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Title: Why the towers fell: Two theories [by a civil engineer]
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URL Source: http://www.vermontguardian.com/commentary/032007/TwinTowers.shtml
Published: Mar 1, 2007
Author: William Rice
Post Date: 2007-04-17 16:30:39 by honway
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Views: 13853
Comments: 196
Why the towers fell: Two theories By William Rice William Rice, P.E., is a registered professional civil engineer who worked on structural steel (and concrete) buildings in Boston, New York, and Philadelphia. He was also a professor at Vermont Technical College where he taught engineering materials, structures lab, and other building related courses, Posted March 1, 2007 Having worked on structural steel buildings as a civil engineer in the era when the Twin Towers were designed and constructed, I found some disturbing discrepancies and omissions concerning their collapse on 9/11. I was particularly interested in the two PBS documentaries that explained the prevailing theories as determined by two government agencies, FEMA and NIST (National Institute of Science and Technology). The first (2002) PBS documentary, Why the Towers Fell, discussed how the floor truss connectors failed and caused a “progressive pancake collapse.” The subsequent 2006 repackaged documentary Building on Ground Zero explained that the connectors held, but that the columns failed, which is also unlikely. Without mentioning the word “concrete,” the latter documentary compared the three-second collapse of the concrete Oklahoma City Murrah Federal Building with that of the Twin Towers that were of structural steel. The collapse of a concrete-framed building cannot be compared with that of a structural steel-framed building. Since neither documentary addressed many of the pertinent facts, I took the time to review available material, combine it with scientific and historic facts, and submit the following two theories for consideration. The prevailing theory The prevailing theory for the collapse of the 110-story, award-winning Twin Towers is that when jetliners flew into the 95th and 80th floors of the North and South Towers respectively, they severed several of each building’s columns and weakened other columns with the burning of jet fuel/kerosene (and office combustibles). However, unlike concrete buildings, structural steel buildings redistribute the stress when several columns are removed and the undamaged structural framework acts as a truss network to bridge over the missing columns. After the 1993 car bomb explosion destroyed columns in the North Tower, John Skilling, the head structural engineer for the Twin Towers, was asked about an airplane strike. He explained that the Twin Towers were originally designed to withstand the impact of a Boeing 707 (similar in size to the Boeing 767). He went on to say that there would be a horrendous fire from the jet fuel, but “the building structure would still be there.” The 10,000 gallons of jet fuel (half capacity) in each jetliner did cause horrendous fires over several floors, but it would not cause the steel members to melt or even lose sufficient strength to cause a collapse. This is because the short-duration jet fuel fires and office combustible fires cannot create (or transmit to the steel) temperatures hot enough. If a structural steel building could collapse because of fire, it would do so slowly as the various steel members gradually relinquished their structural strength. However, in the 100-year history of structural-steel framed buildings, there is no evidence of any structural steel framed building having collapsed because of fire. Let’s assume the unlikelihood that these fires could weaken all of the columns to the same degree of heat intensity and thus remove their structural strength equally over the entire floor, or floors, in order to cause the top 30-floor building segment (South Tower WTC #2) to drop vertically and evenly onto the supporting 79th floor. The 30 floors from above would then combine with the 79th floor and fall onto the next level down (78th floor) crushing its columns evenly and so on down into the seven levels below the street level. The interesting fact is that each of these 110-story Twin Towers fell upon itself in about ten seconds at nearly free-fall speed. This violates Newton’s Law of Conservation of Momentum that would require that as the stationary inertia of each floor is overcome by being hit, the mass (weight) increases and the free-fall speed decreases. Even if Newton’s Law is ignored, the prevailing theory would have us believe that each of the Twin Towers inexplicably collapsed upon itself crushing all 287 massive columns on each floor while maintaining a free-fall speed as if the 100,000, or more, tons of supporting structural-steel framework underneath didn’t exist. The politically unthinkable theory Controlled demolition is so politically unthinkable that the media not only demeans the messenger but also ridicules and “debunks” the message rather than provide investigative reporting. Curiously, it took 441 days for the president’s 9/11 Commission to start an “investigation” into a tragedy where more than 2,500 WTC lives were taken. The Commission’s investigation also didn’t include the possibility of controlled-demolition, nor did it include an investigation into the “unusual and unprecedented” manner in which WTC Building #7 collapsed. The media has basically kept the collapse of WTC Building #7 hidden from public view. However, instead of the Twin Towers, let’s consider this building now. Building #7 was a 47-story structural steel World Trade Center Building that also collapsed onto itself at free-fall speed on 9/11. This structural steel building was not hit by a jetliner, and collapsed seven hours after the Twin Towers collapsed and five hours after the firemen had been ordered to vacate the building and a collapse safety zone had been cordoned off. Both of the landmark buildings on either side received relatively little structural damage and both continue in use today. Contrary to the sudden collapse of the Twin Towers and Building #7, the four other smaller World Trade Center buildings #3, #4, #5, and #6, which were severely damaged and engulfed in flames on 9/11, still remained standing. There were no reports of multiple explosions. The buildings had no pools of molten metal (a byproduct of explosives) at the base of their elevator shafts. They created no huge caustic concrete/cement and asbestos dust clouds (only explosives will pulverize concrete into a fine dust cloud), and they propelled no heavy steel beams horizontally for three hundred feet or more. The collapse of WTC building #7, which housed the offices of the CIA, the Secret Service, and the Department of Defense, among others, was omitted from the government’s 9/11 Commission Report, and its collapse has yet to be investigated. Perhaps it is time for these and other unanswered questions surrounding 9/11 to be thoroughly investigated. Let’s start by contacting our congressional delegation. William Rice, P.E., is a registered professional civil engineer who worked on structural steel (and concrete) buildings in Boston, New York, and Philadelphia. He was also a professor at Vermont Technical College where he taught engineering materials, structures lab, and other building related courses.
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#98. To: Itisa1mosttoolate, Christine, Jethro Tull, Honway, Robin, Aristeides, Red Jones, Diana, Kamala, All (#97)
An interesting link; if one could discern the historical facts. If Mengele had been an Iluminatist, he'd have been among the camp inmates. The Illuminati didn't survive - 1785, was it?
"You can not save the Constitution by destroying it."
A tremendous number of articles "allude" to the Illuminati. No one that I've discovered has documented the survival of the group. Admittedly, many groups (Including the Skull & Bones) have emulated what the Illuminati is supposed to have represented. When I see such references, I lose respect for the authorship - instantly. There may be a lot of important fact in such articles; I don't have the time & patience to sort the facts from the illusions. If you can forgive my prejudices, check out my book at - http://www.p hoenixmasonry.org/enigma_of_freemasonry/text.htm I cover the Illuminati, in there.
[BAC] And Robertson is VERY CLEAR about his work having related to a plane lost in fog flying at 180 mph ... not 600 mph on a clear day. When the material was first released to the press it was very clear that Robertson's analysis involved a Boeing 707 traveling at 600 mph. The newspaper article based on Robertson's purported work and Skilling's white paper based on Robertson's purported work have the same, precise content. The goal was to counter the argument made by the owner of the Empire State Building that the WTC design was unsafe with regard to being hit by a jetliner. Assuring the public that the building could withstand a hit by The Spirit of St. Louis at 180 mph would have been worse than useless. [BAC] It's been 40 years. Do you keep everything you've ever written, Nolu? Really? Had I done an analysis 40 years ago proving that the WTC, the most important project of my lifetime, could withstand a hit by a Boeing 707 traveling at 600 mph, and "that such collision would result in only local damage which could not cause collapse or substantial damage to the building and would not endanger the lives and safety of occupants not in the immediate area of impact," if I could not find the paperwork today, I would be able to replicate the analysis and prove the point again. The towers withstood the impact just as Titanic withstood the impact with the iceberg. Aye cap'n, it wasn't the iceberg got 'er, it was the water! It's been 40 years. Do you believe that Robertson not only lost the report but has forgotten how to do the analysis?
More like common sense. You should use it more often, instead of relying on others to think for you.
God is always good! That is false, NC. The only evidence to support the contention that a 600 mph case was examined is a single paragraph in a White Paper that does not mention Robertson's name. But Robertson states with complete certainty on his part that his analysis was for 180 mph in fog ... and he gives a quite logical reason why that number was chosen. An impact in fog is possible, a impact on a clear day is highly unlikely. A plane will not be flying at full speed in fog. For that matter, commercial jets don't normally fly at 600mph in clear weather AT LOW ALTITUDE. Any way you look at it, the REASONABLE thing to do was look at a low speed impact. For that reason, I believe Robertson ... and not Skilling or an unidentified architect at the Port Authority (who both were playing politics and might have exaggerated what was done because they were trying to quiet public concern). Yeah ... sure you would, NC. And you didn't answer my question. ROTFLOL!
--------------------------------------------------------- Aren't you lucky. You get to receive one of the 15 posts I'm allowed each day.
You are once again "forgetting" the article in the New York Times. The Skilling White Paper and the New York Times article sourced to a WTC architect provide the same precise information, that Robertson assured that the towers could withstand the impact of a jetliner moving at 600 miles an hour. Robertson name was used, and he was identified as the source of the analysis.
I didn't forget that article. I specifically said I don't believe the claim of the unnamed Port Authority architect that is mentioned by the NYT. You don't happen to have the name of the Port Authority architect, do you? No? Well perhaps you can tell everyone how often a commercial jet flies at 600 mph a thousand or so feet above the earth's surface? Afterall, you are the one saying that Robertson would rationally have used that instead of a low speed plane as the case of concern. So do commercial jets fly at 600 mph at a 1000 feet altitude ANYTIME they are flying (and remember, this was PRIOR to concerns about terrorists using hijacked planes as WMD) over cities ANYWHERE? Hmmmmmmm????
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For such a project it is mandatory BAC. If you knew much about the legal requirements of such projects you would know this. BAC, WTC7 says the government did it and that you are their whore. I hope the 30 pieces of silver were worth it for you.
God is always good! Give up, you have been shown to be a liar so many times you really have no credibility left. Such is a whore's life.
God is always good! That is so much bull crap it is oozing from your sides BAC. Guess you never heard of the Kamikazes in WW2. LOL! You are lame BAC, very lame.
God is always good! It's probably a good idea to keep such documents, but I challenge you to prove there is any legal requirement that calculations in the design phase of a skyscraper must be kept at all or kept indefinitely. And have you ever heard of a "statute of repose"? It's the number of years after a project is completed after which the designers and contractors cannot be held responsible for damages or problems that may subsequently occur. THAT is the period during which engineering firms PROBABLY SHOULD (again, show me where it says MUST) keep all records if they are smart. Now for New York the statute of limitations/repose on product liability is 3 years, however, personal injury cases currently have an indefinite liability in that for three years after an injury the building builder/owners can be sued. However, that has been successfully contested in court cases recently and architects in New York are currently trying to get a maximum 10 year repose statute passed for personal liability cases. So yes, it would be smart if builders under the current NY laws kept important design documents for a long time ... perhaps indefinitely ... but I know of no laws that state it is mandatory. Go ahead, Ricky ... prove me wrong.
