Legal Issues Related to Developing Safety Management Systems and Safety Risk Management at U.S. Airports (2013)

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21 with each step, and recommendation for actions that will eliminate or reduce these hazards. The supervisor of each task must approve the JSA prior to someone performing the described job.212 Like aviation SMS, an important component of the SEMS program is having operators learn from incidents to help prevent similar incidents from happening. The SEMS Regulation requires the establishment of proce- dures for the investigation of all incidents with serious safety or environmental consequences or that possess the potential for serious safety or environmental conse- quences. Incident investigations must be initiated as promptly as possible under the circumstances. The in- cident investigators must be knowledgeable personnel, who in the course of their investigation address the na- ture of the incident and the contributing factors, and recommend changes. Findings of the investigation must lead to a corrective action program. Part of the correc- tive action program must include retaining the investi- gation findings for use in the next hazard analysis, de- termining and documenting the response to each finding to ensure that corrective actions are completed, and implementing a system that distributes conclusions to appropriate personnel.213 The SEMS also mandates that operators develop and implement written management of change procedures. These procedures address modifications associated with equipment, operating procedures, personnel changes, materials, and operating conditions. Contractors are included in the personnel change category. In addition, the operator must develop and implement written oper- ating procedures for each operation addressed in the facility’s SEMS program. The SEMS Regulation addresses the integral role of contractors in off-shore operations. They specifically require safe work practices designed to minimize the risks involved with contractor selection. Operators must document contractor selection criteria, which must in- clude evaluating information regarding the contractor’s safety and environmental performance. Operators are tasked with ensuring that contractors have their own written safe work practices, and contractors may (al- though are not required to) adopt sections of the opera- tor’s SEMS program. The operator and contractor’s agreement on safety and environmental policies and practices must be documented before the contractor begins working at the operator’s facilities.214 Each operator’s SEMS program must include a training program for all personnel that includes an ini- tial training and requirements to ensure that changes made to procedures, practices, and emergency re- sponses are communicated to personnel. The SEMS regulations require auditing either by an independent third party or designated qualified per- sonnel. The audit must occur within 2 years of the ini- tial implementation of the SEMS program and at least 212 Id. § 250.1911. 213 Id. § 250.1919. 214 Id. § 250.1914. once every 3 years thereafter. The comprehensive audit must evaluate compliance with all 13 elements of the SEMS Regulation and the RP 75 requirements. Audit plan and procedures must meet or exceed all of the rec- ommendations included in RP 75, Section 12. VI. LIABILITY AND SMS Part 139 airports that implement SMS may heighten their risk of liability in several ways. Through the proc- ess of identifying hazards and ranking potential safety threats, airports may be increasing their risk of liability for negligence where a threat to safety is identified but not promptly or adequately mitigated. The scope of the SMS adopted by an airport operator may also lead to broadening an airport operator’s potential liability. For example, an SMS that includes both the movement ar- eas and the nonmovement areas of a Part 139 airport (which often include significant areas that are leased to third parties and therefore not subject to an airport operator’s direct control), or that includes all of the landside operations of an airport, will likely lead to a greater range of persons to whom the airport operator arguably owes a duty of care. Finally, the accountable executive may find that a plaintiff may seek to hold him or her personally liable. This section examines the potential that SMS could change the way in which airport operators and ac- countable executives could be held liable under negli- gence theories. It begins with a brief recap of the ele- ments of the tort of negligence and a consideration of how SMS may affect those elements. It examines the law of three selected states as examples of typical state laws regarding premises liability to determine if, absent SMS, airport operators may already have some duty to seek out hazards and mitigate them.215 It considers whether adoption of SMS may expand the scope of per- sons to whom an airport operator may owe a duty of care, and it also considers the impact of SMS on the potential liability of the accountable executive. The sec- tion concludes with an examination of several typical exceptions to liability that may be available to govern- ment entities, which includes most U.S. airport opera- tors. A. The Effect of SMS on the Elements of a Negligence Claim Generally speaking, liability for negligence arises when a party owes others a duty to conform to a stan- dard of conduct for the protection of others from unrea- sonable risk, and that party breaches that duty, result- ing in injury or damage to another.216 In addition, 215 It is beyond the scope of this Legal Research Digest to undertake a full 50 state survey of the law applicable to air- ports. Therefore, it was agreed that the laws of Massachusetts, California, and Florida would be surveyed as representative examples of state laws. The law of other jurisdictions may vary, in some cases materially. 216 See PROSSER & KEETON ON TORTS 164–65, § 30 (5th ed. 1984).

