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BIZIEN v. PORT AUTH. OF NEW YORK

July 8, 1983

REMY BIZIEN, Plaintiff
v.
THE PORT AUTHORITY OF THE STATES OF NEW YORK AND NEW JERSEY, BRITISH AIRWAYS and IBI SECURITYSERVICES, INC., Defendants; EVAN GOODSTEIN and LORRAINE GOODSTEIN, Plaintiffs v. BRITISH AIRWAYS and IBI SECURITY SERVICES, INC., Defendants; BRITISH AIRWAYS, Plaintiff v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendants



The opinion of the court was delivered by: MCLAUGHLIN

OPINION AND ORDER

 McLAUGHLIN, District Judge:

 On September 26, 1981, a group of protesters gathered at the British Airways Terminal at Kennedy Airport to demonstrate against the South African Rugby Team known as the "Springboks." The protesters mistakenly believed that the soccer team was scheduled to return to South Africa that day.

 A significant force of New York Port Authority Police was on hand when the protesters, who had until then been peaceful, broke from a lounge area and bolted for the British Airways gate. In the ensuing melee one of the protesters, Donna Borup, now a fugitive, hurled a caustic solution at Evan Goodstein, a Port Authority policeman who was trying to handcuff her. The solution splattered Goodstein in the face, and some of it also hit Remy Bizien, an employee of South African Airways, who had intervened in the fracas to subdue another demonstrator.

 Both victims brought separate personal injury actions that were later consolidated. The defendants are the Port Authority of the States of New York and New Jersey (hereinafter the "Port Authority"), British Airways, and the IBI Security Service, Inc. (hereinafter "IBI"). After a bench trial, I find for the defendants.

 FACTS

 THE PARTIES

 Remy Bizien is a French citizen and a resident of New York. On September 26, 1981, he was employed by South African Airways as a catering coordinator and, in the course of this employment, was at the British Airways Terminal at John F. Kennedy International Airport. Similarly, Evan Goodstein, a citizen of the United States, and a resident of New York, was employed as a police officer by the Port Authority and, in the course of his employment, he too was at the British Airways Terminal.

 British Airways is a foreign corporation and is a wholly owned subsidiary of the British Government. It operates an airline providing regularly scheduled service throughout the world and serving New York City through John F. Kennedy International Airport. British Airways maintains a terminal building at John F. Kennedy International Airport, the British Airways Terminal.

 The Port Authority of New York and New Jersey is a body corporate and politic, created by compact between the States of New York and New Jersey with the consent of the Congress of the United States and, as such, is an agency of both the States of New York and New Jersey. As part of its governmental function, The Port Authority maintains and operates its own police force, all the members of which are police officers in both the State of New York and the State of New Jersey.

 IBI is a New York corporation which supplies for hire guards and other security personnel. On September 26, 1981, IBI was under contract (plaintiff's Exhibit 5) to supply guards and other security personnel to British Airways for stationing at posts in the British Airways Terminal.

 The British Airways Terminal at John F. Kennedy Airport is constructed on land that British Airways has leased from The Port Authority (and, in turn, The Port Authority has leased from the City of New York). British Airways itself does not own the terminal, but rather it occupies the terminal pursuant to a lease agreement with BDL Properties, Inc., the developer. British Airways subleases portions of the terminal to other air carriers, shops, newsstands, and concessions.

 The departure level of the British Airways Terminal is arranged with ticket counters and check-in facilities near the front entranceways. Behind these facilities, is a lounge in which passengers may rest prior to boarding their flights, and in which persons may await the arrival of in-coming flights. This lounge is an open, public area surrounded by shops and concessions and is a hubbub of activity when aircraft are arriving and departing from the terminal. From this lounge, two ramps -- the North Ramp and the West Ramp -- lead to the gates at which the aircraft are parked.

 THE INCIDENT

 During September 1981, a South African rugby team, commonly known as the "Springboks", was touring the United States. Wherever it went, the team attracted noisy attention because of the political turmoil in South Africa. The team was scheduled to return to South Africa during the latter part of September, 1981 on a South African Airways flight scheduled to depart from the British Airways Terminal.

 On September 26, 1981, Leonard J. Levy, British Airways' senior security officer on duty (and a retired New York City detective), received information sometime between 2:00 P.M. and 3:00 P.M. that a demonstration might occur at the terminal. When he learned that the demonstrators had entered the building, Mr. Levy telephoned The Port Authority Police Department to ask for police assistance. (A few days earlier, the Port Authority had received a warning from the New York City Police Department to expect trouble at the terminal.) Mr. Levy then advised his fellow security officers that demonstrators might already be in the terminal; later he patrolled the departure lounge, where he anticipated the demonstrators might congregate. Mr. Levy decided against summoning extra guards from IBI because IBI guards are not trained in crowd control procedures.

 Responding to Mr. Levy's telephone call, The Port Authority dispatched nineteen (19) police officers, including both plain clothes and uniformed officers. When the police arrived at the British Airways Terminal, British Airways Security had identified a group -- approximately 40 to 50 in number -- of non-passengers seated in the lounge on the departure level of the British Airways Terminal. The group was comprised predominantly of females, and included many small children. The group was seated in a public, unrestricted area of the lounge, and was quiet and orderly.

 As soon as the police arrived at the British Airways Terminal, Mr. Levy spoke with Lieutenant Brown and Sergeant Sweet of the Port Authority Police Department and pointed out the group of persons in the lounge who appeared to be demonstrators. Mr. Levy discussed with the officers the possibility of moving the group out of the terminal and all agreed that Lieutenant Brown should speak with the person who appeared to be leading the group. Lieutenant Brown spoke with a woman carrying a bullhorn and offered her a location outside the terminal in which to demonstrate. The offer was refused.

 During this period, British Airways conducted normal boarding operations at the terminal, using the north ramp from the departure level. While passengers for the South African Airways flight were boarding, the Port Authority Police and British Airways Security positioned themselves in various locations throughout the lounge on the departure level of the terminal, and near the north ramp, and had the group under constant surveillance.

 Present at the terminal were at least 19 Port Authority police officers and two British Airways Security Officers. In addition, a uniformed guard employed by IBI stood at the base of the north ramp. The unarmed, uniformed guard was responsible for checking boarding passes and luggage of passengers moving from the departure lounge to the gate area. He had no other security responsibilities.

 Sometime during the early evening, but after the Port Authority Police had arrived and taken control of the scene, the group of demonstrators began to assemble and walk past the base of the north ramp. This group began to chant various slogans directed against the South African government and its policies. Then, suddenly, abruptly, and without any warning, a small group of persons, estimated at between three to eight in number, broke from the main group and raced up the north ramp. British Airways Security officers and Port Authority police attempted to restrain these persons and were successful in preventing them from reaching the passengers and aircraft in the gate area.

 Plaintiff, Remy Bizien, who was wearing his British Airways uniform, happened to be on the ramp at the time. He saw one male, later identified as Timothy Blunk, running up the ramp toward the gate. Bizien tried to stop Blunk while Officer Goodstein was scuffling with a female, subsequently identified as Donna Borup. Borup threw a caustic solution in their ...


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