On February 26, 1993, Islamic terrorists exploded a 1,500-pound bomb in the garage of the World Trade Center, killing six and injuring more than a thousand. This was, a jury decided in 2006, 68% the responsibility of the Port Authority of New York and New Jersey, a bit more than twice the responsibility of the men who actually engaged in the bombing.
The Port Authority, potentially liable for billions because of the decision, including 100% of the "pain and suffering" claims, appealed, noting that the result was "bizarre." This week, a five-judge panel of the Appellate Division of State Supreme Court in Manhattan unanimously upheld the jury verdict.
The injustice is the culmination of decades of increasingly ludicrous ó and expensive ó litigation. The judges can, and did, say they just were being consistent with previous bizarre precedents of New York courts, such as one holding the New York City Transit Authority liable for failing to stop a train in time to avoid hitting a victim intentionally pushed into the train's path.
The Alice-in-Wonderland logic, complete with a farcically precise adjudication of apples and oranges that the Port Authority was not 42%, not 67%, but 68% responsible for the consequences of an intentional terrorist bombing, indicts the civil justice system as a whole. It has become less a search for the truth than a search for the money.
Contingent-fee attorneys rarely have the incentive to go after the most culpable party, who all too often does not have the financial assets to account for the damage he has done. It is far more profitable to manufacture a storyline that makes the deep-pocketed bystander look responsible.
In the pending litigation over the September 11, 2001, attack, attorneys didn't sue the kitchen sink, but managed to name just about everyone else as defendants: airlines (including 11 airlines other than the two who lost planes), airports, architects, banks, Boeing, Motorola, and New York City, among others.
That search for a story has its own distortions and costs. The legal "discovery" process requires defendants to spend millions of dollars digging through their files for documents that might be relevant, an expense that has grown astronomically in the age of effortless e-mail. Trial lawyers look at those documents with 20/20 hindsight for the stray remark that can be turned into the smoking gun in the screenplay of the trial.
So we get results like the Port Authority trial. To construct their billion-dollar storyline where the victim is the bad guy, trial lawyers found a 1985 report with dozens of recommendations, one of which was to close 400 of the 2,000 parking spaces in case terrorists used the public parking for a car bomb. The Port Authority chose not to close the public parking. Terrorists bombed the public parking. QED: the authority foresaw the risk and failed to act, and must be responsible.
The hindsight bias is obvious. The jury isn't shown the hundreds of other warnings or suggestions that the Port Authority decided against following without incident. Rather, the Port Authority was supposed to pick this particular warning out of the report and implement it, even though closing public parking would have cost millions without much benefit, since it is not much more problematic for terrorists to rent space in the building and obtain tenant parking if they were set upon using a car bomb. And to note that terrorists could find some other diabolical means to attack the World Trade Center is more than a hypothetical objection. This saga has nothing to do with safety, and everything to do with enriching trial lawyers. The Port Authority has every incentive to keep car bombs out of their buildings. If discretionary decisions over detailed safety reports can result in liability because of second-guessing by lawyers, that deters detailed safety reports more than anything else.
One of the great achievements of the feminist movement is that society no longer faults the victim of a rape and callously says, "She was asking for it" because of provocative dress. Yet even as we've become more enlightened over the decades in our approach to victims in the criminal justice system, the opposite trend has taken place in the civil sphere.
We have gotten to the point where five judges can shrug their shoulders at this jury verdict and rationalize it with citation to precedent and say that the Port Authority had public parking, and was therefore asking for it. In this case, taxpayers were victimized once by terrorists and a second time by trial lawyers and a court system run amok.
Mr. Frank is director of the AEI Legal Center for the Public Interest.