The New York administrator of the Estate of Emily R. Wootton, sued New York State (“NYS”) for conscious pain and suffering, fear of impending death, and wrongful death arising from the death of Emily Wootton in a head-on collision with an intoxicated driver. The administrator alleged negligence and recklessness by NYS arising from the actions of NYS troopers an hour before the accident when, after finding the intoxicated driver on the side of the road and out of gas, transported him to a gas station to obtain gas, then returned him to his car despite his obvious impairment.
NYS moved to dismiss the lawsuit, arguing that the allegations show that the troopers were engaged in a discretionary government function, and the claim failed to allege a special duty was owed to decedent by NYS under the circumstances. The New York Court of Claims denied the motion to dismiss, determining that a fact finder could reasonably conclude that the crash was a foreseeable consequence of the situation created by the troopers’ negligence. The court also concluded that defendant failed to meet its burden of proof to establish its affirmative defense of governmental immunity.
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