Davis v. United States, CV73-L-245.

• Citation: 395 F. Supp. 793
• Decision Date: 04 June 1975
• Docket Number: No. CV73-L-245.,CV73-L-245.
• Parties: Paul DAVIS, Jr., Administrator of the Estate of Richard Davis, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Nebraska

395 F. Supp. 793

Paul DAVIS, Jr., Administrator of the Estate of Richard Davis, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

No. CV73-L-245.

United States District Court, D. Nebraska.

June 4, 1975.

Richard H. Williams, Lincoln, Neb., for plaintiff.

Daniel E. Wherry, Asst. U. S. Atty., James P. Klapps, Trial Atty., U. S. Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM ON MOTION FOR DISMISSAL OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT.

URBOM, Chief Judge.

The plaintiff presses a claim against the United States for failure of an Occupational Safety and Health Administration compliance officer to follow up a safety violation citation regarding a trench on a construction site at which the employer of the plaintiff's decedent was installing a sewer line in Omaha, Nebraska, on June 8, 1972.

This court previously declined to dismiss for failure to state a claim on which relief could be granted, pointing out that facts then apparent were too sparse to enable a clear determination. Many more facts are now discernible.

A pretrial order filed November 4, 1974, filing 34, includes stipulated facts as follows:

On June 8, 1972, Robert Bruno, compliance officer for the Occupational Safety and Health Administration of the United States Department of Labor, in his official capacity made an on-site inspection of a construction project site at about 153rd and Center Streets, Omaha, Nebraska, at which Turcon, Inc. was the contractor. During the entire month of June, 1972, the said Robert Bruno was employed by the United States of America in the capacity of compliance officer of the Occupational Safety and Health Administration of the United States Department of Labor for an area which included Omaha, Nebraska. As a result of the inspection of June 8, 1972, the Occupational Safety and Health Administration issued a "Citation for Serious Violation," together with a "Citation Cover Letter," which citation and cover letter were mailed on June 9, 1972, to and received by Charles Turner, president of Turcon, Inc. on June 12, 1972. On June 8, 1972, compliance officer Robert Bruno did not make a request of Turcon to close the trench to further occupancy or use. He did not issue an "imminent danger" citation. Between the dates of June 8, 1972, until June 28, 1972, compliance officer Bruno did not make a follow-up inspection of the construction site, nor did anyone at his direction or command make such a follow-up inspection. Neither did any other official of the Occupational Safety and Health Administration make such follow-up inspection. The findings cited in the Citation for Serious Violation were that:

"Employees were exposed in a trench eight or more feet in depth, sides of which were composed of unstable material. Sides of trench were not sloped, shored, sheeted, or braced, nor was excavated material removed to a safety distance from opening of trench. Ladders shall be provided for means of exit in all trenches three feet deep or more. In excavations that employees are required to enter, the spoil pile shall be at least two feet from the edge of the excavation, for employee protection."

The citation specified that the violations must be corrected "immediately."

On the date of inspection, there were no ladders provided at the area of inspection and the spoil pile was immediately at the edge of the trench and piled eight to ten feet high. On June 28, 1972, plaintiff's decedent, Richard Davis, was killed when the sides of a trench at the same project site as the trench described in the Citation for Serious Violation collapsed on him. The proximate cause of death was the caving in of the trench caused by the giving away of the unstable soil on its sides. Decedent was at such time a common laborer whose job included working in the trenches at the project site. The United States Department of Labor has promulgated rules and regulations which were first published in the Federal Register on April 17, 1971, which rules and regulations, as amended from time to time, were in full force and effect during the month of June, 1972. The Secretary of Labor also published administrative procedures and policy guidelines for OSHA personnel in a Compliance Operations Manual dated November 15, 1971.

A deposition of Robert Bruno, the compliance officer, also is before the court. Testimony in it is not at odds with the stipulated facts in the pretrial order.

Jurisdiction is asserted solely upon the Federal Tort Claims Act, 28 U.S.C. § 1346(b), which declares:

". . . The District Courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for . . . 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 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." (Emphasis added)

It is the italicized language which must be addressed regarding the jurisdictional issue. Even though the motion now before the court is not phrased in jurisdictional terms, except with respect to a "discretionary function" exception to the Federal Tort Claims Act found in 28 U.S.C. § 2680(a), the issue of whether the United States, if it were a private person, would be liable in accordance with Nebraska law, is nevertheless before the court, as are all subject matter jurisdictional issues which inhere in the Federal Tort Claims Act by the plaintiff's reliance upon that Act.

Two sources of duty arguably can be pointed to. One is the common law of Nebraska; the other, the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (OSHA). However, the Federal Tort Claims Act specifically limits its application to those instances in which "the law of the place where the act or omission occurred" places liability upon the claimed wrongdoer. Unless the law of Nebraska would declare liability —including a duty—upon a private person in the same circumstances, no jurisdiction lies in this court.

I find no indication that any law permits Nebraska to place upon private persons the duties cast upon federal officers by OSHA. The Act's thrust is to require designated federal officers to investigate, issue citations, and apply for enforcement orders by a federal court. Nothing resembling those duties devolves on a private person under OSHA. In United States v. Smith, 324 F.2d 622 (C.A. 5th Cir. 1963), Chief Judge Tuttle analyzed a claim that the United States was liable to subcontractors for failure of government contracting officers to require a prime contractor to provide a payment bond as mandated by the Miller Act, 40 U.S.C. § 270a. For the court he said:

"The existence or nonexistence of a claim by a laborer or materialman

...