Opinion
113310.
Decided March 4, 2010.
Hacker Murphy, LLP, By: James E. Hacker, for Claimants.
Hon. Andrew M. Cuomo, Attorney General of the State of New York, By: Glenn C. King, Assistant Attorney General, for Defendant.
The above-captioned claimants (claim numbers 113310, 114278, 114950, 114949, 114931, 114940 and 114313) seek damages for the alleged wrongful deaths and personal injuries arising from the tragic capsizing of a tour boat known as the Ethan Allen on October 2, 2005 on Lake George, New York. This Decision and Order stems from claimants' motion to dismiss the affirmative defense of sovereign immunity asserted by defendant State of New York pursuant to CPLR 3211(b), and defendant's cross motion for summary judgment pursuant to CPLR 3212. Both parties offer opposition to the motion of the other, and the Court heard oral argument on the motions.
In a previous Decision and Order, this Court granted a motion by certain claimants seeking a joint trial of the seven claims pending before the Court. The motion was not opposed by any of the attorneys of record ( see Metz v State of New York, M-74890, Ferreira, J., [Ct Cl., September 22, 2008]).
The affirmative defense at issue states "[t]hat the actions of the defendant, the State of New York, are judicially or quasi-judicially privileged, or discretionary determinations, made by such agents or employees while acting within the scope of their duties, and are, therefore, immune from liability." This defense appears as the Fourth Affirmative Defense in each of the Verified Answers, except for the Verified Answer in the claim of Richard M. Metz, as Personal Representative, where it appears as the Sixth Affirmative Defense.
The Ethan Allen was built in 1964. A certificate of inspection, valid for three years, was issued by the United States Coast Guard on May 28, 1976, and provided that the maximum number of passengers allowed was 48 (Claimants' Motion to Dismiss, Exhibit 3-A). The vessel operated as a tour boat on Lake George upon arriving from Connecticut in 1979. The boat was a public vessel that carried passengers for a fee. Inspections of the vessel were performed on an annual basis by inspectors from the Marine Services Bureau (hereinafter MSB) within the New York State Office of Parks, Recreation and Historic Preservation (NYSOPRHP) (Defendant's Opposition to Claimants' Motion to Dismiss and Cross Motion for Summary Judgment, Exhibit K, §§ 4, 5). The MSB is comprised of five inspectors who perform approximately 325 to 350 inspections each year.
The first inspection by the MSB of the Ethan Allen occurred in Lake George, New York on May 23, 1979. According to the certificate of inspection approved on that date, the maximum number of passengers allowed on the vessel was 48 (Claimants' Motion to Dismiss, Exhibit 3). Inspections of the Ethan Allen occurred thereafter on an annual basis, generally in late spring or early summer, through 2005. In 1989, the Ethan Allen was modified when its canvas canopy was removed and replaced with a wooden canopy. The passenger capacity number of 48 remained unchanged as of the date of the accident, or October 2, 2005.
The Ethan Allen was carrying 47 passengers when the accident occurred near Cramer Point on Lake George. Twenty persons died and nine were injured. An investigation by the National Safety Transportation Board (hereinafter NSTB) determined, inter alia, that "[t]he vessel's stability was insufficient because it carried 48 persons where postaccident stability calculations demonstrated that it should have been permitted to carry only 14 persons" (Claimants' Motion to Dismiss, Exhibit 27).
The record shows that an inspection of a vessel by MSB representatives ordinarily involves, inter alia, examining its propulsion, mechanical and electrical systems; verifying that the whistle signals, navigation lights, bilge pumps and ventilation blowers work; inspecting the life jackets, floatable devices and distress equipment; checking the fire suppression systems on the boat and speaking with the owner (Kempf, Exh. F at 247; Gionet, Exh.G at 15, 24; Fallon, Exh. H at 52-53). The deposition testimony from MSB representatives who inspected the Ethan Allen prior to the accident indicates that when fixing the passenger capacity number for the boat, the inspectors relied heavily on the capacity number listed on the previous year's certificate of inspection. The capacity number was originally determined by the United States Coast Guard ( see Claimants' Motion to Dismiss, Exhibit 3A). Testimony from the inspectors also suggests that while the inspectors followed a checklist and understood that certain tasks were mandatory, the inspectors possessed the authority to make their own determinations if the inspections revealed a concern, and to take further steps to ensure the passenger capacity number was appropriate, including performing a stability test. Article 4 of the Navigation Law establishes the statutory framework governing the use and operation of public vessels in the State of New York, and the duties of persons responsible for inspecting such vessels. Navigation Law § 2(6)(a) defines a public vessel, in relevant part, as one "used or operated for commercial purposes on the navigable waters of the state; that is either carrying passengers, carrying freight, towing or for any other use; for which a compensation is received." Navigation Law § 12 authorizes the Commissioner of Parks, Recreation and Historic Preservation to appoint inspectors of public vessels "to carry out and fulfill the duties of inspector indicated in this chapter and specifically defined in section thirteen hereof." Navigation Law § 13 requires the inspector to annually "inspect every public vessel" and expressly directs the inspector to, inter alia, "carefully examine the hull, the propelling and auxiliary machinery, the electrical apparatus and the vessel's equipment" and "fix the number of passengers that may be transported." Section 13 states further that "[n]o vessel . . . shall be allowed to be used if constructed in whole or in part, of defective material, or which because of its form, design, workmanship, age, use or for any other reason is unsafe." Where an inspector is "satisfied that a public vessel is in all respects safe", the inspector shall issue certificates of inspection setting forth, inter alia, the name and number of the vessel, its age, the date of inspection, the name of the owner, the number of licensed officers and crew necessary "to manage the vessel with safety" and "the number of passengers she can safely carry" (Navigation Law § 63).
