State boat inspectors are not immunized from claims that they improperly certified the capacity of a tour boat that capsized while on a scenic tour of Lake George in 2005, killing 20 of the 48 people on board, a state appeals court held yesterday. Most of those killed were elderly, disabled tourists from Michigan.

The Appellate Division, Third Department, concluded that inspectors failed to exercise their discretion in oversight of the tour boat Ethan Allen, which had been extensively modified in 1989. Safety experts theorized after the accident that an over-weight canopy added to the 40-foot craft in 1989 made the boat unstable and subject to being capsized.

“Governmental immunity protects defendant from liability for the injurious consequences of official action ‘when that action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial,’” the panel determined in a ruling by Justice Leslie E. Stein in Metz v. State of New York, 510643. “We are unable to glean any proof that the inspectors exercised their discretion here.”

The ruling overturned a decision by Court of Claims’ Judge James H. Ferreira denying the plaintiffs’ motion to dismiss the state’s affirmative defense of sovereign immunity in the case (NYLJ, April 16, 2010).