The Construction Standard of Care After 9/11 by Raymond Mellon, January 2007

January 31, 2007

Prior to September 11, 2001, security in design was not an over-riding concern to architects, engineers, or builders. Before the devastating terrorist attacks, security was usually only considered a priority in design and construction for specific project types, such as State Department embassies, consulates, governmental facilities and prisons. After 9/11, security has become an absolute priority in virtually every type of construction, including commercial, education, health care, institutional and residential. This drastic change in the design and building environment, occurring virtually over night, mandates that appropriate security safeguards and technology be incorporated into the design-build process at the initial stage of planning a project. 

The fundamental issue facing design- builders is the determination of what design/security elements are appropriate for specific project types. To the extent that designbuilders fail to incorporate appropriate security elements into the design, liability may result upon the advent of a future terrorist attack or other calamity. This article will address a design-builder’s obligation to design and construct projects so that they comply with the evolving standards of the industry, whether enacted statutorily or by technological innovation. 

The initial issue to confront is what level of security is sufficient to protect the (a) tenants of the building, (b) the public, (c) the owners, and (d) the design-builders themselves. The answer to this question requires a balancing act to determine the appropriate standard of care that will measure the design-builder’s actions on a given project. To the extent that a design-builder’s conduct is below the standard of care, such action constitutes negligence, and liability results if someone or something is damaged. The crucial determination as to whether the conduct is below the standard of care, and thus negligent, relates to foreseeability, i.e., could the harm or injury incurred have been foreseen. 

An apt illustration of foreseeability is found in the 9/11 attacks. Prior to 9/11, the deliberate use of a commercial jet airplane as a weapon was, thankfully, beyond the collective imagination of the nation, much less design-builders. Since 9/11, the risk of an airplane terrorist attack is ever present. As a result, liability against the original designers of the World Trade Center is probably remote, due to the lack of foreseeablity of the nature of the 9/11 attacks in the mid-1960’s when the World Trade Center was designed. However, design-builders who do not design and build in conformity with the lessons learned from 9/11 risk liability. 

In divining the appropriate standard of care, the balancing test measures (a) the risk of the accident occurring, versus (b) the magnitude of the harm should the risk materialize, versus (c) the availability of alternatives that would prevent the accident. The first prong concerns the foreseeability of the harm. The second prong focuses on whether the harm will be material or not. The fact that an accident is foreseeable is of minor consequence if the resulting harm will be trivial or non-existent. The third prong relates to the important issue as to whether the accident could have been avoided through the use of economical and available alternatives. Examples abound in this technological age as to the avoidability of an accident through the installation of an inexpensive bolt or screw. The balancing of these three prongs results in the existing standard of care. 

Implicit in the standard of care is a “rule of reason” to be employed in assessing the level of security and technology to be implemented in a design-build project. For example, construction of a high rise commercial or residential office building in midtown Manhattan, next to a politically sensitive consulate, would require a rigorous implementation of existing security technology and design in construction. However, the construction of a commercial office building in the suburbs servicing back office facilities would involve a reduced need for technological innovation and design since the terrorist threat will be less. Similarly, the design and construction of a vacation home in the mountains would normally require a lesser implementation of security innovations in the design. However, if the vacation home was for a high level governmental official, or a CEO of a high-profile, multinational corporation, then the heightened requirement for security would be in effect. 

It is imperative to note that the standard of care is kinetic and continually evolving. Both events and technology can and do affect and change the standard of care. Recent technological changes in the last 20 years have mandated revisions to building construction and safety. For example, many building codes now require various types of computerized fire safety devices, smoke detectors, strobe lights and other safety features not available 20 years ago. While complying with statutory requirements for safety in building design is straightforward, the important issue raised by 9/11 is what design changes and technological advances must be incorporated into a building in the absence of statutory mandates. The fact that a building code in a particular municipality has not yet been amended to include new safety features or technological advances, does not, by itself, provide a safe haven from liability for damages incurred by a terrorist attack. 