The depositions of several MSB representatives who conducted actual inspections of the Ethan Allen at different times between 1979 and 2005 are found in both claimants' motion to dismiss and defendant's cross motion for summary judgment. For purposes of this Decision and Order, references are to the depositions attached to defendant's cross motion (Brian Kempf, Exhibit F — Claimants' Motion to Dismiss, Exhibit 4; Peter Gionet, Exhibit G — Claimants' Motion to Dismiss, Exhibit 21; Christopher Fallon, Exhibit H — Claimants' Motion to Dismiss, Exhibit 24; Thomas Watt, Exhibit I — Claimants' Motion to Dismiss, Exhibit 14; Lawrence Migliozzi, Exhibit J — Claimants' Motion to Dismiss, Exhibit 7).
The central question raised by both motions is whether the actions of MSB representatives during their inspections of the Ethan Allen are cloaked with the protections of sovereign immunity. Upon consideration of the motions, including the affirmations and exhibits affixed thereto, the oral arguments presented to the Court, and the relevant and applicable principles of law, the Court concludes that it must deny the relief sought by both parties.
CPLR 3211 (b) provides that "[a] party may move for judgment dismissing one or more defenses on the ground that a defense is not stated or has no merit" (Emphasis added).
"[W]hen moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law'" ( Greco v Christoffersen, 2010 WL 437449 [2d Dept. 2010] quoting Vita v New York Waste Servs., LLC , 34 AD3d 559 , 559). Upon a motion to dismiss an affirmative defense, the Court must "liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" ( Greco v Christoffersen, supra; see also Butler v Catinella , 58 AD3d 145 , 148; Capital Telephone Company v Motorola Communications and Electronics, Inc., 208 AD2d 1150). "If there is any doubt as to the availability of a defense, it should not be dismissed" ( Federici v Metropolis Night Club, Inc. , 48 AD3d 741 , 743; see also ThyTran v Avis Rent A Car, 289 AD2d 731, 732; Suarez v State of New York, 14 Misc 3d 1230(A) [2006] affd 60 AD3d 1243).
Summary judgment is a drastic remedy which should only be granted where there are no doubts as to the existence of a triable issue of fact ( Rotuba Extruders v Ceppos, 46 NY2d 223, 231; Andre v Pomeroy, 35 NY2d 361, 364; Napierski v Finn, 229 AD2d 869, 870). The Court's key function in this context is one of issue-finding rather than issue determination ( Sillman v Twentieth Century-Fox Film, 3 NY2d 395, 404, rearg denied 3 NY2d 941; Schaufler v Mengel, Metzger, Barr Co., 296 AD2d 742). "On a motion for summary judgment, a movant is required to establish by competent and admissible evidence a prima facie entitlement to judgment" ( Howard v J.A.J. Realty Enters., 283 AD2d 854, 855; see also, Ciccone v Bedford Cent. School Dist. , 21 AD3d 437 ). "If this burden is met, then the opponent to a motion for summary judgment has the affirmative burden of coming forward with competent, admissible evidence establishing the existence of a genuine triable issue of fact" ( id.). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment ( Zuckerman v City of New York, 49 NY2d 557, 562).
"[E]ven where the opposing papers are insufficient," if "[t]he evidence produced [in support of the motion fails to] eliminate material and triable issues of fact," then summary judgment is not warranted ( Onondaga Soil Testing, Inc. v Barton, Brown, Clyde Loguidice, P.C., 69 AD2d 984). Pointing to gaps in claimants' proof does not satisfy defendant's burden of establishing prima facie entitlement to summary judgment ( see Velasquez v Gomez , 44 AD3d 649; Antonucci v Emeco Industries, Inc., 223 AD2d 913). The evidence presented on summary judgment must be scrutinized in a light most favorable to the party opposing the motion and according such party the benefit of every favorable inference which can be drawn ( Matter of Corcoran , 63 AD3d 93 ; Winter v Stewart's Shops Corp. , 55 AD3d 1075 ; Provost v Hassam, 256 AD2d 875).
