Blessing v. United States, Civ. A. No. 76-180 and 76-189.

Citation447 F. Supp. 1160
Decision Date19 April 1978
Docket NumberCiv. A. No. 76-180 and 76-189.
PartiesWalter B. BLESSING and Dorothy L. Blessing, h/w v. UNITED STATES of America. Walter J. THOMAS and Anna M. Thomas, h/w v. UNITED STATES of America.
CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

447 F. Supp. 1160

Walter B. BLESSING and Dorothy L. Blessing, h/w

Walter J. THOMAS and Anna M. Thomas, h/w

Civ. A. Nos. 76-180 and 76-189.

United States District Court, E. D. Pennsylvania.

February 10, 1978.

As Amended April 19, 1978.

447 F. Supp. 1161
447 F. Supp. 1162
447 F. Supp. 1163
Joseph Lurie, Philadelphia, Pa., for plaintiffs

James P. Klapps, Tort Section, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for defendant.

447 F. Supp. 1164


EDWARD R. BECKER, District Judge.

I. Preliminary Statement

These cases, now before us on Rule 12 motions, raise the important question whether a claim is stated against the United States under the Federal Tort Claims Act by a complaint alleging that personal injuries have been sustained by an employee of a private industrial plant as the result of a negligently conducted inspection of the facility by representatives of the Occupational Safety and Health Administration hereinafter "OSHA".1 As far as we can ascertain, this is a question of first impression.

In Thomas v. United States, C.A. 76-189, husband-plaintiff hereinafter "plaintiff" was injured at his place of employment when a heavy roll of paper was dislodged from its dispenser by the impact of a forklift truck's accidental collision with the dispenser. The roll of paper fell on him, causing severe physical injuries, including several broken bones. Plaintiff alleges that the paper dispenser was defective in that the roll of paper was not locked or otherwise securely affixed to the dispenser. He seeks damages from the United States on the grounds that a representative of OSHA had inspected the premises of plaintiff's employer some nine months before the accident, but, due to alleged negligence, had failed to examine the defective paper dispenser itself. As a result, plaintiff alleges, neither he nor his employer were made aware of the dispenser's dangerous design, nor were any safety precautions taken. It is plaintiff's contention that his injuries were therefore caused by the inspector's negligence and that the United States is liable for the injuries so caused.

The allegations in Blessing v. United States, C.A. 76-180, are similar to those made in Thomas. Husband-plaintiff hereinafter "plaintiff" was employed as the operator of a power press. As he worked at the press one day in January 1974, his right hand was crushed, necessitating amputation of his thumb and partial amputation of two other fingers on his right hand. About a year before the accident, an OSHA representative had visited plaintiff's place of employment for purposes of making a safety inspection and determining compliance with OSHA regulations. Plaintiff alleges that the press was operationally unsafe and had been so for several years, but that the OSHA safety inspector negligently failed to examine it. He further alleges that, because the inspector failed to observe the press' hazardous condition, and since the menace that the press constituted was thus never called to the attention of either plaintiff or his employer, no corrective action was taken. Plaintiff concludes, therefore, that the United States is liable for his injuries in that they were directly and proximately caused by the negligence of its agent, the OSHA safety inspector.

Plaintiffs premise the government's liability on the Federal Tort Claims Act hereinafter "FTCA", by which the United States has waived, with certain exceptions, see 28 U.S.C. § 2680; note 12 infra & accompanying text, its traditional sovereign immunity from suit for common law torts committed by its agents. In relevant part, the FTCA provides:

. . . the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under the circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). Since, as this provision establishes, the FTCA incorporates the tort law of the state in which the allegedly negligent act or omission occurred, and

447 F. Supp. 1165
since both such acts relevant to these cases occurred in Pennsylvania, plaintiffs' claims depend on Pennsylvania law. Plaintiffs contend that had the inspections herein undertaken by the government instead been undertaken by a private person, under the facts of these two cases Pennsylvania would hold such a private person liable in tort for the plaintiffs' respective injuries. In support of their contention plaintiffs cite Mays v. Liberty Mutual Ins. Co., 323 F.2d 174 (3d Cir. 1963); Toppi v. United States, 327 F.Supp. 1277 (E.D.Pa.1971); and Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), each of which is set out and examined in Part III, infra.

