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