22 negligence has been found where a risk has been identi- fied and where there is an unreasonably great risk of causing damage or injury, and the identified risk is not mitigated.217 In such cases, the general legal standard is whether a reasonable person would have mitigated the identified risk.218 If a reasonable person, as determined by the fact finder (generally, a jury) would have under- taken steps to mitigate the identified risk, then the party that failed to mitigate such a risk (the defendant) will generally be found liable to the person injured (the plaintiff). Implementation of SMS by Part 139 airport opera- tors could lead to increased likelihood of liability for negligence for several reasons. First, SMS arguably creates a new duty to seek out hazards located within the portion of a Part 139 airport subject to the scope of the SMS and to take reasonable actions to mitigate un- acceptable risks, thus identifying new dangerous condi- tions. The SRM process may change what risks are foreseeable because the SRM process is intended to identify otherwise unknown risks, quantify the poten- tial impact of such risks, and seek to mitigate otherwise unacceptable risks. By being on notice of these risks through an SRM analysis, an airport operator arguably has a new or increased duty to persons lawfully at the airport (including, for example, airport tenants, those doing business at the airport, and travelers) to take all reasonable steps to mitigate the identified risk. If the SRM analysis had not been performed, the lack of knowledge of a risk, and thus failure to mitigate it, could be a defense. The scope of an adopted SMS may also expand the scope of persons to whom an airport operator owes a duty to include persons lawfully within portions of the airport that are within the scope of the SMS but leased or otherwise controlled by third parties other than the airport operator. As noted above, SMS is not intended to lead to miti- gation of all identified risks; it is intended to be used in a manner similar to a cost–benefit analysis. SMS is based on the premise that risk cannot be eliminated, only managed. Accordingly, ICAO defines “safety” as “…the state in which the possibility of harm to persons or of property damage is reduced to, and maintained at or below, an acceptable level through a continuing proc- ess of hazard identification and safety risk manage- ment.”219 However, airport operators are only too aware that where personal injury or significant property dam- age occurs, a plaintiff will seek to recover damages from all parties remotely related to that incident. 1. Duty to Seek Out Hazards In states where a property owner must have actual or constructive notice of a defect to be held liable, SMS will likely heighten an airport operator’s potential li- ability. The breadth of an SMS program may heighten 217 Id. at 169, § 31. 218 Id. 219 See ICAO SMM, § 2.2.4. the duty of an airport operator to seek out hazards and mitigate unacceptable risks. To determine whether a property owner has a gen- eral duty to seek out and remedy hazards that may cause injury or property damage, the laws of four repre- sentative states, Massachusetts, California, Florida, and Wisconsin, were reviewed for this digest. In addi- tion, the law of other jurisdictions was reviewed where there were notable differences from that of the forego- ing four states. In all four of these states, property own- ers have an affirmative duty of reasonable or ordinary care to keep their premises in a reasonably safe condi- tion for lawful visitors and a duty to warn of the unsafe condition. In California, this includes an affirmative duty to inspect or otherwise ascertain the condition of the premises. Both Massachusetts and Florida have adopted a “mode of operation” standard whereby in cer- tain circumstances plaintiffs need not show that owners had actual or constructive knowledge of an unsafe con- dition, but rather that the owner’s mode of operation made the unsafe condition reasonably foreseeable. This standard applies predominantly to supermarkets and restaurants in slip-and-fall cases. It is not strictly lim- ited to those types of owners, however, so it could po- tentially be used in negligence claims against airport operators. In Wisconsin, however, the state’s Safe-Place Statute has been interpreted to require that an em- ployer or owner of a place of employment have actual or constructive notice of an unsafe condition to be liable for injuries resulting from such a condition. The SRM process required by SMS may assist plaintiffs in Wis- consin courts in meeting their obligation to demonstrate an employer’s or property owner’s actual knowledge of an unsafe condition. a. Massachusetts.—Property owners in Massachu- setts have an affirmative duty of reasonable care to maintain their property “in a reasonably safe condition in view of all the circumstances, including the likeli- hood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.”220 This duty under this “premises liability” approach does not transform owners into insurers of their property, nor does it im- pose unreasonable maintenance burdens.221 It simply 220 Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 784, 863 N.E.2d 1276, 1281 (2007), quoting Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43, 52 (1973) (discarding traditional premises liability distinction between licensees and invitees); see also Oliveri v. MBTA, 363 Mass. 165, 166–167, 292 N.E.2d 863, 864 (1973), The obligation of one who controls business premises is to use due care to keep the premises provided for the use of its patrons in a reasonably safe condition, or at least to warn them of any dangers that might arise from such use, which are not likely to be known to them, and of which the defendant knows or ought to know. 221 Reardon v. Parisi, 63 Mass. App. Ct. 39, 44, 822 N.E.2d 748, 752 (2005) (relating to an employee’s slip and fall on ice on the path between the employee parking lot and the business where she worked), citing Mounsey, 297 N.E.2d at 52–53.

