Court: Port Authority not liable for '93 WTC truck bombing
ALBANY, N.Y.–An appeals court in New York on Sept. 21 ruled that the Port Authority of New York and New Jersey cannot be held liable for failing to prevent the 1993 truck bombing of the World Trade Center, claiming that to do so would "create a disincentive for governmental agencies to investigate these types of security threats."
The central question the court needed to answer was whether the port authority in its management of the World Trade Center and its security threats should be considered a private entity or a government agency. In the end, the court decided it was acting as a government agency when it made decisions pertaining to its security and, therefore, "entitled to the protection of governmental immunity," wrote Judge Theodore Jones in the majority decision. "Governmental entities cannot be expected to be absolute, infallible guarantors of public safety, but in order to encourage them to engage in the affirmative conduct of diligently investigating security vulnerabilities and implementing appropriate safeguards, they must be provided with the latitude to render those critical decisions without threat of legal repercussion."
In a 4-to-3 decision, the appeals court overruled a previous court's decision to award Antonio Ruiz, a Hertz employee who was injured in the bombing, $824,000 in damages, according to the decision. Not all the judges shared the majority position, however. In a dissenting opinion, Judge Carmen Ciparick wrote: "I conclude that the Port Authority's status as a government entity does not shield it from liability because the alleged negligence stemmed from proprietary activities taken in its capacity as a commercial landlord."
While the court ruled in the individual Ruiz case, the decision could set a precedent that would allow the port authority to seek the dismissal of other outstanding claims, according to news reports.
However, the decision does not create a precedent that will protect all port authorities from future lawsuits following events like a terrorist attack, according to Ray Biagini, head of the homeland security and product liability defense practice at McKenna, Long & Aldridge in Washington, D.C. "Ports cannot now just assume they will be granted immunity from similar suits if there are future acts of terrorism at ports," Biagini told Security Director News.
In question is the type of security-related decisions the port made before the 1993 bombing, Biagini said. (Starting in the early 1980s, the Port Authority engaged in counter-terrorism planning, including heightening security measures in vulnerable areas.) If those decisions are deemed policy-based, they would be protected by immunity, "but if the port is engaged in less-than-policy-based decision making, let's say less-discretionary decision making, than the courts could find those kinds of decisions are not protected from a tort suit," Biagini said.
The message is, he said, each case is different and the area of law has a lot of gray area. "The line between policy-based decisions and less-than-policy-based decisions is always blurry," he said.
His recommendation to ports and other quasi-governmental agencies with safety and security responsibilities is to obtain SAFETY Act coverage for their security products and planning processes. The SAFETY Act, part of the Homeland Security Act of 2002, creates certain liability limitations for "claims arising out of, relating to, or resulting from an act of terrorism" where qualified anti-terrorism technologies have been deployed, according to the law's government website. "You can never have enough protection and given the vagary inherent in any case like this–between policy-based decisions and less-than-policy-based decisions–you should err on getting the protection that's out there, which is the SAFETY Act."