A vintage illustration of a situation where liability resulted from the failure to utilize a technological advance can be found in the case of The T.J. Hooper v. Northern Barge Corporation. This case concerns an accident from 1928 involving two tug boats that had departed from Norfolk, Virginia, en route to New York City. Both tug boats were towing barges filled with cargo. On the trip up the East Coast, the tug boats were caught in a storm, and some of the cargo barges were lost. Thereafter, the owners of the cargo in the barges sued the tug boat operators, claiming they were liable for failure to utilize the thenrecent technological innovation of radio. The cargo owners claimed that, had the boats been equipped with radio, they would have been informed of the approaching storm, and could have sought the safety of a nearby port. The tug boat operators defended by claiming there was no statute mandating the use of radios, and that, in fact, only one tug boat operator on the entire East Coast used radios at that time. Notwithstanding the absence of a statutory mandate to use radios, or even a custom in the trade, liability was imposed against the tug boat operators. The Court’s specific finding on this issue can easily be applied to design-builders in the 21st Century:
Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.

While an old case, such an admonition can and should strike fear into design-builders as to their potential liability in failing to adhere to the evolving standard of care when designing and constructing projects. 

The first method to ascertain the applicable standard of care for a design-builder would be to determine whether the municipality in which the construction is being performed enacted any changes in the applicable building code as a reaction to 9/11. Other than New York City, no major city in the United States has enacted changes to their building code which incorporate the important lessons learned. In the absence of a statutory requirement through a building code, a design-builder must take affirmative steps to investigate and determine the appropriate standard of care for incorporating security and safety features in buildings after 9/11. To the extent that a design-builder fails to take steps to ascertain the appropriate standard of care, such an exercise will be undertaken in court, through the use of experts, to determine if a design-builder’s actions were appropriate and in compliance with the standard of care. 

In the absence of statutory requirements, another important source in determining the standard of care are studies and reports issued by governmental agencies investigating the causes, effects and conclusions reached from the collapse of the World Trade Towers. The first governmental report was issued by a governmental agency whose credibility is, unfortunately, suspect as a result of Hurricane Katrina. On May 1, 2002, the Federal Emergency Management Agency (“FEMA”) issued a study, the goal of which was improved guidance for building design after 9/11. The study focused on various construction issues that were relevant to the collapse of the World Trade Towers. Some of these issues included the following: 

Structural Framing Systems - whether the building frames have redundancy for the transmitting of loads after damage to the structure has been incurred;

Fireproofing - the adherence of fireproofing upon impact and the effect of fire conditions upon steel members; and

Egress Systems - redundancy of systems and robustness in the face of impact by a foreign object.

The above issues are a recurring theme found in subsequent governmental studies investigating the terrorist attacks. One of the more comprehensive governmental studies was funded by the National Institute of Standards and Technology (“NIST”). The NIST study is a multi-year study with two parts. The first component is a two-year study investigating the how and why of the collapse of World Trade Center One, Two and Seven. The second component is a three-year study to address building and fire safety needs, on a national level, in order to mitigate the problems identified as a result of the World Trade Center collapse. The NIST Report investigated a number of the same issues raised in the FEMA study, as well as proactively focused on other issues that could be relevant in the future, i.e., reducing the vulnerability of buildings from chemical, biological and radiological attacks. 

One of the goals of the NIST Report was to develop a road map for changes to existing building codes, standards and designs, as well as developing a better understanding of human behavior in emergency evacuation systems. This included the use of technologies to help impaired individuals trapped in an emergency, as well as improved communication for rescuers sent into the building. The NIST Report contains invaluable conclusions and recommendations as to the appropriate manner to design-build a project potentially at risk from a terror attack. NIST “strongly urges” that buildings be evaluated with regard to the listed recommendations, and that steps to mitigate unwarranted risks should be taken without waiting for changes to occur in codes, standards and practices. A designbuilder, particularly outside of New York City, constructing such a project will ignore the NIST Report at its peril. 

