In an opinion published on December 4, 2013, the US Court of Appeals for the Second Circuit ruled by a 2 to 1 vote that the developers for the 7 World Trade Center (7WTC) building were not liable for its collapse hours after the terrorist attacks of September 11th, 2001. The collapse of the North Tower sent debris that crashed into 7WTC at different levels of the building leading firefighters to evacuate the area and establish a collapse zone to let the building come down. Consolidated Edison Co. of New York (Con Ed) owned the electrical substation located directly underneath the building. Con Ed sued the designers and builders of 7WTC alleging that their negligence caused the building to collapse. While the appellate court affirmed the district court's granting of summary judgment to defendant developers, it did so for a different reason. The district court found that the duty owed to Con Ed is not extended to the type of events that occurred on September 11th. The appellate court, however, found that the duty owed should extend to the events of September 11th because "[t]he risk of massive fire at a high-rise building such as 7WTC is a foreseeable risk" but any negligence on the part of the developers was not a cause in fact of the collapse.
The "How" and the "What"
The opinion handed down by the appellate court provides more questions than answers. The court finds that a duty was owed to Con Ed by distinguishing the "how" and the "what" on September 11th. As the court astutely points out, "[h]ow that fire started plays no part in the foreseeability analysis for the purposes of determining whether 7WTC owed Con Ed a duty." All that matters, according to the court, is that a massive fire was burning in a high-rise building and the building eventually collapsed. This is the "what." Therefore, 7WTC owed a duty to Con Ed to construct a building that could withstand such a fire and not collapse.
Fair enough. But is it that easy to separate the "how" and the "what" on September 11th? The court seems to disregard significant factors that had a large effect on the capabilities of firefighters to fight the fire in 7WTC. Firstly, the loss of hundreds of firefighters that day weighed heavily on their decision to go into the building and fight the fire, as would be normal procedure. Second, a broken water main in the area significantly decreased the water available to fight the fire effectively. Lastly, the debris projected from the collapsed of the North Tower crashed into different levels of 7WTC setting massive fires in multiple floors of the building, far from a usual fire that starts on one level and rises up. The latter fire would be easier to maintain and control. These factors played a major role in deciding to let the building collapse.
These factors also cannot be separated from the overall terrorist attack itself. I understand the court's reasoning and the importance of distinguishing the manner in which an event occurred (terrorists hijacking a plane) and the ultimate end result (a massive fire in a high-rise building). But I believe the "how" and the "what" on September 11th cannot be separated. The lack of manpower and water supply coupled with the complexity of fighting fires on multiple levels of the building cannot be explained without mention of the terrorist attack itself. The culmination of the events on September 11th were unforeseeable and to extend a duty of care from 7WTC to Con Ed to develop a building that can withstand the type of harm that occurred that day and by calling it a massive fire in a high-rise would be ignoring the evidence that made such a fire unmanageable.
Question of Law or Question of Fact?
By extending a duty of care to Con Ed the court then found that the conduct of 7WTC was not the cause-in-fact of Con Ed's losses. The court heard expert testimony from Con Ed articulating that the structural integrity of 7WTC was not up to the standard of care set out and that it was this structural integrity, or lack thereof, that caused Con Ed's losses. The dissent points out, "[i]t may well be that causation . . . can be decided as a matter of law in the district court after a careful review of all expert submissions or that a trial will result in a defendants' verdict, but that is not the path the majority has chosen for this case." The majority finds that a duty existed but also finds that Con Ed did not offer sufficient evidence to raise a genuine issue of fact regarding causation. The record seemed to show ample evidence regarding the negligence of 7WTC's developers yet it was deemed by the court to be "too speculative." To me, the court goes beyond its bounds to award summary judgment. In finding no causation, the court points to the "unprecedented constellation of events" that occurred on that day. I believe Con Ed provided evidence that certainly raises a genuine issue of fact and the court usurps the role of the jury when it grants summary judgment in this case. The reasoning used for the issue of causation is better left to analyze whether a duty existed in the first place. Finding a duty requires the examining of law while finding causation requires the examining of fact, a task that is left to the fact finder.
I believe the district court was correct by not extending a duty from the developers of 7WTC to Con Ed given the severity of the events that occurred on September 11th. The appellate court extends the duty of care too far and takes a question of fact and turns it into a question of law. The dissent was correct in stating that Con Ed provided evidence to pass a motion for summary judgment and causation should be left for the fact finder to determine or that the majority was premature in awarding summary judgment without hearing from defendant developers' experts. The court effectively takes the foreseeability analysis out of the realm of duty of care. The type of fire that ultimately led to the collapse of 7WTC was deemed to be foreseeable by the court but it could not be understood without the events that preceded the fire, which the court holds to be unforeseeable for the issue of causation. The appellate court would have been well within its limits to limit the duty of care as the district court did. Instead, the court ventured outside the realm of law and chose to decide questions of fact, usually left to a jury. This decision also sets a dangerous precedent in extending a duty of care to almost all events where there is a contractual relationship between the two parties. By taking foreseeability out of the equation for a duty of care analysis, the court effectively states that regardless of the events leading up to a harm or loss, a duty is owed.
John Beggan has a bachelor's degree in English and Sociology from the University of Missouri. He previously clerked for an attorney in civil litigation and focuses his studies on civil litigation through law school.
Suggested citation: John Beggan, Extending Duty of Care Too Far: 7 World Trade Center Building Decision and its Implications, JURIST - Dateline, Jan. 22, 2014, http://jurist.org/dateline/2014/01/john-beggan-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 firstname.lastname@example.org