Collins v. U.S.

• Decision Date: 22 May 1980
• Docket Number: No. 78-3125,78-3125
• Citation: 621 F.2d 832
• Parties: 1980 O.S.H.D. (CCH) P 24,497 A. T. COLLINS et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 832

621 F.2d 832

1980 O.S.H.D. (CCH) P 24,497

A. T. COLLINS et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 78-3125.

United States Court of Appeals Sixth Circuit.

Argued April 8, 1980.

Decided May 22, 1980.

Charles A. Williams, Williams, Housman & Sparks, Paducah, Ky., for plaintiffs-appellants.

Patrick H. Molloy, U. S. Atty., Lexington, Ky., James P. Klapps, Asst. Chief, Torts Section Civil Div., U. S. Dept. of Justice, Washington, D. C., I. Avrum Fingeret, Asst. Sol., U. S. Dept. of Interior, Arlington, Va., Wm. Kanter, Neil H. Koslowe, John F. Cordes, Dept. of Justice, Civil Div., App. Section, Washington, D. C., for U. S.

Before CELEBREZZE and BROWN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

HARRY PHILLIPS, Senior Circuit Judge.

This action grows out of a tragic explosion in a coal mine near Hyden, Leslie County, Kentucky, on December 30, 1970. Suit for money damages was filed against the United States by appellant A. T. Collins, who was injured in the explosion, and by the personal representatives of 25 coal miners who were killed in the disaster.

Jurisdiction was asserted under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. The complaint charged that the proximate cause of the injuries and deaths of the miners was the failure of the United States to inspect the mine in accordance with the requirements of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 801 et seq.

District Judge H. David Hermansdorfer, sitting without a jury, held that the plaintiffs did not establish that the failure of the Government to inspect the mine was a proximate cause of the injury and deaths. The district judge further found that unforeseeable superseding and intervening negligent acts of the coal mine operators would have prevented recovery by the plaintiffs even if proximate cause had been established. We affirm on the ground that the findings of fact of the district judge are not clearly erroneous. Fed.R.Civ.P. 52(a).

The Government contended in the district court and on this appeal that the United States cannot be held liable for money damages under the Federal Tort Claims Act on the basis of allegedly improper or incomplete mine safety inspections conducted pursuant to federal coal mine safety legislation. The district court held that an action lies under the Federal Tort Claims Act under the averments of the complaint in this case. We expressly reserve a decision on that question and express no views thereon in this opinion. The issue of whether an action lies under the Federal Tort Claims Act under a similar factual situation will be presented squarely to this court in pending case No. 80-3033, in which the Government has appealed from the decision of the district court in Raymer, Administratrix v. United States and Gill, Administratrix v. United States, 455 F.Supp. 165 (W.D.Ky.1978).

I

On March 30, 1970, the Federal Mine Health & Safety Act of 1969 (the 1969 Act) became law. ¹ In the spring of 1970, the Finley Coal Company opened two new mines, Nos. 15 and 16, near Hyden, Leslie County, Kentucky. Later that year, the two mines were interconnected and operated as one mine.

The primary concern of the 1969 Act is for the health and safety of miners. 30 U.S.C. § 801(a). The Secretary of Health, Education and Welfare and the Secretary of the Interior were directed to develop and promulgate improved mandatory health and safety standards to protect coal miners; to compel coal mine operators' compliance 30 U.S.C. § 801(e) provides:

with the standards; to work with the states for such purpose; and to develop research and training programs with the states and the industry aimed at preventing coal mine accidents and occupational diseases. 30 U.S.C. § 801(g).

(T)he operators of such mines with the assistance of the miners have the primary responsibility to prevent the existence of such conditions and practices in such mines.

Representatives of the Government are required to inspect and investigate coal mines each year for the purpose of acquiring and disseminating information relating to health and safety conditions, and the causes of accidents, diseases and physical impairments originating in the mines; gathering information with respect to mandatory health and safety standards; determining whether an imminent danger exists; and determining whether there is compliance with the mandatory health or safety requirements. The Government representatives are required to inspect each underground coal mine, in its entirety, "at least four times a year." 30 U.S.C. § 813(a).

The 1969 Act also establishes certain interim mandatory health or safety standards. The health standards, in part, involve dust control, respiratory equipment, and medical examinations. 30 U.S.C. §§ 841 et seq. The safety standards involve roof supports, ventilation, combustible materials, explosives and similar matters. 30 U.S.C. §§ 861 et seq.