--------------------------------------------------------- Aren't you lucky. You get to receive one of the 15 posts I'm allowed each day.
That could be one reason why the engineers and architects are lying about whether or not they designed the towers to withstand plane crashes and resulting fires. If they admit they did, and the official fairy tale says that plane crashes and resulting fires caused the collapse, they may be vulnerable to law suits.
#99. To: SKYDRIFTER (#98)
#100. To: Itisa1mosttoolate, Christine, Jethro Tull, Honway, Robin, Aristeides, Red Jones, Diana, Kamala, All (#99)
#101. To: BeAChooser (#87)
#102. To: BeAChooser (#90)
Paranoia runs deep. Into your heart it will creep.
"It was an interesting day." - President Bush, recalling 9/11 [White House, 1/5/02]
#103. To: nolu_chan, ALL (#101)
[BAC] And Robertson is VERY CLEAR about his work having related to a plane lost in fog flying at 180 mph ... not 600 mph on a clear day.
When the material was first released to the press it was very clear that Robertson's analysis involved a Boeing 707 traveling at 600 mph.
" [BAC] It's been 40 years. Do you keep everything you've ever written, Nolu? Really?"
Had I done an analysis 40 years ago proving that the WTC, the most important project of my lifetime, could withstand a hit by a Boeing 707 traveling at 600 mph, and "that such collision would result in only local damage which could not cause collapse or substantial damage to the building and would not endanger the lives and safety of occupants not in the immediate area of impact," if I could not find the paperwork today, I would be able to replicate the analysis and prove the point again.
#104. To: BeAChooser (#103)
That is false, NC. The only evidence to support the contention that a 600 mph case was examined is a single paragraph in a White Paper that does not mention Robertson's name.
One architect working for the Port Authority issued a statement to the press, covered in a prominent article in The Times, explaining that Robertson's study proved that the towers could withstand the impact of a jetliner moving at 600 miles an hour. ... If Robertson saw the article in the paper, he never spoke up about the discrepancy. No one else issued a correction, and the question was answered in many people's minds: the towers were as safe as could be expected, even in the most cataclysmic of circumstances.
#105. To: nolu_chan, ALL (#104)
You are once again "forgetting" the article in the New York Times.
#106. To: BeAChooser (#87)
It's been 40 years. Do you keep everything you've ever written, Nolu? Really?
"It was an interesting day." - President Bush, recalling 9/11 [White House, 1/5/02]
#107. To: BeAChooser (#103)
The only evidence to support the contention that a 600 mph case was examined is a single paragraph in a White Paper that does not mention Robertson's name.
One architect working for the Port Authority issued a statement to the press, covered in a prominent article in The Times, explaining that Robertson's study proved that the towers could withstand the impact of a jetliner moving at 600 miles an hour.
"It was an interesting day." - President Bush, recalling 9/11 [White House, 1/5/02]
#108. To: BeAChooser (#105)
and remember, this was PRIOR to concerns about terrorists using hijacked planes as WMD
"It was an interesting day." - President Bush, recalling 9/11 [White House, 1/5/02]
#109. To: RickyJ, ALL (#106)
"It's been 40 years. Do you keep everything you've ever written, Nolu? Really?"
For such a project it is mandatory BAC.
#110. To: BeAChooser (#109)
However, that has been successfully contested in court cases recently and architects in New York are currently trying to get a maximum 10 year repose statute passed for personal liability cases.
A new truth movement friendly digg type site: Zlonk it!
#111. To: BeAChooser (#105)
I specifically said I don't believe the claim of the unnamed Port Authority architect that is mentioned by the NYT. I am impressed. BAC does not believe the claim of the Port authority architect cited as a source for the NYT article, which just happens to be corroborated by the White Paper of Project Manager Robertson's boss, Chief Engineer John Skilling. However, BAC believes that Robertson did a study and the dog ate it. So do commercial jets fly at 600 mph at a 1000 feet altitude ANYTIME they are flying So do commercial jets fly at any speed at 1000 feet over Manhattan? Or possibly into Manhattan. Hmmmmmmm???? After all, you are the one claiming that Robertson did not consider a jetliner's cruising speed, but that he was considering a jetliner at slow speed coming in for a landing so he can go take a physical at 90 Church Street or something. That's where you got your physical, right? 90 Church Street?
#112. To: BeAChooser, RickyJ (#109)
You do not seriously purport that there is a product liability issue, do you?
Now for New York the statute of limitations/repose on product liability is 3 years, however, personal injury cases currently have an indefinite liability in that for three years after an injury the building builder/owners can be sued. However, that has been successfully contested in court cases recently and architects in New York are currently trying to get a maximum 10 year repose statute passed for personal liability cases.
#113. To: nolu_chan, RickyJ (#112)
Do you suppose that architect might have
gotten his information from Skilling's White Paper? And you still don't have
the name of this architect, do you? Actually,
I don't care whether Robertson did a study or not, NC. It is the *truth*
movement that wants there to have been a study ... one proving the towers were
designed to survive plane crashes. It doesn't matter to me whether there were
or weren't because the fact is the towers did survive a high speed impact by
big commercial jets. But at least it appears you've now dispensed with the
claim they were "designed" rather than just analyzed after the fact. And that
they were designed to survive the fires from a plane crash. Or do you wish to
contest that further? ROTFLOL! Not
ordinarily. But if you put aside terrorism, I can't think of any reason a
commercial jet would be flying at 600 mph 1000 feet above Manhattan. But the
notion of being lost in fog (given that such a thing has happened there
before) isn't all that irrational.
Strawman. Robertson said he assumed the plane was LOST IN FOG, just like the
other plane that had hit a skyscraper in NYC before the WTC was designed.
You are claiming the building was
designed for plane impact and fire so it shouldn't have collapsed. If it was,
then yes, this would be a product liability issue. If it wasn't, then this is
a case of fraud ... and the statute of limitation in that case is 7 years or
so. Now NY is special in that it allows for an indefinite time to the injury
before starting the clock in personal injury cases. Of course lately, courts
have ruled against that indefinite period in several cases and bills are
pending to set the time of repose to 10 years. Either way, you and Ricky still
haven't proven that by law builders MUST keep records for ANY length of time.
That is what was claimed. Care to try now or do you wish to continue focusing
on the irrelevant and strawmen?
BAC does not believe the claim of the Port authority architect
cited as a source for the NYT article, which just happens to be corroborated
by the White Paper of Project Manager Robertson's boss, Chief Engineer John
Skilling.
However, BAC believes
that Robertson did a study and the dog ate it.
"So do commercial jets fly
at 600 mph at a 1000 feet altitude ANYTIME they are flying"
So do commercial jets fly at any speed at 1000 feet over
Manhattan? Or possibly into Manhattan. Hmmmmmmm????
After all, you are the
one claiming that Robertson did not consider a jetliner's cruising speed, but
that he was considering a jetliner at slow speed coming in for a landing so he
can go take a physical at 90 Church Street or something.
You do not seriously purport that there is a product liability
issue, do you?
---------------------------------------------------------
Aren't you lucky. You get to receive one of the 15 posts I'm allowed each day.
#114. To: BeAChooser, RickyJ (#113)
Do you suppose that architect might have gotten his information from Skilling's White Paper? No. It is impossible to read Skilling's White Paper and determine that the study was done by Robertson. But at least it appears you've now dispensed with the claim they were "designed" rather than just analyzed after the fact. And that they were designed to survive the fires from a plane crash. Or do you wish to contest that further? ROTFLOL! Before the building was built, the PANYNJ and the public were assured in 1964 that "The buildings have been investigated and found to be safe in an assumed collision with a large jet airliner (Boeing 707 - DC 8) travelling at 600 miles per hour. Analysis indicates that such collision would result in only local damage which could not cause collapse or substantial damage to the building and would not endanger the lives and safety of occupants not in the immediate area of impact." 1964 is before the buildings were built. The area had not yet been cleared of existing buildings. He could only be talking about the future buildings, as designed. You are claiming the building was designed for plane impact and fire so it shouldn't have collapsed. If it was, then yes, this would be a product liability issue. If it wasn't, then this is a case of fraud ... and the statute of limitation in that case is 7 years or so. Counselor, you do not know what you are talking about. All cases brought in court will use a theory of NEGLIGENCE.
#115. To: nolu_chan, RickyJ (#114)
That doesn't say they were DESIGNED for an airplane
impact. Only that an analysis (rudimentary as it would have had to have been
in 1964, given the tools they had to work with back then) showed the towers
would survive an impact. I'm not disputing that. And it doesn't say anything
about the towers surviving the fires that would result. Indeed, the sources
you've quoted on this thread indicates they thought that the fires were THE
PROBLEM. But not before they were designed. There is a difference
between design and analysis, as I've already pointed out. A design includes
safety factors. A analysis just looks at what will likely happen.
I suggest it is you who doesn't know what you are talking about. I suggest you
look up the term "statue of repose". And I notice neither you or Ricky have
yet offered any proof that calculations MUST be retained as was claimed. tick
tick tick ....
BeAChooser - But at least it appears you've now dispensed with
the claim they were "designed" rather than just analyzed after the fact. And
that they were designed to survive the fires from a plane crash. Or do you
wish to contest that further? ROTFLOL!
Before the building was built, the PANYNJ and the public were assured
1964 is before the buildings were built.
Counselor, you do not know what you are talking about. All
cases brought in court will use a theory of NEGLIGENCE.
---------------------------------------------------------
Aren't you lucky. You get to receive one of the 15 posts I'm allowed each day.
#116. To: BeAChooser, nolu_chan, RickyJ, christine, THE SKYDRIFTER, all fans of hyperbolic silliness everywhere! (#115)
ROTFLOL! We return to the scene of yesterday's epic battle. And from the ashes of defeat we hear the dreaded battle cry! ROTFLOL! Can it be possible? Could the horrifying monstrous supervillain have survived the assault of our heroes? Out of the ashes it comes, oozing the slime of misrepresentation, distraction and general reichwing untruth! The strangely hermaphroditic creature howls it's defiance into the wind, challenging THE SKYDRIFTER and nolu_chan and his trusty sidekick little RickyJ to battle! "ROTFLOL!" It screams into the wind. "ROTFLOL! ROTFLOL!" And the epic battle commences all over again!
To: nolu_chan, RickyJ, ALL
Paranoia is a survival trait in a Decidership.
#117. To: BeAChooser (#115)
I think you mean "statute of repose," beachy. Spellcheck ain't gonna help you with your vocabulary.
I suggest you look up the term "statue of repose".
Paranoia is a survival trait in a Decidership.
#118. To: bluedogtxn (#116)
hehehehehe
#119. To: christine (#118)
During another demonstration in front of the new Building 7, police confiscate the group's camera and literally accuse them of being "terrorists."
A bunch fat Bo Dietl types...
“Yes, but is this good for Jews?"
