2nd Circuit Issues 9/11 World Trade Center Opinion

December 6, 2013

There is little left to say about the tragedy of 9/11.  Few moments in our lives have left such an indelible mark. For me, having been near Ground Zero as that day unfolded, having walked home from the scene and watched the Towers fall, it has special poignancy. In Aegis Insurance Services, Inc. v. 7 World Trade Center Company, L.P. (2nd Circuit, 11-4403-CIV, December 4, 2013), we read about litigation that literally arose from the ashes of that day. Consider this opening summary in the Opinion

The 7 World Trade Center Building ("7WTC") stood on the northern edge of the World Trade Center site. As the North Tower collapsed on September 11, 2001, it sent flaming debris spewing into the area around 7WTC. The fiery debris crashed into 7WTC, gouging chunks out of the building. Fires burned on multiple floors. Confident that the people inside had evacuated, grappling with the death of hundreds of firefighters and a non-existent supply of water, the New York City Fire Department made the decision to establish a collapse zone and walk away, rather than fight the fire. After burning for seven hours, 7WTC collapsed, destroying the electrical substation owned by Consolidated Edison Co. of New York, Inc. ("Con Ed") directly underneath the building.

Con Ed, along with its insurers, sued the defendants, who designed, built, operated and maintained 7 WTC, alleging in relevant part that the defendants' negligence caused the building to collapse. The district court disposed of the claims against the defendants in two decisions at issue in this appeal. The first, on January 12, 2006, granted a motion to dismiss brought by a number of defendants involved in the construction of the building, including appellees Tishman Construction Corporation and the Office of Irwin G. Cantor, P.C. In re September 11 Prop. Damage & Bus. Loss Litig., 468 F. Supp. 2d 508 (S.D.N.Y. 2006). The second, issued September 23, 2011, granted summary judgment to appellees 7 World Trade Company, L.P., Silverstein Development Corp. and Silverstein Properties, Inc. (together, "7WTCo."), the building's developer and manager. Aegis Ins. Servs., Inc. v. 7 World Trade Co., 865 F. Supp. 2d 370 (S.D.N.Y. 2011).

We affirm the grants of summary judgment, albeit on different grounds than those relied on by the district court. We hold that even assuming arguendo negligence on the part of the defendants, any such negligence was not the cause in fact of the collapse of 7WTC. 

I urge you to read the Opinion, both for its commendable effort to grapple with the facts and the events of 9/11, and for its articulate analysis of the applicable law and precedent.  Many will be angered by the mere idea of the lawsuit.  Others will find merit in the claims. I leave that for each of you to resolve as you will. Notwithstanding, this Opinion is a compelling read for lawyers and laypersons alike. On pages 20 - 23 , we are offered this rationale:

[W]hen faced with the unique constellation of events that comprised September 11, 2001, we find it most appropriate to return to a bedrock principle of tort law that for there to be a recovery for an injury, it must be established that defendant's act was a cause-in-fact of an injury if there is to be a recovery. 
. . .
Con Ed's primary argument is an unfought fire would not have caused 7WTC to collapse had the building been property designed and constructed. But Con Ed's focus on the fires that engulfed 7WTC carves what occurred at 7WTC out of the series of events that occurred on September 11, and this we cannot do. This failure to relate the constellation of events surrounding the collapse of 7WTC or to link the unprecedented nature of those events with the negligence at issue is fatal to Con Ed's claims. Under Con Ed's approach to liability, those who designed and constructed the building would presumably be liable if, for example, 7WTC collapsed as a result of a fire triggered by a nuclear attack on lower Manhattan. While the concepts underlying tort law must, by their nature, be fluid, at the end of the day they must engage with reality.
. . .
None of the expert reports, however, address in any substantive or adequate way the interaction between the identified "vulnerabilities" and the unprecedented etiology and severity of the cataclysm that engulfed lower Manhattan on September 11, 2001. The failure to connect the defendants' alleged negligence to the events of the day renders the proffered reports too speculative and conjectural to create triable issues of fact. While one expert opines that "the collapse of WTC1 or WTC2 did not cause structural damage to any of the core columns of WTC7," the record testimony from witnesses present at the scene is that the terrorist attacks caused significant damage to 7WTC as a whole. The crashing of airplanes into the Twin Towers, and the Towers' subsequent collapse, caused debris to cascade onto 7WTC, tearing off chunks of 7WTC's walls and floors. Falling, burning debris from the Towers also triggered multiple fires on multiple, noncontiguous floors of 7WTC, unusual in a high-rise building. The collapse of the Towers severed the water main responsible for bringing water to 7WTC, leaving the firefighters and 7WTC's sprinkler system without water. When the Towers collapsed, 343 firefighters were killed. Aegis Ins., 865 F. Supp. 2d at 377. Among their numbers were members of New York City Fire Department's special operations units, including its specially trained high rise units. Faced with this unprecedented constellation of events, fire department commanders chose to let the building burn rather than fight the fire. The fire raged unabated for roughly seven hours before the building collapsed. We have little trouble concluding that the confluence of these events demonstrates that 7WTC would have collapsed regardless of any negligence ascribed by plaintiffs' experts to the design and construction of 7WTC more than a decade earlier. It is simply incompatible with common sense and experience to hold that defendants were required to design and construct a building that would survive the events of September 11, 2001. .  .

READ the full-text Opinion Aegis Insurance Services, Inc. v. 7 World Trade Center Company, L.P. (2nd Circuit, 11-4403-CIV, December 4, 2013).