Second Circuit on Consolidated Edison's 9/11 Tort Claims

JURIST Guest Columnist Alexis Campos, Stetson University College of Law Class of 2015, delves into the issues of duty, causation and proximate cause in regards to the September 11th attacks on the World Trade Centers and how this liability case was approached...
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Before the close of 2013, the Court of Appeals for the Second Circuit decided that Consolidated Edison and its insurer would be unsuccessful in their claim against 7 World Trade Company, L.P. (7WTCo.) and others for the negligent design, construction, operation and maintenance of building 7 of the World Trade Center complex. This case, as the parties' names might indicate, addressed a series of tort claims — though not the only claims — that stem from the September 11, 2001, terrorist attacks on the World Trade Center.

Consolidated Edison owned a substation at the base of building 7. This substation was responsible for the flow of energy to the various buildings and was ultimately destroyed upon the building's collapse. Although building 7 was not directly struck during the attacks, debris from the other buildings during their direct attacks and subsequent collapses caused building 7 to catch fire on various, nonconsecutive floors. For assorted reasons including, but not limited to, lack of available water with which to fight a fire and the New York Fire Department's belief that the building was properly evacuated, building 7 was designated as a collapse zone and was left to its own devices.

The claims brought by Consolidated Edison as against the defendants alleged that had the building been constructed properly it would have withstood the fires despite New York Fire Department's inability to fight such fires. In support of such contentions, plaintiffs presented expert reports, which found that the building lacked certain structural integrities and it was such deficiency that ultimately caused the building to collapse, destroying the substation.

The lower court granted 7WTCo.'s motion for summary judgment based on the rationale that no duty existed to the plaintiffs that would encompass the injury they suffered; essentially no duty was owed other than a "general duty to protect the substation from risk of harm." However, as the Court of Appeals opined, the defendant, 7WTCo., did in fact owe the plaintiffs a duty.

Although not on the forefront of the discussion, the lower court likely took this opportunity, the analysis of whether a duty was owed, to prevent this set of plaintiffs from recovering. Assuming arguendo that Consolidated Edison received sufficient payment for the claims submitted to their insurer for the lost substation (which is more likely so than just arguendo or else the insurer would probably not be a party to the suit), then the lower court, and to a lesser extent, the Court of Appeals, may have been more concerned with overcompensation than they let on. After all, if Consolidated Edison's loss was recovered via their insurance policy, then the court would be recompensing said insurance company for taking the well-calculated risk of insuring in the first place.

Whether or not such considerations played a role in either courts' decision does not factor in largely to the present analysis because for the Court of Appeals, the linchpin of the case became causation. It was the very fact that 7WTCo. could not be deemed the cause-in-fact of the loss suffered which ultimately led the Court of Appeals to find in favor of the lower court's granting of defendant's motion.

As an established principle of negligence lawsuits, and in accordance with the Second Circuit in cases like Otal, in order for a plaintiff to jump the causation hurdle in a negligence action, they must establish that the defendant's negligence was the legal cause of the injury suffered—termed cause-in-fact—and that the negligence was a proximate cause of the harm. Cause-in-fact is simply a but-for test. As the court in Aegis notes, it "refers to those antecedent events, acts or omissions which have so far contributed to the result that without them it would not have occurred." But-for the defendant's act the plaintiff would not have suffered the injury.

The more limiting doctrine for causation, as the Second Circuit noted in Rothstein, is the proximate cause analysis. Its purpose is to confine a person's liability to injuries, which are reasonably foreseeable, and to only those "whom his acts were a substantial factor in the sequence of responsible causation." Essentially, the negligent act should lead to the plaintiff's injury (a seemingly common sense analysis, which is admittedly muddled, confused, and often unclearly applied).

It would seem that much of the confusion arises when these two doctrines are interpreted separately instead of as elements of each other. Although these interrelated concepts are now a team of sorts, they were not born of the same time. Unlike cause-in-fact, proximate cause seems to spring from a wrinkle in time during the nineteenth century [PDF]. Such a creation, I imagine, was likely the product of unsatisfying results yielded from the cause-in-fact analysis alone. If taken together, the proximate cause analysis is aided (though nominally) by the cause-in-fact analysis. Applying this standard of causation to the present case, the plaintiffs' analysis would likely progress along the following lines: the defendant's negligent construction of building 7 was a substantial factor in its collapse and the destruction of the contents within the building. Without this negligence, the collapse of the building and consequently the ruin of the substation would not have occurred.

As the court acknowledges, the trend in New York case law is to leave the brunt of the analysis to the proximate cause discussion. This is likely because almost any negligent act can be swept under the rug by the abuse of the cause-in-fact doctrine. Furthermore, cause-in-fact can become notoriously difficult to apply in factual scenarios involving more than one defendant, more than one injury, or a set of events that are not clear-cut.

The Second Circuit decided that there is no way to impute cause-in-fact to the defendant because the events of September 11th were so unexpected and created such a chain of events that affected buildings likely would have collapsed regardless of alleged issues of negligence with regard to their construction. However, unless the facts are such that there can rationally be no other conclusions drawn, causation is generally recognized as a question for the jury. As Judge Pooler admits, the reports presented by the plaintiffs are speculative and conjectural in nature. But the very fact that they require more substantive proof could mean that defendant might produce experts at trial who can more positively rebut such theories.

Given what was presented to the court, it should not have been within the ambit of their authority to conclusively determine the presence of the causation element of a prima facie negligence claim. Although, it is very probable that testimony by experts and lay witnesses about the building and its collapse, if presented to a jury, would likely have rendered the same result.

The major concern as I see it, is not necessarily the precedent that will be set for future negligence suits brought for negligent design and/or construction. It seems hard to believe that absent facts as tragic and unexpected as those, which took place on September 11th, that the court would be willing to dismiss a defendant's liability. The precedent set by this case will likely be for a more limited set of events. But certain questions remain to be addressed: Would such a limit have been more appropriate via a proximate cause analysis? Would a jury have found defendants' negligence to be the cause of the plaintiffs' injury? How will future September 11th claims be resolved with this case as precedent?

Alexis Campos received her Associate's degree in International Relations from Miami Dade College and her Bachelor's degree in Interdisciplinary Social Science from Florida State University. She currently interns with the Office of Civil Regional Counsel and Criminal Conflict in Tampa, Florida.

Suggested citation: Alexis Campos, Second Circuit on Consolidated Edison's 9/11 Tort Claims, JURIST - Dateline, Jan. 24, 2014,http://jurist.org/dateline/2014/01/alexis-campos-liability-tort.php


This article was prepared for publication by Elizabeth Hand, a senior editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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