#120. To: christine (#118)
I think you mean .... ROTFLOL!
hehehehehe
Paranoia is a survival trait in a Decidership.
#121. To: Eoghan (#119)
scumbags--calling the protestors terrorists? that p's me off.
#122. To: Eoghan (#119) (Edited)
The irony of Nazis taking over our law enforcement based upon a phony attack orchestrated mainly by Zionists.
#123. To: Eoghan, christine (#119)
Alex talked to Luke Rudkowski earlier today. The group http://www.wearechange.com is out of New York and Luke Rudkowski had another confrontation, this time with zbigniew brezinsky. Human-Deficient Brzezinski Exposed for 9/11 Culpability Security Attempts to Seize Activist's Video Tape and Intimidate Free Speech During Oration by 'Grand' Architect and Trilateral Player Serving Agenda of Would-Be Global Landlords http://www .jonesreport.com/articles/250407_brzezinski_911.html These globalist goons and their minions make me sick.
It was a narrow escape. If the sheep had been created first, man would have been a plagiarism. -- Mark Twain No group of professionals meets except to conspire against the public at large. -- Mark Twain 
#124. To: christine (#121)
The pole smoking faggot saying "Guess who's going to jail? Guess who's going to jail?" needs that written on a night stick and shoved up his pooper...
A new truth movement friendly digg type site: Zlonk it!
#125. To: Critter (#124)
I kept wanting our guy to say "sir, are you a licensed law enforcement officer or private investigator in the state of New York and if so, would you please show me your badge and license so I can file a complaint with the State about your conduct?" As I watched that, I concluded that in the future, guys like this need to have multiple cameras shooting the scene, some from a distance. It was clear to me that the rental cops wanted the cameras turned off so they could take actions against our guys without it being recorded.
#126. To: Paul Revere (#125)
Yep, every time I'm at the gas pump...'thank g-d for jews'...
attack orchestrated mainly by Zionists.
“Yes, but is this good for Jews?"
#127. To: Paul Revere (#125)
Yeah, our guys were somewhat intimidated. I would have been busy taking names and telling them all about how I'm going to enjoy suing them for conspiring to violate my rights. Yup, multiple cameras are in order.
A new truth movement friendly digg type site: Zlonk it!
#128. To: bluedogtxn, BeAChooser (#117)
[BAC-side #115] I suggest it is you who doesn't know what you are talking about. I suggest you look up the term "statue of repose". I suggest you look up the term "statue of repose". [bluedogtxn #117] I think you mean "statute of repose," beachy. No, beachy hasn't got a clue and has no idea what the hell he means. It appears that he should not be allowed to play with long words or legal terms of art. B. Possible Plaintiffs While the response to an inquiry about possible plaintiffs in personal injury actions occasioned by the September 11 attacks may seem fairly straightforward, recent developments are cause for alarm among insurers and New York City. Possible claims for toxic tort injuries have been noted recently in the media and among legal professionals. [34] In that regard, there is great uncertainty about possible adverse health effects from toxic agents released into the air following collapse of the buildings. The victims’ compensation fund does not entertain the possibility that large numbers of rescue workers, clean-up crews, construction workers and New York City residents may have been exposed to toxic chemicals that would increase their chances of contracting diseases such as cancer or suffering long term neurological defects. Researchers have identified asbestos, lead, fiberglass, PCBs, mercury and other potentially harmful substances in the air and dust that surround the disaster site. Thus, the list of potential defendants may grow commensurately with the list of harmful substances. The St. Louis Post-Dispatch reported that one study found dust in the neighborhood as caustic as drain cleaner. [35] However, reports about the extent of contamination vary drastically. The Environmental Protection Agency has been monitoring the downtown area for asbestos, particulates and other contaminants typically found in large building fire and collapse situations since September 11. It has detected no pollutants from the fire and building collapses that are cause for concern to the general public. Within one block of the World Trade Center, the EPA is finding low levels of asbestos in the dust from the building collapse. [36] There have been approximately 1,300 notices of claim served on New York City by firefighters and other rescue workers who claim that breathing the air at the disaster site has made them sick. [37] With the high concentration of persons living and working in the downtown New York City area, the potential for toxic tort claimants could be staggering. There has been insufficient research to determine whether or to what extent people were exposed to toxic chemicals in the hours, days and months following the attack. Further scientific research should provide a clearer picture of potential toxic tort claims. IV. Theories of Recovery and Applicable Legal Standards Pursuant to the ATSSA, the law to be applied in suits arising from September 11th events will derive from state law (including choice of law principles), where the crash occurred. Thus, suits arising out of the World Trade Center attack will be governed by New York law. Negligence will likely predominate theories of action for civil suits brought against the above-mentioned parties. To sustain an action for negligence, the plaintiff must demonstrate: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) that the breach of duty proximately caused the plaintiff’s injuries, and (4) damages. The most critical elements applicable to any suit emanating from the September 11th attacks are duty and proximate causation. Generally, the law of negligence in New York is similar to the law of other jurisdictions. Thus, to the extent that the law of other states, such as Pennsylvania, is applied in lawsuits arising from the September 11th attacks, the foregoing legal principles will be generally applied. (Author’s Bio) Mr. Thurm, who is counsel to the firm of Molod, Spitz, DeSantis & Stark, P.C. in New York City, has been associated with the insurance industry as a practicing lawyer defending companies and their insureds for over 40 years. He is a graduate of Brooklyn Law School (1958) and is admitted to practice in New York (1959) and Florida (1975). He is also admitted to practice before the Supreme Court of the United States, the United States Circuit Court of Appeals for the Second Circuit and all four federal district courts in the State of New York. He has actively litigated a broad spectrum of insurance-related matters including: primary and excess policies; direct and reinsurance contracts and coverage issues dealing with allocation of loss; late notice of claim and suit; and the assault and battery exclusion. He has defended dozens of municipal entities in all types of civil rights cases including land use, excessive force and employment discrimination. He has been a member of the Federation of Defense & Corporate Counsel since 1984 and is the immediate past Chair of its Excess and Surplus Line Section. He is an associate member of the Excess and Surplus Line Claims Association and NAPSLO. He also holds membership in the Defense Research Institute, the New York State Bar Association, the American Bar Association and the International Association of Chiefs of Police (Legal Offices Section). He is a frequent speaker and contributor of articles on insurance-related matters. After a specified period of time following construction, the statute of repose will cut off a cause of action against an architect or engineer for product liability. THAT is WHY the actions regarding the WTC will not be brought against the architect or engineer for product liability. I suggest that beachy read about the statute of repose and learn why his purported cause of action is impossible. While the statute of repose tolls against an action for product liability against the architect or engineer, it does not prevent an action for negligence or violation of state statute. The New York statute of limitations for personal injury is 3 years, and for wrongful death it is 2 years from the date of death. This 2004 ruling http://caselaw.lp.findlaw.com/data2/circs/2nd/037698p.pdf describes a case brought by multiple plaintiffs against THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY and THE CITY OF NEW YORK, and WORLD TRADE CENTER PROPERTIES LLC, sued as SILVERSTEIN PROPERTIES. Product liability. ... However, the term "products liability" normally contemplates injury or damage caused by a defective product, and if loss occurs as a result of a condition on the premises, or as a result of a service, as distinguished from loss occasioned by a defective product, a products liability claim does not ordinarily arise, even though a product may be involved. For statutory time limits in bringing products liability actions, see Statute (Statute of repose). Black's Law Dictionary, 6th Edition Unless the Statute of Repose extends back to the construction of the building, beachy will have a very difficult time getting a court to accept his products liability argument. His argument may be stale by about 30 years. National Society of Professional Engineers Model Architect and Engineer Liability Laws Statute of Repose Summary Architects and engineers face a substantial degree of liability exposure for property damage, economic damages, bodily injury, and wrongful death resulting from their alleged negligence in the design of improvements to real property that have long since been completed and for which the architect or engineer should not be held responsible due to reasons outside their realm of control. Once insulated from liability exposure by the concept of "privity" (derivative rights and responsibilities based on contract), a 1957 decision by a New York appeals court, Inman v. Binghampton Housing Authority (3 N.Y. 2d 137, 143 N.E. 2d 895), stripped architects and engineers of this protection. In Inman, the court found an architect and engineer liable to parties to which they were not in privity. As a consequence of Inman, suits against architects and engineers proliferated. Architects and engineers found themselves owing a duty of care to a variety of parties to whom no duty had been previously owed, nor ever contemplated. Eventually, the state legislatures responded to this perilous situation by adopting laws known as statutes of repose. Statutes of repose bar actions against architects and engineers after a certain period of time following the completion of services or the substantial completion of construction. Statutes of repose do not totally absolve the architect and engineer of any liability, but merely prevent them from having to defend an action brought many years after they have completed the project. The statutes are based on the general legal principle that a potential defendant in a lawsuit should not be required to defend him/herself against "stale" claims that could easily be based upon faded memories, lost evidence, or witnesses who have since disappeared. "Stale" claims are a particular possibility in the construction industry where the real property for which services have been provided may last several decades and over which the designer has no effective control. Statutes of repose differ from statutes of limitations in terms of the point of time from which the limitation is measured. Statutes of limitation begin at the date of injury or discovery of the deficiency. Since the discovery of an injury or a deficiency could occur at any time, the exposure to a claim could theoretically run indefinitely. Statutes of repose, on the other hand, begin at a period of time following the completion of services or the substantial completion of construction. These statutes, therefore, limit the total period of time during which the architect or engineer is exposed to liability, and thus statutes of repose are preferable to, but not in lieu of, statutes of limitation. 1. Except as otherwise provided in Section 2, no action to recover damages for injury to a person or for wrongful death or for damage to property, nor any statute for contribution or indemnity for damages sustained on account of such injury or wrongful death or damage to property arising from any defect, error or omission in the structure or improvement resulting from the design, planning, supervision or observation of construction, or construction of an improvement to real property shall be brought against a registered architect or professional engineer more than seven years after the substantial completion of such improvement. 2. If by reason of such defect, an injury to the person or an injury causing wrongful death or an injury to property occurs during the seventh year after substantial completion, an action to recover damages for such injury or wrongful death or damage to property may be brought within one year after the date on which such injury occurred, but in no event may such action be brought more than eight years after the substantial completion of the improvement. 3. The limitations prescribed by this section shall not be asserted by way of defense by any owner, tenant, or other person in actual possession or control of such an improvement where the improvement constitutes the proximate cause of the injury or death. 