23 requires taking reasonable precautions for the safety of all persons lawfully on the premises.222 A recent opinion of the highest Massachusetts court affirmed using the general premises liability standard in cases of “snow or ice, or rust on a railing, or a dis- carded banana peel,” and finding further that for snow and ice, a fact finder will determine what “removal ef- forts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others.”223 It is therefore likely that in the SMS context, fact finders in Massachusetts will inquire into the reasonableness of an airport opera- tor’s efforts to mitigate risks ascertained via SMS, in light of the expense mitigation imposes and the prob- ability and seriousness of the harm from each risk, when determining whether to impose negligence liabil- ity on airports. Thus, while the implementation of SMS may not alter an airport operator’s duty, the likelihood that additional hazards will be identified through the SRM process may expand the scope of potential liabil- ity. Massachusetts has also adopted the “mode of opera- tion” approach for store owners, which removes the plaintiff’s burden to show the owner’s actual or con- structive knowledge of an unsafe condition on the prem- ises.224 Where applicable, a plaintiff may prove knowl- edge of the unsafe condition by showing only that it was reasonably foreseeable based on the owner’s mode of operation (e.g., a slip-and-fall case at a self-service gro- cery store where loose items can fall to the floor).225 The trier of fact must still determine whether the owner could reasonably foresee or anticipate the unsafe condi- tion and whether the owner took all necessary reason- able precautions to protect against those risks.226 Though typically applied to slip-and-fall cases in su- permarkets and restaurants, it is possible that the doc- trine could be extended to holding airport operators liable for risks that are reasonably foreseeable based on the airport’s mode of operation. b. California.—Property owners in California have statutorily imposed responsibility for injuries sustained on their property due to the owner’s negligence in man- aging the property.227 The owner has an affirmative 222 Id. The typical analysis involves a review of the “length of time the condition is present and the opportunity for discov- ery on the facts of the case.” Deagle v. Great Atlantic and Pa- cific Tea Co., 343 Mass. 263, 265, 178 N.E.2d 286, 288 (1961). 223 Papadopoulous v. Target Corp., 457 Mass. 368, 384, 930 N.E.2d 142, 154 (2010), citing Mounsey, 297 N.E.2d at 53. 224 Sheehan, 863 N.E.2d at 1286. 225 Id. 226 Although the court in Sheehan did not limit its decision to store owners, see id. at 1286–87 (referring to “owner,” not “store owner,” when stating the new rule), the “mode of opera- tion” test has not yet been applied to other businesses or prop- erty owners such that it is possible to identify, for example, the specific types of injuries that might result from an airport’s “mode of operation.” 227 See CAL. CIV. CODE § 1714 (West 2012) (“Everyone is re- sponsible…for an injury occasioned to another by his or her duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect the premises or take other proper means to ascertain their condition.228 If the owner would have discovered the dangerous condition by the exercise of reasonable care, he or she may be liable for injury arising from that condition.229 Exceptions to this statutory rule require clear support in public policy.230 When determining whether such a duty exists in a particular instance, California courts balance 1) the foreseeability of the harm to the plaintiff; 2) the degree of certainty that the plaintiff suffered injury; 3) the closeness of the connection between the owner’s conduct and the injury suffered; 4) the moral blame attached to the owner’s conduct; 5) the policy of preventing future harm; 6) the extent of the burden on the owner and the consequences to the community of imposing the duty; and 7) the availability, cost, and prevalence of insur- ance for the risks involved.231 Owners must warn of a dangerous condition unless it is obvious.232 However, even if the obviousness obviates the need for a warning, the owner may have a duty to remedy that danger, if it is foreseeable that the danger will cause harm despite its obviousness.233 Like Massachusetts, it appears that the affirmative duty to maintain the premises in a safe condition may heighten an airport operator’s liability after undertak- ing the SRM process if new hazards are identified and not mitigated. Adoption of SMS may heighten negli- gence liability under California law, both to warn of additional dangerous conditions that are identified through the SRM process and, consistent with SMS principles requiring mitigation of unacceptable risks, to remedy those dangers. c. Florida.