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Jury Says that Terrorists Only 32% Responsible for First WTC Bombing:

In yet another ridiculous civil jury verdict, a New York jury held that the Port Authority of New York was 68% responsible for the (first) bombing of the World Trade Center, and the terrorist perpetrators of the bombing were only 32% responsible. To be blunt: the jurors blatantly disregarded the law (and common sense) to ensure that the PA would be found more than 51% responsible, and thus, under comparative negligence rules, would have to pay. [Helpfully, the plaintiffs' attorney told the Times that the PA should have been held 100% responsible!] In too many civil cases, juries serve as a completely lawless element that wreaks havoc with the rule of law; no wonder civil juries have been abolished just about [? I'm not sure they are routinely used anywhere at this point] everywhere but the U.S. Hat tip: Overlawyered.

UPDATE: This post seems to have struck a chord. For more formal (but relatively brief)thoughts on civil jury trials, see here (criticisms, comparisons to other countries, and suggested reforms) and here (discussing abusive opening statements and closing arguments). For the role of the jury trial in the breast implant fiasco, see 87 Calif. L. Rev. 457 (an earlier version may be found here).

My most recent paper discussing juries (though they don't play a central role in the paper) can be found here.

moonfall:
So... you're saying the PA shouldn't be held responsible for ignoring the advice of its internal reports, which pointed out that there were no barriers to a terrorist parking a truck bomb underneath the towers?

They should be at least somewhat responsible, no?
10.30.2005 5:27pm
Jeff Leyser (mail):
(It should be pointed out that this case concerned the 1993 car bombing of the WTC, not the 9/11 attack)

They should be at least somewhat responsible, no?

If you leave your door unlocked, are you responsible for being robbed? Even if we hold the PA responsible for lapse in security, I don't see how the PA can be more to blame than the men who built, positioned and then detonated the bomb.

It couldn't have anything to do with the fact that the terroists don't have $1.8 billion, could it?
10.30.2005 5:38pm
DavidBernstein (mail):
Moonfall:

Perhaps the PA should, in an ideal legal system, be held partially responsible (though I'm dubious that there should be a legal duty to prevent terrorist attacks—that's the government's job!). However, New York is not one of the rare "pure" comparative negligence states, so holding the PA, say, 5% (or anything under 50%) responsible, wouldn't result in liability, so the jury simply decided to ensure that the PA would pay, regardless of the law.

As for Aasem, juries are perfectly competent (or at least as competent as judges) at certain tasks, such as determining credibility of lay witnesses, which is often all they need to do. But they are terrible at (and shouldn't be asked to) making social policy, they are terrible at determining the validity of complex expert testimony, and they, IMHO (based on my research) are rather bad at being willing to let what they see as a morally culpable but legally innocent defendant, such as the PA (or Merck in the recent Vioxx case, or Dow Corning in the breast implant litigation) off the hook. Some think that the latter issue is one of the jury's charms, but I'm not one of them.
10.30.2005 5:44pm
Humble Law Student:
I do hope that juries get it right most of the time. But this does seem like one of those examples that screams outrage. David's point may be that in our adversarial system juries may have a tendency to be swayed by a charismatic attorney and emotionally evocative stories rather than sticking to common sense and the law.

Maybe his point is that a civil law system may produce more equitable outcomes in cases like this.
10.30.2005 5:46pm
Aasem (mail):
Inadvertnatly deleted Aasem's first post, which follows: "In too many civil cases, juries serve as a completely lawless element that wreaks havoc with the rule of law; no wonder civil juries have been abolished just about [? I'm not sure they are routinely used anywhere at this point] everywhere but the U.S."

That's the most ludicrous statement I've ever heard. I've tried about 75 civil cases before juries, in more than 20 states, and each one came to the correct verdict. In most of my trials, I represented large faceless corporations against sympathetic plaintiffs with horrendous damages. I've had several in The Bronx, Brooklyn, and Manhattan, as well as other pro-plaintiff jurisdictions. Each one arrived at my view of the correct result, and each kept the widows and orphans on the street where they belong.

I'm not alone in this. In fact, I only know a few busy civil trial lawyers around the country who don't have complete faith in the jury system--the overwhelming majority are like me. Juries have far more commons sense than judges, and they are not afraid to put their sympathies and prejudices aside and do the right thing.

Yes, there are examples to the contrary, but they are very few. We hear about a dozen absurdities each year, but we don't hear about the millions of perfectly accurate and fair verdicts that also come down during the same period.]


Furthermore, your outrage is likely misplaced. I am not familiar with the case that upsets you, but consider these likely analogies:

Hurricanes and acts of god happen. Therefore we pay engineers and architects to design structures to protect us from the elements. If that structure fails because the designer or builder failed to comply with the standard of practice, who is at fault? You would likely say the hurricane or god is solely responsible for the damages.

Or this: You hire a security force to protect you from anal rape or murder or something. Your body guard gets loaded or falls asleep or leaves the keys in the lock or something. As a result, the criminal enters and rapes your ass. Is the rapist solely at fault? Hell no, the gross negligence of your guard is likely a substantial factor in your rape, and fault should be apportioned accordingly.
10.30.2005 5:49pm
Nobody (www):
How does this have anything to do with the rule of law?

I thought the rule of law stood for the proposition that no person was above answering in court for wrongdoing?
10.30.2005 5:51pm
Aasem (mail):
Moonfall,

I completely disagree. In 20 years of practice, I've seen juries consistently evaluate complex expert witness testimony and arive at harsh but legally accurate results in the face of overwhelming sympathy. Yes, some screw up. Most don't. Hell, I had one jury in New Jersey deliver a defense verdict in favor of an unpopular multinational corporation with tears in their eyes. The female judge was also wiping tears from her cheeks. The result was right, but painful.

Juries can be trusted to do the right thing. Our job is to make the right thing clear, easy to understand, and obvious. There is no field of expertise too complex for a jury to understand if it is delivered properly. The experts and attorneys need to be very clear and simple--and that is too often overlooked. But that's not the juries' fault--that's the lawyer's fault.
10.30.2005 5:59pm
Aasem (mail):
Oops,

My comment to Moonfall was misplaced. I meant to address it to DavidBernstein.
10.30.2005 6:01pm
Guest18:
Or this: You hire a security force to protect you from anal rape or murder or something. Your body guard gets loaded or falls asleep or leaves the keys in the lock or something. As a result, the criminal enters and rapes your ass. Is the rapist solely at fault? Hell no, the gross negligence of your guard is likely a substantial factor in your rape, and fault should be apportioned accordingly.

