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."
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