—In addition to the traditional elements of negligence, to sustain a claim of premises liability in Florida requires proof of the defendant’s possession or control of the premises and notice of the dangerous con- dition.234 “It is undisputed that under Florida law, all premises owners owe a duty to their invitees to exercise reasonable care to maintain their premises in a safe condition.”235 This duty is not limited to detecting dan- want of ordinary care or skill in the management of his or her property or person.”). 228 Salinas v. Martin, 166 Cal. App. 4th 404, 412, 82 Cal. Rptr. 3d 735, 740 (2008); Swanberg v. Mectin, 157 Cal. App. 3d 325, 330, 203 Cal. Rptr. 701, 704 (1984), citing 4 WITKIN, SUMMARY OF CAL. LAW, TORTS § 592, at 2860 (8th ed. 1974). 229 Id. 230 Salinas, 82 Cal. Rptr. 3d at 740. 231 Id. 232 See Martinez v. Chippewa Enters., Inc., 121 Cal. App. 4th 1179, 1184, 18 Cal. Rptr. 3d 152, 155 (2004). 233 Id. 234 Lisanti v. City of Port Richey, 787 So. 2d 36, 37 (Fla. Dist. Ct. App. 2001). 235 Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002), quoting Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 330 (Fla. 2001).

24 gerous conditions after they occur and then correcting them; it may extend to taking actions to reduce, mini- mize, or eliminate foreseeable risks before they mani- fest themselves as particular dangerous conditions.236 Thus, like Massachusetts, Florida has adopted a “negligent mode of operation” standard for premises liability.237 If the evidence establishes a specific negli- gent mode of operation such that dangerous conditions would arise as a result of the owner’s mode of operation, then whether the owner had actual or constructive knowledge of the specific unsafe condition is not an is- sue.238 The mode of operation theory of negligence is not unique to a particular business,239 so it is possible that airport operators could face liability under this theory. In addition to maintaining the premises in a safe condition, landowners have an affirmative duty to warn invitees of concealed perils.240 Giving this warning does not absolve the landowner of the obligation to maintain the premises in a safe condition.241 Thus, like Massa- chusetts and California, the affirmative duty to main- tain the premises in a safe condition may heighten an airport operator’s liability after undertaking the SRM process if new hazards are identified and not mitigated. d. Wisconsin.—Wisconsin’s safe-place statute re- quires that every employer and every owner of a place of employment or public building must construct, re- pair, or maintain such place of employment or public building as to render the same safe.242 This duty ex- tends to both employees and “frequenters,” defined as others permissibly within the place of employment or public building, and requires that applicable places of employment and public buildings be free from danger to the life, health, safety, or welfare of such persons “…as the nature of the employment, place of employment or public building will reasonably permit.”243 Wisconsin courts have interpreted this requirement to require that “…in order to make an employer [or owner] liable for defects in the nature of repair or maintenance, he should have actual or constructive notice of such de- fects.”244 Further, the plaintiff bears the burden of prov- ing that the employer or owner had actual or construc- tive knowledge of the defect,245 and constructive notice can be found only where the hazard has existed for a sufficient length of time to allow the vigilant owner or 236 Id. 237 See id. at 259; see also id. at 263 (also recognizing “bur- den shifting” in slip and fall cases). 238 Id., quoting Owens, 802 So. 2d at 332. 239 Id. at 260. 240 Marion v. City of Boca Raton, 47 So. 3d 334, 338 (Fla. Dist. Ct. App. 2010). 241 Id. 242 WIS. STAT. § 101.11(1). 243 WIS. STAT. § 101.11(13). 244 Barry v. Employers Mutual Casualty Co., 245 Wis. 2d 560, 571–572, 630 N.W.2d 517, 523 (2001). 245 Id. employer the opportunity to discover and remedy the situation.246 Thus, the implementation of SMS by Wisconsin air- port operators may heighten their potential liability under the state’s safe-place statute. Unlike states where a property owner has an affirmative duty to seek out and remedy hazards in at least some situations, Wisconsin law does not appear to require such an af- firmative act by employers or owners of public build- ings. The SRM process of seeking out hazards and de- veloping the predictive risk matrix is likely to assist plaintiffs in meeting their burden of proving that the airport operator had actual knowledge of a defect or other hazard that allegedly caused the injury or dam- age for which recourse is sought. 