I don't think that anyone is trying to say that the PA isn't responsible. They are simply saying that they are certainly less responsible than the terrorists - just like the negligent guard is certainly less responsible than the rapist. NY State has made the policy decision that parties who are less than 50% responsible shouldn't pay - it's not the jury's job to be deciding to change that policy. It's pretty obvious they are trying to cheat the system here.
10.30.2005 6:10pm
DavidBernstein (mail):
Can't follow the comment thread all evening, but just for further fodder, my colleague at GMU Kimberly Moore found in an empirical study that patent juries are biased against foreign companies, especially Japanese companies. Not surprising to me, because the juries are unlikely to understand the evidence in a patent case, so they just vote for the side they prefer for other reasons. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=566301
10.30.2005 6:10pm
vicneo (mail):
aasen:

given that you make a living off of juries. esp as being a defense lawyer you get paid no matter what ridiculous crap the jury pulls outof the bag. i would expect that you would like juries.

i say abolish juries and vermin trial lawyers along with them
10.30.2005 6:15pm
Daniel Chapman (mail):
Who says you can't find thoughtful commentary on the internet?
10.30.2005 6:18pm
W.H. Taft (www):
Sure, David, let's get rid of juries.

After all, as your own experience demonstrates, we'd get much better, fairer results with a different system for determining civil liability--say, perhaps, mandatory, binding arbitration?
10.30.2005 6:19pm
Anderson (mail) (www):
"Percentage of responsibility" is in itself a nebulous concept, no? What was Germany's % of responsibility for the First World War?

If terror attacks are like hurricanes and earthquakes, part of the Sh*t that Happens, then managers of an obvious terror target like the WTC have a certain obligation to guard against terror attacks, just as builders and managers in the Bay Area have an obligation to guard against earthquakes.

I mean, the Transamerica Building topples in a 4.0 earthquake, turns out to be out of code compliance, and the builders say "my gosh, it was an Act of God, not our fault"---come now.

Causation in the WTC case strikes me as a fine philosophical problem, and it is very unlikely to be beyond the scope of a reasonable jury to place the blame above 50%.

I'd say the jurors probably were a lot less biased than some of the commenters here, who seem to have it all figured out without having sat through the trial and heard the evidence.
10.30.2005 6:20pm
Adam Scales (mail):
David,

This is a close one, but at this point I don't think this verdict sustains your point.

As some of the posters above indicate, the issue is closed once a court determines that a defendant (the PA here) has a duty to prevent a third-party criminal attack. The premises liability and engineering hypotheticals are excellent examples. Having decided (I think correctly, though the matter is not free from doubt in my mind) that there is some duty, the problem of allocation is inevitable.

A better criticism is that allocating fault in such cases can never lead to consistent results across the continuum of cases involving solvent and insolvent defendants. Personally, I'm very interested in the 9/11 cases because I can imagine that the airlines employed totally inadequate security measures. So, there might be liability there. Suppose Osama bin Laden is an available defendant. He supposedly has $300,000,000. What allocation of liability could be just, when both sets of defendants are solvent, that does not assign OBL nearly 100% of the fault?

Realistically, such cases are brought precisely because the prime defendant is not available. The allocation is inevitably distorted by this fact. This is a real problem, and our tot system has not articulated a consistent story here. However, that is not the criticism David is making here. While I look forward to learning more about the basis for the jury's verdict here, I do not find the possibility of fault on the PA's part inconceivable, nor do I see this as substantially more complex than the social judgments implicated by premises liability cases generally.

David could be right here, but he has not yet proven it (as he has in some other instances), in my judgment. I look forward to learning more.

Adam F. Scales
10.30.2005 6:22pm
vicneo (mail):
but seriously, we have a system that is completeely out of control,it is stacked against the defendant, both jury and judges.

i just dont see how a jury of (certainly not) my peers could actually make sense of not just complex technical facts/theories logic, but also deal with the complexities of rather involved statistical analysis. my personal experience is that 90 % of the people I happen to interact with professionally ( and these are people with postgraduate degrees making 6 figure incomes) are unable to evaluate statistical data coherently. How do you get juries to do this?
10.30.2005 6:24pm
Guest18:
I mean, the Transamerica Building topples in a 4.0 earthquake, turns out to be out of code compliance, and the builders say "my gosh, it was an Act of God, not our fault"---come now.

I'd agree with this, because it makes little sense to apportion responsibility/guilt to Mother Nature. In fact, our legal systen thiks it makes little sense either in the context of comparative negligence. But that changes the moment another volitional actor enters the equation, such as the case here - and I think it's hardly a stretch to say that no reasonable jury could blame the party who DECIDED to commit a criminal act LESS than any other party involved.
10.30.2005 6:25pm
Rhadamanthus (mail):

aasen:

given that you make a living off of juries. esp as being a defense lawyer you get paid no matter what ridiculous crap the jury pulls outof the bag. i would expect that you would like juries.

i say abolish juries and vermin trial lawyers along with them


How depressing, I thiught this site was more based on discussion than attack and abuse. Oh well, thabks to those who do offer subjects for discusssion.

Have to agree with Anderson, none of us sat on the jury! Thank God!!
10.30.2005 6:33pm
Aasem (mail):
David,

From 1990 through 1997 I was the in-house general counsel of a Japanese-owned multinational product manufacturer. I tried anti-trust cases, price fixing and unfair competition cases (in defense of claims by domestic businesses), and I prosecuted patent infringement and trade dress cases against domestic companies. I did these while also defending an anti-dumping action brought by the ITC and DOC in the midst of anti-japanese trade balance paranoia while the moronic Micky Kantor was Sec. State. Heh, there was also the supertarrif on semiconductors I had to squeeze out from under. I was also trying product liability cases all over North America on behalf of this evil Japanese company, in that harsh anti-Japanese climate.

