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In a ruling explaining the difference between a government employee’s discretionary act and a ministerial act implicating the Labor Law, a New York Court of Claims judge has dismissed a lawsuit filed on behalf of a carnival worker who was electrocuted after a state inspector failed to identify a hazard. Judge Donald J. Corbett Jr. of Rochester said in essence that government employees have the right to be wrong and that immunity attaches when there is an exercise of discretion. “If these actions involved the exercise of discretion, reasoned judgment which could produce different results, then they may not confer liability even if they were performed negligently or maliciously,” Corbett wrote in Trader v. State, 89885. “Conversely, if [the] actions were exclusively ministerial, requiring adherence to a governing rule with a compulsory result, then the governmental immunity shield is removed and liability may be imposed.” The case arises from the accidental death on July 15, 1993, of 24-year-old Russell Douglas Henning, a carnival worker. Henning worked for Empire Rides and Games and was assisting with the Medina Canal Festival in Western New York. He was setting up a fun-house amusement near a Niagara Mohawk Power Company substation. While standing on the roof, Henning came in contact with the power lines and was electrocuted. At issue in the Court of Claims was whether the state was liable. Evidence showed that Marc Scarr, a safety and health inspector with the state Department of Labor, inspected the amusement and was aware that the law prohibited the operation of amusements within 10 feet of high-voltage power lines. Scarr testified that he calculated the distance between the fun house and the wires triangularly, but did not climb to the roof to actually measure. He concluded that the lines were more than 10 feet from the amusement. Initially, Corbett dismissed an action based in premises liability, declined to dismiss an action for negligent training and reserved decision on a negligent inspection claim. The Appellate Division, 4th Department, in Matter of Trader v. State, 277 AD2d 978 (2000) dismissed the negligent training cause of action, and returned the case to Corbett for a trial only on the negligent inspection portion of the lawsuit. At trial, the key issue was whether the state was entitled to absolute immunity. The claimant argued that the situation was so clearly dangerous that Scarr had no discretion. Judge Corbett disagreed. “The reason that sovereign immunity has been retained with respect to discretionary, quasi-judicial actions of governmental employees, is to permit them to act freely, in accordance with their best judgment, even if, in retrospect, they made the wrong decision,” Corbett wrote. “In the present case, Mr. Scarr utilized his best judgment when he determined that the Fun House was not within close proximity to the high powered wires, and he is entitled to governmental immunity even if his decision in this regard was incorrect.” Assistant Attorney General James L. Gelormini appeared for the state. Alan D. Voos of Collins, Collins & Maxwell in Buffalo, N.Y., represented the claimant.

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