4. For purposes of this section an improvement shall be deemed to be "substantially completed" when the construction is sufficiently complete so that an improvement may be utilized by its owners or lawful possessor for the purposes intended. In the case of a phased project with more than one substantial completion date, the seven-year period of limitations for actions involving systems designed to serve the entire project shall begin at the substantial completion of the earliest phase. Liability and Other Issues Arising Out Of the World Trade Center Tragedy † Milton Thurm I. Introduction The World Trade Center tragedy of September 11, 2001 has already spawned a number of lawsuits between the owners and operators of the World Trade Center and their various insurers. In the main, this litigation deals with insurance coverage issues; the most prominent among them is the number of occurrences involved in the incident. Other issues pending in related litigation concern arbitration clauses that exist in various policies, the extent of property damage coverage on the mall within the World Trade Center, and a host of business interruption issues. While this litigation is mammoth in proportion and involves hundreds of millions of dollars, it is probably just the tip of the proverbial iceberg in the continuum of insurance-related claims that the industry will face down the road. What has yet to surface are the thousands of claims for bodily injury brought by those who survived the horror of that day and the claims for conscious pain and suffering and wrongful death brought by the immediate kin of those who did not. This article seeks to examine some of these potential claims, thereby alerting the industry to what lies ahead. In this regard, federal legislation and prior litigation surrounding other terrorist attacks or disasters may provide the best outcome indicators. II. Federal Statutes Enacted in the Wake of September 11 Immediately following the attacks on the World Trade Center, the federal government enacted the Airline Transportation Safety and System Stabilization Act (“ATSSA”) on September 22, 2001. [1] The ATSSA provides $15 billion in subsidies to ensure the solvency of the airlines. It has been described by one scholar as “one of the largest tort reforms ever imposed by the federal government.” [2] The legislation affects litigation emanating from the terrorist attacks on the World Trade Center in two ways. First, it limits the total liability of air carriers (the airlines) for claims arising out of the September 11 airline crashes and fixes the jurisdiction and applicable substantive law for litigation arising out of these attacks. [3] Second, it establishes a victims’ compensation fund which provides an alternative process by which any injured individual or the survivors of a deceased victim can seek compensation. The most important feature of the legislation is that it offers the victims of September 11 a choice: victims who opt to make claim against the victims’ compensation fund waive their right to “file a civil action (or to be a party to an action), in any Federal or State court for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001.” [4] In the event victims choose to seek compensation in the courts, the ATSSA’s liability-limiting provisions are straightforward: “liability for all claims, whether for compensatory or punitive damages, arising from the terrorist related aircraft crashes of September 11, 2001, against any air carrier shall not be in an amount greater that the limits of liability coverage maintained by the air carrier.” [5] Additionally, the ATSSA provides that “the United States District Court for the Southern District of New York shall have original and exclusive jurisdiction over all actions brought for any claim (including any claim for loss of property, personal injury, or death) resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001.” The ATSSA also provides that the applicable substantive law in the litigation “shall be derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law.” Finally, the ATSSA expressly precludes the waiver and liability-limiting provisions from compromising suits against “any person who is a knowing participant in any conspiracy to hijack any aircraft or commit any terrorist act.” [6] To date, there are at least three such lawsuits pending. One of them is a class action suit where victims have opted to sue the individuals and organizations, as well as their state supporters, who are widely acknowledged as responsible for the attack. The Aviation and Transportation Security Act (“ATSA”) was later enacted in November, 2001, amending the ATSSA. [7] The ATSA extended the tort reform provisions of the ATSSA, limiting liability resulting from the attacks for airplane manufactures, airports, and anyone with a property interest in the World Trade Center. The ATSA also limited New York City’s liability to the greater of the city’s insurance coverage or $350 million. [8] However, the new Act specifically states that its provisions will not extend to the private security agencies which checked bags and screened passengers on September 11, 2001. Immediately after the enactment of the ATSSA, however, one commentator noted that it is extremely vague regarding how victims will be compensated. [9] The details governing distribution of the victims’ compensation fund rest solely on the judgment of the special master, providing the special master with authority to design a system that allows victims to submit claims. In mid-November, Attorney General John Ashcroft appointed Kenneth R. Feinberg as special master for the victims’ compensation fund. Mr. Feinberg is perhaps best known for his role as special master in the Agent Orange cases. He brings a wealth of experience in mass tort resolution, including work on the asbestos litigation, a class action involving the Shoreham nuclear power plant in Suffolk County, New York, and breast implant litigation. Most recently, he filled the high profile role of arbitrating negotiations that led to the settlement of claims by victims of the German Holocaust. [10] On December 20, 2001, the United States Department of Justice released Mr. Feinberg’s Interim Final Regulations for the distribution of the victims’ compensation fund. [11] Following extensive public comment and meetings with victims, victims’ families and other groups, the Department of Justice then released the Final Regulations on March 13, 2002. [12] A list of claimants is accessible on the United State Department of Justice Victims’ Compensation Fund website and indicates that close to one thousand victims have filed claims under the federal victims’ compensation fund, waiving their right to bring suit in federal court. [13] While claims on the fund offer the advantage of monetary awards to the victims within months, public comments following release of the Interim Final Rules indicated widespread dissatisfaction with the special master’s compensation plan. [14] The most contentious and controversial aspects of the Interim Final Rules involved provisions dealing with the reduction of awards based on collateral sources. Among the critical voices was Elliot Spitzer, Attorney General of the State of New York, who issued a press release on December 20, 2001 calling the regulations “flawed.” [15] When likewise asked about the regulations, John Lynch, spokesman for the “9-11 Widows and Victims’ Families Association,” a group that represents families of civilians and rescue workers killed in the attacks, was quoted in the National Law Journal as saying, “I think it is a disgrace.” [16] Similarly reacting to the bitter sentiment of the victims, Senators Jon C. Corzine and Robert G. Torricelli introduced a bill to repeal the provisions of the ATSSA that allow for reduced compensation based on collateral source. [17] Despite criticism regarding the collateral source compensation rules, the Final Rule incorporated no drastic changes to the Interim Rule. Summarizing the Final Rule, Special Master Feinberg reiterated that he held no power to disregard the Congressional mandate factoring collateral sources into distribution of the fund. Moreover, the Final Rule specifically notes that collateral source compensation can include life insurance, pension funds, death benefits programs, and payments by federal, state, or local governments. However, several changes were made to the collateral source provisions of the rules demonstrating that discretion was available to the Special Master when distributing the fund. The Final Rule, for example, clarifies the definition of collateral source compensation, expressly noting that certain benefits, including tax relief, contingent Social Security benefits, and contingent workers’ compensation benefits are not to be treated as collateral source compensation. The Final Rule also clarifies the provision that excludes charitable donations from the definition of collateral source compensation. In most instances, money received from privately funded charitable entities will not constitute collateral source compensation. Lastly, the Final Rule affords significant discretion to the Special Master when valuing collateral sources. While the Special Master has indicated that “it will be very rare that a claimant will receive less than $250,000.00," there is a possibility, expressly acknowledged in the summary to the Final Rule, that a victim or a victim’s family would not recover any money from the victims’ compensation fund based on the collateral source rules. In light of this possibility, some victims or victims’ families with significant collateral sources may take their claims to court. In fact, it was reported recently that a suit was commenced against American Airlines on behalf of Ms. Bonnie Shihadeh Smithwick, a highly-paid portfolio manager who was killed when the first World Trade Center Tower collapsed. Apparently, Ms. Smithwick’s family would receive no compensation under the victims’ compensation fund because she held a large life insurance policy for her family. [18] The other predominant factor in determining whether victims will commence civil suits is their ability to prevail in such actions. Whether the plaintiffs can recover involves several questions, including: Finally, it is worth mentioning here the latest proposed federal legislation -- a bill to amend the Terrorism Risk Protection Act to ensure the continued financial capacity of the insurers in order to provide coverage risks for terrorism. The bill proposes that the federal government will cover up to 90% of claims exceeding $25 billion in the event of an “act of terrorism.” It also proposes to further amend the ATSSA to cover any tort claim arising out of or relating to an act of terrorism. The bill would bar recovery for punitive damages, eliminate joint and several liability for non-economic damages, require that all damages be off-set by collateral sources such as insurance or gifts, and limit lawyers’ fees to 20% of any award. [19] III. Suits Arising out of the World Trade Center Tragedy A. Possible Defendants There are numerous possible defendants for suits arising out of the September 11 terrorist attacks. As discussed above, the airline companies, the aircraft manufacturers, airport owners and operators, New York City [20] and anyone else with a property interest in the World Trade Center are protected by federal legislation, limiting their liability to the terms of their insurance coverage. However, as the victims grow less and less enamored with the special master’s plan under the federal victims’ compensation fund, even with its liability limitations, a lawsuit against those parties may become more attractive, especially since those parties generally are sufficiently insured to cover the kinds of injuries and loss of life that occurred on September 11th. For instance, the airlines have an estimated $1.5 billion worth of coverage for each airplane. [21] With $3 billion in coverage for the airplanes that were flown into the World Trade Center Towers, the airlines might prove an attractive target for victims. As noted earlier, federal legislation does not protect airline security firms or the actual individuals and parties who perpetrated the terrorist attacks. The Foreign Sovereign Immunities Act, which was amended in 1996, allows American citizens to sue specified nations for death or injuries arising out of terrorism. [22] Several nations currently are identified by statute as subject to suit. These include Iran, Iraq, Libya, Cuba, North Korea, and Sudan. [23] The 1996 amendment was intended to permit suits on behalf of those killed in the bombing of Pan Am Flight 103 over Lockerbie, Scotland, against the government of Libya, the alleged perpetrator. [24] This statute may be invoked to sue other nations if proof can be amassed that the terrorist attack was aided by that nation. There are currently at least two civil suits by victims of the September 11 attacks already pending against Osama Bin Laden, Al Qaeda, and the Islamic Emirate of Afghanistan. Doe v. Islamic Emirate of Afghanistan, [25] was commenced against Osama Bin Laden, Al Qaeda, the Islamic Emirate of Afghanistan and several members of the Taliban leadership. The plaintiff, “Jane Doe,” seeks recovery for the loss of her husband, who was killed while working at his job in the financial industry at One World Trade Center when Flight 11 struck the building. Smith v. Islamic Emirate of Afghanistan, [26] also filed in the Southern District of New York, is a suit brought against Osama Bin Laden, Al Qaeda, the