Guess what? The dreaded bias and unreliability of jurors never did rear its ugly head. In fact, the juries were far more dependable and supportive than either the administrateive agencies or judiciary. In the end, the results were all favorable, but the jury verdicts were the easiest to secure.
10.30.2005 6:44pm
Huh:
Yeah, the problem here comes not from the jury, but from the idea that a comparative judgment must apportion some share of "negligence" to the criminals.

In every situation in which security against criminal actions is both 1) necessary and 2) is found lacking, the blame for the intentional act of the criminal will always lay with the criminal. That's really a completely separate issue from the negligence of the entity with the duty to secure the premises from the criminals.

To the extent that the state of New York requires this balancing to include criminal activity, then yeah I guess this jury definitely expressed their disapproval of that policy decision. BUT, they exercised discretion given to them under the law. And I for one think they made a defensible judgment: they decided that the party which had acted with negligence should be held responsible for it.

If you have a problem holding corporations liable for any situation in which their negligence allows otherwise preventable criminal conduct, then maybe that's your argument.
10.30.2005 6:46pm
guest:

i say abolish juries and vermin trial lawyers along with them


Yeah, the hell with "trial lawyers." I think we can all agree that only businesses should be permitted legal representation. And even then, certainly not for trials!
10.30.2005 6:47pm
Aasem (mail):
Guest18:

"NY State has made the policy decision that parties who are less than 50% responsible shouldn't pay - it's not the jury's job to be deciding to change that policy. It's pretty obvious they are trying to cheat the system here."

You're right, and that does happen on occasion. Juries also use that to the reverse effect--they'll find 51% comparative to cut him off when they think he's a scumbag.

However, most states do not allow judges to instruct the jury on the effects of comparitive, so most jurors really don't know how their apportionment affects the outcome.
10.30.2005 6:51pm
Guest18:
And I for one think they made a defensible judgment: they decided that the party which had acted with negligence should be held responsible for it.

If you have a problem holding corporations liable for any situation in which their negligence allows otherwise preventable criminal conduct, then maybe that's your argument.


That would be a defensible policy judgment, but it wasn't theirs to make. Their role was to assign a percentage of guilt to the two actors in the situation. They certainly had discretion to assign some precentage within the bounds of reasonableness, but I think this percentage clearly falls outside those bounds.

I really have nothing against holding the PA, or any corporation for that matter, responsible in situations such as these, and if the jury had simply been asked "Was the PA negligent in this situation?" then it certainly looks like they should have have answered in the affirmative (though reasonable juries could probably differ even on that question too) -- but their role was different - they were to apportion responsibility between the two actors at issue and the way they made that decision was clearly outside the bounds of reasonableness and was done in pursuit of a policy objective that was not theirs to pursue.

Sure, we have jury nullification throughout our system. Heck, our system even implicitly condones it in many cases by turning the jury into a black box and just asking for a yes/no answer. But in certain situations, such as this one, the legislature has clearly established guidelines to take the possibility of such nullification out of the jury's hands.
10.30.2005 6:58pm
Guest18:
However, most states do not allow judges to instruct the jury on the effects of comparitive, so most jurors really don't know how their apportionment affects the outcome.

That's interesting. (I'm a clueless law student. God forbid they teach us something useful at these places.) But there's still the issue of how juries will understand their findings to be used in the case. They surely at least know that the terrorists are empty pockets, so there's already that incentive to artificially inflate the percentage of responsibility to make sure the plaintiff is adequately compensated. If the jury isn't instructed on the 50% negligent threshold, it'd be a decent guess to say they don't know about it. But the juries aren't stupid. They clearly know that their findings will affect the compensation the plaintiff receives in situations such as these, and there will be pressure to alter their findings accordingly.
10.30.2005 7:05pm
Aasem (mail):
Vicneo:

"but seriously, we have a system that is completeely out of control,it is stacked against the defendant, both jury and judges."

No we don't, not at all. I've stood before judges every day for 20 years. I've talked to juries about half as often. About 85 percent of my experience has been defending huge multi-national corporate clients against smaller local businesses or individuals on a wide variety of legal theories. Your comment does not reflect any aspect of my experience.

What is your experience?
10.30.2005 7:14pm
Aasem (mail):
Guest18,

You're right, juries ain't dumb and many do figure it out. In a case involving terrorists, I'm sure they knew exactly what they were doing. In a case involving solvent defendants who are all within the court's jurisdiction (i.e., most cases) they probably don't think much about it, and the 50 percent rule is subject to less abuse.

Although I had a national practice for many years, I am based in California where we have pure comparative. While I can't manipulate it to suit my clients as well as the NY system, I feel much more comfortable with it. It's fair.
10.30.2005 7:20pm
Mr. P:
Bernstein: "(though I'm dubious that there should be a legal duty to prevent terrorist attacks—that's the government's job!)"

Forgive my ignorance -- isn't the Port Authority a government agency/entity?
10.30.2005 7:24pm
Huh:
Guest 18:

I agree, nullification by jury was not possible in this case.
10.30.2005 7:24pm
Anderson (mail) (www):
but seriously, we have a system that is completeely out of control,it is stacked against the defendant, both jury and judges.


This would come as a welcome surprise to many plaintiff's lawyers out there. As someone who's usually on the defense side, I don't see it. Plaintiffs can cause some trouble due to discovery expenses, which can make a modest settlement worthwhile sometimes regardless of fault. But if the system is stacked, it's stacked the way every system always has been--in favor of the haves against the have-nots. Welcome to human history!
10.30.2005 7:29pm
frankcross (mail):
First, the statistics are quite clear that defendants win most tort cases and an especially high percentage of cases in which companies are defendants. The plaintiff win rate in product liability cases is about the lowest you can find.

Second, I always wonder why people are so confident second-guessing juries, when they were not present to hear the evidence. Of course juries can be wrong and perhaps this jury was wrong, but it seems awfully arrogant to ridicule it. Especially by people who seem unfamiliar with the law of premises of liability and the specific facts presented to the jury.
10.30.2005 7:36pm
Cyn23 (mail):
Civil juries were deeply respected by the people when the Constitution was enacted, so much that the lack of enough security originally led to a felt need for the Seventh Amendment.