The Court's analysis of the issue of immunity begins with determining whether the actions of MSB inspectors during their inspections of the Ethan Allen were proprietary or governmental in nature. If the actions are deemed proprietary, the governmental entity is subject to ordinary tort liability. When the actions are governmental in nature, further inquiry is needed to determine whether the actions are ministerial or discretionary. Additionally, even where the actions are deemed discretionary, there must be an exercise of discretion in order for immunity to attach.
Governmental v Proprietary Capacity
As a general proposition, subject to certain exceptions discussed at length below, public entities are ordinarily immune from negligence claims arising out of the performance of their governmental functions ( Miller v State of New York, 62 NY2d 506, 513; Doe v City of New York , 67 AD3d 854 ). Classic governmental functions are those "undertaken for the protection and safety of the public pursuant to the general police powers" ( Balsam v Delma Engineering Corp., 90 NY2d 966, 968), such as police and fire protection ( Bass v City of New York, 38 AD2d 407, 411, affd 32 NY2d 894; see also, Kircher v City of Jamestown, 74 NY2d 251) and traffic regulation ( Balsam v Delma Engineering Corp., supra; see also Eckert v State of New York , 3 AD3d 470 ). Other examples of official acts found to constitute governmental functions include attempting to recapture a juvenile delinquent who escaped from a state youth facility ( Sebastion v State of New York, 93 NY2d 790), operating a communications center that handles emergency communications ( Bogart v Town of New Paltz, 145 AD2d 110 lv denied 74 NY2d 608), overseeing and regulating the State's educational system ( Nicholson v State of New York , 23 Misc 3d 313 ), screening members of the general public entering a courtroom ( Torres v State of New York , 13 Misc 3d 323 ) and providing security in public schools ( Berler v City of New York, 152 Misc 2d 133).
However, when a governmental entity acts in a proprietary, as opposed to a governmental capacity, it is "generally subject . . . to the same duty of care as private individuals and institutions engaging in the same activit[ies]'" ( Sebastian v State of New York, supra at 793, quoting Schrempf v State of New York, 66 NY2d 289, 294; D D of Delhi, Inc., v Village of Delhi , 47 AD3d 1117 , 1118). Specifically, where the governmental entity acts in a manner that displaces or supplements a traditionally private enterprise, and engages in activities that ordinarily are undertaken by private enterprises, it is deemed to be performing a private corporate function and acting in a proprietary capacity ( see Bass v City of New York, supra at 411; Riss v City of New York, 22 NY2d 579, 581; 15 NY Prac., NY Law of Torts § 17:45). Courts have found government conduct to constitute proprietary function in instances where the government acts as a landlord and maintains its buildings and properties ( Miller v State of New York, supra at 511-514; Terranova v New York City Transit Authority, 49 AD3d 10, 16, lv denied 11 NY3d 708), provides medical and psychiatric care ( Schrempf v State of New York, supra), maintains and repairs a water main ( D D of Delhi, Inc., v Village of Delhi, supra at 1118), removes snow from its building entrance ( McGowan v State of New York , 41 AD3d 670 , 671), operates a compost facility ( Dobin v Town of Islip , 11 AD3d 577 ), operates a public park ( Vestal v County of Suffolk , 7 AD3d 613 ), operates and manages a police training school ( Lemery v Village of Cambridge, 290 AD2d 765), or operates a landfill ( Dangler v Town of Whitestown, 241 AD2d 290.
New York courts recognize the "dichotomy between actions undertaken by [governmental employees] in a governmental capacity for which tort immunity is conferred and proprietary functions that subject the municipality to ordinary tort liability" ( Balsam v Delma Engineering Corp., 90 NY2d 966, 967; see also, Clinger v New York City Transit Auth., 85 NY2d 957; Miller v State of New York, supra at 511-512; Weiner v Metropolitan Transp. Auth., 55 NY2d 175). As succinctly stated by the Court of Appeals in Miller v State of New York, ( supra at 511-512),
"[a] governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example the maintenance of general police and fire protection."
In order to determine where along the Miller continuum a government act should fall, courts must examine "the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred . . . not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred'" ( Miller v State of New York, supra at 513, quoting Weiner v Metroplitan Transp. Auth., supra at 182; see also Sebastian v State of New York, supra at 794; Clinger v New York City Transit Auth., supra at 959; Kadymir v New York City Transit Auth. , 55 AD3d 549 , 551-552; Lemery v Village of Cambridge, supra at 766).
