Beddia, Graffagnino and Palsgraf

New York City firefighters Joseph Graffagnino and Robert Beddia died while fighting a blaze at the former Deutsche Bank Building, across the street from the World Trade Center site and abandoned since the September 11 2001 Muslim terrorist attack. Due to the asbestos and other toxic substances which permeated the DBB following the September 11th attack, the demolition of the DBB has had to proceed slowly.

There now are some well-founded contentions that the standpipe in the DBB had been removed and/or was otherwise nonfunctional, thereby leaving the firefighters without a water supply as they tried to extinguish the fire.

Apparently, many of the FDNYers and others who attended the respective funerals for Graffagnino and Beddia are of the opinion that the two FDNYers who fell in this latest Deutsche Bank Building incident ought be counted as FDNY fatalities 344 and 345 from the September 11th terrorist attack on the World Trade Center.

Firefighters and law enforcement officers in New York and most other places have grown quite adept at playing upon the public sympathies to exact monetary benefits from the public fisc. This is certainly not to the firefighters' or police officers' discredit; the public officials who negotiate with firefighters (and all other public servants) must proactively assert the public interest in the negotiations, and too many public officials have been remiss in this duty. Including Beddia and Graffagnino among FDNY's 9/11 casualties does have fiscal implications which ought not be totally ignored by the New York City administration.

Dropping all of this very heavy emotional baggage, is it stretching things a bit far to count the tragic deaths of Firefighters Beddia and Graffagnino among those caused by the terrorist attack?

The one memorable case from law school is Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). The Palsgraf opinion was written by Judge Cardozo when he sat in the center spot of the New York Court of Appeals, and is standard fare for law school Torts courses.

The Palsgraf facts are as follows: Two men ran to catch a train as it pulled out of the station. One of the two men jumped aboard the train without incident, while the second needed to be helped aboard by two Long Island Railroad conductors. A package carried by the second man fell to the tracks. The package contained fireworks, and exploded when it fell. The explosion caused some scales to fall upon the plaintiff, Helen Palsgraf, causing her injuries.

[N.B. The incident was reported in the New York Times the day after it occurred: "Bomb Blast Injures 13 in Station Crowd," N.Y. Times, August 25, 1924.].

Cardozo's opinion, in a nutshell, was that possibility of the scales falling upon Mrs. Palsgraf was so far removed that even "the most cautious mind" would not have apprehended it. Because Mrs. Palsgraf's injuries were so unforeseeable and attenuated, there was no liability on the part of the Long Island Railroad.

But Palsgraf was about negligence. The World Trade Center attack was not negligent, it was intentional. The terrorist attackers specifically intended to inflict widespread physical, economic and emotional damage upon the City of New York and the United States of America and the public, damage occurring not only on September 11th, but continuing for a considerable time in the future. The damage to the Deutsche Bank Building, and the deaths of Beddia and Graffagnino, then, were within the scope of contemplation by the terrorist attackers.

Under such circumstances, there is much to support the argument that Bob Beddia and Joe Graffagnino were indeed victims of the September 11th terrorist attack. May they rest in peace!