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From Products Liability Law Daily, December 5, 2013

World Trade Center builders not liable to insurers and others for 9/11 building collapse

By Michael J. Bartholomew, J.D., LL.M.

The alleged negligent design of the World Trade Center building was not the cause-in-fact of its collapse on 9-11, the U.S. Court of Appeals for the Second Circuit decided, holding that the building’s owners, builders, and designers were not liable to Consolidated Edison Co. of New York, Inc. or its insurers for damages caused by the collapse (Aegis Insurance Services, Inc. v. 7 World Trade Company, L.P., December 4, 2013, Pooler, R.).

Background. The 7 World Trade Center Building (7WTC), part of the World Trade Center site, collapsed on September 11, 2001. Its collapse was caused by flaming debris sent into it by the explosion of the One World Trade Center Tower. That fiery debris crashed into 7WTC, gouging chunks out of the building and causing fires on multiple floors. After determining that all the people inside 7WTC had been evacuated, and seeking to avoid the death of more firefighters, as well as coping with the lack of a water supply, the New York City Fire Department decided to establish a collapse zone and walk away, rather than fight the fire. After burning for seven hours, 7WTC collapsed, destroying the electrical substation owned by Con Ed directly underneath the building.

Consolidated Edison Co. of New York, Inc. (Con Ed), along with its fire and casualty insurers, sued the owners, designers, and builders of 7WTC, alleging that their negligence caused the building to collapse. The lower court disposed of the claims against 7WTC in two separate decisions. The first, written in January 2006, granted a motion to dismiss sought by a number of the parties involved in the construction of 7WTC, including Tishman Construction Corporation and the Office of Irwin G. Cantor, P.C. In the second decision, issued in September 2011, the court granted judgment to 7 World Trade Company, L.P. Both of these decisions were appealed by ConEd and its insurers.

Negligent design. The court ruled that the record before it failed to present evidence sufficient to raise a genuine issue of fact as to whether negligence by the builders, owners, and designers was the cause-in-fact of Con Ed’s injury. The court therefore affirmed the dismissal of the claims against the defendants on this alternate ground.

Con Ed’s primary argument was that an unfought fire would not have caused 7WTC to collapse had the building been properly designed and constructed. The court saw this position as flawed, as Con Ed’s focus on the fires that destroyed 7WTC ignored all of the other events occurring at the same time, and thus failed to relate those events surrounding the collapse of 7WTC or to link the unique nature of those events with the negligence they alleged was the cause of the building’s collapse. The court theorized that under Con Ed’s approach to liability, those who designed and constructed the building would presumably be liable regardless of any other significant intervening events.

Although Con Ed proffered expert reports opining on how various design features of 7WTC could have been modified to withstand collapse, the court found them to be too speculative to avoid judgment against it. It also observed that none of the expert reports addressed the interaction between the identified building weaknesses and the severity of the cataclysm that happened on September 11, 2001. This failure to connect the alleged negligence to the events of that day rendered the expert reports too speculative and conjectural to create any issues of fact, the court concluded.

Therefore, the court concluded that the interplay of these events demonstrated clearly that 7WTC would have collapsed regardless of any negligence ascribed by experts to the design and construction of 7WTC. The court believed that it would be a lack of common sense and experience to hold that the building’s owners, builders and designers were required to design and construct a building that would survive the events of September 11, 2001.

The lower court’s decisions were affirmed on the ground that even assuming negligence on the part of the 7WTC owners, builders, and designers, any such negligence was not the cause-in-fact of the collapse of 7WTC.

The case number is 11-4403-cv.

Attorneys: Franklin Michael Sachs (Greenbaum, Rowe, Smith & Davis LLP) for Aegis Ins. Services, Inc., Liberty Ins. Underwriters, Inc., National Union Ins. Co. of Pittsburgh, Nuclear Electric Ins. Ltd. and Consolidated Edison Co. of New York, Inc. Katherine Lindsey Pringle (Friedman Kaplan Seiler & Adelman LLP) for 7 World Trade Co., LP and Silverstein Properties, Inc. Beth D. Jacob (Kelley Drye & Warren, LLP) for Swanke Hayden Connell Architects, Ambassador Construction Co., Inc. and Cosentini Associates Inc.

Companies: Aegis Ins. Services, Inc.; Liberty Ins. Underwriters, Inc.; National Union Ins. Co. of Pittsburgh; Nuclear Electric Ins. Ltd.; Consolidated Edison Co. of New York, Inc.; 7 World Trade Co., LP; Silverstein Properties, Inc.; Swanke Hayden Connell Archetects; Ambassador Construction Co., Inc.; Cosentini Associates Inc.

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