Bragg v. United States

• Decision Date: 05 February 2013
• Docket Number: No. 12–0850.,12–0850.
• Citation: 741 S.E.2d 90,230 W.Va. 532
• Court: West Virginia Supreme Court
• Parties: Delorice BRAGG, as Administratrix of the Estate of Don Israel Bragg and Freda Hatfield, as Administratrix of the Estate of Ellery Hatfield, Plaintiffs Below, Petitioners v. UNITED STATES of America, Defendant Below, Respondent.

230 W.Va. 532

741 S.E.2d 90

Delorice BRAGG, as Administratrix of the Estate of Don Israel Bragg and Freda Hatfield, as Administratrix of the Estate of Ellery Hatfield, Plaintiffs Below, Petitioners

v.UNITED STATES of America, Defendant Below, Respondent.

No. 12–0850.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 17, 2012.

Decided Feb. 5, 2013.

Syllabus by the Court

1. “This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.” Syllabus point 1, Bower v. Westinghouse Electric Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999).

2. “In the matters of negligence, liability attaches to a wrongdoer, not because of a breach of a contractual relationship, but because of a breach of duty which results in an injury to others.” Syllabus point 2, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988).

3. “The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” Syllabus point 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988).

4. A private inspector who inspects a work premises for the purpose of furthering the safety of employees who work on said premises owes a duty of care to those employees to conduct inspections with ordinary skill, care, and diligence commensurate with that rendered by members of his or her profession.Bruce E. Stanley, Reed Smith LLP, Pittsburgh, PA, for the Petitioners.

R. Booth Goodwin, II, United States Attorney, Fred B. Westfall, Jr., Assistant United States Attorney, Charleston, WV, Benjamin S. Kingsley, U.S. Department of Justice, Washington, DC, for the Respondent.

DAVIS, Justice:

In this action presenting a certified question from the United States Court of Appeals for the Fourth Circuit, this Court is asked “whether a private party conducting inspections of a mine and mine operator for compliance with mine safety regulations is liable for the wrongful death of a miner resulting from the private party's negligent inspection?” After considering the parties' arguments and the relevant law, we answer this certified question affirmatively.

I.FACTUAL AND PROCEDURAL HISTORY

The event giving rise to the lawsuit underlying this certified question action occurred on January 19, 2006, when an over-accumulation of combustible coal dust caused a deadly fire in the Aracoma Coal Company's Alma Mine # 1 in Logan County, West Virginia. Twelve miners were trapped inside the mine by smoke and fire. Attempts to extinguish the fire and contain smoke resulting therefrom were inhibited by numerous inadequate safety measures. According to the Order of Certification issued in this matter by the Fourth Circuit Court of Appeals, the inadequate safety measures included:

a fire hose rendered useless because “the threads on the fire hose coupling did not match the threads on the outlet”; a lack of water because “the main water valve had been closed at the source, cutting off water to the area where the fire had started”; inadequate ventilation controls and ventilation safety barriers that failed to warn the miners of the danger and allowed smoke to flow “in the wrong direction, deeper into the mine ... flooding the emergency escapeways”; and the absence of functioning CO [carbon monoxide] detectors, as well as malfunctioning communications equipment, that delayed warning the miners of the danger and delayed evacuation.

The Fourth Circuit further noted that a personnel door was unmarked, and breathing devices known as Self–Contained Self–Rescuers were rendered useless to miners trapped by the smoke because the miners had not been trained to operate the devices. Ultimately, ten of the trapped miners managed to escape the mine, but Don Israel Bragg and Ellery Hatfield succumbed to carbon monoxide intoxication and died as a result thereof.

It was determined from a subsequent investigation by the Mine Safety & Health Administration (hereinafter “MSHA”) that numerous violations of the Mine Safety and Health Act (hereinafter “Mine Act”) ¹ by mine owner Aracoma Coal Company contributed to the cause and severity of the fire. In addition, however, MSHA's investigation uncovered numerous inadequacies in its own inspections of Alma Mine # 1. The “Order of Certification” issued by the Fourth Circuit in this case summarized MSHA's conclusions as follows:

MSHA's investigation of the Mine fire revealed numerous violations of the Mine Safety and Health Act (“Mine Act”), 30 U.S.C. § 801 et seq., by Aracoma Coal Company (“Aracoma Coal”) that contributed to the cause and severity of the fatal fire. MSHA's investigation also revealed the inadequacies of its own previous inspections of the Mine. For example, by late 2005, MSHA inspectors issued 95 citations to Aracoma Coal for safety violations but failed to “identify and cite numerous violations that were in existence, neither did they require the mine operator to take corrective actions.” ... Likewise, MSHA personnel “failed to follow explicit Agency policy regarding Section 103(i) inspections [i.e., spot inspections]” by failing to “undertake reasonable efforts to detect mine hazards”, through a “gross misallocation of inspector resources,” and by exhibiting “a lack of initiative to appropriately conduct Section 103(i) inspections.” ...

