The opinion of the court was delivered by: Lippman, Chief Judge:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
(And Six Other Related Claims.)
The issue presented by this appeal is whether the State can be held
liable to individuals who were injured and the personal
representatives of those who lost their lives due to the tragic
capsizing of a public vessel -- the Ethan Allen. We
conclude that because the State owes no special duty to
these claimants, the claims that the State's inspectors failed to
certify safe passenger capacity on the vessel must be
The Ethan Allen was a public vessel operating as a tour boat on Lake George. In 2005, 20 passengers were killed and several others were injured when the boat capsized and sank. As a public vessel, the Ethan Allen had been subject to yearly State inspections, at which an inspector appointed by the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation (OPRHP) would issue a certificate indicating, among other things, the vessel's maximum passenger capacity. At the time the vessel sank, it had been carrying 47 passengers and 1 crew member, within the 48-passenger maximum set forth in the certificate of inspection.
The State regulates the use of public vessels under the Navigation Law.*fn1 In order to operate a public vessel upon the state's waters, a certificate of inspection is required (see Navigation Law § 50). An inspector must carefully examine the vessel and its equipment and, "if satisfied that [the ship] is in all respects safe and conforms to the requirement[s of the Navigation Law], shall" execute the certificate of inspection (Navigation Law §§ 63, 13). The inspector is also required to determine the number of passengers that can be safely transported and that number -- along with the number of crew members necessary to safely operate the vessel -- must be set forth in the certificate of inspection (see Navigation Law §§ 13, 63).
The Ethan Allen was constructed in 1964 and its first inspections were conducted by the United States Coast Guard. The vessel's last certificate of inspection from the Coast Guard set forth a maximum passenger capacity of 48 persons and 2 required crew members, for a total capacity of 50 persons. From 1979, when ORPHP began certifying the ship, to the time of the accident in 2005, the passenger capacity was consistently certified at 48 persons. This was so, despite the fact that the Ethan Allen was modified in 1989 -- replacing its canvas canopy with a canopy made of wood. Several State inspectors testified at their examinations before trial that they did not independently verify the vessel's passenger capacity by conducting a stability test, but rather relied on the number certified from the previous year. For instance, one inspector agreed that the number was "rubber stamped" based on the capacity from the prior certificate of inspection and another referred to the passenger capacity certified by the Coast Guard as "gospel."
The 48-passenger limit certified by the State inspectors was, however,
much higher than the level at which the
vessel could safely be operated. Notably, since this
accident, the State has increased the average weight per passenger
from 140 pounds -- an approximation apparently adopted in the 1950s
and utilized by the Coast Guard -- to 174 pounds.
Claimants commenced this action against the State alleging that it had been negligent in certifying an unsafe passenger capacity, resulting from the use of outdated passenger weight criteria, and in failing to require a new stability assessment after the vessel had been significantly modified. The State answered raising several defenses, including governmental immunity.
The Court of Claims denied claimants' motion to dismiss the State's affirmative defense of immunity and denied the State's cross-motion for summary judgment. The court found insufficient evidence to allow it to determine whether the inspections were proprietary or governmental in nature. In addition, the court found issues of fact as to whether the inspections were ministerial or discretionary acts.
The Appellate Division modified by granting claimants' motion to
dismiss the State's affirmative defense, dismissed the affirmative
defense and, as so modified, affirmed (86 AD3d 748 [3d Dept 2011]).
The Court found that the inspections were a governmental function, but
concluded that the State had failed to demonstrate that its inspectors
had in fact exercised any discretion in certifying the vessel's
passenger capacity. The
Appellate Division granted the State's motion for leave
to appeal to this Court, certifying the following question for our
review: "Did this Court err, as a matter of law, in modifying, on the
law, the order of [the Court of Claims], by reversing so much thereof
as denied claimants' motion to dismiss defendant's affirmative defense
of sovereign immunity; granting said motion and dismissing the
affirmative defense; and, as so modified, affirming the order?" We
reverse and answer the certified question in the
As we recently made clear in Valdez v City of New York
(18 NY3d 69, 80 ), claimants must first establish the existence of a special duty owed to them by the State before it becomes necessary to address whether the State can rely upon the defense of governmental immunity. In that vein, it is well settled 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'" (McLean v City of New York. 12 NY3d 194, 199 , quoting Garrett v Holiday Inns, 58 NY2d 253, 261 ).
Plainly, the inspections at issue here are consistent with those that we have deemed governmental functions. The vessel inspections are undertaken by the State for safety purposes and are akin to inspections conducted by a municipality when issuing certificates of occupancy or determining compliance with fire and safety codes (see Worth Distribs. v Latham, 59 NY2d 231, 237 ; Garrett, 58 NY2d at 261).
We have recognized three ways in which a special relationship can be formed, resulting in a special duty -- "'(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'" (McLean, 12 ...