The Ethan Allen Capsizing and Government Liability in New York State

November 12, 2010

The Ethan Allen Capsizing and Government Liability in New York State

Five years ago, an overloaded tour boat called the Ethan Allen capsized on Lake George in upstate New York. Of the 47 mostly elderly passengers on board, 20 drowned and ten others were injured.

How did these wrongful deaths and injuries happen and who bears responsibility for it? Hacker Murphy, LLP, a law firm based in Latham, New York, has taken legal action on behalf of the victims and their families against multiple defendants. The defendants included Shoreline Cruises, which owned the Ethan Allen; Richard Paris, the boat's captain; and the Canadian tour company that organized the Lake George excursion.

Claims against these defendants have been settled, and a claim against the company that built a wooden canopy on the Ethan Allen was dismissed.

There were also two other important defendants. One was Lake George Steamboat Company, whose tour boat, the Mohican, caused a wake that may have contributed to the capsizing of the Ethan Allen. The other was the New York State Department of Parks and Recreation, which certified the Ethan Allen for more passengers than it could safely carry.

In September, Hacker Murphy LLP reached a settlement with Lake George Steamboat Company. One key issue, however, remains to be resolved: the liability of the state for failing to properly inspect the Ethan Allen. The state has raised the affirmative defense of qualified government immunity. The case is now before the New York Appellate Division.

Qualified Immunity Defense

The problem with the state's qualified immunity defense is that the state inspectors who rubber stamped the Ethan Allen's capacity as 50 passengers year after year were not really exercising discretion. They had no reasonable basis for the continuing certification. A very basic stability test could easily have shown that the capacity was not nearly that high.

Instead of using their professional judgment, the state inspectors kept relying on an earlier certificate issued by the U.S. Coast Guard in 1976 -- even though the wooden canopy added in 1989 reduced the passenger capacity from 50 to 14.

Role of the Court of Claims

In New York State, claims against the state are heard by the Court of Claims, a special court with jurisdiction to resolve these issues. Judges are appointed by the governor, and the jury system is not used.

In the Ethan Allen case, after the depositions of the state inspectors were taken, Hacker Murphy, LLP moved for the defense of qualified immunity to be dismissed. The state moved for summary judgment, based on the immunity defense. In April 2010, the court denied both motions.

The question now, as the case proceeds to trial in the Court of Claims, is how New York law on the qualified immunity defense applies to the facts of the Ethan Allen case.

Court of Appeals Cases on Qualified Immunity

New York's highest court has recently clarified the elements that a state government agency or local subdivision must establish for the qualified immunity defense to apply. In 2009, in McLean v. City of New York, the court explained that the state's waiver of sovereign immunity applies to three types of action:
-Proprietary acts
-Discretionary, non-judicial action "taken in bad faith or without reasonable basis"
-Ministerial action "taken where there is a special duty owed by the government to the third party"

In McLean, a state employee made an incorrect statement to a parent about whether a certain home daycare facility was regularly inspected. After the parent enrolled her daughter there, the daughter fell off a bed and suffered a brain injury. The Court of Appeals held that although discretionary government action cannot be a basis for liability, ministerial actions can be -- if they violate a special duty owed to the plaintiff

The Ethan Allen case is distinguishable from McLean. The rubber-stamping boat inspectors had no reasonable basis for their continued certifications.

For qualified immunity to apply, even a discretionary action must have a reasonable basis. The state gets a wide berth, but its inspectors cannot be blind to their duties at the expense of innocent victims injured by state inaction.

In its April ruling denying summary judgment for the New York Department of Parks and Recreation, the Court of Claims noted that McLean did not address cases involving a failure by government officials to exercise any discretion in carrying out their discretionary authority.

Seeking Resolution

The victims' families have waited a long time for justice after the Ethan Allen's calamitous capsizing. The case has already taken five years, and the state is still resisting responsibility for the egregious inaction of its inspectors. The attorneys at Hacker Murphy, LLP remain determined that proper resolution finally be achieved.

Article provided by Hacker Murphy LLP
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