Ayala v. US

• Decision Date: 20 December 1993
• Docket Number: Civ. A. No. 82-S-1907.
• Citation: 846 F. Supp. 1431
• Parties: Patsy AYALA, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Colorado

846 F. Supp. 1431

Patsy AYALA, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 82-S-1907.

United States District Court, D. Colorado.

December 20, 1993.

COPYRIGHT MATERIAL OMITTED

David W. Griffith, Glenwood Springs, CO, for plaintiffs.

Robin Smith, Stephen E. Handler, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, DC, William Pharo, Asst. U.S. Atty., Denver, CO, for defendant.

MEMORANDUM OPINION AND ORDER

SPARR, District Judge.

THIS MATTER comes before the court on remand from the United States Court of Appeals for the Tenth Circuit for further proceedings consistent with the opinion in Ayala v. United States, 980 F.2d 1342 (10th Cir.1992). The court has reviewed the Tenth Circuit's opinion, the entire case file, the post-trial briefs, the parties' evidentiary citations, the proposed findings and conclusions, the oral arguments made by counsel at the hearing held October 6, 1993, and the applicable law and is fully advised in the premises.

Because of the long history of this case, the court will summarize the procedural background, limiting the discussion to matters involving the claims against the United States.

1. Pre-Trial History

The original complaint arose out of a methane and coal dust explosion which occurred on April 15, 1981 in the Dutch Creek No. 1 Mine, an underground coal mine near Red-stone, Colorado. The mine was owned and operated by Mid-Continent Coal and Coke Company (Mid-Continent). Fifteen miners were killed in the explosion. The Plaintiffs are the families of the deceased miners. Plaintiffs filed the original complaint in Pitkin County, Colorado on October 13, 1982, alleging tort claims against certain parties involved in the manufacture and service of the equipment used in the mine. On November 10, 1982, the case was removed to the United States District Court for the District of Colorado based on diversity of citizenship.

On May 13, 1983, Plaintiffs filed an Amended Complaint adding (in the Thirteenth Claim for Relief) allegations of negligence pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), against the United States by and through the Mine Safety and Health Administration (MSHA) for failure to exercise reasonable care in connection with mandatory safety inspections. The United States filed its Answer on August 31, 1983. On October 4, 1983, this Civil Action No. 82-JM-1907 was consolidated with Civil Action No. 83-JM-580, an action by the Plaintiffs against the United States for negligent failure to inspect and detect improper installation of a mine lighting system, among other things.

On October 31, 1983, the United States moved to dismiss for lack of jurisdiction over the subject matter and failure to state a claim upon which relief could be granted. The United States argued that there was no actionable tort duty upon which the Plaintiffs could base recovery. The United States further argued that even if such a duty existed, the Plaintiffs' claims based on any acts or omissions by MSHA inspectors were barred by 28 U.S.C. § 2680(a), the discretionary function exception to the FTCA.

On February 9, 1984, District Judge John P. Moore entered an order on several pending motions. Pursuant to Fed.R.Civ.P. 12(b)(6), Judge Moore dismissed all claims then pending against the United States, concluding that the inspection procedures of the Mine Safety Act do not create a tort duty on the part of the government toward the Plaintiffs' decedents. Ayala By and Through Ayala v. Joy Mfg. Co., 580 F.Supp. 521, 525-26 (D.Colo.1984). Since Judge Moore concluded there was no tort duty, he declined to determine whether the inspection process fell within the discretionary function exception of the FTCA. Judge Moore's February 9, 1984 Order was never appealed.

On May 3, 1984, Plaintiffs sought leave to file a Second Amended Complaint alleging a Ninth Claim for Relief entitled "Active Negligence" and a Tenth Claim for Relief entitled "Negligent Inspection." By orders of Magistrate Judge Donald E. Abram on May 21, 1984 and Judge Moore on June 25, 1984, the Plaintiffs were allowed to add a claim based upon an alleged negligent "non-optional instruction" relating to the wiring of the lights. Plaintiffs were not allowed to reassert the claim for negligent inspection that Judge Moore had previously dismissed. Plaintiffs filed their Second Amended Complaint on May 30, 1984. The United States answered the Second Amended Complaint on July 19, 1984.

On November 7, 1984, the United States again moved to dismiss the complaint on the grounds that the court lacked jurisdiction over the subject matter and that the complaint failed to state a claim upon which relief could be granted. This motion was based on the second prong of the October 31, 1983 motion which was not decided by Judge Moore, specifically, that the Plaintiffs' "active negligence" claim was barred by the discretionary function exception to the FTCA. In a May 9, 1985 Order, Judge Moore determined that the acts of the MSHA inspectors fell within the discretionary function exception and dismissed Plaintiffs' Second Amended Complaint as against the United States. Ayala v. Joy Mfg. Co., 610 F.Supp. 86, 89-90 (D.Colo.1985), rev'd, 877 F.2d 846 (10th Cir. 1989).

