NY Court of Appeals: Port Authority Immune in 1993 World Trade Center Bombing Cases

Before the 1993 World Trade Center bombing the Port Authority - owner of the World Trade Center - dispatched a team led by director Peter Goldmark to London to discuss security issues.  The PA had been the object of many threats and London had confronted actual bombings by the IRA and others.  “Scotland Yard was appalled” that the WTC parking deck was completely unattended.  That became a key piece of evidence in the trial of claims brought by businesses and persons harmed by the truck bomb.  A huge verdict was entered.
On September 22, 2011 in I/M/O World Trade Center Bombing the  New York Court of Appeals by 4-3 vote declared the Port Authority to be immune from suit, embracing the PA’s defense that “that by assessing security risks, allocating police resources, and implementing safeguards at the WTC in the face of numerous possible threats, it engaged in conduct akin to a governmental, rather than a proprietary, function.”

The Court relied on the well established rule “ that the functions of a governmental entity can be viewed along a "continuum of responsibility" ranging from the most basic proprietary obligation, like that of a private landlord, to the most complex governmental function, such as the provision of police protection.” Although Section 7101 of the law establishing the bi-state agency waives tort immunity for the PA when it acts as a landlord, Section 7106  preserves immunity for its functions as a governmental agency, making discretionary policy choices.

The court could easily have ruled that arbitrary choices or palpably unreasonable choices do not merit immunity.  But the court majority declared:

Given the finite nature of police resources, the mechanisms by which security and police protection is afforded cannot be dictated by the edict of a court or the retrospective conclusions of a jury.  Police protection is best left in the hands of those most expert and qualified to render informed, deliberate decisions on implementing the most reasonable safeguards. 

Judge Carmen Ciparick dissented.  Joined by Judges Graffeo and Prudenti she pointed to the obvious: that the WTC was a huge commercial complex and the routine nature of  “the precise failures for which the jury found the Port Authority liable.  These are relatively common, site-specific measures, such as the failure to install barriers to the garage entrance, to provide a manned ticket booth, to install adequate electronic surveillance devices, or to restrict garage access to tenants only.”

Chief Judge Lippman and Judge Smith did not participate, so two judges of the Appellate Division were temporarily assigned.  Their votes provided the majority for Judge Jones opinion.