Why? Because of the belief that in various cases, sometimes by bending "the law" (e.g., not finding a person guilty of stealing a 5lb note as to not make them liable for execution) the people would bring justice.

Some find this sentiment troubling, I guess. I'd also note that many nations aren't as free with people saying things or owning guns, etc. (want to compare Britian on that point?) too.

Selective disrespect for the people, though, right?
10.30.2005 7:39pm
anonymous coward:
Is there any reason to suppose that criminal juries are better than civil juries, as the original post implies?

(There are probably more open-and-shut criminal cases that go to trial, while lopsided high-stakes civil cases are settled. But I do not believe that jurors are any better-equipped to decide tricky criminal cases, which can be extremely emotional and hinge on scientific evidence. I don't, however, have any bright ideas for replacing juries in either civil or criminal cases.)
10.30.2005 7:46pm
trock:
"Civil juries were deeply respected by the people when the Constitution was enacted, so much that the lack of enough security originally led to a felt need for the Seventh Amendment.

Why? Because of the belief that in various cases, sometimes by bending "the law" (e.g., not finding a person guilty of stealing a 5lb note as to not make them liable for execution) the people would bring justice.

Some find this sentiment troubling, I guess. I'd also note that many nations aren't as free with people saying things or owning guns, etc. (want to compare Britian on that point?) too.

Selective disrespect for the people, though, right?"

I guess juries are never overturned on appeal too, right? If we were to support that, I guess we should just impose speech codes and take away people's guns too... People are just saying here that this appears to be one of those situations. Nice attempt to sensationalize the issue though.
10.30.2005 7:49pm
Eugene Volokh (www):
Vicneo: Vermin posters who throw around insults and epithets are going to get thrown off. If you want to speak out against trial lawyers, you are free to do so; but please remain civil. Avoid ad hominem attacks on fellow posters, but most certainly avoid epithets.

Eugene
10.30.2005 7:49pm
Aasem (mail):
frankcross is absolutely right, yet all we hear about from jury bashers are the McDonald's coffee case, the tobacco cases and some anomalous auto manufacturer cases. The truth is, product manufacturers win more often than not, and the reason is that we can educate the jurors, yet appeal to their common sense. They set aside their prejudices, they say their prayers for the devastated and sympathetic plaintiff, and they refuse to make eye contact as they deliver their verdict for the corporation when the facts and law require it.

I would also add medical malpractice as a low-percentage plaintiff endeavor. Hell, any professional malpractice case is difficult for the plaintiff.

But the best part of Frankcross's comment is the second paragraph. Really folks, that's the crux to all the "horror stories" we hear about juries. We weren't there.
10.30.2005 7:51pm
Guest2 (mail):
Prof. Bernstein, are you using your end-of-civilization-as-we-know-it voice just to scare us because tomorrow is Halloween?
10.30.2005 8:20pm
CharleyCarp (mail):
And when the jury runs out of control, there's always JNOV.

My jury trial experience, while less than that of a couple of commenters above, has nonetheless also been the same: they've always gotten it right.

The other thing you have to wonder about with the 'horror stories' is whether the defense did something to alienate the jury. There's no case so sure that incompetent (or arrogant) lawyering can't lose it. Or arrogance on the part of the defendant him/her/itself.
10.30.2005 8:24pm
DavidBernstein (mail):
Frank: I don't have to be there to know that the terrorists are more at fault for the bombing than the Port Authority, and I don't think that's at all arrogant.

I would agree that many absurd jury verdicts often seem entirely logical from the perspective of the jury, but that's in part because the jury system (1) at least in practice permits emotional appeals, including often (legally) abusive opening statements and closing arguments; (2) requires juries to decide cases based on oral testimony, even on issues where it would be almost impossible to comprehend the issues at hand without background reading; (3) puts juries in the very awkward position of deciding whether to "do justice" (in a laymen's sense) in a particular case or follow the law (which may actually often be desireable in criminal law, but wreaks havoc in civil law); (4) often leaves the law confused and unclear due to late and poorly written jury instructions; (5) requires juries to hear evidence regarding damages and even punitive damages before they have determined liability; etc.

In other words, I'm not of the school that thinks that juries routinely try to "screw over" one side or another. I just think that a combination of human psychology, the inherent limitations of the process, and the lack of accountability inherently lead to an unacceptable level of problematic verdicts in certain contexts, even when juries are trying hard. And one can point to whole categories of cases--Bendectin, Breast implants, and more--where a substantial percentage of juries just blew it.

FWIW, counting jury verdicts for one side or the other isn't very helpful, because settlements are made in the shadow of expected jury verdicts.
10.30.2005 8:30pm
Anderson (mail) (www):

Frank: I don't have to be there to know that the terrorists are more at fault for the bombing than the Port Authority, and I don't think that's at all arrogant.

Translation: "I have decided the correct verdict in this case according to my own preconceptions, which I evidently think that juries should do as well."

Arrogant? Not exactly. More like "impervious to argument," possibly.

Let's see: how much were the terrorists at fault for the Port Authority's failure to take reasonable precautions? That would be "zero," I think.

How much did that failure to take reasonable precautions lead to the more-or-less successful attack in 1993? More than 50%? Less? Please explain.
10.30.2005 8:46pm
trock:
"Arrogant? Not exactly. More like "impervious to argument," possibly. "

The jury apologists actually seem to be the ones impervious to argument here. What Prof. Bernstein is saying certainly appears true. The two sides appear to be speaking past each other, and that seems to be the real problem. People need to nail down what the jury was apportioning in its findings. The PA was 68%, and the terrorists were 32% responsible for what? Some general conception of fault? Failure to take precautions? I'm not sure the distinction matters, but people aren't really specifying what they are arguing about. (The NY Times article isn't clear on the issue either - it says the PA was "68 percent at fault" and the terrorists were "32 percent responsible")
10.30.2005 8:58pm
Eric:
I was stunned that you would call for the abolishment of juries. The principle of a jury of ones peers is very sound. The average person will try to deliver justice and follow the law, they have no vested interest in the outcome one way or another, and the universality of jury duty ensures we do not have professional jurors who might develop an interest in the outcome. Perhaps there is somewhere else you would want to look before abolishing the jury? Might there be a problem with the idea of comparative negligence, jury instructions, or other matters? Why focus on the jury? After all, would you say the jury is 51% liable for the verdict in the case? :)
10.30.2005 8:58pm
GMUSL 2L (mail):
Anderson, you can't just assume the existence of a terrorist attack on US soil in 1993 the way you can post-9/11. This is yet another example of the ex post perspective run amok and screwing things up in tort law by creating hindsight bias.

