The first purpose of this article is to discuss the notion of "duty" in our tort laws. The second purpose is to discuss the recent Court of Appeals decision involving the sinking of the public vessel Ethan Allen in 2005.

An actionable tort consists of a breach of a known duty of care that causes injury. We can rattle off Judge Benjamin Cardozo’s famous statement from Palsgraf v. The Long Island Railroad1 that "[t]he risk reasonably to be perceived defines the duty to be obeyed." However, there are situations where a harm is foreseeable and is proximately caused by a defendant, but the person inflicting the harm will not be civilly liable because the absence of a judicially determined duty. In New York, "[a]bsent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm." 532 Madison Avenue Gourmet Foods v. Finlandia Center.2

The analysis involves two parts. One raises factual questions, such as foreseeability and proximate cause. The other involves a question of law that asks whether, even if an injury was foreseeable and even if a person was the proximate cause of another’s injury, the defendant breached a duty owed to the plaintiff. In this article, the second aspect will be referred to as a "legal duty." "Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact-finder adjudication, the definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for judges to make prior to submitting anything to fact-finding or jury consideration." Palka v. Servicemaster Management Services.3

"The existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the court." Di Ponzio v. Riordan.4 "Liability for negligence may result only from the breach of a duty running between a tortfeasor and the injured party. Although the existence of a duty is an issue of law for the courts…once the nature of the duty has been determined as a matter of law, whether a particular defendant owes a duty to a particular plaintiff is a question of fact." Kimmell v. Schaefer.5

Determining If a Duty Exists

There are several factors used to determine whether a legal duty exists. While the purpose of our tort laws is to protect all of us from the wrongful acts of others, another purpose is to protect society as a whole by shielding it from what would otherwise be crippling liability of massive and sometimes unlimited proportions. This is often accomplished by distinguishing wrongs directed against society as a whole and wrongs directed against individuals.

One example is found in Hamilton v. Beretta U.S.A.6 There, the relatives of persons killed by handguns sued the manufacturers claiming that the guns were negligently marketed and distributed. In denying recovery, the Court of Appeals held that the injured party must show that a defendant owed not merely a general duty to society but a specific duty to the injured party. The duty must run directly to the injured party, not merely to society as a whole. As the court noted, "this judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another."7

A similar case is Waters v. New York City Housing Authority.8 There, a man in the street attacked plaintiff with a knife, forced her inside the landowner’s building, which was unlocked and onto the roof where he sodomized her. The evidence was that the front door locks on the building had been broken or missing for two years prior and several tenants had complained. Neither the plaintiff nor the man who assaulted her was a tenant. The assault began in the street and ended inside the building.

The court noted that while landlords have an obligation to provide a reasonable degree of safety to the tenants, that obligation does not extend to the population as a whole. The conclusion was dictated by two important factors. The first is that the landowner had no control over either the acts of the primary wrongdoer or the conditions on the public byways that make such acts commonplace. The second is the virtually limitless liability to which landowners would be exposed if their legal obligations were extended to the plaintiff and to all others in her position.

The court also limited the scope of the landowner’s liability in 532 Madison Avenue Gourmet Foods v. Finlandia Center.9 In that case, a section of the south wall of 540 Madison Avenue partially collapsed and bricks, mortar and other material fell onto Madison Avenue at 55th Street, a prime commercial location crammed with stores and skyscrapers. The collapse occurred as a result of a construction project. New York City officials directed the closure of 15 heavily trafficked blocks on Madison Avenue—from 42nd to 57th streets—as well as adjacent side streets between Fifth and Park avenues. The closure lasted for approximately two weeks, but some businesses nearest to 540 Madison remained closed for a longer period. While none of the businesses suffered damages in the form of personal injury or property damage, they did suffer serious economic damages because they were unable to conduct their businesses for weeks.

The court noted that "[a]t its foundation, the common law of torts is a means of apportioning risks and allocating the burden of loss. In drawing lines defining actionable duty, courts must therefore always be mindful of the consequential, and precedential, effects of their decisions."10 While a landlord has a duty to avoid injuring persons on the adjoining premises, never has the court held that duty to apply to an entire neighborhood.

After stating the nature of a public nuisance, the court commented that "[a] public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large…. This principle recognizes the necessity of guarding against the multiplicity of lawsuits that would follow if everyone were permitted to seek redress for a wrong common to the public."11 Because certain plaintiffs had not sustained personal injuries or property damages, the court held that a legal duty was not owed to those who only suffered economic damages.

