Individual commuters who’ve been forced to trek miles in biting winds, business owners who’ve seen a sharp drop-off in customers, and students left without any way to make it to school may be wondering if there’s anything they can do to punish the transit union personally and demand recompense. Specifically, can they sue?

The same question was asked almost 25 years ago, after the previous transit strike in New York City. Two law firms, one of which asked for class action status on behalf of its clients, sought damages that amounted to almost half a billion dollars against the transit unions responsible for the strike in 1980 that crippled the city for 11 days.

The case, a damage action of its kind and magnitude without precedent, lawyers say, made it to New York’s highest court, the Court of Appeals of New York, and no higher. If it had resulted in a victory for the plaintiffs and their law firms, such a ruling might have wiped out the finances of the transit union that is on strike today. The court of appeals judge who wrote the opinion in the case, Bernard Meyer, dismissed the claims and dashed hopes for payback.

Bitterness still resides in the lawyers who filed suit against the transit unions. The lawyers for the plaintiffs, recollecting the case in interviews with The New York Sun, say their case had merit but was doomed for political reasons. The damages were too large for the courts to swallow. The appeals court’s opinion said it was a punishment that would have been a “crushing burden” on the union.

The attorneys who spoke to the Sun said they doubted that a similar lawsuit would succeed today. They had their shot. They lost, and the precedent was set.

“The biggest problem was that the judges were concerned that this would bankrupt the unions,” said Andrew Peterson, a partner at Jackson, Lewis in White Plains who argued the case in the court of appeals. “That’s like saying if we catch all the drug dealers, they will be in jail and not in the street.”

While the appeals court ruled that the existence of the Taylor law, the New York statute that prohibits public employees from striking, doesn’t necessarily preclude third parties from suing for damages, it rejected all of the causes of action brought against the unions.

Most significantly, the court dismissed the firms’ allegations of prima facie tort – which requires proof of intentional infliction of harm – because it found that the plaintiffs failed to show that the sole motivation of the transit unions was “malevolence.”

“It was malevolent,” said William Krupman, a partner at Jackson, Lewis, which specializes in employment from the employer’s side. “That’s what they were trying to do, interfere with the business of the city.”

The court also dismissed the claim that the plaintiffs were entitled to damages for out-of-pocket expenses and loss of business profits, part of the public nuisance cause of action brought against the transit unions. “The harm suffered must be of a different kind from that suffered by all other persons exercising the same public right,” the judge wrote in his opinion. “When the injury becomes so general and widespread as to affect a whole community, it is not peculiar and the action cannot be maintained.”

To that argument, Mr. Peterson said, “Everybody didn’t necessarily have damages caused by the strike.”

Jackson, Lewis, which was suing for only $25,000 in damages and did not seek class action status, accused the unions of interfering with the law firm’s own business activities during the strike. The judge said the harm to the firm was “but an incidental result of defendants’ conduct.” Such incidental interference ought not to be recognized as a cause of legal action if the state – in its own laws governing public employer employee relations – didn’t recognize it as such.

Guy Fairstein, a lawyer in private practice who worked for Burns, Jackson, Miller, Summit & Spitzer, the general practice law firm that sued the unions for $50 million for each of the 11 strike days, recalls his firm in preparation for the lawsuit instructing him “to brainstorm every possible theory.”

The strike in 1980 was damaging to New York, he said regretfully, and “we as lawyers had a unique capability to try to do something about it.”

As for the union, one of its lawyers told the New York Times in 1983 after the opinion in its favor was issued, “We hope this puts an end to this kind of lawsuit.”

The name of the case is Burns Jackson Miller Summit & Spitzer v. Lindner.