Last month the Appellate Division of the New York Supreme Court ruled that a lawsuit accusing the State of New York of wrongfully allowing too many passengers on the ill-fated Ethan Allen tour boat can proceed to trial in October. The vessel capsized on Lake George on Oct. 5, 2005, killing 20 passengers and seriously injuring several others on board. Twenty-seven victims’ families later sued the state Office of Parks, Recreation and Historic Preservation, which had inspected the boat annually since 1979 and certified the Ethan Allen could carry up to 48 people.
National Transportation Safety Board investigators later found the boat should not have had more than 14 passengers and blamed the deadly incident on the boat’s instability. After the family of 73-year-old Mary Metz of Michigan, who died in the capsizing, sued the state, family lawyers moved to eliminate the state’s defense that it could not be held liable due to sovereign immunity. State employees are generally shielded from legal liability when working within their discretion. The state, in turn, sought to have the entire lawsuit dismissed.
In 2010, the Court of Claims rejected both arguments. Now, the state Appellate Division of state Supreme Court has modified that ruling. It found the state was not immune to being sued in the Ethan Allen case because its employees showed no discretion during its annual inspections. The ruling said the state had “not submitted any evidence that its inspectors ever independently verified the appropriate number of passengers who could safely travel on the vessel or engaged in any exercise of reasoned judgment to determine whether such verification was necessary or appropriate. Accordingly, defendant has not demonstrated its entitlement to judgment in its favor as a matter of law.” Albany lawyer James Hacker is handling the lawsuit.
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