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Ruling Opens Way for 9/11 Survivors and Victims to Sue

September 10, 2003|John J. Goldman | Times Staff Writer

NEW YORK — A federal judge cleared the way Tuesday for Sept. 11 lawsuits against the aviation industry and the owner of the World Trade Center, ruling they should have anticipated the possibility that terrorists could hijack planes and crash them into buildings.

The ruling provided a choice for victims and their families, who have to decide by Dec. 22 whether to apply for payment from a federal compensation fund or take legal action -- without a guarantee they will receive any money in the end.

In a decision involving the cases of about 70 people injured or killed in the terrorist attacks, U.S. District Judge Alvin Hellerstein found that "the aviation defendants controlled who came into the planes and what was carried aboard. They had the obligation to take reasonable care in screening."

American and United Airlines, the Boeing Co. and the Port Authority of New York and New Jersey had argued they were not negligent and that the suits should be dismissed, saying they had no duty to anticipate and protect against deliberate crashes into structures by suicidal terrorists.

American Airlines and Boeing said they would appeal.

Don Maynard, a spokesman for the Port Authority, declined to comment on the litigation, but said: "We strongly believe the responsibility rests with the murderers who led the attack."

Lawyers seeking damages hailed Hellerstein's decision.

"This is a major threshold victory for the 9/11 families," said Marc Moller, who represents almost 500 victims and their relatives. "The judge has said for those people who wanted to sue, that option is available to them."

Relatives of those killed or injured in the attacks are eligible to apply to the federal fund. About 2,275 compensation claims have been received; another 1,700 eligible families have yet to submit claims.

So far, the average payout has been about $1.5 million. The minimum is $250,000. The highest award so far was $6.8 million.

The amount of compensation may be less than can be won in court, where punitive damages are possible. In addition, insurance payments, pensions and death benefits are deducted from federal payouts.

Keith S. Franz, a Baltimore attorney representing families of those killed or injured at the Pentagon, said that in cases where the victims had high levels of insurance, suing for damages might be a better option than accepting a settlement.

"Insurance is not an admissible fact in a lawsuit," he said.

In his 49-page opinion, Hellerstein stressed that his decision came at "an early stage" in the litigation, and that each of the defendants "owed duties to the plaintiffs who sued them."

Family members contend that the airlines, airport security companies and airport operators failed to fulfill their responsibilities when they allowed terrorists to seize the airplanes and crash them into the twin towers, the Pentagon and a field in Pennsylvania, killing about 3,000 people.

While it may be true that terrorists previously had not deliberately flown airplanes into buildings, Hellerstein said in his ruling, "the airlines could reasonably foresee that crashes causing death and destruction on the ground was a hazard that would arise should hijackers take control of a plane."

The victims' complaints also allege the Port Authority negligently designed, constructed and operated the World Trade Center by failing to provide adequate fire protection, evacuation routes and plans.

Hellerstein said that a landlord has a duty to exercise reasonable care in maintaining property in a safe condition.

"Large-scale fire was precisely the risk against which the [World Trade Center] defendants had a duty to guard and which should have been reasonably foreseen," Hellerstein said.

"While the specific acts of the terrorists were certainly horrific, I cannot find that the ... defendants should be excused of all liability as a matter of policy and law on the record before me," the judge added.

In the case against Boeing, lawyers argue the cockpit doors on jetliners seized by the terrorists were an unreasonably dangerous design that let the hijackers gain access to the cockpit.

Moller said that those victims who choose to file lawsuits will be in for a much longer process than those who accept federal compensation.

"The bottom line is that families must decide whether the net amount they are likely to receive from the victims compensation fund is sufficient to making the litigation option unattractive and ill-advised," he said. Moller added that the victims fund should be a realistic alternative for most people because it will provide a substantial award on a no-fault basis in a very short period of time.

Franz said that for many victims, money is not the issue. Instead, he explained, they want to litigate to find out more information about what happened on Sept. 11 -- and why.

"There is no vehicle through the compensation fund that allows them to get those answers," Franz said. "There are moral reasons why a lawsuit is important to these clients.

"We represent a number of folks who were killed in the Pentagon who were government employees," he said. "Some of them believe that their compensation should not come from the U.S. taxpayers. They believe they should be compensated by those who were responsible."

For some family members, the decision will be difficult.

Irene Golinski, whose husband, Col. Ronald Golinski, was killed at the Pentagon, said she was relieved to learn about the judge's ruling, but unsure what she would do.

"At least the option is open. At least, now there will be answers for everything," she said. "Right now I am overwhelmed. We will have a decision to make and go over everything."

*

Times researcher Lianne Hart contributed to this report.

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