Islamic Emirate of Afghanistan and several members of the Taliban leadership by Raymond Smith, the brother of George E. Smith, who was killed when U.S. Airways Flight 175 struck the South Tower of the World Trade Center. [27] Both complaints allege state causes of action for wrongful death, survival, assault, battery, false imprisonment and civil RICO claims. The Doe suit also includes claims for negligence and intentional infliction of emotional distress. Additionally, on February 20, a class action suit was filed by a mother and six widows of other victims, seeking billions of dollars. [28] Among other possible defendants mentioned in the media since the attacks are the architects who designed the World Trade Center, as well as asbestos manufacturers, companies involved in constructing the World Trade Center, elevator maintenance companies, the Florida flight schools that trained the terrorists, jet fuel producers, the City of Portland (ME), and manufacturers of the structural steel used in the World Trade Center. [29] There are at least two civil suits brought by passengers in the hijacked jets against the airlines. These include Mariani v. United Airlines, filed in the Southern District of New York on December 20, 2001, which names United Airlines as the defendant and alleges wrongful death, and a survival action against the same defendant based on the breach of duty of care for safety and security of its passengers. As discussed above, because of the collateral source compensation reductions in the victims’ compensation fund, more suits will follow. As noted further, the suit brought on behalf of Ms. Bonnie Shihadeh Smithwick was only initiated after issuance of the Final Rule. The fact that her family would not have received compensation under the victims’ compensation fund surely prompted the litigation. [30] Prior suits commenced in the wake of disasters demonstrate that a number of other unanticipated entities might be subject to suit. For instance, suits brought by the victims of the 1980 MGM Grand Hotel fire in Las Vegas, Nevada, included products liability claims against such defendants as B.F. Goodrich, Conoco, and Pantsaote, Inc. [31] The claims against these parties alleged that the gases produced by the combustion of PVC vinyl-coated materials were toxic and unreasonably dangerous. Similar claims surfaced in suits from the 1986 Du Pont Plaza Hotel fire in San Juan, Puerto Rico, that killed 97 people, [32] and from the 1990 arson fire of the Happy Land Social Club in the Bronx, New York that killed 87 people. [33] B. Possible Plaintiffs While the response to an inquiry about possible plaintiffs in personal injury actions occasioned by the September 11 attacks may seem fairly straightforward, recent developments are cause for alarm among insurers and New York City. Possible claims for toxic tort injuries have been noted recently in the media and among legal professionals. [34] In that regard, there is great uncertainty about possible adverse health effects from toxic agents released into the air following collapse of the buildings. The victims’ compensation fund does not entertain the possibility that large numbers of rescue workers, clean-up crews, construction workers and New York City residents may have been exposed to toxic chemicals that would increase their chances of contracting diseases such as cancer or suffering long term neurological defects. Researchers have identified asbestos, lead, fiberglass, PCBs, mercury and other potentially harmful substances in the air and dust that surround the disaster site. Thus, the list of potential defendants may grow commensurately with the list of harmful substances. The St. Louis Post-Dispatch reported that one study found dust in the neighborhood as caustic as drain cleaner. [35] However, reports about the extent of contamination vary drastically. The Environmental Protection Agency has been monitoring the downtown area for asbestos, particulates and other contaminants typically found in large building fire and collapse situations since September 11. It has detected no pollutants from the fire and building collapses that are cause for concern to the general public. Within one block of the World Trade Center, the EPA is finding low levels of asbestos in the dust from the building collapse. [36] There have been approximately 1,300 notices of claim served on New York City by firefighters and other rescue workers who claim that breathing the air at the disaster site has made them sick. [37] With the high concentration of persons living and working in the downtown New York City area, the potential for toxic tort claimants could be staggering. There has been insufficient research to determine whether or to what extent people were exposed to toxic chemicals in the hours, days and months following the attack. Further scientific research should provide a clearer picture of potential toxic tort claims. IV. Theories of Recovery and Applicable Legal Standards Pursuant to the ATSSA, the law to be applied in suits arising from September 11th events will derive from state law (including choice of law principles), where the crash occurred. Thus, suits arising out of the World Trade Center attack will be governed by New York law. Negligence will likely predominate theories of action for civil suits brought against the above-mentioned parties. To sustain an action for negligence, the plaintiff must demonstrate: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) that the breach of duty proximately caused the plaintiff’s injuries, and (4) damages. The most critical elements applicable to any suit emanating from the September 11th attacks are duty and proximate causation. Generally, the law of negligence in New York is similar to the law of other jurisdictions. Thus, to the extent that the law of other states, such as Pennsylvania, is applied in lawsuits arising from the September 11th attacks, the foregoing legal principles will be generally applied. A. Duty Negligence is not actionable unless it involves the invasion of a legally protected interest, i.e., the violation of a right. [38] The issue whether the defendant owes the plaintiff a duty is purely a legal question for the courts. The New York Court of Appeals has addressed the element of duty in a case alleging negligence and noted that: “ [t]he existence and scope of an alleged tortfeasor’s duty, at the threshold, is a legal, policy-laden determination dependent on consideration of different forces, including logic, science, competing socioeconomic policies, and contractual assumptions of responsibility.” [39] Thus, whether the victims can sustain causes of action in negligence against the potential defendants noted above will depend largely on a legal determination -- a policy-driven line of demarcation drawn around the concept of duty. In determining whether a duty exists and in determining its scope, New York courts have been influenced by public policy concerns such as avoiding limitless liability, mass litigation, and fraudulent claims. The court of appeals has even held that it is "bound to consider the larger social consequences of decisions” affecting duties in negligence under the law. [40] A duty may arise from a special relationship that requires the defendant to protect against the risk of harm to the plaintiff. For example, landowners have a duty to protect tenants, patrons and invitees from foreseeable harm caused by the criminal conduct of others while they are on the premises; their special relationship puts them in the best position to protect against that risk. [41] The duty to protect against foreseeable criminal activity, however, does not extend to members of the general public. [42] Furthermore, while the forseeability of harm may affect a determination of causation, the foreseeability of harm does not define duty. Absent a duty running directly to the injured person, there can be no liability in damages, however careless the conduct or foreseeable the harm. For instance, in Strauss v. Belle Realty Co., [43] the court of appeals considered whether a utility owed a duty to a plaintiff injured in a fall on a darkened staircase during a citywide blackout. While the injuries were logically foreseeable, there was no contractual relationship between the plaintiff and the utility to provide lighting for the common areas in the building. The court restricted liability for damages in negligence to direct customers of the utility in order to avoid a crushing exposure to suit by millions of electricity consumers in New York City and Westchester. B. Proximate Causation Beyond the existence of a duty, it is essential that the breach of a duty be the “proximate cause” of the injury suffered in order to sustain a cause of action for negligence. Generally, an act or omission is the proximate cause of an injury if it was a substantial factor in bringing about the injury. [44] Stated another way, an act or omission is the proximate cause of an injury if it had such an effect in producing the injury that reasonable people would regard it as the cause of the injury. [45] A proximate cause must be one which, in view of all surrounding circumstances, might readily have been foreseen by an ordinary and prudent person as likely to result in injury. While there can be more than one proximate cause of an injury, an intervening act will constitute a superseding cause of the injury and will sever liability when the act is extraordinary in nature. [46] Stated conversely, the causative link between the defendant’s act or omission and the plaintiff’s injury is not broken by the negligent or deliberate conduct of a third person when such conduct is normal or foreseeable under the circumstances. [47] The crucial aspect of this inquiry is a determination of how far the first wrongdoer should be charged with forecasting the future results of his or her conduct. V. Prior Litigation Arising out of Disasters or Injuries Caused by Terrorists A. Oklahoma City Bombing In Gaines-Tabb v. ICE Explosives, USA, Inc., [48] victims of the terrorist bombing brought a class action against the manufacturer of ammonium nitrate that was sold as fertilizer and allegedly used to construct the bomb that destroyed the Alfred P. Murrah Federal Building in Oklahoma City. The plaintiffs’ principal causes of action were negligence and products liability. As their negligence claim, plaintiffs alleged that the manufacturer of ammonium nitrate was negligent in making explosive grade ammonium nitrate available to the perpetrators of the terrorist act. Without reaching the issue of whether the manufacturer owed a duty to the victims, the court held that the plaintiffs could not prevail on their claim for negligence because they could not show, as a matter of law, that the defendants’ conduct was the proximate cause of their injuries. The court held that “the conduct of the bomber or bombers was unforeseeable, independent of the acts of the defendants, and adequate by itself to bring about plaintiffs’ injuries [;] the criminal activities of the bombers acted as the supervening cause of the plaintiffs’ injuries.” [49] In rendering its decision, the court noted that ammonium nitrate bombs were used for illegal acts on only two occasions in the last twenty years, and that it was extremely difficult to properly manufacture ammonium nitrate bombs; only a small percentage of the population would possess the knowledge to do so. B. Hijacking In the case of Stanford v. Kuwait Airways Corp., [50] the plaintiffs were three American diplomats who were also passengers aboard Kuwait Airways Flight KU221 when the airplane was hijacked by four terrorists. Plaintiffs were tortured over six days, and one of the plaintiffs was murdered before Iranian commandos thwarted the hijacking. Plaintiffs commenced a negligence action against Middle East Airlines Airliban, S.A. (MEA), alleging that MEA had a duty to use due care to avoid the risk of hijacking. The facts are convoluted, but are worthy of brief mention considering the likelihood of claims against airline security firms arising out of the September 11th attacks. On December 2, 1984, four hijackers purchased “interline” tickets from MEA for travel from Beirut to Bangkok, Thailand, via the cities of Dubai and Karachi. At Dubai, the flight connected with another airline. The court was careful to note that the hijackers “had a stench about them.” [51] Their one-way tickets were purchased with cash on very short notice and the itinerary they chose was strange. There were regularly scheduled direct flights from Beirut to Bangkok. If the hijackers had taken the next flight from Beirut they could have avoided a 24-hour layover in Karachi and arrived in Bangkok at the same time. Perhaps the most suspicious aspect of the hijackers’ conduct was their failure to check baggage for the long-distance flight. On the first stopover in Dubai, the hijackers boarded the MEA flight, armed with pistols, explosives and other weapons. The hijackers and other passengers were held on the tarmac, which was poorly lit and largely unguarded, during the` stopover. The hijacking occurred after the flight departed Dubai. Addressing the plaintiffs’ negligence claims, the court first ascertained whether a duty existed on the part of MEA as owed to the victims. The court reiterated the broad legal principles discussed above, and held that MEA had a duty to protect the plaintiffs from the unreasonable risk of foreseeable harm. The court specifically held that MEA, as a first leg interline carrier, had a duty to protect passengers on other connecting