Second Circuit Affirms FSIA Tort Exception in Claim Against Namibia, Using New York State Law To Define the Tortious Behavior

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[author: Louis M. Solomon]

USAA Casualty Ins. Co. v. Permanent Mission of the Republic of Namibia, Dkt. No. 10-4892-cv (2d Cir. 2012), involves an appeal from an order we posted on in 2010 (see our discussion here).  In the district court, Namibia claimed immunity under the Foreign Sovereign Immunities Act.  On a motion to dismiss, the District Court rejected the defense.  Namibia appealed that decision under the Collateral Acts Doctrine, which permitted an immediate appeal rather than one occurring at the end of the case.

The Circuit affirmed the absence of the defense.  At issue was whether Namibia could be held liable in tort for property damage done in connection with construction of its mission headquarters in New York (a shared or party wall fell).  The FSIA contains an explicit exception, allowing suit against non-U.S. sovereigns where damage occurs in the U.S. and is “caused by the tortious act or omission of that foreign state”.

In light of the existence of the tort exception, Namibia argued that its conduct was not tortious.  In analyzing that, the Circuit first determined that the law of the state in which the locus of injury occurred would determine whether alleged action was a tort within the meaning of a federal statute.  Here that was New York.   And under New York law, the Court of Appeals found, there was a duty imposed on Namibia under the Building Code, and that duty was nondelegable — Namibia therefore had to “ensure that the structural integrity of the party wall was maintained during construction”.

Why was the duty nondelegable?  Because, said the Circuit, relying on the New York Court of Appeals (which is New York’s highest court), “statutes and regulations that address specific types of safety hazards create nondelegable duties of care”, which is different from when the statute merely incorporates “the ordinary standard of care”, using terms like “adequate”, “effective”, or “suitable”.

[View source.]