2. Scope of Persons Owed a Duty Under SMS The scope of an adopted SMS may lead to changes in the common-law rule regarding the scope of the persons to whom a landlord owes a duty. The common-law rule is that a lease of real property transfers the rights of the landlord to the tenant for the term of the lease, ex- cept as may be expressly set forth in the lease. Thus, absent SMS, the general rule would make the tenant responsible for maintaining premises leased from an airport operator in a safe condition, and the landlord would have little or no common-law duty to persons lawfully within such leased premises. However, if the SMS adopted by an airport operator does not distinguish between portions of the airport controlled by the airport operator and portions under the control of a third party with respect to the SMS re- sponsibilities of the airport operator, airport operators could be subject to new potential liability for accidents within such leased space. In such a case, an airport op- erator would have an obligation to undertake an SRM process both for areas under the airport operator’s con- trol and for areas leased to others. This requirement may conflict with the terms of existing leases, as the landlord airport operator may have a limited ability to enter onto such property and an even more limited abil- ity to mitigate, or cause the tenant to mitigate, unac- ceptable risks that are identified through the SRM process. As discussed in Section VIII, it may be possible to mitigate this risk contractually, but until existing agreements expire or are amended, airport operators may be subject to heightened risk of liability that they have little legal or practical ability to control. 3. Liability of the Accountable Executive Under SMS principles, an accountable executive must be responsible for the implementation and main- tenance of an airport’s SMS. Thus, the accountable ex- ecutive may arguably owe a duty to persons who may be lawfully within the portions of the airport subject to SMS to ensure that the airport’s SMS effectively identi- fies and mitigates all unacceptable risks. To the extent 246 Rizzuto v. Cincinnati Ins. Co., 261 Wis. 2d 581, 595–596, 659 N.W.2d 476, 483 (Ct. App. 2003 (Dist. 1)).

25 that a person is injured or their property is damaged at an airport, that person may claim that the accountable executive was negligent (for example, by failing to iden- tify a risk, but improperly identifying the severity of the risk, or by failing to effectively mitigate) and is person- ally liable for the plaintiff’s injuries. In many jurisdictions, a government official is pro- vided with “qualified immunity” and will not be held personally liable for torts when acting in good faith and within the scope of his or her official authority. How- ever, the adoption by many states of tort claims acts, which abrogate to a limited extent the government’s historic sovereign immunity, has also thrown common law qualified immunity into doubt in some jurisdictions, as the scope of the qualified immunity now may be de- termined by the scope of the applicable tort claims act. For example, in Massachusetts, the state tort claims act has been interpreted to provide immunity to officers and employees of state agencies subject to its coverage, except as specifically set forth in the act.247 Before the enactment of the Massachusetts Tort Claims Act, public officers were liable for their official actions “…only for their acts of misfeasance in connection with ministerial matters.”248 Where a public official’s negligence amounted to no more than an omission or nonfeasance, the official was not liable.249 Furthermore, public offi- cials were never liable for their decisions made in the exercise of their judgment and discretion and acts per- formed as a result of such decisions where such deci- sions were within the scope of his or her duty, author- ity, and jurisdiction.250 As stated by the Massachusetts Supreme Judicial Court, …if a public officer…is either authorized or required, in the exercise of his judgment and discretion, to make a de- cision and to perform acts in the making of that decision, and the decision and acts are within the scope of his duty, authority and jurisdiction, he is not liable for negligence or other error in the making of that decision at the suit of a private individual claiming to have been damaged thereby.251 Many jurisdictions also expressly permit a public entity to indemnify its officers and employees for their official acts when acting in good faith and within the scope of their authority. 247 Cf. Karlin v. Mass. Turnpike Auth., 399 Mass. 765, 766, 506 N.E.2d 1149, 1150 (1987), interpreting MASS. GEN. LAWS ch. 258. However, note that the Massachusetts Tort Claims Act expressly excludes certain state authorities, including the Massachusetts Port Authority, from the ambit of the Act’s pro- vision (MASS. GEN. LAWS, ch. 258, § 1). 248 Whitney v. Worcester, 373 Mass. 208, 220, 366 N.E.2d 1210, 1217 (1977) (quoting Fulgoni v. Johnston, 302 Mass. 421, 423 (1939)). 