interline flights from unreasonable risk or harm through the use of reasonable precautions in the face of reasonably foreseeable risks. The court also rejected MEA’s claim that, as a matter of law, the criminal acts of the hijackers and/or the negligence of the other interline carrier were intervening superceding causes of the plaintiffs’ injuries, leaving the issue to the jury for determination. VI. Conclusion The September 11th attacks were unprecedented in all respects. From a legal standpoint, the issue of compensating victims of the attack is fraught with uncertainty. The immediate issues concern whether victims will elect to participate in the victims’ compensation fund or take their chances pursuing compensation under tort law in civil litigation. As stated, the possibility of large scale litigation by the September 11 victims depends largely on the success of the victims’ compensation program. In the event the victims elect to litigate their claims, judicial application of such concepts as “duty,” “foreseeability” and “proximate causation” to the extraordinary factual circumstances of September 11 will take center stage. As set forth above, these decisions not only will have immediate financial consequences, they will also have larger social consequences for reasons articulated by the New York Court of Appeals. Because of the extraordinary nature of the September 11th attacks, prior litigation and cases such as the Oklahoma City bombing offer only limited precedent as models by which to predict success or failure in the courts. Under any circumstances, the insurance industry must be prepared to engage a host of claims from many different insureds on a panoply of legal theories. ENDNOTES † Submitted by the author on behalf of the FDCC Excess & Surplus Lines Section. Mr. Thurm acknowledges the invaluable assistance of Frank Santoro, Esq., in the preparation of this article. [1] P.L. 107-42 (2001) (full text of the statute available on the FDCC website at http://www.thefederation.org/index.html). [2] Anthony Sebok, Assessing the New Airline Law, http://Findlaw.com Commentary, at http://www.writ.news.findlaw.com.scripts/printer_friendly.pl?page+sebok/20010924.html (last visited 1/15/02). [3] “The term ‘air carrier’ means a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation and includes employees and agents of such citizen.” P.L. 107-42 § 402(1). [4] P.L. 107-42 § 405 (c)(3)(B)(i) (2001). [5] Id. § 408 (a) (2001). [6] Id. § 408 (c) (2001) (summary of the statute is available on the FDCC website). [7] P.L. 107-71 §201 (2001). [8] Id. § 201 (a)(3). [9] Sebok, supra note 2. [10] Tamara Loomis, Ashcroft Names Special Master for Sept. 11 Compensation Fund, N.Y. L. J., Nov. 27, 2001, at 1. [11] 28 CFR § 104, available at http://www.usdoj.gov/victimcompensation/viccompfedreg.htm (last visited January 29, 2002). [12] Id. [13] http://www.usdoj.gov/victimcompensation/victimrepresentatives.pdf (last visited April 8, 2002). [14] Robert F. Worth, Ground Zero: Compensation; Families of Victims Rally for Higher Federal Awards, N.Y. Times, Jan. 18, 2002, at B4. [15] Attorney General Spitzer's objections to the regulations are available at http://www.oag.state.ny.us/press/2002/dec/dec20c01.htm. He identified what he considered "numerous fundamental flaws in the DOJ regulations" contained in the Interim Final Rules. Several of his criticisms were addressed by the Final Rule. 1. Attorney General Spitzer was concerned that in order to be eligible for compensation, the Interim Final Rule required contemporaneous records demonstrating medical treatment within 24 hours after the attack, even though: (a) there are no records for the hundreds of injured victims treated at emergency triage locations on September 11th; and (b) many other victims first sought to reunite with their families and did not seek medical treatment for their injuries until September 12th. The Final Rule addressed this concern by expanding the time limits to 72 hours for victims and a time limit within the discretion of the Special Master for rescue workers. 2. Attorney General Spitzer was also dissatisfied that the Interim Final Rule effectively precluded recovery by unmarried life partners. The Final Rule was not altered to include recovery by unmarried life partners. The Final Rule relies on state law to determine who is a personal representative entitled to recover from the fund. This reliance is purportedly mandated for consistency, in order to avoid a situation where a representative as defined in the regulation recovers under the fund, and a representative under state law is still free to commence a lawsuit. The Preamble to the Final Rule suggests that criticism of state law concerning the determination of a personal representative is best directed to respective state legislatures. 3. Attorney General Spitzer also felt that the Interim Rule ignored the statutory mandate that victims be able to present evidence of their losses. Instead it determined that all individuals killed in the attacks were presumed to have suffered exactly $250,000 in "non-economic" losses, regardless of individual circumstances, and permitted increases only upon a showing of "extraordinary circumstances." The Final Rule remains the same. The Special Master recognized the problems inherent in placing a value on non-economic losses, but opted for consistency and fairness in order to avoid “playing Solomon” on a case-by-case basis. 4. Attorney General Spitzer also was concerned that under the Interim Rule, awards were reduced by the amount of collateral compensation that the claimant received, even if the collateral compensation was unrelated to the damages for which recovery was sought. The Interim Rule states that charitable donations will not be counted as "collateral source" payments resulting in reduced awards, but at the same time authorizes the Special Master to determine that charitable payments are collateral sources, which will deter charities from providing immediate payment to the victims. As to the how the Final Rule addresses these concerns, see text. [16] Bob Van Voris, Compensation Plan May Shut Out Sept. 11 Rescuers, Nat’l L. J., Jan. 7, 2002, at A1. [17] Senator Jon C. Corzine, Fix the Victims’ Fund, Letter to the Editor, N.Y. Times, Jan. 28, 2002, at A14. [18] Robert F. Worth, Airline Sued in Tower Death, N.Y. Times, Apr. 9, 2002, at A16. [19] H.R. 3210, 107th Cong. (2001). [20] Under the ATSA, the liability of New York City for suits arising out of the World Trade Center attacks is limited to the greater of its insurance coverage or $350 million. P.L. 107-71 § 201(a)(3). [21] Milo Geylin, Lawyers Wonder, Who is Liable for Sept. 11, Wall St. J., Oct. 18, 2001, at B1. [22] 28 U.S.C. § 1330 (2002). [23] The United States does not recognize the Taliban, and thus Afghanistan is not included on the list. [24] Jerry Adler, Suing Bin Laden, The American Lawyer, Nov. 2001, at 32. [25] 01 CIV 9074 (S.D.N.Y. filed Oct. 11, 2001). [26] 01 CIV 1013`(S.D.N.Y. filed Nov. 14, 2001). [27] Adler, supra note 24. [28] Neely Tucker, Bin Laden, Other Terrorists Sued, Wash. Post, Feb. 20, 2002, at A10. [29] See, e.g., Gregory Keisch, ‘Little Old Lady’ Denies Terrorizing Man, Portland Press Herald, Dec. 5, 2001, at 1B (reporting notice of claim filed with the City of Portland by a victim of the attack on the World Trade Center. Two of the hijackers boarded flights in Portland and the city retains some control over airport security); Seth Stern, Justice is Blind After All, Christian Science Monitor, Sept. 27, 2001, at 19 (mentioning Florida flight schools and architects of World Trade Center as defendants). [30] Worth, supra note 18. [31] See In re MGM Grand Hotel Fire Litig., 660 F. Supp. 522 (D. Nev. 1987). [32] See In re San Juan Dupont Plaza Hotel Fire Litig., 768 F. Supp. 912 (D. P.R. 1991). [33] See Clarendon Place Corp. v. Landmark Ins. Co., 587 N.Y.S.2d 311 (App. Div. 1992). [34] See Bob Van Voris, Are Toxic Lawsuits in the Air after Sept 11?, Nat’l L. J., Feb. 18, 2002, at A1; Associated Press, NYC Faces Trade Center Lawsuits, available at http://www.cbsnews.com/stories/2002/02/08/national/printable328742.shtml. [35] Van Voris, supra note 34. [36] See http://www.epa.gov/epahome/wtc/headline_092101.htm (last visited, April 5, 2002). [37] Van Voris, supra note 34. [38] 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 750 N.E.2d 1097 (N.Y. 2001). [39] Milken & Co. v. Consolidated Edison Co., 644 N.E.2d 268, 271 (N.Y. 1994). [40] Waters v. New York City Hous. Auth., 505 N.E.2d 522 (N.Y. 1987). [41] Nallan v Helmsley-Spear, Inc., 407 N.E.2d 451 (N.Y. 1980). [42] Waters, 505 N.E.2d 522. [43] 482 N.E.2d 34 (N.Y. 1985). [44] Alexander v. Eldred, 72 N.E.2d 996 (N.Y. 1984). [45] Ferrer v. Harris, 434 N.E.2d 1342 (N.Y. 1982). [46] Huber v. Malone, 645 N.Y.S.2d 526 (App. Div. 1996). [47] Mull v. Ford Motor Co., 368 F.2d 713, 717 (2d Cir. 1966) (applying New York law). [48] 160 F.3d 613 (10th Cir. 1998). [49] Id. at 621. [50] 89 F.3d 117 (2d Cir. 1996). [51] Id. at 120-22. (Author’s Bio) Mr. Thurm, who is counsel to the firm of Molod, Spitz, DeSantis & Stark, P.C. in New York City, has been associated with the insurance industry as a practicing lawyer defending companies and their insureds for over 40 years. He is a graduate of Brooklyn Law School (1958) and is admitted to practice in New York (1959) and Florida (1975). He is also admitted to practice before the Supreme Court of the United States, the United States Circuit Court of Appeals for the Second Circuit and all four federal district courts in the State of New York. He has actively litigated a broad spectrum of insurance-related matters including: primary and excess policies; direct and reinsurance contracts and coverage issues dealing with allocation of loss; late notice of claim and suit; and the assault and battery exclusion. He has defended dozens of municipal entities in all types of civil rights cases including land use, excessive force and employment discrimination. He has been a member of the Federation of Defense & Corporate Counsel since 1984 and is the immediate past Chair of its Excess and Surplus Line Section. He is an associate member of the Excess and Surplus Line Claims Association and NAPSLO. He also holds membership in the Defense Research Institute, the New York State Bar Association, the American Bar Association and the International Association of Chiefs of Police (Legal Offices Section). He is a frequent speaker and contributor of articles on insurance-related matters. http://www.thefederation.org/documents/Thurm-F02.htm
Statute of Repose. "Statutes of limitations" extinguish, after period of time, right to prosecute accrued cause of action; "statute of repose," by contrast, limits potential liability by limiting time during which cause of action can arise. Kline v. J.I. Case Co., D.C.Ill., 520 F.Supp. 564, 567. It is distinguishable from statute of limitations, in that statute of repose cuts off right of action after specified time measured from delivery of product or completion of work, regardless of time of accrual of cause of action or of notice of invasion of legal rights. Universal Engineering Corp. v. Perez, Fla., 451 So.2d 463, 465.
http://www.nspe.org/liability/in2-repos.asp
Statute of Repose Model
http://www.thefederation.org/documents/Thurm-F02.htm
#129. To: nolu_chan, RickyJ, ALL (#128)
Curious. In what you posted, there is no mention of ANYTHING concerning the MANDATORY retention of documents for any period of time. Isn't that what RickyJ claimed and what started this little discussion? As far as negligence is concerned, just how is the builder or owner of the WTC negligent with regards to whether or not the towers were designed or analyzed in 1963-64 for a plane crash or plane crash induced fire? Afterall, that is also the issue that started this discussion. The issue was not whether the owner was negligent because he failed to evacuate people soon enough or allowed folks to breath harmful dust or had asbestos in the building. I think any plaintiff would have a difficult time proving negligence in the design for the issue that started this discussion ... since I know of no building code in existence in 1963 or 1964 that required such a plane crash load nor was it common practice to include one. It seems to me that only product liability (in other words, defective materials, defective design, etc) applies as far as the DESIGN of the towers (the issue at hand) was concerned. And so far nothing indicates the use of defective materials or defective design (for the loads that skyscrapers were supposed to be designed to resist back in the 1960s). You misunderstood, NC (although its difficult to see how). I said all along that the statute of repose would normally (in most states) prevent an action for product liability against the builders. But I pointed out that in cases of personal injury, NY state law has allowed (at least until recently) an indefinite period before the injury takes place before starting the clock on the statute of repose. You apparently overlooked that fact. And apparently you've overlooked the fact that nothing in what you posted talked about suing the builder or owner for not designing against a plane crash and plane crash induced fire. Now back to the original claim by RickyJ. Prove that it is MANDATORY (by law) that design calculations be kept any length of time (such as 40 years). Because that's the issue that started this little exchange. Don't take us off on another spam-filled detour. Prove what Ricky claimed. Say ... I notice he's left the thread. Wonder why?