The United States, on the other hand, contends that the facts alleged in these cases do not give rise to liability under Pennsylvania tort law. It therefore has moved for dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state claims upon which relief can be granted. In addition, the government argues that the inspections at issue were discretionary in nature, implicating the so-called "discretionary function exception" to the FTCA, 28 U.S.C. § 2680(a), under which the United States remains immune from suit for any injuries sustained as a result of the exercise of governmental discretion, whether or not that discretion is exercised negligently or wrongfully. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1247 (1953). Because the Third Circuit has held the discretionary function exception to be a jurisdictional bar to federal liability, see text accompanying note 6 infra, we will treat this aspect of each of the government's motions as a motion to dismiss for lack of subject matter jurisdiction under Fed.R. Civ.P. 12(b)(1). If the government prevails on either of its contentions, therefore, the actions must be dismissed.

In order to place the governmental inspections challenged in these cases in their proper statutory setting, we observe that the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 hereinafter "Act", was enacted for the purpose of reducing nationwide the number and severity of work-related illnesses and injuries—just the sort of injuries suffered by the plaintiffs in these cases.2 Recognizing the national scope of the health and safety problem it confronted and the human and economic costs that existing conditions imposed,3 Congress established a comprehensive program of regulation, research, and education that calls for the cooperation of and assumption of responsibilities by employers, employees, and both federal and state agencies.

As part of the Act's regulatory scheme, the Secretary of Labor, with input from the Secretary of Health, Education and Welfare and other federal agencies, 29 U.S.C. § 669, is to promulgate occupational health and safety standards, id. § 665, with which all employers subject to the Act4 are to comply, id. § 654(a)(2). As a means of monitoring compliance with the Secretary's promulgated standards as well as with the more general statutory requirement that "each employer—shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees," id. § 654(a)(1), the Act authorizes representatives of the Secretary of Labor to enter, at reasonable times, any place of employment covered by the Act, to

447 F. Supp. 1166
inspect all pertinent conditions, and privately to question both employers and employees, id. § 657. Enforcement procedures and penalties are established for violations of the Act or the regulations and standards issued by the Secretary of Labor pursuant to it. Id. §§ 658-666

It is important to note at the outset that plaintiffs in these cases do not claim a private right of action against the United States under the Act itself.5 Although the Act authorizes the inspections alleged by plaintiffs to have been performed negligently, and although regulations promulgated pursuant to the Act provide some of the specifics for such inspections, see 29 CFR §§ 1903.1-.12 (1976), neither the regulations nor the statute is at the heart of the present actions. Rather, plaintiffs' claims center on principles of common law tort, made applicable to claims against the United States by the FTCA, whereby one is rendered liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous. See Restatement (Second) of Torts §§ 323, 324A (1965). Succinctly put, it is their contention that, having undertaken to make particular inspections pursuant to the Occupational Safety and Health Act, the government assumed a duty to plaintiffs not to conduct those inspections negligently. Plaintiffs further contend that the government breached its duty to them by its allegedly negligent inspections and that it therefore became liable for the injuries that they subsequently suffered.

447 F. Supp. 1167

The Third Circuit treats the discretionary function exception as jurisdictional.6 Griffin v. United States, 500 F.2d 1059, 1963 (3d Cir. 1974); Gibson v. United States, 457 F.2d 1391, 1392 n. 1 (3d Cir. 1972). It has also held that jurisdictional issues must be resolved before other questions may properly be considered. Pacific Intermountain Express Co. v. Hawaii Plastics Corp., 528 F.2d 911, 912 (3d Cir. 1976). Therefore, we first must analyze the application of the discretionary function exception to these cases. Our...

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