249 Id. 250 Id. 251 Gildea v. Ellershaw, 363 Mass. 800, 820, 298 N.E.2d 847, 859 (1973). B. Qualified Immunities for Governmental Entities The vast majority of Part 139 airports are owned and operated by governmental entities, rather than private parties. In many U.S. jurisdictions, governmental enti- ties are afforded immunity from suit for tort under cer- tain circumstances. However, the law can vary signifi- cantly from one jurisdiction to another. Originally, most states recognized the law of sovereign immunity under which a governmental entity enjoyed blanket immunity from suit for tort. However, the trend has been for states to adopt tort claims acts that permit limited re- covery against governmental entities under specified circumstances. Set forth below is an examination of certain immunities and limitations on liability that are available to governmental entities. As above, we have examined the law of three representative jurisdictions, Massachusetts, California, and Florida, as well as the line of cases in New York arising from the first World Trade Center (WTC) bombing, in 1993. 1. Sovereign Immunity At common law, states were immune from suit. This was known as sovereign immunity, and was generally extended to the municipalities and agencies of a state. As the form of governmental entities grew more numer- ous and complex, the law struggled to keep pace. As a result, most states abrogated the common law rule of sovereign immunity, either by statute or by judicial decision. As is discussed below, as a result, a number of states have adopted statutes defining the scope of im- munity for state entities and for governmental officials. For example, in the 1970s, the Massachusetts Su- preme Judicial Court announced in a line of cases that, absent legislative action, it would abrogate sovereign immunity.252 As a result, the Massachusetts Legislature adopted the Massachusetts Tort Claims Act, which lim- its recovery for persons injured through the negligence of the state, or a municipality or state agency, to a maximum sum and sets forth a series of requirements in order to state such a claim.253 However, the Act also exempts certain state entities, including the authority that owns and operates several airports in the Com- monwealth, from its provisions.254 Massachusetts courts have interpreted this exemption as making such an excluded entity not eligible for governmental or sover- eign immunity, and therefore potentially subject for tort liability.255 252 See Morash & Sons v. Commonwealth, 363 Mass. 612, 296 N.E.2d 461 (1973), Whitney, 373 Mass. 208. 253 MASS. GEN. LAWS, ch. 258. 254 Id., § 1. 255 Karlin, 399 Mass. at 766.

26 2. Tort Claims Acts, Governmental Immunity, and the WTC Cases As described above, most states have waived their sovereign immunity for tort liability, limiting this waiver by allowing only a limited amount of potential monetary recovery to claimants, and then only after claimants comply with certain procedural require- ments. For public entities facing tort liability—either in limited amounts under tort claims laws or in full be- cause they are statutorily excluded from those laws’ protections—governmental immunity is a potential al- ternative defense. Set forth below is an examination of limitations on liability available to governmental enti- ties in three states—Florida, California, and Massachu- setts—as well as the complex set of decisions in New York arising from the 1993 WTC bombing that resulted in recognition of limited governmental immunity for the Port Authority of New York and New Jersey (PANYNJ), then the WTC owner. Airport operators may be able to defend alleged negligence in balancing safety risks and implementing safety and security measures as discre- tionary decision-making, and an exercise of their police power. However, neither Florida nor California have any case law where police power was explicitly used to protect a public agency’s safety-related decision-making (as it was in New York, as discussed below). a. Massachusetts.—As described above, in the face of pressure from the Supreme Judicial Court, the Massa- chusetts legislature adopted the Massachusetts Tort Claims Act, which provides for limited recovery against state and municipal entities for victims of a tort.256 However, the Act specifically exempts certain state au- thorities, including one that owns and operates several Part 139 airports, from its provisions,257 and the Massa- chusetts courts have held that such exemption makes such authorities liable without limitation in tort. The former defenses of governmental or sovereign immunity are not available to such authorities.258 b. Florida.—Florida’s legislature has waived sover- eign immunity in tort for the state government and its agencies.259 In so doing, it placed a monetary cap on tort recovery and allowed state agencies to continue to se- cure insurance policies.260 Before filing legal action, a tort claimant must submit a written claim to the appro- priate administrative agency within 3 years after such claim accrues.261 Public airports and port authorities have been in- cluded in this waiver of sovereign immunity.262 Despite 256 MASS. GEN. LAWS, ch. 258. 