Vested Interest - November 2001 Issue

The President’s Thoughts

September 11, 2001, will be a date we will all remember like our parents and grandparents remember December 7, 1941. As I am writing this column, the United States has begun bombing Afghanistan, and the war has been escalated to another level with our soldier’s lives now being placed at risk as the United States retaliates for the lives lost at the World Trade Center. There have been many victims of this tragedy already: the unfortunate workers in the World Trade Center and Pentagon and their spouses and children, the displaced workers as a result of the economic fallout, the victims of hate crimes, and the liberties of every American as we attempt to increase the security of our day-to-day lives.

When one attempts to assess a tragedy such as this in terms of legal remedies it is not unlike trying to deal with a mass tort claim. The damages of such incidents are horrific, and, yet, because they are so horrific the individual claims seem to be less significant than they would be if they had occurred in a more isolated setting. This event caused thousands of people to burn and jump to their deaths. Those who did not jump or burn were crushed as the World Trade Center collapsed. On an individual basis, any of these claims would be highly compensated by a competent jury. However, because the number of people involved is so high the first reaction of our country seemed to be pointed more at the common interest of the country and less at the individuals damaged.

The first reaction of ATLA following this event was to ask lawyers to not file lawsuits on behalf of victims. I followed suit at a seminar we held the Saturday following September 11th. As I am writing this a little over a month after the event, I am beginning to question my decision.

There are many unanswered questions that need to be addressed involving the circumstances leading up to this tragic day: the level of security airlines provide during magnetic and personal searches, the quality of personnel providing the security, the training given to flight attendants and pilots for emergency situations, the physical integrity of the cockpit doors, and the list goes on and on. The function of lawyers in lawsuits is to investigate the facts and present their case. At the present time, the news media and the government are the only entities performing investigations.

The government has already set loose guidelines regarding the action airlines may take on cockpit doors. The government is also beginning debate on who should perform security functions in the future. Executive and legislative decisions are being formulated without the input of the judiciary. Although the judiciary does not generally have the rapid response abilities of the other two branches of government, it may be that we have reached a point where more reflective decision-making begins. It may be time for the lawyers to begin their function and the individual victims to be considered. ATLA is now recommending this be done on a pro bono basis.

Continuing the discussion of the World Trade Center disaster, I recently read on the Internet that the State of New York expected a $5 billion payout in workers compensation benefits to the dependents of those who died on September 11th. It occurred to me when I read this article that if this same event had occurred to workers in the Sears Tower, the dependents of those workers would receive nothing under Illinois workers compensation law. The reason for this disparity is that several years ago in a case called Brady vs. The Industrial Commission, the courts held that the State of Illinois was not a “positional risk” State. This case involved a draftsman who was sitting at his desk when a truck went out of control on the street outside of his building, went through the wall and caused him severe injuries from which this man eventually died. The court held there was no increased risk due to his employment and because simply being at work and being injured is not sufficient in Illinois to support a prima facie case, the deceased’s heirs received nothing. A positional risk state awards benefits to workers who are injured at work whether their injury was associated with their work or not. The only argument a Sears Tower employee could make is that jets are more likely to hit their building than shorter ones. The jet flown into the Pentagon may defeat that argument.

Because of this disparity between New York and Illinois, I believe it is time to change Illinois law. Our organization will be supporting the efforts of State Representative Jack Franks and Senator Lisa Madigan in our state legislature to cure this disparity in the law. Our organization cannot provide physical security to the workers of our State who might be victims of terrorist acts but we can help provide financial security to the workers and dependents of workers in our state injured by such acts. We will be working closely with these two sponsors of this legislation to give them assistance in the passage of this legislation. Any support you can give would be greatly appreciated.

We stand together for the rights of victims.

Kim E. Presbrey, President
Illinois Trial Lawyers Association