February 26th, 2025

Torts and Torah

Most folks know that much of our criminal law is biblical. Thou shalt not murder, nor steal, nor bear false witness come right from the 10 Commandments.

But as my friend appellate lawyer Michael Altman points out to me, so too does much of our civil tort system.

Last week’s Torah portion was Mishpatim, which means laws. Among other things it set up a civil justice system, which includes remedies for torts. As he reviewed the portion it struck him how relevant some of it is to what we do in the personal injury bar today.

Perhaps the most significant part is demonstrating just how far back a civil justice system that recognizes compensation for torts goes.

The citations below (of course there are citations, this is a law blog, right?) are from the Old Testament.

The most famous quote from that Torah portion is “an eye for an eye and a tooth for a tooth, a hand for a hand, a leg for a leg.” (Ex. 21: 24) You can almost hear Tevye quip, “Very good, and the whole world will be blind and toothless.” While a great line for Fiddler on the Roof, all rabbinic commentaries agree that it is not to be taken literally. Rather, it requires monetary compensation equal to the value of the lost body part.

The principle of compensation for personal injuries doesn’t just go back centuries. It goes back millennia.

In addition to requiring compensation for injury to a person, the Torah also recognizes the obligation to make restitution for injury to property:

“If a man takes his animals into someone else’s field or vineyard, and he lets them trample or graze in this other person’s field or vineyard, he must make restitution with the best of his field or the best of his vineyard.” (Ex. 22: 4)

Perhaps most importantly, it provides that all are equal before the law — rich and poor alike — as former Chief Judge Lippmann liked to note in advocating equality before the justice system:

“You must not pervert justice for your destitute countryman in his lawsuit.” (Ex. 23: 6)

Directly on-point with what Michael and I do, this part of the Torah also provides that one who causes or creates a dangerous condition is financially responsible for injuries resulting from it:

“If a person removes the cover of a pit, or digs a pit and does not cover it, and a work-bull or a donkey falls into it, the one responsible for making the pit must make restitution. He must restore the value of the animal to its owner, and the carcass remains its owner’s property.” Ex. 21: 33-34

And it provides for restitution for causing or creating a hazard:

If a fire breaks out and spreads through thorns, so that it consumes stacked or standing grain or a field, the one who kindled the fire must make restitution. (Ex: 22: 5)

The concept of notice is well known to the bar, and also here. It is not enough, for example, to make dog owners liable if their pooches bite someone. They must have first known that the dog had a known vicious propensity. This concept was not invented by us:

“If a work-bull gores a man or woman and the victim dies, the work-bull must be stoned; its meat may not be eaten. But the owner of the work-bull must be acquitted. However, if it was a work-bull that had gored on three previous occasions, and its owner had been warned in court but he did not guard it, and it then killed a man or a woman, the work-bull must be stoned. Its owner, too, will be put to death.” Ex. 21: 28-29.

I’d like to thank Michael for putting these quotes together, something that was well beyond my limited ability on the subject of Torah.

But I publish them here because people often see things through the lens of what happened today, or last week, or maybe a decade ago. But just a little bit of history helps put things in a different perspective.

(Law through the ages is part of a New Deal mural in the rotunda of the New York County Courthouse, including Babylonian Hammurabi’s Code and Hebraic law, among others).

May 24th, 2016

Planned Parenthood Sued Over Shooting, for Negligent Security

Planned Parenthood, Colorado Springs

At first blush it seems outrageous: Sue Planned Parenthood after it had been attacked by a gunman in Colorado Springs? If you weren’t following the news last November 27th, Robert Dear, a 57 year old madman, opened fire in the parking lot and then went inside.

Three people were killed and nine were injured over the course of a five-hour standoff before he surrendered.

But can you blame Planned Parenthood, as victims wish to do now in a lawsuit just filed? (Wagner v. Planned Parenthood) Isn’t the gunman the reason those people were killed and injured?

Well, just because the gunman may be responsible doesn’t mean others might not bear some responsibility also.*

And the key principle is this: Property owners owe a duty of reasonable care to those on the premises to keep it safe.