257 Id. § 1. 258 Karlin, 399 Mass. at 766. 259 FLA. STAT. § 768.28 (2011). 260 Id. § 768.28(5), (13). 261 Id. § 768.28(6) (but only 2 years for wrongful death). 262 See, e.g., Labrada v. Metro. Dade Cnty., 715 So. 2d 1126 (1998) (discussing suit against Metropolitan Dade County as owner/operator of Miami International Airport); Florida Att’y Gen’l, Advisory Legal Op., Sovereign immunity, port authori- ties, AGO 78-127 (Oct. 30, 1978), available at the waiver, governments and government agencies can still avoid tort liability in two relevant ways: first, if the act is a governmental function, making it nontortious, and second, if there was no duty of care owed to an in- dividual claimant (rather than to the public) and no special relationship with that claimant. Florida district courts of appeal disagree over the proper way to deter- mine whether a government agency’s act was a gov- ernmental function. However, they agree that the police power is a fundamental governmental function, and have protected this power in the form of emergency police discretionary decision-making263 and regulatory enforcement.264 c. California.—In 1963, California made sovereign immunity the rule and government liability the excep- tion with its Tort Claims Act,265 now referred to as the Government Claims Act (CTCA).266 Liability must have a statutory basis, either in the CTCA or elsewhere, 267 and the CTCA enumerates an extensive list of immuni- ties for public entities and employees. The CTCA spe- cifically immunizes discretionary decisions.268 Notably, the CTCA allows liability, except as pro- vided by statute, for injury caused by the “dangerous condition” of a public entity’s property, as long as the claimant can prove the typical elements of a tort claim, and unless the public entity can show the act or omis- sion that created the condition was “reasonable.”269 To pursue a tort or contract lawsuit against a public entity for money or damages, the CTCA requires that a plain- tiff first submit a written claim within 6 months (per- sonal injury and property damage) or 1 year (all other claims) after the claim accrues.270 Similar to Florida, tort liability in California can be avoided if the public agency has no duty of care to, and no special relationship with, the claimant. California also views police power as an inherent governmental function. d. WTC Cases.—The chain of decisions in the negli- gence cases brought against PANYNJ as a result of the http://myfloridalegal.com/ago.nsf/printview/833E72A570758EF 885256593005B59E3. 263 Laskey v. Martin Cty. Sheriff’s Dep’t, 708 So. 2d 1013 (Fla. Dist. Ct. App. 1998). 264 See, e.g., Trianon Park Condo. Assoc. v. City of Hialeah, 468 So. 2d 912 (Fla. 1985); Neumann v. Davis Water & Waste, Inc., 433 So. 2d 559 (Fla. Dist. Ct. App. 1983). 265 CAL. GOV’T CODE §§ 810–996.6 (2012) (“Claims and Ac- tions Against Public Entities and Public Employers”). 266 See City of Stockton v. Superior Court, 42 Cal. 4th 730, 741–42, 171 P.3d 20, 28 (2007). 267 CAL. GOV’T CODE § 815. 268 Id. § 820.2. 269 See id. at §§ 835–835.4 The reasonableness of the act or omission that created the condition shall be determined by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of taking alternative action that would not create the risk of in- jury or of protecting against the risk of injury. 270 See id. § 911.2.

27 1993 bombing of the WTC provide insight into both the defense of governmental immunity and, as discussed further below, the public interest privilege preventing disclosure in discovery of certain documents. Because the PANYNJ’s authorizing statutes waive its sovereign immunity to tort claims, the agency could not assert a sovereign immunity defense to the negligence claims made against it stemming from the 1993 WTC bomb- ing.271 However, it was held in the WTC cases that statutory waiver of sovereign immunity did not serve to more broadly waive PANYNJ’s entitlement to a gov- ernmental immunity defense.272 In general, New York courts have held that “the mere waiver of sovereign immunity does not preclude a governmental agency from asserting an immunity- based defense where appropriate.”273 Specifically, [e]ven when a State is subject to tort liability, it and its governmental agencies are immune to the liability for acts and omissions constituting (a) the exercise of a judicial or legislative function, or (b) the exercise of an administrative function involving the determination of fundamental governmental policy. Consent to suit and repudiation of general tort immunity do not establish liability for an act or omission that is otherwise privileged or is not tortious.274 The New York courts relied upon this long-standing principle of common law to protect PANYNJ from tort liability for the 1993 WTC bombing.275 However, this principle is not the law in all U.S. jurisdictions.276 When PANYNJ asserted the governmental immu- nity defense in the WTC cases, the question became whether the agency exercised a governmental func- tion—the police power—in its actions related to the security of the WTC, or whether the agency acted in its proprietary capacity—as an ordinary landlord—to pro- vide for the safety of its tenants and invitees.277 271 In re World Trade Center Bombing Litig. (WTC III), 3 Misc. 3d 440, 459, 776 N.Y.S.2d 713, 728 (N.Y. Sup. Ct. 2004); see also MCKINNEY’S UNCONS. LAWS §§ 7101, 7106 (1979) (“Al- though the port authority is engaged in the performance of governmental functions,” it is liable “in such suits, actions or proceedings for tortious acts committed by it and its agents to the same extent as though it were a private corporation.”). 