Hurdle for limo legal action
Ruling in Ethan Allen case seen as bar to money claims against state of New York
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.silberstein@timesunion. com - 518-454-5449