After a specified period of time following construction, the statute of repose will cut off a cause of action against an architect or engineer for product liability.
THAT is WHY the actions regarding the WTC will not be brought against the architect or engineer for product liability. I suggest that beachy read about the statute of repose and learn why his purported cause of action is impossible.
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Aren't you lucky. You get to receive one of the 15 posts I'm allowed each day.
#130. To: BeAChooser, nolu_chan, RickyJ, THE SKYDRIFTER, christine, robin, faithful fans of our saga... (#129)
A challenge issued! Who would have thought that after taking such a humiliating beating yesterday, the hermaphroditic super villain would have the hubris to arise, still stinging from the scornful destruction he suffered, to issue yet another challenge to the ever-victorious team of Nolu-Chan, his trusty sidekick RickyJ, and THE SKYDRIFTER? Yet, it is apparent that he may have learned some humility from his recent long stream of rhetorical defeats. Gentle reader, you will notice that not a single time in this diatribe has he issued his contemptuous battle cry of "ROTFLOL!" Can it be possible that the BeAChooser has learned a lesson in humility? Is it even conceivable that he may be forced to turn from the arrogance his Legion of Neocon programmers built into his spam-shooter and take a more conciliatory tack? Or is this yet another sinister Neocon plot? What will happen next? Find out in a moment, after a word from our sponsor: Monsanto. Bringing our happy children pus in milk since 2000!
Prove that it is MANDATORY (by law) that design calculations be kept any length of time (such as 40 years). Because that's the issue that started this little exchange. Don't take us off on another spam-filled detour. Prove what Ricky claimed. Say ... I notice he's left the thread. Wonder why?
Paranoia is a survival trait in a Decidership.
#131. To: BeAChooser, bluedogtxn, RickyJ, THE SKYDRIFTER, christine, robin (#129)
[BAC-side #129] Now back to the original claim by RickyJ. Prove that it is MANDATORY (by law) that design calculations be kept any length of time (such as 40 years). RickyJ said it. Take it up with RickyJ. For my part, I would presume that the design calculations, if any existed, would have been retained by the corporate entity and not by the employee of the corporate entity. It may be that that particular corporate entity no longer exists. Skilling is dead so we cannot very well ask him about it. [BAC-side #129] Say ... I notice he's left the thread. Wonder why? RickyJ posted on 4/22 (#55) and on 4/24 (#102 #106 #107 #108). That is not exactly prolific. Perhaps he left because he does not find you as entertaining as I do, perhaps he is laughing at you too hard to type, or perhaps he just does not like to debate someone who gets his "facts" from a magic 8-ball. [BAC-side #129] Because that's the issue that started this little exchange. Don't take us off on another spam-filled detour. Prove what Ricky claimed. ----- No, that is NOT the bullshit that got this started. Let us review to remind you how you got this started. ----- [nc #86] ROBERTSON now claims he cannot find the ROBERTSON study analysis report. ----- [BAC-side #87] It's been 40 years. Do you keep everything you've ever written, Nolu? Really? ----- [nc #101] Had I done an analysis 40 years ago proving that the WTC, the most important project of my lifetime, could withstand a hit by a Boeing 707 traveling at 600 mph, and "that such collision would result in only local damage which could not cause collapse or substantial damage to the building and would not endanger the lives and safety of occupants not in the immediate area of impact," if I could not find the paperwork today, I would be able to replicate the analysis and prove the point again. The towers withstood the impact just as Titanic withstood the impact with the iceberg. Aye cap'n, it wasn't the iceberg got 'er, it was the water! It's been 40 years. Do you believe that Robertson not only lost the report but has forgotten how to do the analysis? ----- [RickyJ #106] For such a project it is mandatory BAC. If you knew much about the legal requirements of such projects you would know this. ----- [BAC-side #109] It's probably a good idea to keep such documents, but I challenge you to prove there is any legal requirement that calculations in the design phase of a skyscraper must be kept at all or kept indefinitely. And have you ever heard of a "statute of repose"? It's the number of years after a project is completed after which the designers and contractors cannot be held responsible for damages or problems that may subsequently occur. THAT is the period during which engineering firms PROBABLY SHOULD (again, show me where it says MUST) keep all records if they are smart. Now for New York the statute of limitations/repose on product liability is 3 years, however, personal injury cases currently have an indefinite liability in that for three years after an injury the building builder/owners can be sued. However, that has been successfully contested in court cases recently and architects in New York are currently trying to get a maximum 10 year repose statute passed for personal liability cases. So yes, it would be smart if builders under the current NY laws kept important design documents for a long time ... perhaps indefinitely ... but I know of no laws that state it is mandatory. Go ahead, Ricky ... prove me wrong. So, this got started by my questioning Robertson's "The dog ate my homework" explanation, and your defense of his Gonzo-like explanation. And we got off on this detour by your inane injection of a Statute of Repose. I will note that in my #101 is questioned you as follows, "Do you believe that Robertson not only lost the report but has forgotten how to do the analysis?" The silence is deafening. WHY has Robertson not simply recreated the analysis? I guess we will just have to go with the White Paper and the New York Times article. They actually seem to exist.
#132. To: BeAChooser, bluedogtxn, RickyJ, THE SKYDRIFTER, christine, robin (#129)
Well, duhhhhhh, the owner is "liable for injuries caused by foreseeable dangerous conditions on their property. Considering the White Paper and the Robertson analysis, and the New York Times newspaper article from 1964, one might argue that the dangerous condition was not only foreseeable but was actually foreseen and the people were given assurances that the buildings would be safe in the event of the foreseen condition. PERSONAL INJURY LIABILITY OF OWNERS AND OCCUPIERS Bernard J. Garbutt, III * * * Why Building Owners And Occupiers Are Sued In The First Place As a building owner or occupier you may be asking “why me?” You did not have anything to do with manufacturing or distributing ACMs, you probably did not even know exactly what materials were actually used in the construction and/or renovation of your building and you almost certainly did not know what those materials contained, let alone that they contained asbestos. The answer to the “why me” question is two-fold. First, as the universe of traditional manufacturer and distributor defendants shrinks due to bankruptcy, plaintiffs’ attorneys are forced to be more creative in targeting and selecting other types of defendants in an attempt to maximize recovery for their clients. Since the Johns-Manville Corporation filed for bankruptcy in 1982 in the face of thousands of asbestos claims, many other manufacturers have been forced to seek bankruptcy protection. Most recently, in October 2000, Owens-Corning filed for bankruptcy, and two other manufacturers filed for bankruptcy earlier this year. Given the thousands of new asbestos personal injury cases filed every year, it is highly likely that such litigation will force other manufacturers and distributors into bankruptcy as well. Therefore, plaintiffs’ attorneys will be forced to seek new sources for recovery, and large, solvent corporations that owned or occupied buildings constructed or renovated during the relevant time period are particularly appealing. Second, with respect to more traditional types of claims arising out of injuries to individuals occurring on real property (such as a “slip-and-fall”), the law typically has held owners and occupiers liable for injuries caused by foreseeable dangerous conditions on their property. Because this rule of law is itself so seemingly basic and its application so simple, plaintiffs' attorneys have seized upon it and attempted to stretch the rule to cover the more novel scenario of asbestos-related personal injuries. [BAC-side #129] As far as negligence is concerned, just how is the builder or owner of the WTC negligent with regards to whether or not the towers were designed or analyzed in 1963-64 for a plane crash or plane crash induced fire?