272 In re World Trade Center Bombing Litig. (WTC IV), 17 N.Y.3d 428, 443, 957 N.E.2d 733, 742–43, 933 N.Y.S.2d 164, 173 (2011) (holding that neither the plain language nor the legislative history gave any “indication that the statute was meant to effectuate a concomitant, wholesale waiver of gov- ernmental immunity”). 273 WTC IV, 957 N.E.2d 733, 742–43 (2011). 274 Restatement (Second) of Torts § 895B (3)(a), (b), (4) (1979). A similar principle holds true for local government enti- ties. Id. § 895C (2)(a), (b), (3). 275 WTC IV, 957 N.E.2d at 742–43. 276 See, e.g., Karlin, 399 Mass. at 766. 277 See WTC IV, 957 N.E.2d at 744–49; WTC III, 776 N.Y.S.2d at 729–34; WTC I, 709 N.E.2d at 458 (referring to “the nuance and subtlety of the continuum of governmental and proprietary functions that may overlap”). The New York trial court and the intermediate ap- peals court both analyzed PANYNJ’s actions and duties as similar to those of a commercial landlord operating an office building that included a public parking garage. At the 2005 bifurcated trial solely on the issue of liabil- ity, the jury found PANYNJ liable for negligently fail- ing to maintain the WTC parking garage in a reasona- bly safe condition, and apportioned 68 percent of fault to PANYNJ.278 The New York Supreme Court denied PANYNJ’s motion to set aside the verdict, and the Ap- pellate Division unanimously affirmed, stating that the PANYNJ “failed in its capacity as a commercial land- lord to meet its basic proprietary obligation to its com- mercial tenants and invitees reasonably to secure its premises, specifically its public parking garage, against foreseeable criminal intrusion.”279 In contrast, New York State’s highest appellate court employed PANYNJ’s use of police powers to analyze its duties and actions relating to ensuring the security, rather than the safety, of those persons using PANYNJ’s facilities. On appeal from the Appellate Di- vision’s order, the New York Court of Appeals reversed the Appellate Division and held that PANYNJ was enti- tled to the governmental immunity defense, first, be- cause its security-related acts were within PANYNJ’s police power and were thus a governmental function, and second, because PANYNJ utilized discretionary decision-making in the exercise of that police power.280 The Court of Appeals determined that the acts for which the agency was found liable by the Supreme Court281 were “not separable from the Port Authority’s provision of security at the WTC.”282 Facts in the record 278 WTC IV, 957 N.E.2d at 740. 279 Id. (quoting In re World Trade Center Bombing Litig. (WTC V), 51 A.D. 3d 337, 344 (N.Y. App. Div. 2008)). Under New York law, the “relevant requirement in premises liability actions is ultimately notice, not history”—meaning that the mere fact that an event has not yet occurred on a public en- tity’s premises cannot render that event unforeseeable in a negligence analysis. See WTC IV, 957 N.E.2d at 740–41 (quot- ing WTC V, 51 A.D. 3d at 345). Rather, if that event has oc- curred on a similar premises, or the entity has been informed of a threat of that event, or security analysis is conducted and the event is identified as a risk through that analysis, then the event can be considered “foreseeable.” See, e.g, WTC III, 776 N.Y.S.2d at 735–36. 280 WTC IV, 957 N.E.2d at 735, 740–41. 281 See WTC III, 776 N.Y.S.2d at 732 (listing alleged acts and omissions). 282 WTC IV, 957 N.E.2d at 746. While some of plaintiffs’ claims may touch upon the proprie- tary obligations of a landlord, when scrutinizing the purported injury-causing acts or omissions, they allude to lapses in ade- quately examining the risk and nature of terrorist attack and adopting specifically recommended security protocols to deter terrorist intrusion. These actions are not separable from the Port Authority’s provision of security at the WTC, as the dissent concludes; rather, they were a consequence of the Port Author- ity’s mobilization of police resources for the exhaustive study of the risk of terrorist attack, the policy-based planning of effective counterterrorist strategy, and the consequent allocation of such resources. Thus, the ostensible acts or omissions for which plain-