Sixty-Eight Percent: Causation Run Amok

Last week a New York jury held that the World Trade Center’s land lord (the NY&NJ Port Authority) was partially responsible (68 percent) for the 1993 bombing by the convicted bomber Ramiza Yousef.  I posted in the past about this particular problem of terror torts and the spread to property owners or other businesses, but once again it seems to be center stage.

The Port Authority in 1985 commissioned a study which said, in part, that the WTC should eliminate public parking for security reasons.  According to news reports of the trial (NY Times 10/28) the Port Authority did a cost benefit analysis and decided to keep public parking open.  Ex post this was a mistake, but the law is not supposed to cure all wrongs —only those wrongs caused by an unreasonable behavior.  The question that should be addressed is at the time the decision was made was it a reasonable decision.  For example, was a terrorist attack a reasonable expectation in the U.S?  Or wouldn’t committed terrorists have just taken some other route? 

A professor of law from NYU likened the case to a land lord who fails to light a dark elevator and that leads to a tenant's assault.  That’s a bit different from the WTC case.  The WTC case would be more like the first time someone is attacked in a building in a good neighborhood with no previous criminal activity.  Foreseeability does not mean that someone could conceive of it, it means that it is likely to happen.  It is not a Monday Morning quarterback approach to the law, but one based on what people knew at the time about the likelihood of a problem.

I don’t normally criticize jury verdicts (because I don’t get to see the same evidence they do and in the same ways they do), but it is strange that the jury could find that the Port Authority was 68 percent responsible for the damaged caused by a criminal act.

If tort law is based on compensation then the true wrong doer should be paying damages.  This is not happening in this case because the true wrong doer is likely judgment proof.  It tort law is based on deterrence, then what will a future land lord do?  Make sure it has no record of determining how safe a particular building is?  This type of action seems to punish the land lords who are more responsible.  This result reminds me of a paper Kip Viscusi did on cost benefit analysis (Corporate Risk Analysis: A Reckless Act?, 52 Stanford Law Review (Feb 2000)).  He did an experiment which showed that potential jurors were harsher on corporations which did cost benefit analysis and that the degree of punishment went up the higher the defendant valued a lost human life.  Thus, more conservative cost/benefit analysis (which would generate higher levels of safety) were punished more.  This seems to be consistent with the Port Authority case. 

Finally, it seems that this case is solely about finding a deep pocket; as reported by the NY Times the trial judge did not permit a discussion of the terrorists motivations or their effectiveness.   This would definitely be important information about foreseeability and causation, but it goes to show that tort law is not about deterrence. Tort law is just about compensating injuries and we no longer care who does the compensation.