The set of appropriate questions is this -- In 1993, did the PA breach a duty to check incoming trucks, and if so, was that breach at least 51% liable for the attack?

And note that foreseeability is NOT the test for causation in NY Tort Law (unlike "pick deep pockets" jurisdictions like CA). You might want to pick up Palsgraf again, if you're unclear on this point.

There's also a cause-in-fact issue as well, as the PA's "negligence" was not the cause-in-fact of the incident. It was the criminal and intentional tortious actions of the terrorists.
10.30.2005 9:01pm
GMUSL 2L (mail):
to check incoming vehicles for explosives, I mean.
10.30.2005 9:02pm
Redman:
I'm not sure about New York law, but certainly the trial judge has the power to disregard the verdict if he/she does not believe it is supported by the evidence.
10.30.2005 9:07pm
Kingsley (mail):
Anderson, you can't just assume the existence of a terrorist attack on US soil in 1993 the way you can post-9/11.

"During cross-examination, a lawyer representing the plaintiffs questioned him about a 1985 report by the agency's Office of Special Planning that identified the garage as a vulnerable area because the public had easy access to it and security was sparse. The report was commissioned by Peter Goldmark, the Port Authority's executive director from 1977 to 1985, after he consulted Scotland Yard and was told that a transient parking facility under the World Trade Center could be a terrorist target.

"The lawyer, David J. Dean, quoted the report as warning, ''A time-bomb-laden vehicle could be driven into the World Trade Center and parked in the public parking area.""
10.30.2005 9:20pm
vicneo (mail):
Eugene: point taken and please accept my apologies

sometimes i get taken in by my own rhetoric

however, i stil would like to make my point however w a little more diplomacy perhaps...

how can anyone accept a trial lawyers opinion on this isuue to be unbiased and free from a need to justify his profit... after all the more the cases the more he makes.

and who amongst the discussants here would not agree wityhn the asseration that an out of control tort system is inordinately ( perhaps to the point of noncompetitiveness or bankrupcy) taxing american the american corporation, entreprenuer and physicain out of business. and the only group of people who benefit from the process are a bunch of gucci sporting trial lawyers ( and i refuse to make any distinctions here between plaintiff and defence lawyers) they both feed off the same carcass. Judith jones remarks on this issue are quite illuminating.

It is a corrupt system and ALL beneficiaries of the system are necessarily corrupt.
10.30.2005 9:59pm
frankcross (mail):
David, the arrogant comment was directed more at some posters.

But it isn't that implausible under tort law. Comparative legal responsibility does not equate to comparing moral culpability. Anytime that someone fails to prevent a criminal act, the criminal is presumably far more at fault morally. But the economically efficient concern of the law still would call for liability, in order to encourage appropriate measures of prevention. This is not a very controversial principle, I don't think.

"FWIW, counting jury verdicts for one side or the other isn't very helpful, because settlements are made in the shadow of expected jury verdicts."

The shadow point is appropriate, but it doesn't demean the value of counting. Under the generally accepted Priest/Klein hypothesis on settlement/litigation, one would expect a 50% win rate for plaintiffs across the board, yet in medmal and products liability cases, it's much lower. Under the perfect shadow theory, which is too strong, this suggests that perceptions of juries as anti-defendant are much stronger than the reality.
10.30.2005 10:03pm
Anderson (mail) (www):
GMUS 2L, I certainly defer to your knowledge of NY law, tho any jurisdiction that makes someone 100% liable when 51% at fault should not be mocking others as "pick deep pockets" places. Even "tort hell" Mississippi has gone to simple pay-your-% liability.

But as Kingsley points out, an attack on the WTC was entirely foreseeable. Heck, John McPhee was pondering a *nuclear* attack on the WTC before it was even completed--see The Curve of Binding Energy.

And isn't Palsgraf a little too weird to be relying upon? I mean, there's foreseeable in the sense of "theoretically possible," and there's foreseeable in the sense of "better be looking out for this." I don't see that Palsgraf, as I dimly recall it from my 1L days, gets you beyond the first sense.
10.30.2005 10:03pm
DavidBernstein (mail):
I don't think it's much here or there to the comp. fault point (still don't see how the PA could be MORE at fault than the terrorists), but the WTC garage was vulnerable, but I'm sure so were various points at the UN, the Empire State building, ADL headquarters, the Israeli consulate, the Chrysler building, the NYSE, and so on and so forth. Just because a report asking about the WTC's vulnerability pointed out a vulnerable point does not mean that it would have made sense to, as the report suggested to remove the vulnerability, close the parking lot down. Heck, even in Israel they leave parking garages open, people gotta park, and what were the odds, in foresight, that terrorists would exploit this particular vulnerability? And if the PA would have lost its parking revenue, it would have less money to spend on bridge and tunnel upkeep, which is also a safety issue. Hindsight bias, indeed.

Frank: You make a very plausible argument for pure comparative fault, or at least for not considering the fault of judgment proof criminal actors when computing comparative fault. But the latter's not the law in NY, or they wouldn't have found the terrorists 32% at fault.
10.30.2005 10:38pm
Kingsley (mail):
The question isn't whether to have a parking garage at all; the question, I believe, was whether to keep it open to the public, or to allow identifiable employees only to park there.
10.30.2005 10:47pm
Joel B. (mail):
Let me be the first to say, that the abolishment of joint and several liability was a very good thing; however, it is its abolishment that makes these jury verdict necessary (yes necessary) even when it may not be completely logical. As another commenter suggested where this was pointed out, say I have an installer install bulletproof glass in my vehicle, he installs regular glass and I get shot by some criminal hijacker. Sure the criminal is "more responsible," but where does that get you? It lets the idiot installer of the hook that's not justice.