Plaintiffs appealed the May 9, 1985 dismissal to the United States Court of Appeals for the Tenth Circuit. On June 16, 1989, in an opinion by Judge McKay, the Tenth Circuit reversed Judge Moore's dismissal and remanded the case to the District Court. Ayala v. Joy Mfg. Co., 877 F.2d 846 (10th Cir.1989). Quoting from Berkovitz v. United States, 486 U.S. 531, 547-48, 108 S.Ct. 1954, 1964, 100 L.Ed.2d 531 (1989), the Tenth Circuit reasoned:

"Because petitioners may yet show ... that the conduct challenged here did not involve the permissible exercise of policy discretion, the invocation of the discretionary function exception to dismiss petitioners' ... claim was improper. Berkovitz 486 U.S. at 546, 108 S.Ct. at 1964. We conclude that plaintiffs have pled sufficient facts to withstand a motion to dismiss in light of Berkovitz. We therefore reverse the district court's grant of defendant's motion to dismiss and remand for further proceedings consistent with this opinion."

Ayala, 877 F.2d at 849.

On October 30, 1989, Plaintiffs sought leave to file their Third Amended Complaint based on additional facts and circumstances learned during discovery. When the United States objected, the Plaintiffs tendered a revised Third Amended Complaint containing a First Claim for Relief for "Active Negligence" and a Second Claim for Relief for "Negligent Failure to Inspect." On March 13, 1990, Magistrate Judge Abram granted the Plaintiffs leave to file their revised Third Amended Complaint, with certain modifications. Magistrate Judge Abram concluded that the Second Claim for Relief for "Negligent Failure to Inspect" was merely an attempt to re-assert the negligence claim that had been dismissed previously by Judge Moore, but noted that Judge Moore had never been presented the issue of a knowing or intentional failure by the inspectors to enforce mine regulations. Magistrate Judge Abram modified the Second Claim for Relief to remove the negligence allegation that was barred by the law of the case and to allege a knowing failure to enforce the regulations. The Second Claim for Relief became "Failure to Enforce Regulation." Magistrate Judge Abram also struck paragraph 8 of the Second Claim because it alleged negligence. On April 18, 1990, Judge Zita L. Weinshienk affirmed Magistrate Abram's March 13, 1990 Order. The Plaintiffs filed their Third Amended Complaint on September 17, 1990.

On April 26, 1990, this civil action was reassigned to Judge Daniel B. Sparr. On July 5, 1990, the United States moved to dismiss or for summary judgment on the grounds that the Plaintiffs' claims were barred by the misrepresentation exception to the FTCA and that the Second Claim for Relief was not actionable under the FTCA because it failed to state a duty under Colorado law. On February 27, 1991, this court issued a Memorandum Opinion and Order denying in part the United States' motion. On March 14, 1991, the United States moved for reconsideration of that Order regarding only the Second Claim for Relief. On April 11, 1991, the court granted the United States' Motion to Reconsider, reinstated the motion for summary judgment as to the Second Claim for Relief only, and advised the parties that the tort duty issue would be addressed at the trial commencing May 6, 1991.

On May 6, 1991, trial commenced on the two claims alleged in the Third Amended Complaint dated September 17, 1990. At the close of the Plaintiffs' case, the United States moved for dismissal pursuant to Fed.R.Civ.P. 41(b) on the grounds that the discretionary function exception barred both of the Plaintiffs' claims and that the Second Claim for Relief was not actionable under the FTCA because it failed to state a duty owed under Colorado law. The court declined to rule on those issues until the close of all the evidence. At the close of all the evidence, the United States renewed its motion to dismiss the Plaintiffs' claims.

2. Post-Trial History

On May 24, 1991, Plaintiffs moved pursuant to Fed.R.Civ.P. 15(b) to amend their complaint to conform to the evidence and tendered a Fourth Amended Complaint. On August 7, 1991, this court issued a Memorandum Opinion and Order that: (1) denied the Plaintiffs' Motion to Amend Complaint to Conform to Evidence; (2) made extensive findings of fact; (3) dismissed the Plaintiffs' First Claim for Relief as barred by the discretionary function exception to the FTCA; and (4) dismissed the Plaintiffs' Second Claim for Relief for insufficient evidence, absence of a tort duty under Colorado law, and as barred by the discretionary function exception to the FTCA. Ayala v. United States, 771 F.Supp. 1097 (D.Colo.1991), aff'd. in part rev'd. in part, 980 F.2d 1342 (1992). The...