9/11 Victim Family Suing for Suffering

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Photo: Lights commemorate 9/11 in lower Manhattan. Credit: iStockPhoto

A federal judge will allow the mother of a man killed in one of the Twin Tower plane crashes to sue United Airlines for her son's fear and suffering before his death. It is slated to be the only wrongful-death lawsuit stemming from the September 11 attacks to go to trial.

A New York Times story noted,

What one passenger, Mark Bavis, 31, felt as the hijacking unfolded is unknown, but his family, which sued United, asked a federal judge in Manhattan to allow them to recover damages not only for his death, but also for those terrifying last moments of his life — "21 minutes of terror," as the judge put it…. The Bavis lawsuit has been widely watched over the nearly 10 years since it was filed.

Lawyers for United Airlines dismissed the claim, stating that the law only allowed for "conscious suffering resulting from the same injury" that caused death, and that since Bavis died instantly in the crash there was no pain and suffering due.

The idea of victim compensation is a relatively new one. Historically when disaster struck (say a house burned down, or an avalanche buried a small town) people turned to family and neighbors (or, later insurance companies) for help.

While the government might help rebuild public roads or utilities, it was not the government's responsibility to rebuild private citizens' homes or property or pay them for their loss — and victims certainly never expected to be paid for a dead family member's fear or suffering.

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Take the example of Todd Beamer, who famously said "Let's roll!" as he and others on September 11's doomed Flight 93 tried to retake control of their hijacked plane. It's likely everyone aboard the flight was scared, but Beamer and his fellow mutinying passengers clearly overcame that fear with bravery.

They didn't necessarily know they were going to die, or crash; they presumably thought they had a chance at retaking control of the plane and landing safely. Many believe that Beamer and his crew drove the flight into the ground to prevent the plane from being used as a bomb, though the 9/11 Commission investigation concluded that hijackers were in control of the plane when it crashed.

In either event, should Beamer's widow be entitled to less compensation because her husband was not incapacitated by fear and terror?

The truth is, of course, that it's impossible to know what anyone's last moments were truly like in an airplane crash. Some passengers may have been drunk, asleep, knocked unconscious, or even annoyed at the disruption but not recognizing the gravity of the situation.

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Canada has faced similar issues. Earlier this year a report on the Air India 182 disaster, in which a bomb exploded en route from Toronto to India, called for symbolic compensation, so-called "ex gratia" payments to family members of the victims who died. These payments, usually ranging from $20,000 to $25,000 per person, are offered by the government without any admission of legal liability.

The debate brings up thorny issues of heroism. Who, exactly is a hero, and why? There have been several bills introduced over the years to award the nation's highest civilian award, the Congressional Medal of Honor, to the passengers and crew of Flight 93.

Most people would agree that Todd Beamer was a hero, but many suggest that everyone who died in the September 11, 2001, attacks — all nearly 3,000 people — are heroes. Yet others find that idea insulting: if everyone's a hero, then no one's a hero; if both Beamer and a passenger who did not try and attack the hijackers are equally honored, what's the point?

It's indisputable that the terrorists were to blame for the deaths on September 11 (unless you're a conspiracy theorist and also blame the Bush administration). But the Bavis family is claiming that United Airlines and a security firm operating the airport checkpoints were guilty of gross negligence.

They claim that the only possible way that the terrorists could have gotten their weapons on board (and ultimately killed Bavis and others) is if someone wasn't doing their job.

Yet no system in the world is foolproof, and a security breach (even one with dire consequences) does not necessarily indicate negligence. This may be a tough case to win, and if successful raises other issues.

How much is a dead person's fear or mental suffering worth? Should only family members be able to collect money? Why not friends or ex-spouses? And what about ordinary aircraft accidents? Those can certainly be terrifying; should airlines be liable for any mental anguish and fear caused by the accident? Should auto manufacturers be financially responsible for any fear that car accident victims feel?

Where do we draw the line?

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