Particularly important to this litigation are the safety standards relating to combustible materials and "rock dusting", 30 U.S.C. § 864(d), and "permissible explosives" and "shot firing units", 30 U.S.C. § 873(c). Section 864(d) requires mine operators to "rock dust" all underground areas of a mine so that combustible coal dust is diluted with inert dust so that the amount of incombustible dust constitutes no less than 65 per cent of all dust present and no less than 80 per cent in return air-courses. Section 873(c) calls for the use of permissible explosives, detonators and blasting devices. It requires that explosives be fired only with permissible shot firing units and that incombustible materials be used for stemming boreholes.

II

During the period from June 19, 1970, through December 21, 1970, inspectors from the Mine Enforcement and Safety Administration (MESA), Bureau of the Mines, Department of the Interior, visited and inspected mines 15 and 16. The district court found that MESA failed to comply with its statutory duty of making four complete inspections of the mines per year and that there had been one complete and one spot inspection of mine 16 and six spot inspections of mine 15. Those inspections had uncovered various violations of mine safety which were ordered abated and subsequently corrected.

At 12:20 p. m. on Wednesday, December 30, 1970, unusually large aggregate amounts of explosives were detonated in mine 16 where a new boom hole was being created. The shock wave of displaced air lifted combustible coal dust into suspension. The coal dust ignited and the ensuing explosion propagated into mine 15. All of the 39 men underground were killed instantly except for appellant Collins, who was injured while in the entry of mine 15.

The plaintiffs, having been denied their administrative claims, filed suit against the United States attributing the explosion to negligent inspection and enforcement of the 1969 Act and sought damages under the Federal Tort Claims Act.

In his memorandum opinion filed November 30, 1977, District Judge Hermansdorfer set forth the following summary of his findings concerning the explosion.

"On the morning of December 30, 1970 work was begun to establish, by blasting, a loading or transfer point in Finley Mine 16 at entry 6, 1 left. A roof bolting machine was used to drill about one hundred and twenty (120) 'shot' holes, each having a diameter of four (4 ) inches and extending into the roof material about thirty (30 ) "To state a claim for actionable negligence under Kentucky common law, plaintiffs must show, by a preponderance of the evidence, that the United States owed a duty to persons including the plaintiffs, that such duty was breached under circumstances where it was reasonably foreseeable that such breach, in this case by omission, could pose a risk of injury or death to plaintiffs, and that such foreseeable consequences did result as a natural and probable consequence of such negligence. See Spivey v. Sheeler, Ky., 514 S.W.2d 667 (1974); Glasgow Realty Company v. Metcalfe, Ky., 482 S.W.2d 750 (1972).

inches. The area so drilled was eighteen (18') feet long by twenty-eight (28') feet wide. Permissible explosives were inserted into the holes and stemmed by paper. The aggregate amount of dynamite used was unusually large. Primacord, a high explosive not permissible underground, was used as the igniter and it was detonated by 'either a shot firing unit, power cable, or to the battery connections of a nearby battery-powered tractor' (Plaintiffs' Exhibit 5, p. 16). The resulting shock wave of displaced air lifted coal dust into suspension in an explosive concentration, and the explosion occurred when the coal dust was ignited.

"Plaintiffs' theory of liability, as asserted in post-trial brief, argues that MESA's failure to properly discharge its duties of inspection permitted the accumulation of inadequately inerted coal dust and that such dust propagated the explosion throughout Mines 15 and 16 where, if such coal dust had been properly inerted, the explosion would have been a localized occurrence. However, under the Act the operator of the mine is charged with the 'primary affirmative responsibility to prevent the existence of such (unsafe) conditions and practices . . .', 30 U.S.C. § 801(e). It necessarily follows that to be liable under Kentucky law, MESA would have to have known or be charged with knowledge that the operator would not obey the duties imposed upon him under the Act as measured by what an ordinarily prudent person in the same or a similar situation would have known or be charged with knowing. Bowlin v. General Tire & Rubber Co., Ky., 445 S.W.2d 693, 695 (1969).

"Plaintiffs have established that MESA failed to comply with its statutory duty of making four (4) complete inspections of the Finley mine per year. Mines 15 and 16 were opened, respectively, in March and June of 1970 (Plaintiffs' Exhibit 5, p. 3). During this period, MESA made only one complete...