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http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202579749796&Lacking_a_Duty_State_Is_Spared_Liability_in_Tragic_Boat_Mishap&slreturn=20121101140724

Lacking a Duty, State Is Spared Liability in 'Tragic' Boat Mishap
By Joel Stashenko

ALBANY - The State is not liable for the deaths and injuries caused when an excursion boat tipped over on Lake George, the state Court of Appeals decided yesterday.

Twenty passengers were killed and several of the 27 others on board the Ethan Allen were injured in the 2005 accident.

Chief Judge Jonathan Lippman (See Profile), writing for a 6-0 court, called the capsizing of the Ethan Allen "tragic" and "disastrous."

However, the plaintiffs in Metz v. State of New York, 208, have failed to demonstrate that a "special duty" existed between the state and the passengers on the Ethan Allen the day it capsized that would overcome the state's argument that it was protected from liability by sovereign immunity, Lippman said.

Citing the Court of Appeals' rulings in O'Connor v. City of New York, 58 NY2d 184 (1983), Valdez v. City of New York, 18 NY3d 69 (2011) and McLean v. City of New York, 12 NY3d 194 (2009), Lippman said it is now "well settled" that the state is "not liable for the negligent performance of a government function" unless there existed "a special duty to the injured person, in contrast to a general duty owed to the public."

"The regulatory scheme at issue here does require inspectors to issue a certificate of inspection indicating that the vessel is safe and, specifically, certifying the number of passengers the vessel can safely transport," Lippman wrote. "However, these statutory obligations do not create a special duty of care owed by the state to particular passengers."

Although the Navigation Law statute that mandates inspections of public vessels by the Office of Parks, Recreation and Historic Preservation is designed to protect public safety in general, it "did not create a duty to particular individuals," the chief judge wrote.

Moreover, he said that the court's conclusion was bolstered by the fact that the Navigation Law does not provide a private right of action against the state, but instead for fines and criminal penalties to be imposed upon vessel owners and operators for violations.

Lippman noted that the law was amended in 2007 in response to the Ethan Allen accident. While requiring additional safety measures and enhancing penalties for violations, the Legislature "did not provide for a private right of action," the chief judge said.

Lippman said the court was aware that the "upshot" of current law is to leave victims "without an adequate remedy."

"The Legislature currently has a proposal before it to require public vessels to carry marine protection and indemnity insurance," Lippman wrote about A6699. "We note that such a requirement—had it existed—might have been able to provide a modicum of relief here."

Read the proposed legislation.

The Ethan Allen was loaded with elderly passengers, mostly from Michigan and Ohio, when it tipped over while on a trip to view fall foliage along Lake George.

Authorities said they suspected that the boat might have foundered in the wake of a passing vessel on what was otherwise a clear day on a placid lake.

Testimony by state inspectors indicated that they had routinely listed the capacity of the Ethan Allen at 48 passengers as set by the U.S. Coast Guard in the 1960s. The state took over inspections of the craft in 1979.

The canvas canopy on the 40-foot boat was replaced by a wooden one in 1989, and the plaintiffs contended that the heavier canopy made the Ethan Allen unstable or the 48-passenger limit was outated because it was based on the average weight of 140 pounds accepted in the 1960s.

The state has since increased the average weight per passenger to 174 pounds.

The court's ruling reversed the finding of a Appellate Division, Third Department panel, which granted the claimants' motion to dismiss the state's defense of sovereign immunity in Metz v. State of New York, 86 AD3d 748 (2011).

That court held that while the inspections were a government function, the state had failed to show it exercised any discretion in how it carried out inspections because they routinely continued to set its passenger limit at 48, even after the wooden canopy was added (NYLJ, July 15, 2011).

Judges Carmen Beauchamp Ciparick (See Profile), Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Robert Smith (See Profile) and Eugene Pigott Jr. (See Profile) joined in the ruling.

Deputy Solicitor General Andrew Bing argued for the state.

James Hacker of Hacker Murphy in Latham represented the plaintiffs.

"I think this suit makes it abundantly clear that anyone who's hurt as a result of a negligent act by New York state, their rights are severely hampered," Hacker told the Associated Press. "This is the end of the road for this case."

Shoreline Cruises, the owner of the Ethan Allen, and its captain, Richard Paris, pleaded guilty in 2007 to one misdemeanor charge each of operating a public vessel without sufficient crew. The rule called for at least two crew, but Paris was alone when the boat capsized. Both Shoreline Cruises and Paris were fined $250.

Shoreline Cruises also settled claims filed by 17 Ethan Allen passengers or their survivors.

Matthew Quirk, whose family owned and operated Shoreline Cruises, was found dead in September 2009 in Warren County. Authorities ruled his death a suicide.

@|Joel Stashenko can be contacted at jstashenko@alm.com.