Masonry Magazine August 2002 Page. 50
Legal Advice
Terrorism: Legal Liability Beyond The Terrorist
By Warren Lutz. Esq.
Washington, D. C.
The events of September 11 have generated renewed interest in examining who may be held legally liable for losses caused by terrorism. Clearly, the most obvious liable parties are the terrorists and their sponsors. Over several decades, however, the courts have expanded the universe of parties liable for injuries and damage caused by criminal acts. Now, given the predictions of increased terrorism, it is more likely that the persons targeted for liability lawsuits will also include those who should have known of a terrorist attack or of the reasonably foreseeable resulting losses, yet failed to take precautionary steps to prevent or minimize such damage.
In the construction industry the principal targets of such claims likely will be design professionals: architects and engineers who fail to design structures taking adequate account of predictable damage. To a lesser extent, contractors and suppliers may also be targeted. In the end, liability for terrorism damage may be based far more upon "who can pay," rather than "who should pay." Undoubtedly, this issue will be the subject of debate in the courts and legislatures for years to come.
Whether liability for terrorism damage will extend to non-terrorists involves review of how the law has resolved similar liability issues in the past. Historically, liability has been imposed for negligent building design and construction. Generally, such liability is based upon whether: (1) the defendant architect or contractor breached a duty of care; and (2) the resulting damage was reasonably foreseeable.
Thus, for example, if a design professional developed plans for a structure located in a known earthquake zone, yet failed to design for additional structural support, he or she could be held liable for foreseeable earthquake-induced building damage.
In the context of crime-related injury and damages, liability also has been imposed on non-criminals. For example, landlords have been held liable in civil damages lawsuits for failing to install adequate crime control measures (e.g. additional lighting in public areas, window bars, reinforced doors, etc.) in apartments buildings located in neighborhoods with high crime rates.
Similarly, airlines have been routinely targeted in litigation following hijackings, based on claims that they failed to provide sufficient security screening procedures to prevent unauthorized persons from commandeering aircraft. The 1993 World Trade Center bombing generated hundreds of lawsuits against the landlord, the Port Authority, on the basis that it was allegedly negligent in its assessment of foreseeable harm due to the entry into the parking garage of a van containing explosives.
In the wake of September 11, the WTC design professionals may face claims that the Twin Towers' steel structure, fire-retardant systems and evacuation design were lacking.
By contrast, the Oklahoma City Murrah Building architect has not faced claims of negligent design.
Expectations will heighten that government and the private sector should increase their resources to assess such threats, and take reasonable measures to reduce the resulting damage.
There, the bombing deaths and injuries were instantaneous, whereas many of the WTC losses occurred over the 60 to 90 minutes following the aircrafts' impacts.
Several factors are typically cited to support liability in these civil damages cases. First, the defendant landlord, airline, or design professional is regarded as being in a better position to control access to its facility or otherwise take steps to prevent or minimize damage.
Second, these defendants are viewed as more financially able to compensate victims through insurance or other assets. While this factor is based far more on "who can pay," rather than "who is directly responsible for the harm," the law has increasingly adopted compensation programs imposing liability on those who are in a "better position" to pay. This factor, however, remains a hotly debated issue.
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