Daniels v. Black Mountain Spruce, Inc., Civ. A. No. 86-M-145.

• Decision Date: 06 August 1987
• Docket Number: Civ. A. No. 86-M-145.
• Parties: J. Kent DANIELS, Plaintiff, v. BLACK MOUNTAIN SPRUCE, INC., Hydraulic Products and Design, Inc., a foreign corp., and the United States of America, Defendants.
• Court: U.S. District Court — District of Colorado

676 F. Supp. 220

J. Kent DANIELS, Plaintiff, v. BLACK MOUNTAIN SPRUCE, INC., Hydraulic Products and Design, Inc., a foreign corp., and the United States of America, Defendants.

Civ. A. No. 86-M-145.

United States District Court, D. Colorado.

August 6, 1987.

William Trine, Bruce Downsbrough, Boulder, Colo., Mart Vehik, Little Rock, Ark., for plaintiff.

C. Willing Browne, Denver, Colo., James G. Touhey, Jr., Dept. of Justice, Washington, D.C., Jerry Atencio, Asst. U.S. Atty., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

The plaintiff, J. Kent Daniels, was seriously injured while at work, when a blade came loose from a trimmer saw and hit him in the legs. Daniels has brought suit against two corporations allegedly responsible for the design and manufacture of the saw and against the federal government. The claim against the government is based on the allegation that an inspector from the Occupational Safety and Health Administration (OSHA) directed Daniels' employer to remove a solid wood guard from the trimmer saw and replace it with a wire mesh screen.

After the accident in which Daniels was injured, other OSHA inspectors cited his employer for a violation of the regulation pertaining to trimmer saw guards, finding that the wire mesh screen was not in compliance. The plaintiff claims that the United States was "actively negligent" since its inspectors ordered the replacement of one guard with another which did not meet OSHA's own standards. Amended Complaint, ¶ 26. The plaintiff also claims that the United States was negligent in failing to return to the mill and inspect the wire mesh screen once it was installed. Id. Finally, the plaintiff claims that the United States was negligent when its inspectors failed to discover the improperly attached saw blades during the initial inspection. Amended Complaint, ¶ 29.

In response to these allegations the government has filed a motion to dismiss the claims against it for lack of subject matter jurisdiction. As grounds for this motion the government asserts that all of its alleged acts or failures to act fall within the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a). The issues have been briefed adequately and oral argument would not assist this court.

The discretionary function exception to the FTCA states that the United States may not be held liable for "any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). This exception to the FTCA's waiver of sovereign immunity has been broadly construed on several occasions by the United States Supreme Court; most recently in United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

In Varig the Court held that the discretionary function exception barred suit against the government based on the alleged negligence of the Federal Aviation Administration (FAA) in establishing and carrying out an aircraft safety regulatory scheme. The Court gave this guidance in the application of this exception to liability:

first ... the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee—whatever his or her rank—are of the nature and quality that Congress intended to shield from tort liability.

Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.

Id. (emphasis added).

Thus, even the acts of low level or field workers, involved in regulatory activities, fall within the exception so long as they are discretionary. The Court also stated that the "underlying basis" for the exception was that "Congress wished to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort." Varig, 467 U.S. at 814, 104 S.Ct. at 2765.

The Court then analyzed the statutory scheme under which the FAA regulated the airline industry. It found that "Congress specifically empowered the Secretary to establish and implement a mechanism for enforcing compliance with minimum safety standards according to her `judgment of the best course.'" Varig, 467 U.S. at 816, 104 S.Ct. at 2766 (citation omitted). The Court stated that "the FAA certification process is founded upon a relatively simple notion: the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains the responsibility for policing compliance." Id. The Secretary of Transportation, furthermore, had developed a system of "spot-checks" through which compliance was policed.

Similarly, Congress, in the Occupational Safety and Health Act, has put primary responsibility for maintaining a safe workplace on the employer and has allowed the Secretary of Labor to promulgate such regulations as he determines would best serve the purposes of the Act. 29 U.S.C. §§ 654-655. Pursuant to this power, the Secretary has established a detailed regulatory scheme under which OSHA inspectors may check places of employment to determine whether the employers are complying with their duties under the act. 29 C.F.R. § 1903. This system of inspections is structured much like the system of "spot-checks" adopted by the FAA and at issue in Varig.

Furthermore, Congress clearly had economic and social policy concerns in mind when it created the statutory scheme governing OSHA. The statement of congressional findings at the beginning of the Occupational Safety and Health Act includes this language: "Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments." 29 U.S.C. § 651.

The Varig Court, after finding that the adoption of the FAA's regulatory scheme was "plainly discretionary activity" which should not be judicially second-guessed, held that "it follows that the acts of FAA employees in executing the `spot-check' program in accordance with agency directives are protected by the discretionary function exception as well." Varig, 467 U.S. at 820, 104 S.Ct. at 2768.

All of the alleged activities of the OSHA inspector in question in the present case must be characterized in the same way. He was executing the OSHA equivalent of the "spot-check" system, pursuant to the regulations creating that system. He inspected the saw and made a judgment that the solid wood guard should be replaced with a wire mesh screen. In doing so, he was exercising the discretion which falls under the protection of the discretionary function exception as interpreted by the Supreme Court in Varig.

The plaintiff's allegations that the inspector negligently failed to return to the mill to reinspect or approve the wire screen once it was in place are also within the discretionary authority protected by the exception. An agency which is given discretion as to how to ensure compliance with regulatory requirements is clearly exercising that discretion when it decides whether to make an inspection in any given situation. Varig, 467 U.S. at 820, 104 S.Ct. at 2767.

The plaintiff attempts to distinguish Varig by arguing that first, the regulation pertaining to trimmer saw guards is a mandatory standard that must be met, and second, that even if discretion did exist in this situation it was not the type for which...