Perhaps, in cases of criminal tortfeasors joint and several liability could be restored. Because I don't really care that maybe the PA was only (metaphysically) 10% responsible, the PA was still negligent as heck, and put profit over patron safety, when you roll those dice, even as a conservative Republican (which I am), and they come up craps, well you havelose money on the table.
10.30.2005 11:01pm
CaDan (mail):
The Peanut Gallery wonders how many cases Prof. Bernstein has tried to a jury.
10.30.2005 11:11pm
Jeff Leyser (mail):
Anderson: How much did that failure to take reasonable precautions lead to the more-or-less successful attack in 1993? More than 50%? Less? Please explain.

Assume for the sake of argument that the PA took no precautions at all. Even in that case we have one party (the PA) who was negligent, and another the party (the terroists) who acted with intent. They didn't accidently blown up a bomb because the PA forgot to inspect vehicles entering the garage. They meant to do it! How can the negligence be more at fault than the intent? Of course the PA is less than 50% to blame.
10.31.2005 12:05am
Beerslurpy (mail) (www):
As another commenter suggested where this was pointed out, say I have an installer install bulletproof glass in my vehicle, he installs regular glass and I get shot by some criminal hijacker. Sure the criminal is "more responsible," but where does that get you? It lets the idiot installer of the hook that's not justice.

Say what? This isnt negligence, this is fraud and breach of contract. Your expectation of the bullets being stopped at the glass arose from a false promise the lexan installer made to you. The actual act of shooting you falls entirely on the shooter and anyone who aided or encouraged him.

Or did I miss something fundamental about how our legal system works?
10.31.2005 12:27am
Leeron:
For a second there, in his comment about parking revenues, Prof. Bernstein's reference to Israel followed by his reference to the PA had me thinking "Palestinian Authority". But were that the case, Prof. Bernstein would probably be willing to assign all fault to the PA. ;)

From what I have read here, I doubt that Prof. Bernstein has any direct experience with juries, let alone any actual trial experience. I don't see how somebody who had seen a jury in action, and had seen how hard juries work to reach the correct outcome, would spit that type of venom on jurors. He can and should correct me if I'm wrong, of course.

You could take another perspective on what happened, and view this as a jury recoiling against legislative jury tampering. A legislature, responding to lobbyists and industry groups that are annoyed that jurors are actually holding people responsible for the injuries they cause to innocent persons, passes measure after measure meant to prevent that from happening. It's a fair assertion that the abolition of joint and several liability, or modified versions of contributory negligence which can absolve a party from liability if it is "only" 49% responsible for an innocent plaintiff's injury, aren't about achieving justice. Given the context in which such initiatives pass, and the identity of those who lobby and advocate for such legislative changes, it is more than fair to assert that such "tort reform" laws are primarily about satisfying the demands of business and industry, and shifting risk of loss to the victim.

You have the "right" to a jury trial, but the legislature will muck about with the verdict if it doesn't like the way the jury finds... and we're supposed to be surprised that a jury occasionally recoils at what it perceives as a legislative edict which forces an unjust outcome?
10.31.2005 12:28am
Beerslurpy (mail) (www):
Ah right, nevermind. The idea is damage from shooting being charged back to the person who intalled crappy glass, thereby increasing the damage to your person than might otherwise have happened. It seemed obvious, but the negligence part is tripping me up.

I guess my original point was that this is readily distinguishable from the gun issue. The glass issue is a direct chain of causation isnt it? The glass installer didnt do something he promised and a harm arose from the promised action not being carried out. One could maybe liken this to a gun that malfunctions and wounds the owner, but such a suit isnt prohibited by the new law.

Gun manufacturers dont have any contact with criminal wrongdoers. When you get a gun, the only real tie between you and the manufacturer is that they guarantee the gun will work as specified in the manual and that it will accept the specified ammunition without malfunctioning. The chain of supply from manufacturer to consumer is always interrupted by an FFL (type of federal firearms dealer license). It is literally impossible or me to receive a shipment of firearms at my home directly from a manufacturer. It always goes to an FFL and then goes to me after the NCIS check and the Form 4473. The manufacturer literally has no influence over what happens to guns once they are transferred to FFLs and government agencies.

-Jim from FL
10.31.2005 12:42am
Dick King:
I have another comment on this case in a different direction.

I don't like the widely practiced memo-waving that appears to have become part of the culture.

Any large organization will have generated large volumes of correspondence with varing levels of credibility. If memo-waving is to become the norm, I would say that incents organizations to keep fewer written records or perhaps to do less investigation of low-probability outcomes lest they generate a memo to be waved.

Do we want our decisions to be made more off-the-cuff?

I understand that California law doesn't let a plaintiff use a design change as evidence of a design defect in a previous version of a product. Their lawmakers, rightly in my opinion, decided that public safety demands that an improvement should not be punished in this manner. Should free-ranging inquiry within an organization be treated any worse?

-dk
10.31.2005 1:00am
Dick King:
There's a reason we should treat a specific precaution that in hindsight would have prevented a specific terrorist attack as substantially less blameworthy than a specific precaution that in hindsight would have prevented particular earthquake damage. Earthquakes don't lie awake at night trying to figure out another way in if a building is partially protected at substantial cost and inconvenience to customers. To cite a specific example, re the suggestion made by Kinsley above, how hard do you really think it would be for a terrorist to land a job, any job, in one of the myriad companies that leased space in the WTC? If the jury thinks that this policy change would have made the attack less than 1/3 as likely, they're smokin' some strange stuff, and not offering me any.

-dk
10.31.2005 1:08am
David M. Nieporent (www):
FrankCross:
Second, I always wonder why people are so confident second-guessing juries, when they were not present to hear the evidence.
That's a valid point if the issue is credibility. People who weren't sitting in the courtroom have little basis for questing a jury's findings as to whether to believe a witness.

But we don't need to sit in the courtroom to know that a jury is unreasonable when it doesn't find that a terrorist is more responsible for a terrorist act than a landlord is.
10.31.2005 1:25am
David M. Nieporent (www):
The truth is, product manufacturers win more often than not, and the reason is that we can educate the jurors, yet appeal to their common sense.
That may be true, but misses the point. A manufacturer can win most of the time -- but because of the nature of jury awards, the one time it loses it can get slammed, big time.

