Gunnells v. United States, Civ. A. No. 75-0026-H.

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: James S. Arnold, Charleston, W. Va., for defendant
• Citation: 514 F. Supp. 754
• Parties: David Daniel GUNNELLS, Administrator of the personal estates of David Daniel Gunnells, Jr., Martha Elizabeth Gunnells and Jessie Gunnells, Deceased; Drema Gail nee Crowder Hopson, Administratrix of the estates of Nancy Ann Hopson and Angela Jean Hopson, Deceased; Drema Gail nee Crowder Hopson, Dannie Hopson and David Daniel Gunnells, Individually, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Docket Number: Civ. A. No. 75-0026-H.
• Decision Date: 31 March 1981

514 F. Supp. 754

David Daniel GUNNELLS, Administrator of the personal estates of David Daniel Gunnells, Jr., Martha Elizabeth Gunnells and Jessie Gunnells, Deceased; Drema Gail nee Crowder Hopson, Administratrix of the estates of Nancy Ann Hopson and Angela Jean Hopson, Deceased; Drema Gail nee Crowder Hopson, Dannie Hopson and David Daniel Gunnells, Individually, Plaintiffs,
v.
The UNITED STATES of America, Defendant.

Civ. A. No. 75-0026-H.

United States District Court, S. D. West Virginia, Huntington Division.

March 31, 1981.

514 F. Supp. 755

Glyn Dial Ellis, Logan, W. Va., for plaintiffs.

James S. Arnold, Charleston, W. Va., for defendant.

MEMORANDUM ORDER

STAKER, District Judge.

This action is presently before this court on plaintiffs' motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and defendant's motion to dismiss, pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

The claims of the plaintiffs herein arise out of the Buffalo Creek flood disaster of February 26, 1972, in Logan County, West Virginia. Plaintiffs allege that as a proximate result of defendant's negligence, Buffalo Creek Dam, a water impoundment, ruptured and caused the wrongful deaths herein, property damage, mental pain and anguish, and additional costs and expenses.

More specifically, plaintiffs allege that Pittston Company (Pittston) owned, operated, maintained and controlled a coal operation located approximately three miles north of Lundale, Logan County, West Virginia, and that the coal operation, and certain water dams, were under the direct supervision of the United States Army Corps of Engineers and the United States Bureau of Mines. It is further alleged that the employees of these governmental agencies failed to require Pittston to conform to the regulations as set forth under the Federal Coal Mine Health and Safety Act of 1969 (Mine Act), 30 U.S.C. § 801 et seq., and Section 13 of the Rivers and Harbors Act of 1899 (Refuse Act), 33 U.S.C. § 407, thereby proximately causing plaintiffs' damages; that defendant's agencies were aware for a long period of time that certain dams of Pittston constituted a hazard and direct threat to the plaintiffs; that defendant's agencies knew the dams violated the applicable laws of the United States and West Virginia; and that they did nothing to remedy or remove said hazards.

The plaintiffs brought this action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, wherein Congress has waived sovereign immunity

514 F. Supp. 756

from suit for certain specified torts committed by federal employees. The legislative history, however, indicates that Congress did not intend that the United States Government be subject to liability arising from acts of a governmental nature or function. See 28 U.S.C. § 2680(a); Dalehite v. United States, 346 U.S. 15, 27-28, 73 S.Ct. 956, 963-964, 97 L.Ed. 1427 (1953). "Uppermost in the collective mind of Congress were the ordinary common-law torts." Id. at 28, 73 S.Ct. at 964

According to 28 U.S.C. § 2674, the United States is liable with respect to tort claims "in the same manner and to the same extent as a private individual under like circumstances ...." Thus, plaintiff has a valid claim pursuant to section 2674 if defendant's acts which were alleged to have been negligent or wrongful would have been so and would have constituted lawful basis of recovery under applicable state law had they been committed by a private individual. See Zabala Clemente v. United States, 567 F.2d 1140 (1st Cir. 1978), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978); Devlin Lumber & Supply Corp. v. United States, 488 F.2d 88 (4th Cir. 1973). However, in order to protect the government against claims, even though negligently caused, that affect governmental functions, Congress enacted section 2680 wherein certain acts of federal employees are excepted. Under this section, one of the exceptions to government liability arises when federal employees are exercising discretion in the performance of governmental functions or duties, regardless of whether or not there is an abuse of discretion. Dalehite, supra 346 U.S. at 33, 73 S.Ct. at 966.

Therefore, in order for plaintiffs herein to maintain their cause of action against the United States, they must show that employees of the Corps of Engineers, under the Refuse Act, or employees of the Bureau of Mines, under the Mine Act, are liable in the same manner and to the same extent as would be a private individual under like circumstances and that the employees had an affirmative, non-discretionary duty to act concerning the safety of the water dam involved herein.

Plaintiffs, by their counsel, contend that as a result of the Mine Act, certain standards were set and certain regulations were created, both of which relate to mining safety. See 30 C.F.R. §§ 77 et seq. Plaintiffs further contend that this Act creates an affirmative, non-discretionary duty on the employees of the Bureau of Mines to discover and cause to be abated unsafe conditions which result from the violations of these standards and regulations. The Bureau of Mines allegedly did inspect Pittston's water dams, yet allowed the hazardous conditions to continue unabated.

In addition, the Corps of Engineers allegedly had knowledge of, yet did nothing to alleviate, the hazardous condition of the water dam in question. The Refuse Act prohibits the discharge of any refuse matter of any kind or description whatsoever into any navigable waters of the United States. Plaintiffs allege that the Buffalo Creek water dams were violative of this standard; that the Corps of Engineers had knowledge of these violations and had an affirmative, non-discretionary duty to enforce the statute; and that the Corps failed to prohibit Pittston from unlawfully depositing refuse in navigable waters, thereby causing the injuries to plaintiffs herein.

Plaintiffs further contend that if the court will take judicial notice of the Hearings before the Subcommittee on Labor of the Committee on Labor and Public Welfare, United States Senate, 92nd Congress, 2nd session on the Buffalo Creek Disaster, then the court will see that the reason for the failure of the Buffalo Creek dam was that each of those federal agencies charged with the responsibility of enforcing the federal statutes abstained from enforcing them and was waiting for the State or coal operator involved therein to do so. The hazards, therefore, were allowed to culminate in the great Buffalo Creek Disaster.

The defendant contends that neither the Bureau of Mines nor the Corps of Engineers has an actionable duty to enforce the provisions of the Mine Act or the Refuse Act and

514 F. Supp. 757

that neither Act gives rise to an implied private right of action. Defendant further...