If you owned an apartment building, for example, you would be expected to provide locks. And if the lock is broken, and you dilly-dally a year in fixing it and someone breaks in and rapes/beats/kills a resident? You may be found to have violated that duty of care for not acting reasonably. Locked doors deter and protect.

If the attack happened before you even knew of the broken lock, you would expect a different result. Reasonableness is the touchstone.

If the building were in a high crime neighborhood, a week delay may be unreasonable. In a neighborhood that hasn’t had a break-in since the time of the Great Flood? A week may seem to be perfectly reasonable. It matters what is foreseeable.

So in the case of the Colorado Springs Planned Parenthood, the issues are what kind of threats did it have and what type security did it have? The complaint says many threats but almost no security.

That issue — whether security existed or not and the extent of its existence given threats — will go to the heart and soul of the suit.

The issue that will follow, of course, is causation: What good would the security have done in the face of a crazed gunman. Wouldn’t he get in anyway? One would think that, with locked doors or other means of stalling him, others inside the building may have had a better opportunity to call for the police or to escape.

Negligence and causation are the two fundamental issues of any suit for negligence.

Since I work without any direct knowledge, and just a couple of news articles, I mean only to write broadly. I do so because this is exactly the type of case for which knee-jerk political responses are possible.

But there aren’t really any political components in such a suit. It’s simply a matter of whether reasonable security existed given whatever threats may have been known, and the degree to which reasonable security would have helped.

It would seem to me that, if the clinic did not have, at a minimum, a good locked door and buzzer system, then Planned Parenthood’s insurance company should be getting ready to write checks. Whether more than that is needed, may well be a question for a jury one day.

*(I write generally about principles involved here since I’m not admitted in Colorado.)

April 30th, 2008

Port Authority Liability Upheld in 1993 World Trade Center Bombing

A jury’s finding of liability has been upheld by a New York appellate court against the Port Authority of New York and New Jersey regarding the 1993 terrorist attack. The attack killed six and injured about 1,000 others. The jury found the PA to be 68% liable in the attack for its negligence in failing to provide security in the face of a clear danger that the trade center was a terrorist target. Since the finding of liability exceeded 50%, under New York law they are liable to pay all of the non-economic damages.

The decision by the Appellate Division First Department in Nash v. Port Authority followed long established premises liability law as it pertains to the reasonable security measures that landlords must undertake to make their premises safe. In essence, if one follows the opinion, the case was little different then that of a crime being committed in an apartment house after a broken lock went unfixed for months on end.

The court’s analysis started with some very fundamental issues regarding the well known risk that the trade center was a terrorist target, recounting the Port Authority’s own security report that found it was “obvious that the potential for a terrorist attack upon the World Trade Center is a real possibility and [that] the results could be catastrophic,” and specifically noted that “[t]he parking lots are accessible to the public and are highly susceptible to car bombings.” Another report, according to the court,

found that “it was not merely possible, but “probable,” that there would be an attempt to bomb the World Trade Center and pointedly noted, “the WTC is highly vulnerable through the parking lot . . . With little effort terrorists could create havoc without being seriously deterred by the current security measures.”

And yet another report found that “Parking for 2,000 vehicles in the underground areas presents an enormous opportunity, at present, for terrorists to park an explosive filled vehicle that could affect vulnerable areas.” The report became still more specific in describing the feared scenario:

“A time bomb-laden vehicle could be driven into the WTC and parked in the public parking area. The driver could then exit via elevator into the WTC and proceed with his business unnoticed. At a predetermined time, the bomb could be exploded in the basement. The amount of explosives used will determine the severity of damage to that area.”

With respect to the duty that the Port Authority, as landlord, owed to the tenants and visitors of the trade center, the court rejected the absurd defense claim that, because no such attack had taken place previously, they had no duty to prevent against one. The court noted that:

it is fair to say that no reasonably prudent landlord, aware as defendant was of the value of his or her structure as a terrorist target and of a specifically identified condition upon the property rendering it vulnerable to terrorist penetration, would await a terrorist attack, particularly one directed at basic structural elements, before undertaking, to the extent reasonably possible, to minimize the risk.

