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Washington Examiner
October 31, 2005

Blame the terrorists, not their victims

If you wonder why Americans have grown increasingly cynical about our legal system, here's a poster child: A Manhattan jury has found the New York Port Authority negligent in the 1993 bombing of the World Trade Center — a terrorist act that killed six and injured nearly 1,000.

But here's the really disgraceful part: The jury assigned 68 percent of liability to the Port Authority and only 32 percent to the terrorists. Ponder that. The owners of the building bear more than twice as much blame as the terrorists who detonated the bomb.

Worse yet, under New York's law of proportional liability, since the Port Authority was more than half to blame, it (read: taxpayers) must pay 100 percent of any damages awarded for pain and suffering.

That verdict clears the way for separate lawsuits by more than 400 plaintiffs to determine the amount of damages. Their lawyers are seeking a total of $1.8 billion. Needless to say, the lawyers would pocket far more than any of the plaintiffs.

Let's give the devil his due here. Several years before the 1993 bombing, the Port Authority's own security consultants warned that the underground parking garage was vulnerable to an attack by terrorist bombers. They recommended security measures that included closing the garage to the public. After weighing actual costs against possible benefits, however, the Port Authority decided not to take their advice.

Following the verdict, several jurors said the security report carried great weight in their deliberations. That's typical in cases like this, which can create perverse incentives for commercial landlords. Walter Olson of the Manhattan Institute explained the problem to The New York Sun: "In order to avoid a legal nightmare, landlords would have to either incorporate all security recommendations, at a great cost, or avoid commissioning the security reports altogether to eliminate a paper trail of liability."

David J. Dean, the lead lawyer for the plaintiffs, was clearly presenting the report as a smoking gun. "The case was never about blaming the terrorists," he said. "It was about what the Port Authority should have done. They disregarded the advice of their own experts and other experts. They were motivated by money."

But there's a fatal flaw in Dean's reasoning. If you don't see it, consider a hypothetical case:

Early this year, police in Collier County, Florida were hunting a rapist who had struck twice within a week. Authorities warned women to take precautions — keep doors locked, don't go out at night, trim shrubs where an attacker could hide, etc.

Suppose a woman called a yard service about trimming her shrubs, then decided not to because of the cost. The attacker then hides in those shrubs and assaults her. Her medical bills run sky-high. Who is liable for the harm done?

According to the logic of the Manhattan jury, the victim is responsible by a margin of more than 2 to 1. According to the plaintiff lawyer's reasoning, this isn't about blaming the rapist; it's about what the victim should have done. She was warned by experts — but was motivated by money to ignore their warning.

When that sort of reasoning is enshrined in case law, common sense is the first casualty. It obscures the most fundamental question of who bears moral responsibility for deliberate acts of violence.

Even granting, for the sake of discussion, that the New York Port Authority was negligent, it remains beyond doubt that the terrorists carried out a deliberate act of murder. Ramzi Ahmed Yousef, mastermind of the bombing, proclaimed at his sentencing: "Yes, I am a terrorist, and I am proud of it."

In failing to place Yousef's malevolent intent at the center of its deliberations, the Manhattan jury reached a verdict that is worse than mistaken. It is a disgusting caricature of justice.

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