By Ian Clark

Perhaps unsurprisingly, the husband of one of the victims of the World Trade Center disaster on 11 September - who is not entitled to payment from the US Victims Compensation Fund - has decided to sue American Airlines for damages.

Airlines are usually liable for damage to property and injury or death to persons on the ground caused by an accident involving its aircraft.

It will be for the claimant to prove that the duty of care was owed to the occupants of the World Trade Center.

The assumption is that it is the airline's fault unless it can show otherwise.

In the unique circumstances of 11 September, American Airlines would argue that the cause was outside its control. The disaster resulted from the act of terrorists, not from the way in which American Airlines had operated its aircraft.

The claimant in this case is alleging that the airline failed to take proper precautions to prevent armed hijackers boarding the aircraft.

He alleges not only that American Airlines was negligent but that it was guilty of reckless misconduct.

Foreseeable disaster?

The law of negligence in the US is based very much on English law, which requires the claimant to prove that the cause of the injury resulted from a breach of a duty of care owed by the airline to the victim.

The special feature of this case is not so much whether American Airlines failed to take reasonable precautions to avoid armed hijackers boarding the aircraft, but whether the duty of care was owed not only to the crew and passengers but also to persons on the ground.

The legal question is whether [the attack] was foreseeable, and no doubt American Airlines will argue vigorously that it was not.

It will be for the claimant to prove that the duty of care was owed to the occupants of the World Trade Center.

To do that, he must show that it was foreseeable that hijackers might force the aircraft to be flown into the side of a building.

Usually, hijackers intend either to divert a flight to a different place, hold the crew and passengers to ransom or simply destroy themselves and all on board.

There was almost universal shock and surprise that aircraft were flown into the sides of buildings, especially ones in which so many people worked.

The legal question is whether this was foreseeable, and no doubt American Airlines will argue vigorously that it was not.

If the airline is successful on that point, then even if the claimant proved that the security precautions were inadequate his claim would be unsuccessful.

Punitive damages

As to the allegation of reckless misconduct, the claimant would not only have to prove that American Airlines foresaw the danger but also that it decided not to take proper steps to avoid the danger.

This is an even more difficult task than proving simple negligence.

If the airline is found to be negligent - or worse still reckless - the financial consequences could be enormous.

As to the level of damages, if the claimant can prove the liability of the airline, he will be entitled to receive compensation for the loss of any financial support that his wife provided.

But he is also claiming punitive damages, on the basis that the airline should incur a massive financial penalty because of its alleged misconduct.

Although punitive damages are not uncommon in the US, it is unlikely that they would be awarded unless the claimant could prove recklessness on the part of the airline in its security arrangements.

Clearly, if the airline is found to be negligent - or worse still, reckless - the financial consequences could be enormous.

It is unlikely, though, that this case - which will inevitably attract huge publicity - will reach a final determination for many years yet.

Ian Clark is a former pilot and flying instructor. He is currently a partner with the London-based firm of solicitors Clark Ricketts, which specialises in aviation law.