Here, claimants have not offered sufficient proof in support of their motion to dismiss the affirmative defense of immunity to demonstrate that the inspections were proprietary as a matter of law. Nor has defendant offered sufficient prima facie proof in support of its cross motion for summary judgment to establish where, along the Miller continuum, the annual inspections of the Ethan Allen by MSB representatives fall, including those inspections that were conducted in 1989 following modification to the vessel's canopy. As a consequence, the Court is unable to determine as a matter of law, whether the subject inspections were governmental or proprietary in nature.
In support of its motion, claimants argue that the inspections of motorized public vessels performed by MSB inspectors, including those performed on the Ethan Allen, were proprietary in nature rather than governmental. Specifically, claimants argue that the inspection and registration of vessels ( see Navigation Law §§ 13, 57; Vehicle and Traffic Law § 2251) is akin to the inspection of motor vehicles performed by private entities, and therefore, that defendant has acted in a proprietary capacity.
The Court acknowledges that there are similarities between an inspection of a motor vehicle by a private entity and the inspection of a motorized vessel by the government. However, claimants' argument, without more, does not constitute the type of proof that is required to sustain their burden to demonstrate that the affirmative defense of immunity is without merit as a matter of law because MSB inspectors were acting in a proprietary capacity. Claimants have not offered any proof to establish that inspections by MSB representatives displaced or supplemented a traditionally private enterprise or were engaged in the type of activity usually performed by private enterprises ( see Bass v City of New York, supra; Riss v City of New York, supra; 15 NY Prac., NY Law of Torts § 17:45). Nor have claimants offered any proof which would even suggest that the MSB was acting for its own benefit, akin to that of a proprietor, when conducting vessel inspections ( see e.g. D D of Delhi, Inc., v Village of Delhi, supra at 1118, [the maintenance and repair of water systems is "traditionally performed by private businesses, such as water companies and, thus, where a municipality maintains a water system to provide water to private customers, it constitutes a proprietary function"]; Lemery v Village of Cambridge, supra, at 766 [operation of a police training school found to be a proprietary function where school was open to any police officer for a fee and plaintiff's injury arose out of defendant's operation, management and control of the school]).
Moreover, although the function of inspecting motor vehicles is carried out by private businesses across the State, the end result of that inspection — issuance of an inspection certificate — suggests conduct that is more governmental than proprietary. An inspection certificate represents that the State, not the vehicle repair shop, certifies that the vehicle is in compliance with applicable laws and regulations. In other words, although the act of inspecting an automobile is performed by a private enterprise, like an official inspection station, such enterprise may be acting on behalf of the government, much like an agent or party to a contract, and may be performing or exercising a governmental function by conducting the inspection and issuing an inspection certificate pursuant to an arrangement with government ( see Vehicle and Traffic Law § 303[a] ["the commissioner is authorized to operate, enter into contracts with any person to operate, and license official inspections stations for the purpose of making the inspection . . . and for the purpose of issuing certificates of inspection"]; see also §§ 301, 302, 304, 304-a; Neidhart v K.T. Brake Spring Co. , 55 AD3d 887 ).
Accordingly, to the extent that claimants seek to dismiss the affirmative defense of immunity on the ground that the conduct at issue was proprietary in nature, the Court concludes that claimants have not met their burden.
The Court also concludes that defendant has not offered sufficient prima facie proof in support of their motion for summary judgment to establish that conduct by MSB representatives in inspecting the Ethan Allen constituted governmental, as opposed to proprietary, conduct. Since a governmental entity may "serve[] a dual proprietary and governmental role," ( Kadymir v New York City Transit Auth. , 55 AD3d 549 , 551), it was incumbent upon defendant to not only establish, through the offer of sufficient affirmative proof, that the subject inspections were governmental in nature, but also to eliminate any triable issues of fact as to whether MSB inspectors were acting in a proprietary capacity when the alleged negligence occurred ( see Onondaga Soil Testing, Inc. v Barton, Brown, Clyde Loguidice, P.C., supra).
At the outset, the Court is cognizant that the Navigation Law compels inspectors to act in a manner further along the governmental side of the "continuum of responsibility" in order to ensure the safety of the public. Specifically, Navigation Law § 13 directs, inter alia, that inspectors annually examine and certify that public vessels are safe for use, and Navigation Law § 63 requires, inter alia, that inspectors determine the number of persons that the vessel can safely carry. In addition, inspections by public officials, generally, fall within the ambit of police powers a governmental entity may undertake to protect the health and safety of the public. For example, courts have held that inspections of public housing for elevated lead levels by city and county officials ( see Messam v Williams, 284 AD2d 437; Bargy v Sienkiewicz, 207 AD2d 606; Valerio v City of New York, 187 Misc 2d 867), and inspections of a vacant and deteriorating former hotel alleged to be a fire hazard by town officials ( see Mahoney v Town of Santa Clara, 89 AD2d 718 affd 58 NY2d 661), constituted governmental rather than proprietary functions.
