Court backs transit agency in '93 WTC bombing case

AP News
Posted: Sep 22, 2011 12:17 PM
Court backs transit agency in '93 WTC bombing case

New York's top court on Thursday found the World Trade Center managers immune from negligence claims for failing to deter the 1993 parking garage bombing that killed six people and injured about 1,000.

The Court of Appeals, divided 4-3 in reversing lower courts, concluded that the Port Authority of New York and New Jersey, which runs area airports and owns the trade center site, is entitled to government immunity for its security measures at the building.

"If the essential nature of the governmental agency's injury-causing acts or omissions was a failure to provide security involving police resources _ i.e. police protection _ then a governmental function was being performed," Judge Theodore Jones Jr. wrote. "Any failure to secure the parking garage against terrorist attack predominantly derives from a failed allocation of police resources."

Thursday's decision is unlikely to affect settled claims but could mean the transit agency doesn't have to pay those that are still outstanding.

About 200 claims in the case were filed by 648 plaintiffs, and most have been privately settled. A handful of personal injury claims remain, plus one for business interruption by tenant Cantor Fitzgerald seeking hundreds of millions of dollars.

The immediate ruling was in the case of Antonio Ruiz, who had been awarded $824,100 in damages at the trial court.

Calls to the Port Authority were not immediately returned Thursday. The amount of its settlements in other cases has not been publicly disclosed.

A jury found the agency failed as a mainly commercial landlord to maintain reasonably safe premises and was 68 percent at fault, blaming terrorists for the other 32 percent. A midlevel court upheld that ruling.

Attorney Victor Kovner, who argued the plaintiffs' case at the top court, said they were deeply disappointed. "Two state Supreme Court judges and 10 Appellate Division judges have previously decided basically the what the three-member dissent decided. That accounts for our deep disappointment."

Many of the injured suffered smoke inhalation in the evacuation. Six terrorists were later convicted.

Hijackers destroyed the center's twin skyscrapers on Sept. 11, 2001. The Port Authority is building another skyscraper at the site.

The Court of Appeals with only five judges had been unable to reach the necessary four-judge consensus after June arguments. Chief Judge Jonathan Lippman and Judge Robert Smith recused themselves without citing reasons. Lippman had been a justice on the Appellate Division court that ruled earlier. Smith is a former commercial attorney in Manhattan.

Two Appellate Division presiding justices, A. Gail Prudenti and Thomas Mercure, joined in hearing the case re-argued in August.

Judge Jones noted the Port Authority received various security assessments, some identifying higher threats to busier public areas of the Manhattan complex of buildings, which also housed several state and federal government offices.

In her dissent Thursday, Judge Carmen Beauchamp Ciparick said the difficulty in this case is determining where to draw the line between the state obligation to provide police protection to the public and the proprietary security measures taken as a landlord. She noted that some private buildings that received similar security analyses identifying a threat of terrorist car bombings closed or restricted public parking in their garages, while the Port Authority did not.

"The Port Authority was not found liable for negligently allocating police resources, but rather for its failure to take other reasonable measures to secure a commercial parking garage at a particularly vulnerable location," Ciparick wrote. "Based on the specific facts presented in this case, the acts and omissions for which the Port Authority was found liable fall on the proprietary end of the spectrum."

Concurring with Jones were Mercure and Judges Susan Read and Eugene Pigott Jr.

Joining the dissent were Prudenti and Judge Victoria Graffeo.