The Ethan Allen Incident

The need to limit potential liability against a multiplicity of lawsuits by persons seeking redress for a wrong committed against the public manifests itself in its most extreme when confronting tort actions against state or municipal governments. If each time a governmental worker was negligent in performing official duties, a lawsuit could be brought against the governmental entity, havoc could be wreaked on governmental finances, and we all would be harmed. It is we, the innocent taxpayers, who will ultimately pay any judgments. By requiring a plaintiff to show that the governmental entity owed a "special duty" to the injured party, the state attempts to limit its exposure to liability caused by the misfeasance or nonfeasance of its employees. Invoking this doctrine can sometimes seem to be unjust.

The recent case of Metz v. State of New York12 is an example. It involved the sinking of the public vessel Ethan Allen on Lake George in 2005. As a public vessel, the Ethan Allen was subjected to yearly state inspections, at which an inspector would issue a certificate indicating, among other things, the vessel’s maximum passenger capacity. At the time of the sinking, the vessel had been carrying 47 passengers and 1 crew member, within the 48-passenger maximum in the certificate of inspection. The 48-passenger limit was, however, much higher than the level at which the vessel could safely be operated. Notably, since this accident, the state had 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. However, inspectors had not re-inspected the vessel or its weight bearing capacity in the 26 years since the state began certifying the vessel even after modifications to the vessel had been made.

Claimants commenced an 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 standard of liability employed in the case was stated as follows:

As we recently made clear in Valdez v. City of New York (18 NY3d 69, 80, 960 N.E.2d 356, 936 N.Y.S.2d 587 [2011]), 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, 905 N.E.2d 1167, 878 N.Y.S.2d 238 [2009], quoting Garrett v. Holiday Inns, 58 NY2d 253, 261, 447 N.E.2d 717, 460 N.Y.S.2d 774 [1983]).13

The court held that the state was not liable for the misfeasance of its employees in performing what was found to be a public function because "the provisions at issue—although clearly designed to protect public safety—did not create a duty to particular individuals."14 The liability of the state differs from the liability of a defendant in a public nuisance case where the plaintiff must have suffered an injury not suffered by the general public in order to have a viable claim. As Metz demonstrates, even where a claimant has sustained an injury not suffered by the general public, the state will still not be liable if the statute giving rise to the public duty was not for the benefit of particular individuals, but rather for the public in general. Furthermore, the legislation requiring inspections of public vessels did not authorize a private right of action.

Although the decision in Metz denying recovery may seem unfair, the state had acted in the interest of public safety in requiring the inspections of the vessel. Were the state found liable in Metz it could have avoided liability in future cases by refusing to legislate on matters involving public safety. In that case, the claimants would have again found themselves without a legal remedy because no state- imposed duty would have been violated. Legislation adopted in furtherance of public safety is a desirable thing. While in Metz the state employees, through their acknowledged failure to properly exercise their duties, had not helped to improve public safety, in many other cases the legislation may have helped to make the public safer.

Considerations of public safety and possible extensive liability are precisely the sort of public policy considerations that drive a court’s analysis in determining the existence of a legal duty not only in lawsuits against governmental defendants, but in all tort actions.

Kenneth G. Schwarz is of counsel to Cozen O’Connor in the New York office.


1. 248 N.Y. 339, 344, 162 N.E. 99 (1928).

2. 96 N.Y.2d 280, 289, 750 N.E.2d 1097, 727 N.Y.S.2d 49 (2001).

3. 83 N.Y.2d 579, 584-85, 634 N.E.2d 189, 611 N.Y.S.2d 817 (1994).

4. 89 N.Y.2d 578, 583, 679 N.E.2d 616, 657 N.Y.S.2d 377 (1997).

5. 89 N.Y.2d 257, 263, 675 N.E.2d 450, 652 N.Y.S.2d 715 (1996).

6. 96 N.Y.2d 222, 232, 750 N.E.2d 1055, 727 N.Y.S.2d 7 (2001).

7. Id. at 96 N.Y.2d 233.

8. 69 N.Y.2d 225, 505 N.E.2d 922, 513 N.Y.S.2d 356 (1987).

9. 96 N.Y.2d 280, 750 N.E.2d 1097, 727 N.Y.S.2d 49 (2001).

10. Id. at 96 N.Y.2d 288-89.

11. Id. at 96 N.Y.2d 292.

12. 2012 N.Y. LEXIS 3555 (2012).

13. Id. at *6-7.

14. Id. at *8.