However, the Court finds defendant's proof in support of its motion to be insufficient to support, as a matter of law, that the Ethan Allen inspections were governmental functions. Defendant offers proof that inspectors were appointed by the NYSOPRHP Commissioner to perform inspections pursuant to Navigation Law § 13 and to ensure that public vessels operated in New York State were inspected and certified annually ( see Kempf Affidavit, Exhibit K at §§ 4 and 5). Defendant also relies on a statement by Inspector Fallon that the purpose of the vessel inspection was to ensure the safety of passengers ( see Fallon Affidavit, Exhibit H at 46). The Court finds that, while these references may connote that the inspections were governmental in nature, without more, they are insufficient to establish, for summary judgment purposes, that the inspections were governmental as a matter of law.
More specifically, defendant has not offered sufficient proof to eliminate the question of whether the government acted in a proprietary capacity when it conducted the subject inspections. Defendant's proof establishing that the inspections were not proprietary as a matter of law consists of an inspector's statement that defendant "does not own, operate or maintain the Ethan Allen tour boat" (Kempf Affidavit, Exhibit K, ¶ 3). This statement, however, is of limited value since the Court must examine "the specific act or omission out of which the injury is claimed to have arisen [-the inspections of the Ethan Allen-] and the capacity in which the act or failure to act occurred . . . not whether the [State] . . . is in control of the location in which the injury occurred'" ( Miller v State of New York, supra at 513). Although defendant avers that "there is no basis for concluding that the inspections were undertaken for any proprietary reason", defendant offers no affirmative proof to support that argument.
Discretionary v Ministerial
Even if the Court were to conclude, as a matter of law, that the inspections of the Ethan Allen by MSB representatives were governmental, as opposed to proprietary functions, the Court would nonetheless find that summary judgment is not warranted. Issues of material fact exist as to whether the inspections of the Ethan Allen constituted ministerial or discretionary acts and, if they were discretionary, whether MSB representatives exercised any discretion during the inspections. It necessarily follows then, that with respect to this aspect of the defense of immunity, claimants' motion to dismiss must also be denied.
In New York, the general rule that public entities are immune from liability for governmental actions has been modified by the waiver of sovereign immunity found in Court of Claims Act § 8, whereby "the State assumed liability for its conduct and consented to have such liability determined in accordance with the same rules of law applicable to individuals and corporations" ( Florence v Goldberg, 44 NY2d 189, 194-195). Accordingly, liability may be found against the state through "the actions of its officers and employees in the everyday operations of government" ( Arteaga v State of New York, 72 NY2d 212, 216). However, "governmental entities somewhat incongruously claim — and unquestionably continue to enjoy — a significant measure of immunity fashioned for their protection by the courts" ( Haddock v City of New York, 75 NY2d 478, 484), as the State has retained its immunity for those governmental actions "requiring expert judgment or the exercise of discretion" ( Arteaga v State of New York, supra at 216). Therefore, distinguishing as to whether the conduct at issue, the inspections of the Ethan Allen, is discretionary or ministerial is a critical determination with meaningful consequences.
For example, actions found to be discretionary include decision-making by State Police to reroute traffic at an accident scene ( see Town of Lansing v State of New York , 18 AD3d 1093 [2005]), or by county officials to post a deer crossing sign ( see Niles v County of Chautauqua, 302 AD2d 1001 [2003], appeal dismissed 100 NY2d 535 [2003]), or by a municipality in the field of highway safety planning ( see James v New York State Bridge Authority, 295 AD2d 316 [2002]).
The immunity can be either absolute, where "the action involves the conscious exercise of discretion of a judicial or quasi-judicial nature" ( id.; see also Tarter v State of New York, 68 NY2d 511; Tango v Tulevech, 61 NY2d 34), or qualified, meaning that the act is shielded from liability except where there is evidence of bad faith by the public official or the action is taken without any reasonable basis ( see Arteaga v State of New York, supra at 216). Generally, "discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" ( Tango v Tulevech, supra at 41; see also Lauer v City of New York, 95 NY2d 95, 99).
Recently, in McLean v City of New York , ( 12 NY3d 194 ), the Court of Appeals opined on the consequences of finding an act to be ministerial or discretionary, discussing its holdings in two prior decisions, Kovit v Estate of Hallums ( 4 NY3d 499 rearg denied 5 NY3d 783) and Pelaez v Seide ( 2 NY3d 186 , 198-199). Kovit and Pelaez provided that discretionary acts could result in liability where a special duty or special relationship was found to exist between plaintiff and the government. In McLean, a case where the Court treated the governmental conduct at issue as ministerial, the Court seemingly rejected the possibility that a discretionary act could ever generate liability for a governmental entity, stating that "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" ( id. at 203; see also, Lewis v State of New York , 68 AD3d 1513 ).
