December 2012 Special Duty Update

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The New York State Court of Appeals in Metz v. State of New York (No. 208), has held that the State cannot be held liable for the deaths of the twenty people who died in the 2005 capsizing and sinking of the public vessel- the Ethan Allen -as the State owed no special duty owed to such persons.

On October 2, 2005, a tour boat named the Ethan Allen which was operating on Lake George capsized and sank.  On board at the time were 47 passengers, most of whom were senior citizens, and one crew member.  Twenty of the passengers died and many others were injured.  At the time of this tragic incident, the Ethan Allen was deemed to be a “public vessel” under New York’s Navigation Law as it was carrying passengers for a commercial purposes on the navigable waters of the state.  Under the Navigation Law, a public vessel is required to undergo a yearly safety inspection by the state and part of this inspection was determining the Ethan Allen’s maximum safe capacity.  When the Ethan Allen was constructed in 1964 it was determined that her safe capacity was 50 persons so, at the time of this incident, she was just two people below her safe capacity number.

However, when the Ethan Allen’s safe capacity number was determined in 1964, it was measured using an average passenger weight of 140 pounds which, in today’s society seems to be an extremely kind underestimate.  Moreover, in 1989 the Ethan Allen was modified by removing her canvas roof and replacing it with a wooden one.  Despite this, from the initial inspection to the date of the incident, the maximum safe capacity number was never changed.  Shockingly, at no point did the state’s inspectors ever run an actual test of the ship’s stability and instead, they simply “rubber stamped” (which was an actual statement made by a inspector at his EBT) the initial rating without any further inquiry.  After the vessel sank, an investigation made it clear that the Ethan Allen was not safe at the rated capacity.

The claimants filed suit alleging the state was negligent and the state answered raising several defenses.  The Court of Appeals determined that the one defense that really mattered was the lack of a special duty owed by the state to the passengers of the Ethan Allen and ultimately they dismissed the claim.  In issuing their decision, the Court pointed out that “the state is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public.”  The Court then conceded that the safety inspections of the Ethan Allen were indeed governmental functions and they seemed to insinuate that the state was negligent in their performance of those functions.

The Court then laid out the three ways a special duty relationship can be formed and focused its review on the one that the claimants alleged pertained to the facts- the state’s violation of a statutory duty (the Navigation Law) enacted for the benefit of a particular class of persons.  Strangely, the Court concluded that the statutory safety regulations were not enacted to protect specific persons but rather to protect the general public.  In our mind, this raises the question- when those persons boarded that boat didn’t they cease to become members of the general public and become specific persons (i.e. passengers of the Ethan Allen) entitled to the protection of the safety requirements?

The Court disagreed and dismissed the claims and, in their decision, they made it plain that they felt the law was clear on this issue.  Thankfully, the Court did make a point of clarifying that, despite the state’s apparent negligence, the victims of this incident were left without an adequate remedy and they insinuated that a change was needed.  Hopefully such a change is on the way in the form of a requirement that all public vessels carry liability insurance which the Court noted is pending in the legislature.  To read the full opinion please click here.