------

Kingsley: yes, we all know about the so-called smoking gun of the 1985 report. Guess what -- it costs nothing to write reports. If you pay me (okay, it costs _something_), I will write reports day and night detailing all the things that might happen to you.

It's true of every parking lot in the United States that a terrorist could park a vehicle filled with explosives there. It's true of every building in the United States that a terrorist could drive a vehicle filled with explosives into it.

Is every landlord in the United States negligent for failing to close its parking lot, for failing to screen every vehicle that enters, for failing to put up concrete barriers to keep vehicles away from the building?

If not, why not?

One might argue that for some buildings, the chances of an attack are low enough to make it unreasonable to spend that kind of money -- but after the fact, when we know there's been an attack on that particular building, that's a rather difficult argument to make to a jury, isn't it? Or is the World Trade Center's real sin the fact that it made the mistake of writing that report?

What if the World Trade Center had closed down the garage, as the report suggested? Would that have made it safe for occupants? Or would -- just to pick a radical idea out of thin air -- terrorists have crashed an airplane into the building instead? Terrorists are not hurricanes. They have volition. They can change strategy if you reduce one vulnerability.
10.31.2005 1:43am
JohnG:
Guest 18 (if you're still reading) began his post by stating this:

"I'd agree with this, because it makes little sense to apportion responsibility/guilt to Mother Nature."

I'd ask why. Why must someone be responsible as your statement implies. Why must every individual who suffers some kind of loss (through injury, financial reversal, or other) have someone to blame? Whatever happened to the vagaries of life being something we lived through and dealt with? What insular background or teaching advocates that we all must have someone else upon whom we must be able to shift blame or responsibility or, ultimately, the monetary loss?

When did we all become so dependent? Why did we lose a certain measure of our independence? It certainly wasn't Mother Nature this time. Who's responsible?

FOR ALL: In this particular case, who is the New York Port Authority? To my knowledge (from having been born, raised and lived in NYC), it is the parent muncicipal corporation that owns, operates and manages the transportation facilities withing the greater New York Metropolitan Area - New York, New Jersey and Connecticut. Basically, it governs the individual municipal organizations that operate the publically owned busses, trains, subways, and ferries, and, for reasons I never understood, certain large office buildings (including the WTC).

In fact, the New York Port Authority is us although, clearly, this was not explained to the jury. Any verdict against the PA is a verdict, ultimately, against ourselves. We pay for it through higher operating fees for insurance and debt servicing, instead of capital investment like new cars for trains, and more mechanics and better maintenance facilities to repair them.

Even with a publicly owned corporation, there's only so much political will - so taxes can only be pushed so high before Legislators lose their nerve, before businesses suffer, before revenue ceases to grow. Fares can only be raised to a certain limit before public officials cave in to pressure against further raises. There's only so much debt that can be floated in the name of the Authority before credit becomes too expensive to purchase, and too expensive to service.

But, none of this would have been explained to the jury in this case or any other. Frankly, I think it's doubtful many jurors would even begin to comprehend what all that meant or the competing forces at work here.

As such, we are left to ponder the verdict.
10.31.2005 1:47am
Aasem (mail):
David:

"FWIW, counting jury verdicts for one side or the other isn't very helpful, because settlements are made in the shadow of expected jury verdicts."

Wrong. They're almost always made on the merits if the defendant and it's attorney has a spine.

Also:

"Frank: I don't have to be there to know that the terrorists are more at fault for the bombing than the Port Authority, and I don't think that's at all arrogant."

I haven't read the case, but I sincerely doubt that was the jury's finding. The "bombing" was obviously the terrorists' fault. The cause of damages was a combination of poor security and the intentional acts. At least frame the issue properly.
10.31.2005 2:26am
Aasem (mail):
JohnG:

"I'd ask why. Why must someone be responsible as your statement implies. Why must every individual who suffers some kind of loss (through injury, financial reversal, or other) have someone to blame? Whatever happened to the vagaries of life being something we lived through and dealt with? What insular background or teaching advocates that we all must have someone else upon whom we must be able to shift blame or responsibility or, ultimately, the monetary loss?"

In general, I would agree with you. But in the context of architects charged with building hurricane-proof houses, or security guards charged with protecting people from forseeable criminal attacks, or from the PA charged with taking appropriate precautions from terrorist bombings, the duty is clearly established. Failure to fulfill that duty leads to liability. Duh.

In the security cases, the intent of burglers is taken as a given. But if security fucks up when they could have prevented the intentional criminal acts of others, proximate cause falls squarely on those who had the last clear chance to prevent the crime. The law usually looks to the bonded security people rather than the judgment proof criminals, and for good reason. Christ, there is a contractual duty. How is this different from the bombing case?

And, to those who suspect of David B. of never talking to a jury, I am pretty confident you're right. I'll stop there.
10.31.2005 2:56am
Public_Defender:
In too many civil cases, juries serve as a completely lawless element that wreaks havoc with the rule of law
If you distrust juries so much, I assume you oppose the death penalty, too. It would be hard to argue that juries would be any better at deciding life and death issues.
10.31.2005 4:05am
Aasem (mail):
Alright, I've had another glass of wine, and I need to say this:

First some background: I respect academia. I attended a top 15 law school, and I wrote my note and edited notes of others. I dated the top student from my school who also went on to a top 5 school for her LLM in Con Law. She also graduated first from there, and I helped edit several of her law review articles that were published in major law reviews. Now she's a con law prof. I'm not a moron and I'm not an adversary of ivory towers.

HOWEVER, every *practicing* lawyer will tell you their high school-educated legal secretaries knew more about the practice of law than you or I did our first year out of school. You know its true, think about it.

So, what does David B. know about real life in the legal arena? "Empirical surveys?" As one who commissions surveys, I know they're as valid as the agenda of those who pay for the data. In the context of "academic" surveys, they're as valid as agenda of whomever is trying to publish their particular point of view. More often than not, surveys reflect creative phrasing and selective populations--nothing more.