Although not acknowledged in the opinion, the McLean decision appears to be a departure from precedent governing the immunity historically accorded discretionary and ministerial acts. Prior to McLean, discretionary acts, including the providing of police and fire protection or ambulance services, were ordinarily immune from liability, even where the conduct was negligent, except in a relatively narrow category of cases where a special duty or special relationship existed between the aggrieved party and the public official ( see Pelaez v Seide, supra at 198-199; Laratro v City of New York , 8 NY3d 79 , 82-83; Kircher v City of Jamestown, 74 NY2d 251, 255-256; Cuffey v City of New York, 69 NY2d 255, 260; Sorichetti v City of New York, 65 NY2d 461, 468; De Long v County of Erie, 60 NY2d 296, 304; Florence v Goldberg, supra at 195-196). Conversely, in instances where it was alleged that a ministerial act was negligently performed, the governmental entity could be subject to liability ( see Lauer v City of New York, supra at 99; Tango v Tulevech, supra at 40-41), without the need to establish a specific special duty or special relationship of the type described in McLean. In Boland v State of New York, 218 AD2d 235, 244 (1996), for example, the Third Department stated that it was aware of "no case law" to support the argument that "where an injured party is attempting to impose liability upon a governmental entity based upon an official's failure to perform a ministerial act, the injured party must also establish the existence of a special relationship".
A distinction must be drawn between the "special duty" or "special relationship" discussed in McLean and the more general type of duty that must be present before there can be any tort liability ( see, Lauer v City of New York, 95 NY2d 95, 100 [2000] ["Without a duty running directly to the injured person, there can be no liability in damages"]). The latter arises from the core elements of a negligence claim that a claimant must establish — the existence of a duty, a breach of that duty, and that such breach was a proximate cause of the events which produced the injury ( see Pulka v Edelman, 40 NY2d 781 [1976], rearg denied 41 NY2d 901 [1977]). The special duty or special relationship referenced in McLean is very specific and is created in one of three ways: (1) where a statute gives a private right of action, (2) where the government affirmatively assumes a duty on which the injured party justifiably relied, and (3) where the governmental entity assumes direction and control in the face of a known, blatant and dangerous safety violation ( McLean, supra at 199, citing Pelaez, supra at 199-200).
In Dinardo v City of New York , 13 NY3d 872 , 2009, the Court of Appeals was confronted with a set of facts involving allegedly discretionary conduct, namely, the failure of the New York City Board of Education to take action to protect a teacher who had repeatedly expressed concerns about her safety in the classroom, and who was subsequently injured during an altercation between two students. The Board of Education argued that the conduct alleged to have been a promise to act on the teacher's behalf was discretionary government action, which could not form a basis for liability. However, the Court stated that "we have no occasion to decide that question" because even if the act was considered ministerial, there was no basis for finding a special relationship; specifically no evidence that the teacher had justifiably relied on assurances made by the Board of Education.
It is noteworthy that the existence of a "special duty" or "special relationship" had previously been the cornerstone of the test for whether a discretionary act, rather than a ministerial one, could subject a public entity to liability. In Dinardo, ( supra), Judge Lippman concurred with the majority, but took issue with the disappearance of the special relationship exception in discretionary act cases and expressed concern regarding the ramifications of the McLean holding. He stated that the McLean rule "clearly extends beyond police protection and applies to all discretionary governmental actions, allows public officials to unjustifiably hide behind the shield of discretionary immunity even when their actions have induced a plaintiff to change his or her behavior in the face of a known threat. Because almost any governmental act may be characterized as discretionary ( see Tango, 61 NY2d at 41, citing Prosser, Torts § 132, at 990 [4th ed]), McLean too broadly insulates government agencies from being held accountable to injured parties" ( Dinardo v City of New York, supra at 877).
Neither McLean nor Dinardo, however, address or appear to impact cases where a government actor is entrusted with discretionary authority, but fails to exercise any discretion in carrying out that authority. The Court of Appeals has held that even though an action may be characterized as discretionary, there must be some showing that discretion was actually exercised before immunity may attach ( see Haddock v City of New York, supra). In Haddock, a child was raped on a city playground by a city employee with a history of violent crime who worked at the playground. The Court noted that the City was aware of the employee's criminal record months before the sexual assault, yet there was no indication that before the attack the City made any effort to comply with its own procedures regarding employees with criminal records, and "no indication that it made a judgment of any sort" when it learned of the employee's criminal past, such as whether his criminal record should affect his work assignment or whether he should be retained at the playground ( Haddock v City of New York, supra at 485).
In holding that the City was afforded no immunity from liability, the Court stated that "the immunity afforded a [governmental entity] presupposes an exercise of discretion in compliance with its own procedures. Indeed, the very basis for the value judgment supporting immunity and denying individual recovery for injury becomes irrelevant where the [governmental entity] violates its own internal rules and policies and exercises no judgment or discretion" ( id.; see also Mon v City of New York, 78 NY2d 309, 313, rearg denied 78 NY2d 1124 ["governmental immunity does not attach to every action of an official having discretionary duties but only to those involving an exercise of that discretion"; Lemery v Village of Cambridge, supra at 766 [governmental immunity attaches to official action that involves an "exercise of discretion . . . and is not exclusively ministerial"]).
