The September 11, 2001 Terrorist Attack and Litigation Aftermath

By Barry, Desmond T., Jr.; Kwarta, Evan M. | Defense Counsel Journal, April 2019 | Go to article overview

The September 11, 2001 Terrorist Attack and Litigation Aftermath


Barry, Desmond T., Jr., Kwarta, Evan M., Defense Counsel Journal


ON SEPTEMBER 11, 2001, in an unprecedented attack upon the United States, 19 terrorists hijacked four commercial aircraft and purposefully crashed them, causing thousands of deaths and injuries and enormous property damage. Five hijackers seized American Airlines Flight 11, a Boeing 767, which departed from Boston's Logan International Airport bound for Los Angeles, and crashed it into World Trade Center 1 ("WTC 1"), the north tower of the World Trade Center Complex ("WTC Complex") in New York City. Five different hijackers seized United Airlines Flight 175, another Boeing 767, which also departed Logan bound for Los Angeles, and crashed it into World Trade Center 2, the south tower of the WTC Complex. Five more terrorists hijacked American Airlines Flight 77, a Boeing 757, which departed Dulles International Airport bound for Los Angeles, and crashed the aircraft into the Pentagon in Arlington, Virginia. Four terrorists hijacked United Airlines Flight 93, a Boeing 757, which departed Newark International Airport for San Francisco. After the Flight 93 passengers learned of the other hijackings, they attempted to wrest control of the aircraft from the terrorists, and the aircraft ultimately crashed into a vacant field near Shanksville, Pennsylvania.

No passengers or crew members survived the hijackings. The intentional crashes of the aircraft in New York City caused the collapse of WTC 1 and 2, killing thousands more on the ground. A total of 2,977 people were killed as a result of the attack. The collapse of WTC 1 and 2 also caused billions of dollars in property and business interruption damage. The collapse of WTC 1 also caused the collapse of another nearby building, WTC 7.

In the aftermath of the 9/11 terrorist attack, plaintiffs filed wrongful death, personal injury, and property damage and business interruption lawsuits against American, United, their checkpoint security screening companies, 1 non-carriers that had transported terrorist hijackers on another flight on the morning of 9/11, non-carriers who shared check point security responsibility with American and United, municipal airport operators, and The Boeing Company, the aircrafts' manufacturer (collectively "the Aviation Defendants"). Property damage and business interruption plaintiffs included World Trade Center Properties and other companies affiliated with real estate developer Larry Silverstein (the "WTCP Plaintiffs"), who just months prior to 9/11 won a worldwide auction to lease the buildings comprising the WTC Complex for 99 years. Plaintiffs also included insurance companies suing in subrogation for the billions of dollars in property damage and business interruption losses they paid to businesses located in and around the WTC Complex (the "Subrogated Plaintiffs"). The total amount claimed by all plaintiffs exceeded $30 billion, not including prejudgment interest.

The 9/11 Litigation finally concluded in December of 2017. This article examines some of the critical legal issues and decisions that arose during the course of the 9/11 Litigation, including: (1) Congressional response to the 9/11 terrorist attack; (2) the establishment of unique legal principles that governed the 9/11 Litigation; (3) the resolution of WTCP's first-party insurance claims; (4) whether the Aviation Defendants owed a legal duty to ground victims; (5) what evidence would have been admissible if the case had been tried; and (6) the measure of the WTCP plaintiffs' recoverable tort damages. The authors also examine certain 9/11 Litigation defense strategies, and the risks that the named Aviation Defendants and their liability insurers faced in this unprecedented litigation.

I. The Air Transportation Safety and System Stabilization Act

On September 22, 2001, only eleven days after the 9/11 attack, the federal Air Transportation Safety and System Stabilization Act ("ATSSSA") was signed into law. 2 The legislation had two primary purposes: (1) to provide compensation to the individual victims of the 9/11 terrorist attack; and (2) to preserve the financial viability of the U. …

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