Terrorism and The Extraterritorial Application of State Tort Laws
A federal district court in Washington D.C. last week rendered a decision against Iran and the Iranian Ministry of Intelligence and Security for a terrorist bombing in Jerusalem that killed Marla Bennett. Details about the July 2002 terrorist attack on Hebrew University that killed nine are available at this moving victims memorial website.
In Bennett v. Iran, Marla Bennett’s parents and sister brought claims under California tort law for Iran’s and MOI’s material support and assistance to Hezbollah. They alleged claims of wrongful death and intentional infliction of emotional distress.
The court awarded $400,000 in the Bennett’s wrongful death claim and $7.5 million for intentional infliction of emotional distress. The court ruled, “Here, the laws of California govern the claims brought by plaintiffs because each plaintiff and the deceased was a domiciliary of California at the time of the attack. Upon examination of the law of California, the Court concludes that California provides a cause of action against private individuals for the kind of acts that defendants allegedly committed. Plaintiffs seek damages for wrongful death and for intentional infliction of emotional distress, both torts for which private individuals may face liability.”
As much as I want Iran to pay for its material support of terrorist attacks such as this, I just don’t see how a federal court can apply California state tort laws extraterritorially to punish foreign tortfeasors for torts committed on foreign soil. At a minimum the application of conflict of laws principles should rule out the application of California state tort laws in such cases.
It is becomming increasingly common that state torts laws are the preferred cause of action used in Flatow Amendment FSIA claims against state sponsors of terrorism. These terrorist nations don’t appear to defend themselves and in the default judgment analysis it seems that no one is considering the presumption against extraterritoriality that should apply in these cases.
If state tort laws apply to compensate terrorist victims in Jerusalem, then what is to prevent using our state tort laws against foreign defendants for routine torts committed abroad by private parties? Provided you can overcome the jurisdiction hurdles, cases like Bennett v. Iran would lead one to believe that any tort committed anywhere in the world is subject to the state tort laws of the injured party. The obvious solution is to presume that state tort laws do not apply extraterritorially, which hopefully would prompt Congress to create a federal cause of action for terrorism.
(Incidentially, the definitive law review article on the extraterritorial application of state tort laws to combat terrorism has yet to be written. If there are any takers, I would love to read a forthcoming article).