court decision on the immunity issue.9 Both the majority and the dissent agreed that the difficulty in this matter was the governmental entity’s performance of dual proprietary and governmental functions. The majority held that the alleged security lapse involved in a significant way the assignment of its police officers to various security risks—which is a policy decision. The assignment of police is a discretionary decision-making governmental function, and thus merits governmental immunity, as discretionary governmental acts may not be a basis for liability.10 Given this holding, the majority did not reach the issue of fault allocation.
The dissent maintained that the alleged negligence stemmed from a proprietary function as a commercial landlord, as the decisions the Port Authority made were not uncommon to those of any commercial landlord.11 The dissent stated that the Port Authority failed its duty to tenants and invitees as a the landlord of a commercial office complex, and found that the World Trade Center was a predominantly commercial venture.12 The dissent agreed that there could be no liability for the Port Authority’s decision where to deploy police personnel, but the Authority could be liable for failing to take security measures that a private landlord would take.13 The dissent also stated that the jury’s allocation of fault (68% to the Port Authority, and 32% to the terrorists) was permissible on the evidence presented and was not a basis for reversal.14
* Craig Mausler is President of the Federalist Society’s Albany Lawyers Chapter.
1 In re World Trade Ctr. Bombing Litigation, No. 217 (N.Y. Sept. 22, 2011).
2 Id., slip op. at 2.
3 Id. at 7.
5 Id. at 8.
6 Other smaller, side issues not relevant to the issues discussed in this article are not reviewed here.
7 In re World Trade Ctr. Bombing Litigation, No. 217, at 8.
9 Id. at 29.
10 Id. at 18.
11 Id. at 21.
12 Id. at 27.
13 Id. at 28.
14 Id. at 30.