Monday, November 26, 2012

Federal judge grants motion for summary judgment in favor of United Airlines in September 11 litigation

Five days ago, the federal judge who has been overseeing the torts claims based on the terrorist attacks on September 11, 2001, granted a motion for summary judgment in favor of United Airlines holding that the injury was not a foreseeable consequence of the risk created by United's negligence. In other words, the plaintiffs could not support the element of proximate cause. (And, by the way the Judge cited Cardozo's opinion in Palsgraf v Long Island RR in support of his conclusion). The New York Times has the story here. The case is called In re September 11 Litigation and the opinion is now available on Westlaw at 2012 WL 587014.

I find the result surprising because this is the opposite conclusion the same judge reached when deciding the first motions to dismiss in the case back in 2003. See, In re September 11 Litigation, 280 F.Supp.2d 279 (S.D.N.Y. 2003). In that case, the airlines, the airport security companies, the airport operators, the airplane manufacturer and the operators and owners of the World Trade Center argued in their motions to dismiss that the plaintiffs could not support their arguments of duty and proximate cause because "the defendants could not reasonably have anticipated that terrorists would hijack several jumbo jet airplanes and crash them, killing passengers, crew, thousands on the ground, and themselves."

In deciding to deny the motions to dismiss back then, the judge concluded that "[a]t this early stage of the case and in the absence of a factual record, I find that plaintiffs have pleaded sufficient facts to allege legal proximate cause. . . . I . . . decline at this stage to find that the acts of the terrorists qualify as “extraordinary” intervening cause . . . The defendants may well be able to show at a later stage in this litigation that the conduct of the terrorists [was unforeseeable]. . . . Discovery will either supply evidence to substantiate or eviscerate the parties’ divergent claims about foreseeability. . . . At this point, however, both plaintiffs and defendants should be allowed to proceed to discovery on these issues of causation."

Apparently, discovery did help at least one of the defendants after all. At first I found the two decisions difficult to reconcile because the new one did not make clear to me that it was based on any new facts found in discovery. The decision, which is really short, discusses the same issue it addressed in 2003 - even suggesting it refers to whether the plaintiff can establish a prima facie case-, approaches the question with the same analysis, but reaches the opposite conclusion. Citing Palsgraf, the judge simply concluded that "[i]t was not within United's range of apprehension that terrorists would slip through the PWM security screening checkpoint, fly to Logan, proceed through another air carrier's security screening and board that air carrier's flight, hijack the flight and crash it into 1 World Trade Center, let alone that 1 World Trade Center would therefore collapse and cause Tower 7 to collapse."

Given this conclusion, now it seems to me, that the difference between the two decisions relates to the fact that this particular defendant seemed to be arguing more intervening events happened between its conduct and the end result than the defendants in the older opinion. In other words, the defendants in the older opinion argued that the terrorists' conduct was an intervening event and the judge found that that alone was not enough to defeat the claims. Here, it appears United was arguing a number of additional intervening events made a difference.  And what is even more interesting is that reasoning the plaintiff can't satisfy proximate cause because of the number of intervening events that also contributed to the end result is the basis for the analysis suggested by Judge Andrews - not by Cardozo - in Palsgraf

The judge, however, does not make this distinction clear and his new opinion does not discuss the old one at all.

UPDATE 11/26/12: The Jurist has a short post on the recent ruling granting a motion for summary judgment in the In re September 11 Litigation case here. Interestingly, The Jurist points out the new ruling "deviated significantly" from a previous ruling by the judge back in September of this year.

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