Hur­dle for limo le­gal ac­tion

Rul­ing in Ethan Allen case seen as bar to money claims against state of New York

Albany Times Union - Sunday - - FRONT PAGE - By rachel Sil­ber­stein

The limou­sine wreck in Schoharie that killed 20 peo­ple on Oct. 6 was a grim re­minder of a mass ca­su­alty event that rocked the Cap­i­tal Re­gion 12 years ear­lier, al­most to the day: the sink­ing of the Ethan Allen tour boat on Lake Ge­orge, which also claimed 20 lives.

On Oct. 2, 2005, the Ethan Allen cap­sized and 20 of its 47 pas­sen­gers, many of them Cana­dian tourists, drowned. Sev­eral oth­ers sus­tained se­ri­ous in­juries.

In Schoharie, the limou­sine’s

17 pas­sen­gers — on their way to a birth­day cel­e­bra­tion — as well as the driver and two pedes­tri­ans out­side the Ap­ple Bar­rel store where the ve­hi­cle crashed all died of trau­matic blunt force in­juries.

Both these hor­rific tragedies might have been pre­vented, and from a le­gal stand­point, they have much in com­mon.

Rel­a­tives of the limo crash vic­tims can ex­pect to run into the sim­i­lar le­gal ob­sta­cles that fam­i­lies of the Ethan Allen pas­sen­gers en­coun­tered in their bids to seek dam­ages from pri­vate en­ti­ties, and once those were tapped, from New York state, which is largely im­mune to such claims.

James Hacker, a per­sonal in­jury at­tor­ney, sued the state in the Court of Claims on be­half of 27 fam­i­lies in the Lake Ge­orge tragedy. The out­come of that case, Metz vs. State of New York, set a prece­dent that elim­i­nates a po­ten­tial av­enue of re­course for the fam­i­lies of the limo wreck vic­tims, he said.

His firm, E. Ste­wart Jones Hacker Mur­phy, has now been re­tained by the fam­ily of one of the vic­tims in the Schoharie crash, which he says in­volves sim­i­lar ques­tions of state cul­pa­bil­ity.

“I’d love to give it an­other shot. Ev­ery case is fact-spe­cific and we are cer­tainly go­ing to look very closely at it,” Hacker said, “but this is a tragedy that could have been pre­vented on mul­ti­ple oc­ca­sions by mul­ti­ple en­ti­ties.”

Be­fore any claims are made against the state, suits will be filed against the limou­sine com­pany, its own­ers, and other pri­vate en­ti­ties.

A civil law­suit has al­ready been brought on be­half of one of the vic­tims against Sha­hed Hus­sain, the owner of Pres­tige Limou­sine, which rented out the ve­hi­cle.

A ‘spe­cial duty’

As a pub­lic ves­sel, the Ethan Allen had been sub­ject to yearly state in­spec­tions since 1979. An in­spec­tor from the state Of­fice of Parks, Re­cre­ation and His­toric Preser­va­tion would have is­sued a cer­tifi­cate in­di­cat­ing the ves­sel’s max­i­mum pas­sen­ger ca­pac­ity. When the boat sank, it was within the 48-pas­sen­ger max­i­mum in the cer­tifi­cate of in­spec­tion.

An in­ves­ti­ga­tion by the Na­tional Trans­porta­tion Safety Board later de­ter­mined the boat’s ca­pac­ity should have been capped at 14 pas­sen­gers fol­low­ing the in­stal­la­tion of a wood canopy in 1989.

Fol­low­ing a lengthy Court of Claims bat­tle, the Court of Ap­peals ruled that state in­spec­tors who failed to up­date the oc­cu­pancy lim­its once the boat had been mod­i­fied did not have a “spe­cial duty” to the vic­tims. Rather, the of­fi­cials were act­ing in a pub­lic ca­pac­ity. A “spe­cial duty” refers to a nar­row set of cir­cum­stances in which the state may be held re­spon­si­ble for a claimant’s in­juries.

“Al­though the law is clear, the up­shot is that, re­gard­less of any neg­li­gence on the part of the state, the vic­tims of this dis­as­trous wreck are es­sen­tially left with­out an

“I think our case may be stronger than the case we had in Lake Ge­orge be­cause in Lake Ge­orge, the state had a far less di­rect role. The goal would be to dis­tin­guish this case from the prin­ci­ples enun­ci­ated in the Lake Ge­orge case.“ — E. Ste­wart Jones, found­ing part­ner of E. Ste­wart Jones Hacker Mur­phy

ad­e­quate rem­edy,” thenchief Judge Jonathan Lipp­man wrote.