Accordingly, MSHA determined that its own inspectors were at fault for failing to identify or rectify many obvious safety violations that contributed to the fire. In relation to training, MSHA concluded that its inspector “assigned to inspect the [Mine] did not determine whether the [atmospheric monitoring system] operator[, who ignored the CO [carbon monoxide] alarms during the fire,] was adequately familiar with his duties and responsibilities, even though this determination was required of and understood by the inspector.” ... The MSHA investigation also revealed that “[a]n adequate inspection by MSHA [of the atmospheric monitoring system (“AMS”) ] would have identified the deficiencies with the AMS, including the fact that no alarm unit had been installed.” ... In relation to the ventilation controls, the MSHA investigation confirmed that its inspectors, “demonstrated a lack of initiative to identify basic violations ... even though the unmarked doors and missing stoppings were obvious and easily identifiable ... [such that] an adequate MSHA investigation ... would have identified the missing stoppings.” ... The MSHA investigation also revealed ... other contributing factors to the fire including its “inadequate” inspection of the conveyor belts and its “ineffective use of MSHA's enforcement authority” in issuing citations for accumulated coal dust....

MSHA's internal report speculated that conflicts of interest may have contributed to its inspectors' inadequate and ineffective inspection and enforcement of the Mine's compliance with mine safety regulations:

The internal review team has concluded that mine inspectors neglected to issue citations in some situations in which citations were justified and that mine inspectors on occasion underestimated [Aracoma Coal's] negligence and/or the gravity of the hazardous conditions when violations were cited.... The failure to propose more significant civil penalties likely interfered with the deterrent value that civil penalties are designed to have under the Mine Act.... [ (] The internal review team believes that some of the identified deficiencies may have stemmed from the relationship that MSHA developed with Massey Energy Company representatives in early 2001.... [U]sing enforcement personnel in this manner to assist the Aracoma Coal Company with its compliance efforts may have created a conflict of interest that, over time, may have affected the level of scrutiny MSHA provided at [the Mine] during subsequent mine inspections [).]

....

In light of its extensive findings of inadequacy and ineffectiveness in its inspections, supervision and enforcement at the Mine, MSHA's internal investigation concluded as follows:

It is the internal review team's conclusion that, in the year before the January 19, 2006, fatal fire at the [Mine], MSHA did not conduct inspections in a manner that permitted us to effectively identify hazardous conditions at the mine, and did not utilize the Mine Act to effectively enforce health and safety standards promulgated to provide miners with the protections afforded by the statute. The Aracoma Coal Company's indifference to health and safety conditions at the [Mine] and MSHA's failure to more effectively enforce the Mine Act allowed significant hazards, many of which otherwise might have been identified and addressed, to continue in existence prior to the fatal fire. The Agency's culpability rests with all persons who directly or indirectly were responsible for administering the Mine Act at the [Mine], from the inspectors who conducted the mine inspections through the headquarters office personnel who ultimately were responsible for overseeing MSHA activities throughout the Nation.

(Internal citations to joint appendix filed in the Fourth Circuit omitted).

The United States notes that, following the fire, Aracoma Coal and several Aracoma supervisors at the mine plead guilty to federal charges of criminal negligence. The companyalso settled separate tort claims brought against it by the same plaintiffs in this suit.

The petitioners, Delorice Bragg (hereinafter “Mrs. Bragg”) and Freda Hatfield (hereinafter “Mrs. Hatfield”), who are the widows of Don Israel Bragg and Ellery Hatfield, filed the underlying lawsuit against the United States. The suit was filed in the United States District Court for the Southern District of West Virginia pursuant to the Federal Tort Claims Act (“FTCA”). Under the FTCA, the United States'...