A U.S. appeals court ruled Wednesday against Consolidated Edison Co. of New York Inc. and its insurers in an appeal of a lower court's dismissal of a suit claiming negligence by the owners, builders and designers of 7 World Trade Center led to the building's collapse and destruction of a Con Ed electrical substation following the Sept. 11, 2001, terrorist attack on the World Trade Center site.

The 2nd U.S. Circuit Court of Appeals panel split 2-1 in upholding the U.S. District Court for the Southern District of New York's 2011 dismissal of claims against 7 World Trade Co. L.P., Silverstein Development Corp. and Silverstein Properties Inc. and the lower court's 2006 dismissal of claims against Tishman Construction Corp. and the Office of Irwin G. Cantor P.C.

While the appeals court differed with the lower court on the grounds for dismissal, it held that “even assuming negligence on the part of the defendants, any such negligence was not the cause-in-fact of the collapse of 7WTC.”

When the World Trade Center's North Tower collapsed on Sept. 11, 2001, flaming debris struck 7WTC, damaging the building and igniting numerous fires. Confident those inside the building had been evacuated, faced with the deaths of hundreds of firefighters and confronted with a nonexistent water supply after falling debris damaged a water main, the New York Fire Department decided to let the building burn. Seven hours later, 7WTC collapsed, destroying the Con Ed substation beneath the building.

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Con Ed filed suit in 2004 and an amended complaint in 2008. It made similar claims against the City of New York, which was granted summary judgment by the District Court, and against the Port Authority of New York and New Jersey, which ultimately reached a settlement with Con Ed.

In granting summary judgment for the remaining plaintiffs and dismissing Con Ed's claims, the District Court held that the defendants had no duty to protect Con Ed against the events of Sept. 11 as the defendants' duty “did not encompass the strange, improbable and attenuated chain of events that led to 7 World Trade Center's collapse and the crushing of Con Edison's substation.”

In its ruling, however, the appeals court found that “The risk of massive fire at a high-rise building such as 7WTC is a foreseeable risk, and the District Court erred in finding otherwise.” But, the appeals court ruled, establishing that 7WTC had a duty to protect Con Ed alone does not establish liability, and the utility failed to establish that the defendants' negligence caused its loss. It was on that basis that the appeals court dismissed Con Ed's claims.

Looking at the events that led to the collapse of 7 World Trade Center the court said, “We have little trouble concluding that the confluence of these events demonstrates that 7WTC would have collapsed regardless of any negligence ascribed by the plaintiffs' experts to the design and construction of 7WTC more than a decade earlier. It is simply incompatible with common sense and experience to hold that defendants were required to design and construct a building that would survive the events of September 11, 2001.”

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Insurers joining Consolidated Edison as plaintiffs in the case included Aegis Insurance Services Inc., Liberty Insurance Underwriters Inc., National Union Fire Insurance Company of Pittsburgh, Pa., Nuclear Electric Insurance Ltd. and Lloyds syndicates 1255 and 1511.