For the same reasons legal secretaries know more about law practice than first year law students, law professors should not be relied upon for valid analyses of judges and juries. Unless you stand face to face before them every day, you cannot truly know what they do, and why. Ad hoc surveys don't suffice.
10.31.2005 4:08am
Aasem (mail):
Oops, I meant to say, "first year associates" rather than "first year law students." Must be the wine.
10.31.2005 4:11am
DavidBernstein (mail):
Those who argue that only very experienced trial lawyers can assess the merits of juries remind me of physicians who refuse to heed academic studies (often by epidemiologists) that show that a specific practice or procedure is not best for patients suffering a specific malady. "But I've seen one thousand patients with this maladay," they say, "so I KNOW." No, they don't.
10.31.2005 7:22am
Anderson (mail) (www):
Aasem: I haven't read the case, but I sincerely doubt that was the jury's finding. The "bombing" was obviously the terrorists' fault. The cause of damages was a combination of poor security and the intentional acts. At least frame the issue properly.

EXACTLY. We're conflating different senses of "fault" in this thread, which is at least contributing to the dispute.
10.31.2005 9:01am
Passing By:
Prof. Bernstein, I don't think anybody argued that only experienced trial lawyers can assess the merits of juries. I think they have been much more focused on the weaknesses of your personal analysis. Is it fair to take your sarcastic retort as an admission that you have absolutely no direct experience with juries? (Because that's how I interpret it.) Is it also fair to assume that you were drawing a loose analogy, and not trying to assert that empirical research of juries is actually analogous in terms of scientific rigor and method to epidemiological studies? Because, although it would be fun to respond to such a notion, it doesn't really seem necessary.

What if the World Trade Center had closed down the garage, as the report suggested? Would that have made it safe for occupants? Or would -- just to pick a radical idea out of thin air -- terrorists have crashed an airplane into the building instead?


Are you a lawyer? If so, surely you understand the basic elements of negligence. You are responsible for foreseeable risks, and you are not excused from your negligence merely because you can dream up fanciful risks that are not foreseeable. Certainly, having it written down in advance supports the plaintiff's theory that the risk was not only foreseeable, but was actually foreseen. C'est la vie.
10.31.2005 10:44am
Peter Stone:
How about the following two examples. Case 1, as above: a 5.0 earthquake topples the Transamerica building, because it was poorly constructed. Case 2, the Transamerical building is built just as shoddily in case 1, but in this case it is a terrorist truck bomb set off a block away that shakes the ground to a degree equivalent to a 5.0 earthquake that topples the building. Why should the company that did the bad construction work and the owners of the building be any less liable in Case 2 than in Case 1?
10.31.2005 11:22am
JohnG:
Aasem: With respect to your response to me, I find your wording careless and conflicting. As such, I have a complete lack of understanding what your are advancing as a thought or principle. And, frankly, I can do without the hystronics if you please.

"But in the context of architects charged with..."

Charged? Define please. Charged by whom? Are you referring to a burden placed upon an individual or entity by enacted legislation, a finding of some court or by a obligation imposed in a contract entered into by private individuals? Who charged "the security guards...with protecting people.."? Were they "charged" with absolute liability if they didn't exercise 100% diligence? Why would they be "charged" as such when the police are not. Who, on earth, was their attorney?

Who, specifically, charged the PA with "taking appropriate precautions from terrorist bombings" before there were terrorist bombings? This verdict arose, as I understand it, with 20/20 hindsight following the first bombing at the WTC in 1993. What politician allowed that to happen? Was there ever any discussion in the NYS Legislature about the waiver of immunity normally enjoyed by municipalities for unseen or unknown risks? When did municipalities become insurers of the unknown towards the general public. Not a specific class of individuals; just the general public as a whole. When was Willie Sutton overturned?

Lastly, I haven't a clue what you are talking about in your last full paragraph. Sorry. Security, intentional criminal acts, proximate cause, last clear chance - all in one sentence. Sounds like a law school conundrum one might see on a final exam.

"The law usually looks to the bonded security people..." Now, where did the issue of being bonded arise? The only people who are bonded as I understand business, are those who regularly deal with the transportation of large sums of money or other valuables, e.g., Brinks Dirvers. I have never heard of a bonded security guard. Heck, most of them can't even qualify to obtain a carry permit.

And, why would the "law" look to people who have money available? Can you tell me one piece of legislation that directs the judicial system to focus solely on a party with available funds? Is not, as the principle holds, justice blind where all are equal before the law? Does the legislation enacting comparative negligence bespeak of those with money as opposed to those without? Did the principle of contributory negligence address that point? Am I as a plaintiff's lawyer only permitted to institute suit against monied defendants because of this "law" that you mention? Must I discontinue against a defendant who, in the course of litigation, becomes insolvent?

I would love to go on, because there are a multitude of other questions I'd like to ask you about your writing, but I simply haven't the time. I have a monied defendant waiting to give his all in a deposition this afternoon and I must leave to accomodate him; I've already deposed the penniless saps who have gotten themselves caught up in this imbroglio - and an interesting and perplexing state of affairs it is. But, I shall check back in at a later time or date and look forward to reading your response. Who knows, I might learn something of which I had absolutely no prior knowledge.
10.31.2005 12:36pm
Bob1 (mail):

But in the context of architects charged with building hurricane-proof houses, or security guards charged with protecting people from forseeable criminal attacks, or from the PA charged with taking appropriate precautions from terrorist bombings, the duty is clearly established. Failure to fulfill that duty leads to liability. Duh.

The problem with that is that juries take mere failure as per se negligence. If a bodyguard fails to prevent your kidnapping, are they liable? In most if not all states the standard that is actually applied is one of total perfection. That bodyguard is liable, not because he did something wrong, but because he [i]failed[/i].
10.31.2005 5:05pm
David M. Nieporent (www):
Are you a lawyer? If so, surely you understand the basic elements of negligence. You are responsible for foreseeable risks, and you are not excused from your negligence merely because you can dream up fanciful risks that are not foreseeable.

Yes, I am a lawyer. I'm not a tort lawyer, but I know enough to know that foreseeability is not the same thing as proximate cause, and that you're not responsible for all foreseeable -- or even foreseen -- risks.

Just because some can, or did, dream up a risk does not mean you have a duty to guard against it. And when that risk is an intervening criminal act...
10.31.2005 5:40pm