Tort of the Century
I’m probably not the only attorney in America who was inspired to pursue a law career by the accomplishments of Ralph Nader. In my case, it was a mistake. I should have gone to library school but, argumentative person that I am, I thought I was cut out for advocacy. Making the best of a bad decision, I restricted my practice to the cause of ordinary individuals, especially injured and disadvantaged people. My professional biases and prejudices have always run parallel to those of Ralph Nader. In civil matters, I’ve always been a plaintiff’s lawyer.
One of Nader’s major projects, the American Museum of Tort Law, located in an old bank building about a half-hour from me in Winsted, Connecticut, should be an attraction for plaintiffs’ lawyers. I visited the museum a few weeks ago, when I joined the “studio” audience for a radio broadcast featuring an interview with Nader. The museum is impressive. There are exhibits illustrating precedent-setting cases involving asbestos, cigarettes, automobiles, dangerous toys, and superheated coffee, among other hazards. Each exhibit explores specific issues of civil liability for injury caused by wrongful conduct, the legal definition of the term “tort.” Most of the exhibits consist of big posters by fine-art cartoonists accompanied by plain-language explanatory text. There’s a collection of interesting exhibits, including an array of hazardous toys and a shiny, deadly Chevrolet Corvair.
What’s spectacularly missing from the museum is any mention of the tort of the century that occurred in New York City on September 11, 2001. Many precedents were set by that event and its legal aftermath, but they’re assiduously avoided by the curators of the tort museum. Maybe Nader doesn’t want to be singled out as a “conspiracy theorist” (although he does document the conspiracy General Motors initiated to destroy his reputation) or maybe they just haven’t got around to this topic yet. Also possible is that most museum visitors simply aren’t ready to confront the legal issues illustrated by the case. Attendance could fall in the shadow of an exhibit on the World Trade Center. Or it could rise.
If I were designing such an exhibit, I would concentrate on the legal precedents the events have set, in keeping with the rhetorical tone of the museum. This would permit harsh criticism of the legal system’s handling of the events of 9/11 without raising any suggestion of paranoia. So great is the weight of evidence of a profound corruption of the rule of law to accommodate this case that it’s difficult to escape the conclusion that the U. S. government was somehow complicit.
Here’s what one Connecticut plaintiffs’ lawyer might recommend in the way of an exhibit discussing the tort of the century.
By any explanation of the events of 9/11, the failure of the buildings must be reckoned a tort for which some person or persons are responsible. The buildings were designed to withstand powerful forces, including hurricanes, earth tremors, explosions and collisions with errant airplanes. Even the most optimistic terrorist could not reasonably hope to bring down one of the twin towers by crashing an airliner into it, much less both of them. And yet they came down, both skyscrapers, barely an hour after initial impact, killing many hundreds of people inside.
It was a collapse that exceeded all precedents. Never before or since has a concrete-and-steel building collapsed under such conditions. Video of the collapses is shocking. One moment the building is there, with people inside. Seconds later it’s reduced to dust, along with the occupants. Nothing like this had ever been seen before, and it occurred with cameras rolling, in our face. Were these important buildings in violation of applicable building codes? Are the codes deficient in some way? Did somebody rig them for destruction? There is no explanation of the collapse of the buildings that doesn’t implicate the owner and the city. As it turned out, the owner of the buildings got a multibillion dollar insurance settlement, and the mayor of the city at the time now sits at the right hand of the President of the United States. Events without precedent. Tort of the century.
Even if you can’t pin the collapse of the buildings on the airlines whose planes were used to crash into them, you still have a tort for them to answer for. If, as official reports allege, men were allowed on board who commandeered the aircraft and used them as projectiles, the airlines would have to bear some liabililty for the immediate result. There was a fall in the value of their stock on the New York exchange, but there never was an imposition of liability on any airline corporation. So far, we have the building owner and the airlines with what looks like open-and-shut liability, along with the city as a potentially culpable party, but in an unprecedented miscarriage of justice, nobody is to blame.
Then there’s the U. S. Air Force. Anybody who’s ever served in this outfit knows they brag about being able to intercept airborne intruders within minutes. In this case, they couldn’t find their way to New York City for an hour after the airliners stopped interacting with ground controls. But you can’t sue the Air Force. This is because of a doctrine called “sovereign immunity.” There are many cases in which government–”the sovereign”–is accused of wrongdoing, but cases actually holding government liable for injury are a fairly recent phenomenon. For obvious reasons, governments–national and local–have held to the doctrine of immunity. If the U. S. Army mistakenly sends a missile through your bedroom window, don’t even think about suing anybody. If the Army ever had to pay for the injuries it’s caused, it would have gone bankrupt ages ago. And so the Air Force couldn’t be sued. Neither was there discipline for any of the Air Force officers who were in command of the interceptors that didn’t intercept. In fact, several were promoted.
It’s not unprecedented for culpable parties to escape liability, but in this case, the means of excusing the guilty was without precedent. By an act of Congress, victims and victims’ survivors were allowed to collect a sum of money from a fund, in amounts commensurate with the extent of the loss, including the (variable) value of lost lives, if they would pledge not to sue anybody. Almost everybody aggrieved by the catastrophe assented to this settlement. Following a catastrophic loss caused by wrongful conduct on the part of private individuals and government agents, the U. S. government issued and paid out on a policy insuring against that loss. It’s a new twist in tort law, at least, and, coupled with the doctrine of sovereign immunity, worth some consideration by the museum.
There are protocols for investigations of airline crashes and building failures. These protocols are important not only in connection with questions of liability but in the prevention of similar, avoidable losses. When buildings fall down, codes and code enforcement are called into question, and measures are often adopted to remedy deficiencies. When airliners crash, procedures for various aspects of air travel are reviewed and sometimes reformed. Among the protocols for failed buildings and crashed airliners is the preservation of materials found in intact portions and in debris after a loss. This investigation was without precedent in that it disposed of all of the physical evidence of the crash and building failures as scrap metal, and it managed to get just about every item shipped beyond U. S. borders within weeks of the event. Someone should have been punished for the premature destruction of evidence, but nobody was.
As for the official government investigation of the tort of the century, it took months to initiate, was conducted by an assembly of political hacks, relied on testimony given behind closed doors and not under oath, and seemed principally aimed at exonerating government officials, which it did. To accomplish this, the commission assembled to inform the public how this tort could have occurred was obliged to violate every rule of standard investigative practice. What was unprecedented in the investigation of the tort of the century was the willingness of the public to accept the self-serving explanation the government fed them. What happens to tort law when people sell out, as we seem to have done here? Question for museum patrons.
The tort of malfeasance typically goes unpunished, and this undermines the credibility of a republic like ours. The tort of the century illustrates this phenomenon. Since it happened, we have allowed standards of every kind to deteriorate. What we seem willing tolerate–war, gross material inequality, environmental degradation, enrichment of public officials, hiphop, etc.–has broadened and deepened over the past 17 years, and this should worry us as workers and museum patrons.