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.

Sheila Birnbaum Chosen to Oversee 9/11 Health Fund - NYTimes.com

Sheila Birnbaum, a passionate and skillful product liability defense lawyer, has been chosen to oversee the health claims fund created by last year's Zadroga bill for those who claim illness due to exposure to dust and debris at the site of the 9/11 catastrophe. Her choice was a disappointment to those who hoped a more plaintiff-oriented custodian would be selected. But the characteristic skepticism of the defense-minded is the trait that principals (here the USDOJ) look for in a trustee.

WASHINGTON — The Justice Department on Wednesday chose a special master to administer a multibillion-dollar fund created to provide financial compensation for rescue workers and others who became sick from toxic fumes, dust and smoke from ground zero after the 2001 attack.

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Patrick Andrade for The New York Times

Sheila Birnbaum in 2009.

The appointment of Sheila L. Birnbaum, a lawyer specializing in tort cases who has mediated lawsuits brought by the families of 9/11 victims, represents a major step in the implementation of a law Congress passed late last year to reopen September 11th Victim Compensation Fund.

“Sheila Birnbaum brings extensive experience, credibility and unique insight to this important role,” Attorney General Eric H. Holder Jr. said in a statement. “She has worked closely with, and won the trust of, the families of 9/11 victims with whom she worked.

The special master will have broad authority over the fund. The special master will help write the rules and procedures for the $2.8 billion fund, will supervise the fund’s staff and will personally approve the size of individual compensation packages people claiming that they are sick as a result of exposure to toxic dust and debris at ground zero.

“My first priority will be to sit down with the people who will be most affected by the program, and see how we can design a program that is fair, transparent and easy to navigate,” Ms. Birnbaum said in a statement.

Sheila Birnbaum Chosen to Oversee 9/11 Health Fund - NYTimes.com