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Legal Report February 2012


PREMISES LIABILITY. New York’s high court has ruled that The Port Authority of New York and New Jersey is immune from liability for the 1993 World Trade Center (WTC) bombing. According to the court, the port authority was acting in a “governmental capacity” at the time of the bombing and, thus, has immunity.

The port authority was created in 1921 by New York and New Jersey to oversee critical commerce and trade operations and also to operate ports, airports, bridges, and tunnels. The port authority relies on fees to generate its operating funds and does not receive tax revenue.

In 1993, the port authority employed 40 full-time police officers at a precinct located within the WTC. A separate group of officers was assigned to the railroad station located within the complex. Also, contract security officers patrolled the WTC and its parking structures.

In the early 1980s, the port authority began a counterterrorism investigation after it obtained information about security threats against the WTC. As part of this process, the port authority exchanged security information with various state and federal agencies. Several reports commissioned during this time noted that the parking facility was vulnerable and that bombing attempts were “probable.” The reports recommended that security inspect vehicles entering the parking area for evidence of explosives. One even suggested that public parking be eliminated in the complex.

In response to these reports, the port authority increased the police and security presence and added patrols on parking garage ramps and exterior roadways. In the parking garage, the port authority installed surveillance cameras, door alarms, and additional lighting.

On February 26, 1993, two terrorists drove a rented van containing a fertilizer bomb into the WTC parking garage. They lit the fuse and the bomb went off 10 minutes later. Both men were able to enter and exit the parking area undetected. The bomb exploded killing six people, including four port authority employees.

The 174 legal actions, on behalf of 648 injured plaintiffs, were combined and a steering committee was formed to oversee the litigation. The steering committee claimed that the port authority failed to provide adequate security. The port authority requested summary judgment—a hearing based on the facts of a case without a trial—on the grounds that it was acting as a government entity when the attack occurred. The New York Supreme Court denied the motion, ruling that the port authority was acting as a landowner, not as the government, in its protection of its property.

A jury found the port authority 68 percent liable for the attack and the terrorists 32 percent liable. The first appeal by the port authority was denied. The port authority then filed this appeal before the New York Court of Appeals, arguing that they should be granted governmental immunity.

The court noted that the port authority’s duties were on a continuum, with some being proprietary and others governmental. However, this claim, ruled the court, relates to the port authority’s counterterrorism efforts, a clearly governmental function. The court also concluded that finding the port authority liable in this case would have a negative effect on other similarly situated properties. In the written opinion of the case, the court said that “to expose the port authority to liability because in the clarity of hindsight its discretionary determinations resulted in harm would engender a chilling effect on government and dissuade public entities from investigating security threats and exercising their discretion, especially in a time when the risk of terrorist attack is more apparent than ever before.” (World Trade Center Bombing Litigation Steering Committee v. The Port of Authority of New York and New Jersey, New York Court of Appeals, No. 217, 2011)

PRIVACY. A government employee may proceed with her invasion of privacy claim against her employer. The employee was covertly filmed during a shower, and the images were posted on the computer network, available to all employees in the workplace.

In the case, a female deputy sheriff—known as Jane Doe in the court records—was employed in Luzerne County, Pennsylvania. After attempting to serve a warrant, Doe and a fellow deputy found that they were covered with fleas. The officers were instructed to proceed to a local hospital for a decontamination shower.

During the shower, Doe was filmed by Ryan Foy, a deputy chief with the department and Doe’s superior officer. The same day, Foy uploaded the video to his work computer and invited several officers into his office to view the images. Foy displayed video of Doe’s body, clad only in a thin paper sheet. A tattoo of a person’s initials, which none of Doe’s co-workers were aware of, was also clearly visible on the video. Foy stopped the video several times to create still images. Foy then saved the video, along with the still images, to a public folder. This allowed anyone who had access to the Luzerne County network to view the images. Doe was still unaware of the footage.

Seven months later, another officer ran across the files and reported the incident to a manager. The files were removed. Doe found out about the images and filed a lawsuit against the county alleging violations of her constitutional rights to privacy.

