State lawyers are urging New York's top court to throw out the liability lawsuit against the inspectors who continually recertified a tour boat for 48-passenger capacity before it overturned on an Adirondack lake in 2005, drowning 19 senior citizens from Michigan and one Ohio resident on a leaf-peeping tour.
Federal investigators afterward said the 40-foot Ethan Allen should have been limited to 14 passengers when it tipped in clear, sunny weather, sending the out of state 47 tourists and the captain into Lake George.
The National Transportation Safety Board concluded "insufficient stability," partly from the passenger load, was the probable cause of the accident.
State Deputy Solicitor General Andrew Bing told the Court of Appeals the inspectors are not the primary wrongdoers but simply were involved in regulatory enforcement, like building inspectors. He argued there's no indication the Legislature intended to allow a private right to sue in a boating case like this, which is generally prohibited under the public duty rule for those engaged in "a governmental police power function."
"This is what safety inspectors do in the city of New York and ... there are hundreds of thousands of safety inspections they do every year," Bing said. "Safety inspectors routinely set standards including occupancy and capacity numbers for buildings and buses."
Prior court cases dealing with safety-related programs have found the public duty rule applied and there was no liability even when the governmental employee "was potentially guilty of some kind of more affirmative act," like incorrectly telling someone a lead paint hazard had been abated or a day care center had no previous abuse complaints.
Attorney James Hacker, representing the victims, said that the inspectors were specifically negligent in this case, that they knew the Ethan Allen had been modified, that passenger safety was at stake and that they knew they had the duty to do more than rubber-stamp the capacity limit initially set in 1979, based on a prior Coast Guard inspection. He said that in 1989 a heavier, wooden canopy replaced a canvas canopy, an obvious modification the inspectors knew about.
Hacker argued that the inspectors had a responsibility to these passengers beyond a general duty to the general public or all passengers.
"If you agree with me it's not going to open the floodgates of litigation," Hacker said. "In this case, these inspectors specifically did something wrong. They were the main actors."
Ethan Allen owner James Quirk settled federal court claims in 2008 against his company Shoreline Cruises Inc., its affiliate Quirk's Marine Rentals and boat captain Richard Paris for undisclosed terms. Shoreline continues to operate its other tour boats on Lake George in the southeastern Adirondacks.
Hacker said that lawsuit suggested operator negligence, turning into the wake from another boat.