The idea of sov­er­eign im­mu­nity is that it would bank­rupt the state if it could be held li­able ev­ery time it failed to thwart a crim­i­nal act or a missed in­spec­tion in­volv­ing one of its em­ploy­ees.

The mod­i­fied 2001 Ford Ex­cur­sion sport util­ity ve­hi­cle in the Schoharie crash failed state in­spec­tions, but was not taken off the road by the De­part­ment of Trans­porta­tion. Rou­tine in­spec­tions on March 21 and on Sept. 4 re­vealed prob­lems with the ve­hi­cle’s brakes and that the car was not cer­ti­fied to carry the 10 pas­sen­gers it could orig­i­nally hold be­fore it was ex­panded into a stretch limo.

The Times Union in­ves­ti­ga­tion found that the limo had been driven 1,300 miles be­tween the in­spec­tions.

State Po­lice, who are also prob­ing the crash, noted that the driver who died in the wreck was not prop­erly li­censed to drive the com­mer­cial ve­hi­cle.

But if laws or reg­u­la­tions were bro­ken, the state’s re­spon­si­bil­ity to en­sure the safety of com­mer­cial ve­hi­cles might be treated sim­i­larly by the law: as a gen­eral duty owed to the pub­lic, rather than as a “spe­cial duty” to the vic­tims.

“Some of the same le­gal prin­ci­ples ap­ply,” said E. Ste­wart Jones, found­ing part­ner of E. Ste­wart Jones Hacker Mur­phy. “I think our case may be stronger than the case we had in Lake Ge­orge be­cause in Lake Ge­orge, the state had a far less di­rect role. The goal would be to dis­tin­guish this case from the prin­ci­ples enun­ci­ated in the Lake Ge­orge case. “

Jones, who de­clined to iden­tify his firm’s client, said he in­tends to file two claims on be­half of the de­ceased, a wrong­ful death claim and an es­tate claim based on “fear of im­pend­ing death.”

“These vic­tims all knew what was un­fold­ing be­fore them, and be­cause they knew it would hap­pen, they suf­fered the emo­tional and psy­cho­log­i­cal fear as­so­ci­ated with that ve­hi­cle bar­rel­ing down the high­way, out of con­trol,” he said.

If the vic­tims were par­ents, a claim can be filed on be­half each child for the loss of parental sup­port, Jones said.

In the com­ing days, Jones’s firm and at­tor­neys for other vic­tims’ fam­i­lies will to pre­emp­tively file no­tices of claim, no­ti­fy­ing the state that they in­tend to sue. But with­out in­for­ma­tion from Na­tional Trans­porta­tion Safety Board — a pre­lim­i­nary re­port is ex­pected

“in the next few weeks,” and in­ves­ti­ga­tions av­er­age one or two years — a le­gal strat­egy is un­clear.

Road con­di­tions

If the NTSB re­port finds that the con­tour of the roads or a high­way de­fect con­trib­uted to the ac­ci­dent, claimants may sue the state De­part­ment of Trans­porta­tion, which re­aligned the in­ter­sec­tion in ques­tion about 10 years ago.

At the time of the re­align­ment, there were ob­jec­tions from res­i­dents about the pro­posed con­struc­tion, ac­cord­ing to Schoharie Su­per­vi­sor Alan Taven­ner.

“It was sort of a wide, non-stan­dard in­ter­sec­tion. They wanted it to be the same so peo­ple know what to ex­pect when they come to an in­ter­sec­tion,” Taven­ner said. “These roads started when there were horses and bug­gies

on them, and now you have thou­sands of ve­hi­cles fly­ing down them. There’s only so much you can do with them.”

Min­utes from town meet­ings and no­tices about the re­align­ment plan were lost in flood­ing dur­ing Trop­i­cal Storm Irene, he said.

The align­ment straight­ened the road to cre­ate a T-in­ter­sec­tion, but neigh­bors have for years com­plained of its haz­ards. Af­ter at least two trac­tor-trail­ers head­ing down­hill to­ward the in­ter­sec­tion veered off the road, crash­ing into the same em­bank­ment, an 18-ton weight limit was im­ple­mented.

“Based on anec­do­tal re­ports from peo­ple around that in­ter­sec­tion, those types of near misses started af­ter the re­align­ment,” said Taven­ner said. “(The in­ter­sec­tion is) prob­a­bly the worst one in the town of Schoharie.”

The NTSB had drones map­ping the site on the day of the ac­ci­dent, Taven­ner noted.

There are also ques­tions of vis­i­bil­ity of the stop sign, which the limou­sine blew through be­fore crash­ing into a parked car and two by­s­tanders.