It should come as no surprise that New York City, having been the subject of two separate terrorist attacks, has made a determined effort to upgrade its building code to incorporate lessons learned from the 9/11 disaster. On June 24, 2004, Mayor Michael Bloomberg signed Local Law 26 of 2004 which incorporated most of the recommendations of the World Trade Building Code Task Force, which was formed in March of 2002. This task force was a collaboration of public and private interests that worked in record time to recommend legislation that would enact into law most of the conclusions reached in the investigation of the World Trade Center collapse. Local Law 26 is not only prospective for new construction, but includes retroactive requirements for existing buildings of a certain size, i.e. usually over 75 feet in height. Some of the many requirements found in Local Law 26 are as follows:
With its incorporation of construction improvements, Local Law 26 provides the basis for the standard of care for design-builders that build projects potentially at risk. While New York City remains in the forefront of taking steps to ensure that the construction process responds to evolving terrorist threats, the New York City Building Code, which incorporates Local Law 26, is simply a baseline, or floor, to measure a design-builder’s actions. As technology will, no doubt, advance more rapidly than building codes, design-builders must stay ahead of the curve and identify those construction practices and technological advances which should be incorporated into new construction.

Another source for determining the construction standard of care is to look at similar buildings currently being constructed to ascertain what is being done to minimize the danger from a terrorist attack. Examples abound of new construction that has been dramatically altered as a result of the 9/11 attacks. For example, the Time Warner headquarters in Manhattan’s Columbus Circle was substantially modified during construction in order to achieve enhanced security. The number of the building’s structural columns encased in concrete was greatly increased, thereby providing improved capability to withstand the impact of an explosive blast or the effects of a fire. Additionally, the communication system was greatly improved to allow a continuous communication between the Fire Department and other rescue personnel responding to an emergency. (This is a lesson directly gleaned from the collapse of the North Tower at the World Trade Center. Many Fire Department personnel were lost due to interrupted radio communication that could have warned of the likely collapse of the building after the collapse of the South Tower.) Also in Manhattan, the CIBC Tower had additional steel plates welded to the structural columns of the building to resist lateral forces from a bomb blast. Shatterproof glass was also installed on the building’s lower floors to minimize the potential injury to individuals. 

One high profile construction project that goes beyond statutory requirements and can be viewed as a paradigm for future construction standards is the Freedom Tower to be built at the World Trade Center site. In seeking to construct a safe building at the epicenter of the disaster, new construction features were incorporated into the design. For example, the design includes concrete protection for all sprinklers and emergency risers, as well as concrete encased stair and elevator cores. Biological and chemical filters are to be installed in the Tower’s air supply system to proactively mitigate a new potential terrorist attack. In order to ease the evacuation of the building, additional stair locations were incorporated into the design with direct exiting into the street. Additionally, a separate stairway with a wider stair width and elevator is to be installed for firefighters. Going beyond the requirements of Local Rule 26, additional low level emergency lighting will be installed to aide the occupants in quickly exiting the building. Finally, thicker spray-on fireproofing is to be installed. 

In addition to the internal safety and technological improvements, the New York City Police Department required the building to be modified by providing a further setback from the street to lessen the impact of a ground level blast. Shatterproof glass is to be installed in the lower floors to further mitigate the consequences of an explosion. With all of these safety and technological improvements, the Freedom Tower may, in fact, equal the hype of being designed as one of the “safest buildings” in the world. At a minimum, design-builders contemplating the construction of a major office building in a metropolitan area must be aware of the safety and technological features that are currently being incorporated into similar buildings under construction. 

Another source of information concerning the current safety and security features being implemented in construction is the vast body of literature on this subject. Since 9/11, quite a number of architects, engineers and other experts in construction have written on this evolving and dynamic issue. A resource of particular note, which is quickly becoming the standard textbook on the issue, is Building Security, Handbook for Architectural Planning & Design, by Barbara A. Nadel, FAIA. This treatise covers the issue of security through the spectrum of building types, planning and design, construction technology, as well as building codes and legal issues. Reference to such resources will further illuminate the existing standard of care for design- builders. 

The world we live in changed drastically on 9/11, and we must all adapt to these changes. In construction, design-builders must be cognizant of the increased obligation to design and construct buildings which utilize and incorporate appropriate design and technology to minimize the effect of potential terrorist attacks. Anything less will simply endanger the occupants of the building, the public in general and increase the risk of tremendous liability.