The county requested summary judgment, and the U.S. District Court for the Middle District of Pennsylvania granted the request. The district court ruled that Doe’s experience did not “rise to the level of a shocking degradation or egregious humiliation” that would merit constitutional protection. Doe appealed the decision.

The U.S. Court of Appeals for the Third Circuit overturned the lower court’s decision and ordered that the case go to trial. The court ruled that Doe had a reasonable expectation of privacy while in the decontamination area and that she did not implicitly consent to the filming. However, the court ruled that material facts remain, and the case must be heard by a jury.

In the written opinion of the case, the court noted that “the potential harm of nonconsensual disclosure is exacerbated by the existence of the Internet, where one can upload image and video files and irretrievably share them with the world in a matter of moments.” The nature of Doe’s workplace could also factor into the final ruling, according to the court. “Doe’s alleged harm could be aggravated by the context of the disclosure, most notably the facts that the video of the events was shown to others within the workplace and that the alleged violations involved superior officers abusing their authority,” wrote the court. (Doe v. Luzerne, U.S. Court of Appeals for the Third Circuit, No. 10-3921, 2011)


HIRING. A newly approved law (P.L. 112-56) (H.R. 674) contains an amendment that will provide employers with tax credits for hiring veterans who have been unemployed for long periods of time or were wounded in action.

Under the measure, employers will receive a tax credit of up to $5,600 for hiring veterans who have been unemployed for at least six months. A tax credit of up to $2,400 will be available for hiring veterans who have been unemployed between four weeks and six months. A credit of up to $9,600 will be given to employers who hire veterans with service-related disabilities who have been unemployed for at least six months.

The House version of the bill did not include this amendment. However, the language was included during a conference committee where the differences between the House and Senate versions were reconciled.

DATA SECURITY. A new bill (S. 1535) that would impose data security requirements on companies that handle personally identifiable information has been approved by the Senate Judiciary Committee. The Senate has announced that it will consider the measure.

Under S. 1535, companies would be required to implement a comprehensive personal data privacy and security program that includes administrative, technical, and physical safeguards. The program would be required to address both accidental disclosure and unauthorized access. The bill would also mandate that companies train employees on the data security plan and conduct regular testing of the system. All the specifics of these plans would be established through the regulatory process.

Companies that fail to meet the regulations could face fines. The bill would also allow individuals to bring civil lawsuits against companies that fail to protect electronic data.

DOCUMENTATION. A bill (H.R. 2431) introduced by Rep. Bennie Thompson (DMS) would make it a federal crime to use falsified travel documents. Under the measure, it would be illegal to produce, transfer, possess, or use false travel documents. The bill would also provide training for transportation security officers on the best methods to identify false documents.

The bill has eight cosponsors and has been referred to the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security as well as the House Homeland Security Committee’s Subcommittee on Transportation Security.

CRIME PREVENTION. A bill (S. 956) introduced by Sen. John Kerry (D-MA) would authorize grants to state and local police departments to implement anonymous tip programs using text messages. Under the bill, such programs would be administered locally and police would be required to strip the texts of any identifying information. Police departments would be required to train sufficient personnel to intercept and respond to the tips and to promote the program, especially to youths.

The bill has no cosponsors and has been referred to the Senate Judiciary Committee.



CYBERSECURITY. A new law (formerly H.B. 665) establishes a cybersecurity task force within the Maryland state government. The task force is designed to evaluate mitigation and prevention strategies to prepare for a cyberattack. The task force will also conduct a review of existing policies, standards, and best practices within state agencies to identify inconsistencies and devise new programs.


PREEMPLOYMENT SCREENING. A new bill (S.B. 93) in Wisconsin will allow companies to refuse to hire or to terminate anyone who has been convicted of a felony and not been subsequently pardoned. An employer may also refuse to hire or may terminate anyone who has been convicted of a felony under circumstances that relate to the prospective employment, even if that person has been subsequently pardoned.

The bill would amend current state law, which makes it illegal to refuse to hire someone based on a conviction record unless the circumstances of the crime relate to the job in question.

This column should not be construed as legal or legislative advice.