The Court in Haddock stated further that it was not "a mere error of judgment" in choosing to keep the employee in that position after learning of his criminal past; it was the absence of any compliance with its own internal rules for such matters and any judgment at all about handling that situation that eliminated the prospect of governmental immunity ( Haddock v City of New York, supra at 485; see also Sayers v City of New York, 2007 WL 914581 [E.D.NY 2007] [where wheelchair bound plaintiff fell backwards while riding in police van, City not entitled to immunity under state law claims in absence of evidence "that the City made a decision or exercised discretion regarding how or when to train officers in the proper securement of wheelchair bound prisoners"]; Valencia ex rel. Franco v Lee, 55 F Supp 2d 122, 133 [E.D.NY 1999] [no evidence in state law tort claim that city officials "engaged in any kind of reasoned discourse or exercised any judgment concerning how to respond to the lead hazard in plaintiffs' apartment"]; and compare Howe v Village of Trumansburg, 199 AD2d 749, lv denied 83 NY2d 753 [record showed that unlike Haddock, police chief exercised discretion; he investigated each of the three alleged prior sexual misconduct incidents against the officer, formed an opinion of each and made a reasoned decision]). In Saarinen v Kerr, 84 NY2d 494, the Court of Appeals subsequently characterized this type of liability as one based on the public official's "irrationality" in carrying out discretionary governmental functions ( id. at 504; McCormack v City of New York, 80 NY2d 808, 811).
Here, the functions and duties of the inspectors involve a myriad of tasks ranging from examining the hull, the propelling and auxiliary machinery, the electrical apparatus and the vessel's equipment to fixing the number of passengers the vessel can safely carry ( see Navigation Law §§ 13, 63). Notably, many of the tasks delineated in statute are prefaced by the term "shall" suggesting that the duties leave no room for discretion or an exercise of reasoned judgment. However, a review of the proof offered shows that triable issues of fact exist as to whether the inspections constituted ministerial or discretionary acts. While the inspectors were required by statute to perform certain tasks, the inspectors also appeared to retain the authority to make reasoned judgments and require that additional measures be taken to ensure the safety of the vessel. In addition, the Court concludes that, even if the inspections constituted discretionary conduct, there exist issues of fact as to whether the inspectors exercised the discretion inherent in the position, such as determining whether stability tests or further measures should have been taken to assess the passenger capacity of the Ethan Allen. Deposition testimony offered in support of both motions reveals that the inspectors considered many of their inspection duties to be statutorily required and afforded them no discretion insofar as undertaking those tasks, (Kempf, Exhibit F at 24; Watt, Exh. I at 29-31; Migliozzi, Exh. J at 30-32). The inspectors followed a checklist, and when fixing the capacity number, adhered to a protocol that relied heavily on a pre-printed inspection form that contained the previous year's capacity number in the certificate of inspection (Kempf, Exhibit F at 76, 83, 94-97; Gionet, Exhibit G at 64-65, 71; Fallon, Exh. H at 15-17, 22-23, 26, 38, 53; Watt, Exh. I at 20-22, 31; Migliozzi, Exh. J at 38, 47). The inspectors apparently relied on that number and simply carried it over each season. In fact, Migliozzi agreed that the number was essentially rubber-stamped from the previous year, and Fallon stated that he made no effort to fix the number other than to rely on the number from the prior year (Fallon, Exh. H at 37-40, 46). Gionet, who inspected the Ethan Allen in June 1990, the season after modifications were reportedly made to the canopy, and again in 2005, obtained the capacity number from the previous year's certificate of inspection and did not make any independent determination (Gionet, Exh. G at 43,44, 64-65, 71, 83, 84, 86). It appears that the passenger number was originally determined by the United States Coast Guard, a determination that was given considerable deference and accepted by the inspectors in the years following the Ethan Allen's arrival in New York (Kempf, Exh. F at 78, 82, 96-97, 201-204, 281-282; Watt, Exh. I at 33-34; Migliozzi, Exh. J at 32-33; see also, Claimants' Motion to Dismiss, Exhibit 3-A). Indeed, Kempf referred to the information on capacity from the Coast Guard as "gospel" (Kempf, Exh. F at 78).
A "stability letter" was issued by the United States Coast Guard for the Ethan Allen in 1966, but it is unclear from the record whether that means a stability test was performed then (Gionet, Exh. G at 87-90) or ever performed (Kempf, Exh. F at 201).
