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September 15, 2003 - 9/11 suits against airlines stand; Harm to those in buildings and ground reasonably foreseeable.

New York-American Airlines Inc., United Air Lines Inc., aviation security companies and the Port Authority of New York and New Jersey had a duty of care to those who were injured, killed or suffered property damages as a result of the Sept. 11 hijackings and the attacks on the World Trade Center and the Pentagon, a New York federal judge has ruled.

Judge Alvin K. Hellerstein of the Southern District of New York said the harm to those in the buildings and on the ground was reasonably foreseeable for airport screeners and the managers of the World Trade Center. In doing so, he rejected a motion to dismiss the lawsuits and paved the way for discovery and trial-or settlement-for those who have chosen, or will choose, to opt out of the federal Victim Compensation Fund.

The decision in In re September 11 Litigation, No. 21 MC 97, dealt with cases that have been consolidated into four master complaints, one each for the victims of the two airplanes that hit the World Trade Center towers, the plane crash near Shanksville, Pa., and the plane that hit the Pentagon. The decision also involved a fifth master complaint for those who seek recovery for property damage.

The ruling stems from a two-day hearing in May in which Hellerstein was obligated to credit the plaintiffs' allegations as true for purposes of the motions to dismiss. It represents the second major ruling on liability issued by Hellerstein in the cases this year. Hellerstein had already refused summary judgment motions by several operators of airports involved in the tragedy and three noncarrier airlines who share responsibility for security at the relevant terminals.

Hellerstein considered the argument of "aviation defendants," whether carriers or security companies, that while they owed a duty to the crew and passengers of the planes, they had no corresponding duty to the victims on the ground.

The judge disagreed, saying the aviation defendants "could best control the boarding of airplanes, and were in the best position to provide reasonable protection against hijackings."

The aviation defendants argued that the hijackings were not foreseeable because, in the judge's words, "terrorists had not previously used a hijacked airplane as a suicidal weapon to destroy buildings and murder thousands."

But the judge said, "In order to be foreseeable, the precise manner in which the harm was inflicted need not be perfectly predicted."

The Port Authority and WTC Properties, the company that holds the trade center lease, argued that they did not owe a duty to protect occupants in the towers against injury from hijacked airplanes and, even if they did, the terrorists' actions broke the chain of proximate causation, excusing any negligence.

The judge dismissed some claims against Boeing Co., but also found that "the record at this point does not support" Boeing's claim that the "risk of death to passengers and ground victims caused by a terrorist hijacking was not reasonably foreseeable."

The decision provides clarity for victims or their survivors who must decide whether to litigate or pursue the more limited-but more certain-recovery offered by the federal Victim Compensation Fund. The fund caps noneconomic damages at $250,000, and applicants cannot pursue punitive damages.

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