Thus, the reports (and these are just a few that I quoted from the court’s opinion) clearly gave notice to the Port Authority of the danger, and it had a duty to act on that danger. In premises liability law well known to New York’s personal injury attorneys — familiar from other breach of security cases such as those that take place with broken locks in apartment buildings and subsequent crimes — the court wrote (citations omitted) of the duty of landlords, that they must

“act as a reasonable [person] in maintaining his [or her] property in reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. This ultimate standard is as applicable in premises security cases as it is in other contexts where liability is sought as against a landowner for injuries allegedly attributable to premises hazards or defects. Indeed, it has been observed that the duty of a landlord to take reasonable measures to minimize foreseeable danger on his or her premises from third-party criminal activity is but a natural corollary to the landowner’s common-law duty to make the public areas of his property reasonably safe for those who might enter.

It is true, of course, that a landlord is not an insurer of the safety of those upon his or her property and that the actual precautions sufficient to meet the reasonable care standard in premises security actions have often been described as “minimal.” This is, in the vast majority of cases, a perfectly accurate description of the property owner’s obligation; ordinarily, a landlord has discharged his or her duty if the basic perimeter and public area security systems, such as locks, buzzers, intercoms and lighting, are properly installed and maintained. The legally binding standard of care, as distinguished from the particular precautions required for its satisfaction in a given case, however, remains reasonable care to render the premises reasonably safe, and there are circumstances in which the nature and likelihood of a foreseeable security breach and its consequences will require heightened precautions…”

So what did the PA do in response to this danger? Apparently nothing. And the court was pretty clear that the jury was fully justified in making a 68% finding of liability against it after listening to the evidence, even though the PA was the negligent tortfeasor (as opposed to the intentional tortfeasor whose attack was predicted):

This was not a case in which ordinary negligence was transformed into a precipitant of tragedy by an otherwise unrelated, merely coincidental intentional act, but one in which the intentional act was foreseeably responsive to and exploitative of the negligence and, causally, did little more than bring the incipient catastrophic potential of the negligence to terrible fruition.

In seeking to avoid this entirely justifiable construction of the evidence, defendant sought to portray the bombers as exceedingly determined and clever malefactors, whose success was attributable, not in the main to its negligence, but to their own “finely tuned” plan. It would, however, have been very difficult to convince any jury that a “finely tuned” plan was necessary to do what the bombers did. There was evidence before the jury that explosives in “envisioned quantities” were readily available and that, once the explosives had been obtained and loaded onto the rented van, all that remained between the bombers and their nefarious objective were tasks rendered horrifyingly and embarrassingly simple by defendant’s negligence: driving the van into the complex’s subgrade parking facility, parking on the access ramp, setting a fuse and leaving the scene – all with evident ease. Only the most rudimentary plan was needed to take advantage of the “enormous opportunity” that defendant had through its negligence provided.

The court was clear that the law here is not about “comparative reprehensibility” — for there is no doubt that the terrorists’ conduct would warrant vacatur of the award if that was the standard — but rather, about the conduct that contributed to the harm.

Did the court absolve the terrorists with this decision? Of course not. And what’s more, they fully anticipate such criticism:

The verdict we now uphold is neither properly nor intelligently understood as absolving the terrorists. The issue before the jury in this civil action was not whether the terrorists had committed the bombing — obviously they had — or whether they should be severely penalized — most of them were — but whether their heinous conduct was foreseeable and avoidable by defendant in the discharge of its proprietary responsibilities.

In sum:

There was as duty of care by the Port Authority due to the forseeable risk of a terror attack;
The Port Authority breached that duty of care;
That breach was as a substantial factor in causing injury;
The jury apportioned fault based upon the conduct of the people involved, as opposed to apportioning based on moral turpitude.

And a last word from the court on whether the Port Authority should be immune from suit:

[T]he evidence overwhelmingly supported the view that the conscientious performance of defendant’s duty reasonably to secure its premises would have prevented the harm. This civil jury had no power to decide whether the terrorists should in any meaningful sense be “absolved” of their murderous acts. What it could and did decide was rather that the acts of these terrorists, even while obviously odious in the extreme, were not a cause for the easy absolution of this defendant from its civil obligations.

For anyone trying a failed security that allows a criminal on the premises to commit a crime, this case is a must-read.