While claimants must file an no­tice of claim within 90 days, no law­suits will be filled un­til the NTSB re­leases its ini­tial find­ings, ac­cord­ing to Jones.

“If you have a sit­u­a­tion where this driver never even ap­plied the breaks or the driver ap­plied the breaks and the breaks were de­fec­tive, that com­pli­cates the case against the county and the state of New York,” Jones said.

Pres­tige Limo

While three DOT in­spec­tions re­sulted in ci­ta­tions is­sued to Pres­tige Limou­sine, the com­pany con­tin­ued us­ing the ve­hi­cle de­spite ma­jor me­chan­i­cal de­fects, in­clud­ing faulty brakes that have be­come a fo­cus of the on­go­ing in­ves­ti­ga­tion.

Com­pany owner Sha­hed Hus­sain’s son, Nau­man Hus­sain, has been ar­rested and charged with crim­i­nally neg­li­gent homi­cide.

Lee Kind­lon, an at­tor­ney for the fam­ily, sug­gested said the state should take re­spon­si­bil­ity for its lapses.

“I think he came up over that hill un­fa­mil­iar with the ter­ri­tory. You just can’t stop some­thing like that,” Kind­lon said. “I think the state has been warned about that in­ter­sec­tion for years and the De­part­ment of Trans­porta­tion is just look­ing to point a fin­ger.”

Un­like the tour boat com­pany that op­er­ated the Ethan Allen, Pres­tige Limou­sine’s lim­ited in­sur­ance cov­er­age and as­sets are in­suf­fi­cient to cover the claims of all 20 vic­tims and their chil­dren, and claims will be paid on a first come, first served ba­sis.

Law­suits were set­tled against Shore­line Cruises, which owned the Ethan Allen, the boat’s cap­tain, Richard Paris, as well the Cana­dian tour com­pany that or­ga­nized the Lake Ge­orge tour.

“I think what makes a dif­fer­ence in two re­gards is that most of the peo­ple in the Lake Ge­orge tragedy were not as young and did not have young chil­dren as these vic­tims do, and did not have so­cial and emo­tional con­nec­tion to the com­mu­nity as the Schoharie vic­tims do,” Jones said.

Other av­enues

In catas­tro­phes of this scale, par­ties that in­di­rectly con­trib­uted are at risk of be­ing sued.

In Septem­ber 2010, the fam­i­lies of the Ethan Allen vic­tims set­tled a law­suit against the Lake Ge­orge Steam­boat Co. in U.S. District Court al­leg­ing that the Mo­hi­can, a ves­sel owned by the steam­boat com­pany, caused a wake that tipped the Ethan Allen.

For vic­tims of the Schoharie crash, other av­enues of re­course in­clude su­ing pri­vate par­ties that mod­i­fied the Ford Ex­cur­sion and who­ever was re­spon­si­ble for main­te­nance and care of the limo, ac­cord­ing to Jones.

Schoharie County could present an­other av­enue for re­course for vic­tims’ fam­i­lies be­cause coun­ties do not have the same sov­er­eign pro­tec­tion as states and mu­nic­i­pal­i­ties.

While the high­way, speed lim­its, and ve­hi­cle weight lim­its are im­ple­mented and en­forced by the state, the re­sponse of emer­gency work­ers from the town of Schoharie, who rushed to aid the vic­tims of the limou­sine, may be scru­ti­nized.

“I am con­cerned that some­how the fire de­part­ment and am­bu­lance de­part­ment will be brought into this. It’s a shame that the fi­nan­cial bur­den falls on us,” Taven­ner said. “The whole thing is just sad, from start to fin­ish.”

“I think the state has been warned about that in­ter­sec­tion for years and the De­part­ment of Trans­porta­tion is just look­ing to point a fin­ger.” — Lee Kind­lon, at­tor­ney for the Hus­sain fam­ily

Rachel.sil­ber­[email protected]­sunion. com - 518-454-5449

Times Union archive pho­tos

Above left, the Ethan Allen moves out into the cen­ter of Lake Ge­orge in War­ren County on a float­ing class­room tour of the lake on July 20, 2005. Above right, divers, at left, are seen near the Ethan Allen on Oct. 3, 2005, a day af­ter it sank in Lake Ge­orge. Like the limou­sine in­volved in Oc­to­ber’s deadly crash in Schoharie County, the Ethan Allen was sub­ject to state in­spec­tions.

Lori Van Buren / times union

nau­man Hus­sain, op­er­a­tor of Pres­tige Limou­sine, left, leaves his ar­raign­ment at Cobleskill town Court with his at­tor­ney Lee Kind­lon for his in­volve­ment in the Schoharie limo crash on oct. 10 in Cobleskill.

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