However, the proof also suggests that MSB representatives had discretion, or "latitude", during the course of an inspection to exercise independent judgment and consider the circumstances of each vessel when determining whether the vessel was safe to operate (Kempf, Exh. F at 23-24, 206; Watt, Exh. I at 21, 30; Migliozzi, Exh. J at 32-33)). Kempf described the process of determining whether additional tests were necessary as "rather subjective" and stated that "we had discretion in the law to require whatever was necessary to establish capacity" (Kempf, Exh. F at 70, 237). The testimony indicates that the inspectors retained the authority to set a capacity number based on their observations and findings (Kempf, Exh. F at 102-103, 199-200, 203; Gionet, Exh. G, at 17; Watt, Exh. I at 23-24, 32-33). Inspectors could make a capacity determination based on the manufacturer's capacity plate or the manufacturer's recommendations (Kempf, Exh. F at 80-82 Gionet, Exh. G at 17, 44), or where there had been repairs, major alterations, or changes in the fixed seating capacity (Watt, Exh. I at 23-25). Modifications to the vessel could also lead to discussion among the inspectors as to next steps, like whether to conduct further stability tests or to contact a naval architect regarding the impact of the modification on the safety and stability of the vessel (Kempf. Exh. F at 51, 69-70; Gionet, Exh. G at 27-29, 35, 97-98; Watt, Exh. I at 25-26, 41-43). Inspectors could also request information from the manufacturer or owner, such as a witnessed stability test, a manufacturer's affidavit, or a naval architect's work (Kempf, Exh. F at 29, 81, 82; Gionet, Exh. G at 44-48; Migliozzi, Exh. J at 32-33), and rely on other criteria from the United States Coast Guard (Watt, Exh. I at 18-19). Indeed, stability tests or structural surveys, under certain circumstances, were directed by inspectors and conducted for new or modified vessels prior to October 2, 2005 (Kempf, Exh. F at 27-31, 44-45, 226-228; Gionet, Exh. G at 18-19, 37; Watt, Exh. I at 17; Migliozzi, Exh, J at 43-44). An inspector also possessed the authority to pull a certificate of inspection if, for example, an owner failed to comply with a directive or failed to correct a deficiency from a previous inspection (Kempf, Exh, F at 251-252).
Kempf also referred to a portion of Navigation Law § 13, which provides that the inspector "shall also, whenever he deems it expedient" visit any vessel to ascertain whether the vessel is in compliance with its certificate of inspection, as illustrative of the discretion afforded inspectors by the statute (Kempf, Exh. F at 75).
Further, the Court concludes that even if the acts of the inspectors were discretionary in nature as a matter of law, there are questions of fact in this record as to whether the inspectors who examined the Ethan Allen prior to October 2, 2005 exercised any discretion ( see Haddock v City of New York, supra). The inspectors' testimony indicates that they relied almost exclusively on the passenger capacity number from the previous year's inspection when fixing the capacity number for the current season. Gionet examined the Ethan Allen in 1990 and in 2005 and stated that he did nothing else to assess the capacity other than to rely on the capacity number in the previous year's certificate of inspection (Gionet, Exh. G at 43, 44, 71, 83-85). Gionet further acknowledged that he had the authority to make an independent determination on capacity, order a stability test or seek other reliable information if he had thought it necessary (Gionet, Exh. G at 44-48, 74-75, 86). Fallon, who inspected the Ethan Allen in 1989 and 1993, stated that he had never recommended a stability test for any vessel in his 16 years of performing inspections, but acknowledged that it was something he could have done (Fallon, Exh, H at 33).
The inspectors also suggested that it was left to their determination or judgment as to whether the modification of a vessel could affect stability, and that a change in canopy top from canvas to wood could, depending on a variety of factors, potentially impact the stability of the vessel and necessitate a stability test or the vessel's removal from the water (Kempf, Exh. F at 33-35, 69-72; Gionet, Exh. G at 21, 28-29, 97, 98; Watt, Exh. I at 14-15, 25). Finally, the reference in the NSTB report that the Ethan Allen should only have been allowed to carry 14 persons, when contrasted with the presence of 47 passengers on the day of the accident, raises a question of fact as to whether defendant exercised any discretion in assessing the vessel's stability and passenger capacity during the annual inspections that preceded the accident (Claimants' Motion to Dismiss, Exhibit 27). Thus, although there is proof before the Court suggesting that the inspections of the Ethan Allen may have included discretionary acts, issues of fact remain as to whether the inspectors exercised any of the discretion inherent in their position during those annual inspections. Absent an exercise of such discretion, the action cannot be cloaked in immunity ( see Haddock v City of New York, supra).
Accordingly, it is hereby
ORDERED that claimants' motion to dismiss defendant's affirmative defense of sovereign immunity, Motion No. M-76616, is denied; and it is further
ORDERED that defendant's cross motion for summary judgment, Motion No. CM-76836, is denied.