http://www.envinfo.com/webcasts/toxic-tort/gar-hof.pdf
FOR CONSTRUCTION-RELATED ASBESTOS EXPOSURE
IN NEW YORK
Melinda E. Hofmann
New York
Morgan, Lewis & Bockius LLP
#133. To: BeAChooser, bluedogtxn, RickyJ, THE SKYDRIFTER, christine, robin (#129)
Upon further review, it appears that your "Statute of Repose" does not truly exist, and that New York has a 3-year Statute of Limitations which is merely strengthened somewhat by Chapter 682 of the Laws of 1996 which is not a pure Statute of Repose. Your documentation for this is curiously missing. Mine is not. Here is my documentation. Show me what you relied upon for your blather. CURRENT NEW YORK STATE STATUTES OF LIMITATIONS In an action brought by an owner/client against a design professional or contractor for damages resulting from a personal injury based on negligence, a three year statute of limitations applies and the cause of action accrues at the time of injury. A malpractice claim against a design professional or contractor by owner/client carries a three year statute of limitations and the cause of action accrues upon completion of the project. Third party suits, however, where the design professional has never had a contract with or contact with the third party, is the real issue of why we have perpetual liability. Under current law, a cause of action grounded on a theory of simple negligence brought by a third party (not an owner of building or structure) against a design professional or contractor is governed by a three year statute of limitations and the cause of action does not accrue until the injury takes place -- even if the plaintiff is injured 20, 30, 50 or 100 years after the design professional has completed work on the building or structure. As a result, design professionals or contractors are answerable to alleged negligence claims commenced indefinitely after project completion. Basic Provisions of Chapter 682, Laws of 1996 — This is the law that AIA/NYS was successful in enacting in 1996. It is not a "pure" statute of repose, but it amends and strengthens the 3-year statute of limitations, and: The claimant (third party) has 90 days before commencing suit to prepare and submit his/her case before a court. Within those 90 days, the claimant has to demonstrate to a court that there is a substantial basis of evidence showing negligence on the part of the design professional and that that negligence is also a proximate cause of the injury. Also, within those 90 days, the design professional must provide the documentation requested. After the expiration of 90 days, the claimant may commence an action against the design professional. However, the design professional then has 30 days to make a motion to the court to dismiss the suit because the 90 day requirement was not followed or because the claimant failed to establish that a substantial basis in evidence exists to prove that the design professional’s actions were a proximate cause of the injury. The law includes architects, landscape architects and professional engineers regardless of whether they practice individually or in a firm. DESIGN PROFESSIONALS LIABILITY REFORM: AIA NEW YORK STATE STRATEGY The Problem The Design Professionals' Liability Reform issue is about the perpetual amount of time that design professionals stand liable for potential actions by third parties for improvements to real property which they have planned or designed. Since 1961, 47 jurisdictions have responded to this extended liability by enacting statutes of limitations or statutes of repose for third party suits. However, New York State is not one of the 47 jurisdictions (nor is Vermont or Ohio). New York State has never enacted a statute of repose to relieve design professionals from perpetual liability. Now, after over 35 years of seeking relief, the AIA New York State believes it is still about time that the New York State Legislature enact a solution to the problem. The Solution - A Statute of Repose for Third Party Suits The AIA New York State supports a 10-year statute of repose bill for third party suits bill for third party suits which incorporates a ten-year plus one year limit for any suit brought against a licensed design professional. Based on studies (Schinnerer and Cardozo Law Review), a statute of repose rather than a statute of limitations is fair to design professionals without imposing an unfair burden on the injured party who would continue to have redress to the courts by bringing suit against the owner or occupier of the building. With the passage of time, the probability increases that improper maintenance, rather than faulty design, is the proximate cause of injury. Thus, some reasonable time limitation for suit is a fair compromise, and statistical data (Schinnerer and Cardozo) suggest a ten year statute as fair and reasonable. The Strategy The AIA New York State’s Board of Directors voted this again as the Association’s top legislative priority. The AIA/NYS continues to introduce a "pure" statute of repose bill with a 10-year statute. By doing so, we want to remind the Legislators that the law enacted in 1996, Chapter 682, Laws of 1996, is but an intermediary step to our over-arching goal of enacting a statute of repose. The Association also believes it is important to support other design professional liability legislation in addition to its ten-year statute of repose for third party suits and supports the following three legislative initiatives as part of its "Design Professionals Liability Reform" package.. Design Professionals Liability Reform We support the initiatives of the New Yorkers for Civil Justice Reform for comprehensive tort reform, which will restore fairness, balance and common sense to our civil justice system and which includes the following Design Professionals Liability Reform issues: 10-year Statute of Repose for third party suits brought against design professionals and a Certificate of Merit provision before commencing suit. The legislative initiatives would extend to design professionals protection from perpetual liability exposure to third party suits in the case of a statute of repose and in the case of a certificate of merit process, protection from non-meritorious litigation in a manner similar to that currently provided for health professionals. THE NEVER ENDING EXPOSURE OF AN ARCHITECT In a decision rendered more than two decades ago by the Court of Appeals of the District of Columbia, the Court observed that "[e]xcept in the middle of a battlefield, nowhere must men coordinate the movement of other men and all materials in the midst of such chaos and with such limited certainty of present facts and future occurrences as a huge construction project." In considering issues related to construction litigation, the Court was merely recognizing the inherent problems associated with construction, and the likelihood that such projects will invariably lead parties to the steps of the courthouse. Given the inherent conflicts associated with construction, it must be understood that architects face risks every time they undertake to perform professional services. Unfortunately for design professionals, unlike other professionals in New York State, their exposure never ceases. Although New York State has a Statute of Limitations of three (3) years for claims of negligence by an owner, design professionals are never truly relieved of responsibility for projects for which they performed services at any time during their careers. Specifically, the law allows third-parties who have suffered injuries as the result of improper professional services to institute a lawsuit against architects, engineers and land surveyors subject to limited exceptions, within three (3) years of the date of personal injury, wrongful death or property damage. In effect, architects who design buildings in New York State any time during their career remain exposed to claims by parties other than the party who hired them. Notably, most claims asserted against design professionals are by parties other than their clients. In many neighboring states, including Connecticut and New Jersey, legislatures have enacted laws creating definitive limitations to the time frame to pursue claims against design professionals. No other New York State professionals face the same continuous exposure which effectively serves to haunt architects and engineers well into their retirement years. In an effort to minimize the exposure of design professionals, New York State promulgated Section 214-d of the Civil Practice Law and Rules known as the Statute of Repose. By virtue of this statute, a third-party pursuing claims against an architect or engineer, who last provided services more than 10 years ago, must establish by substantial evidence the existence of a valid claim in order to pursue an action against the architect or engineer. Although this statute is helpful, it can be easily overcome, thus creating a continuous exposure for the design professional. Conversely, the State of New Jersey has adopted a Statute of Repose which provides that no claim can be pursued against a design professional who last provided services more than 10 years ago. The State of Connecticut has a similar State of Repose precluding claims against design professionals for services provided more than eight (8) years ago. The clear language of the legislation adopted in New Jersey and Connecticut ultimately serves to free the design professional from the never ending exposure currently facing design professionals in New York. Absent a meaningful modification to the current state of the law in New York, the design professional will never be relieved from potential exposure for any project. It is for this reason that architects would be well advised to press the legislature to address this apparent inequity. David B. Kosakoff, the author of this article, is a partner with the law firm of Sinnreich Safar & Kosakoff LLP, and is the General Counsel to the Westchester/Mid-Hudson Chapter of the AIA. He specializes in construction litigation and has represented design professionals by negotiating contracts, and litigating complex cases in court and through arbitration. He can be requested as counsel by your insurance carrier in the event of a claim. Mr. Kosakoff is also available to discuss issues related to businesses practices, and can be reached at 631-650-1200 or by e-mail at DKosakoff@ssklaw.net. [BAC-side #129] But I pointed out that in cases of personal injury, NY state law has allowed (at least until recently) an indefinite period before the injury takes place before starting the clock on the statute of repose. You apparently overlooked that fact.
http://www.aia.org/static/state_local_resources/liabilityreform/Repose-AIA%20NY%20.pdf
Limits the ability to bring third party suits against architects, professional engineers, and landscape architects after a period of ten years has elapsed from the time of their design. Acknowledges in statute that the design professionals do deserve some consideration to limit their perpetual exposure.
An owner/client claim based on breach of contract is governed by a six year statute of limitations and the cause of action accrues upon completion of the contractual duties.
http://www.aiaarchitect.net/site/news/05/03/neverending.htm
#134. To: BeAChooser, bluedogtxn, RickyJ, THE SKYDRIFTER, christine, robin (#129)
No, I did not misunderstand or overlook anything. You have your head up your butt again and are trying to, once more, your way out of responsibility for your bullcrap. Cases of personal injury are not cases of product liability. It is manifestly clear that cases of personal injury are being brought and are being processed by the courts as we speak. Upon further review, it appears that your "Statute of Repose" does not truly exist, and that New York has a 3-year Statute of Limitations, is merely strengthened somewhat by Chapter 682 of the Laws of 1996 which is not a pure Statute of Repose. THE NEVER ENDING EXPOSURE OF AN ARCHITECT [Excerpt] In an effort to minimize the exposure of design professionals, New York State promulgated Section 214-d of the Civil Practice Law and Rules known as the Statute of Repose. By virtue of this statute, a third-party pursuing claims against an architect or engineer, who last provided services more than 10 years ago, must establish by substantial evidence the existence of a valid claim in order to pursue an action against the architect or engineer. Although this statute is helpful, it can be easily overcome, thus creating a continuous exposure for the design professional. Conversely, the State of New Jersey has adopted a Statute of Repose which provides that no claim can be pursued against a design professional who last provided services more than 10 years ago. The State of Connecticut has a similar State of Repose precluding claims against design professionals for services provided more than eight (8) years ago. The clear language of the legislation adopted in New Jersey and Connecticut ultimately serves to free the design professional from the never ending exposure currently facing design professionals in New York. Absent a meaningful modification to the current state of the law in New York, the design professional will never be relieved from potential exposure for any project. It is for this reason that architects would be well advised to press the legislature to address this apparent inequity. A "statute of repose" applies to architects and engineers. Your documentation for this is curiously missing. This is complete, utter, total bullshit. "Statutes of Repose" toll from the time of the completion of a project. That is what distinguishes them from a "Statute of Limitations." "Personal injury" claims are not controlled by a "Statute of Repose" which applies to actions against architects and engineers. "Personal injury" claims are controlled by a "Statute of Limitations" which does not begin to run until the time of the injury, or in some cases, until the injury becomes known, such as injury from toxic substances. You appear to be unable to tell the difference between a "Statute of Respose" and a "Statute of Limitations." (Appearances can be deceiving. Actually you know the difference full well, but you are trying to lie your way out of your previous bullcrap.) As you stated in BAC-side #109 You clearly stated that personal injury cases currently have an indefinite liability in that for three years after an injury the building builder/owners can be sued. Personal injury cases are not barred by a statute of repose pertaining to architects and engineers. Such a statute bars claims against the architect or engineer a specified number of years after completion of the project. Some states, such as California, have adopted a 10-year statute of repose for product liability cases involving architects or engineers. No state has a statute of repose greater than 10 years. ALL statutes of repose run from the time of completion of the project, not from the time of an injury. Had there been a 10-year statute of repose in New York, actions subject to the statute of repose would have been barred for about the last 25 years. New York appears to have NO true Statute of Repose which bars an action by third parties against an architect or engineer. In New York, the "ten year" statute provides that a third party need show substantial evidence of an existing claim before the architect or engineer needs to defend the case. There is no absolute bar to proceeding. Personal injury claims can be brought for three years after an injury, even if the injury occurs 30 years after completion of the construction. At nolu_chan #112 I asked: The BAC-side #113 response was: Having been caught in one BAC-side , you now attempt to extricate yourself with Now at BAC-side #129 you again as follows: A statute of repose does not apply to builders but to designers - architects and engineers.
You misunderstood, NC (although its difficult to see how). I said all along that the statute of repose would normally (in most states) prevent an action for product liability against the builders.
http://www.aiaarchitect.net/site/news/05/03/neverending.htm
But I pointed out that in cases of personal injury, NY state law has allowed (at least until recently) an indefinite period before the injury takes place before starting the clock on the statute of repose. You apparently overlooked that fact.
Now for New York the statute of limitations/repose on product liability is 3 years, however, personal injury cases currently have an indefinite liability in that for three years after an injury the building builder/owners can be sued. However, that has been successfully contested in court cases recently and architects in New York are currently trying to get a maximum 10 year repose statute passed for personal liability cases.
You do not seriously purport that there is a product liability issue, do you?
You are claiming the building was designed for plane impact and fire so it shouldn't have collapsed. If it was, then yes, this would be a product liability issue.
yet another BAC-side . I said all along that the statute of repose would normally (in most states) prevent an action for product liability against the builders.
#135. To: BeAChooser (#129)
You cling to your discredited Republican spin like a dingle berry on a dogs butt.
Bunch of internet bums ... grand jury --- opium den ! ~ byeltsin
#136. To: nolu_chan, beachooser, Christine, Jethro Tull, Robin, Minerva, Honway, Aristeides, Red Jones, Diana, Kamala, Eoghan, tom007, lodwick, Arator, IndieTX, Mekons4, Critter (#134)
BAC is one huge LIE. His queerness thinks he's something 'special,' on the planet. With people like him around, the term "QUEER" will never go away.
#137. To: SKYDRIFTER, BeAChooser (#136)
Documenting his nonsense can be entertaining. From the positive point of view, if I make him waste 20-30% of his post quota with me, he has that much less opportunity to be a pest elsewhere.
BAC is one huge LIE. His queerness thinks he's something 'special,' on the planet.
#138. To: Minerva (#135)
You cling to your discredited Republican spin like a dingle berry on a dogs butt. HAHAHAHAHA And it's glued to the hair so bad nothing short of a good waterboarding will get it off.
To: BeAChooser
If the bee disappeared off the surface of the globe then man would only have four years of life left. No more bees, no more pollination, no more plants, no more animals, no more man. Albert Einstein
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