No one knows the terror that Mark Bavis faced as his flight was hijacked and subsequently crashed into the World Trade Center on September 11, 2001. However, a U.S. District Court Judge ruled on Wednesday July 27th, 2011, that Bavis’ family may be able to recover “terror” or pain and suffering damages for the minutes of terror that Bavis endured before his death if they prove that the defendants in the wrongful death claim they have filed are liable. After the death of Mark Bavis on September 11, 2001, the Bavis family filed a wrongful death claim against the Massachusetts Port Authority, United Airlines and Huntleigh USA Corp, a security company. In addition to ruling that the family may seek terror damages, U.S. District Court Judge Alvin K. Hellerstein also released the Massachusetts Port Authority from the case.
The Bavis family claims that the above mentioned defendants are responsible for the death of Mark Bavis, who was aboard United States Airlines Flight 175 on September 11th, because the defendants failed to ensure that weapons were not brought aboard the plane. In order for the family to prevail in their wrongful death case against the remaining defendants, the family will have to prove that the hijackers got the weapons aboard the plane as a result of the defendant’s negligence.
During the after math of the September 11th attacks, thousands of families were compensated through a special fund created by congress. A smaller group of around one hundred families have filed wrongful death suits against the airlines or private security companies charged with securing checkpoints, like Hellerstein. All of these suits, except the Bavis case, have been resolved outside of court resulting in these families receiving, in total, around $500 million. The Bavis case, which is set to go to trial in November, is the only remaining case of its kind, and it is the only case to go to trial.
According to the New York Times, Judge Hellerstein, after listening to both arguments regarding the issue of damages, indicated that he would likely allow the jury to come up with a figure for the pain and suffering Mark Bavis endured during the final twenty-one minutes of his life. The Judge stated, “My thinking is tending toward allowing terror damages.” Judge Hellerstein also stated to the New York Times that the main issue of the trial is whether United Airlines and Huntleigh were negligent in screening, which the Judge said was their responsibility. According to Judge Hellerstein, “The plaintiffs will have to prove that the way that the terrorists got stuff aboard is the way that everybody gets stuff aboard, that is, through screening.” Regarding the evidence that Judge Hellerstein would allow during trial, he stated that he would limit the evidence to what United and Huntleigh knew or should have known, as opposed to what the FBI, CIA or other intelligence agencies knew regarding the threat.
The Bavis family, which is represented by Donald Miglori, a wrongful death attorney, contends that the five hijackers who boarded Flight 175 at Logan International Airport were able to do so because of gross negligence on the part of United Airlines and Huntleigh USA. However, according to the attorneys who represent United Airlines, the Airline followed federal security procedures and was not responsible for hijackers managing to sneak weapons on the flight.
According to Massachusetts law, recovery of terror or pain and suffering damages in a wrongful death case is only allowed for “conscious suffering resulting from the same injury” that caused death. United’s lawyers argue that there is no evidence showing that Mark Bavis suffered injury before the fatal plane crash. However, in response Miglori, the family’s attorney, cites the telephone calls made to the ground by passengers as well as analysis of the plane’s violent movements prior to the crash as evidence that the passengers, including Bavis, were put in great fear and may have even anticipated death in the minutes leading up to the crash.
Despite the fact that the Bavis family seems positive about the likely outcome of the case, the attorney’s for United insist that United is not liable and that the family will not be able to prove otherwise. The Bavis family does have some high legal hurdles to jump, namely proving that United and Huntleigh were indeed responsible for the hijackers being able to slip weapons past the security checkpoints and onto the plane. If the Bavis family is able to successfully establish the defendant’s liability, their next legal hurdle would be proving that Mark suffered prior to his death. These legal obstacles are of serious concern for the plaintiff because of the nature of Mark Bavis’ death, it may be relatively hard for the plaintiff to prove liability, seeing that most of the evidence that would be most helpful perished in the crash. If the plaintiff is able to overcome these obstacles, and Miglori is confident that they will, the Bavis family will be the first family to prevail in a lawsuit against an Airline stemming from the September 11th, tragedy.