Holland v. United States, Civ. A. No. 75-0158-0(G).

• Decision Date: 18 December 1978
• Docket Number: Civ. A. No. 75-0158-0(G).
• Parties: Sedona HOLLAND, Successor Administratrix of the estate of Kenneth Wayne Holland, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Kentucky

464 F. Supp. 117

Sedona HOLLAND, Successor Administratrix of the estate of Kenneth Wayne Holland, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 75-0158-0(G).

United States District Court, W. D. Kentucky, Owensboro Division.

December 18, 1978.

COPYRIGHT MATERIAL OMITTED

Charles A. Williams, David Sparks, Williams, Housman & Sparks, Paducah, Ky., Kenneth B. Kusch, Central City, Ky., for plaintiff.

Albert Jones, U. S. Atty., Louisville, Ky., David Waller, James P. Klapps, Raymond A. Nowak, Ignazio J. Ruvolo, Bruce A. Menk, Trial Attys., U. S. Dept. of Justice, Washington, D. C., Alan Yamamoto, Trial Atty., Dept. of Labor, Arlington, Va., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JAMES F. GORDON, District Judge.

This matter came on for trial by the Court without a jury on December 4, 1978. Following the close of plaintiff's case, the Government moved under Federal Rule of Civil Procedure 41(b) for involuntary dismissal of the plaintiff's action on the ground that upon the facts presented and the law the plaintiff had shown no right to relief. After considering the stipulations of the parties, the testimony of various witnesses called by the plaintiff, the exhibits admitted into evidence on behalf of the plaintiff, and the arguments of counsel, the Court determined that judgment against the plaintiff should enter. In accordance with Rule 52(a), the Court now makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. On April 9, 1973, Kenneth Wayne Holland, an employee at the River Queen Underground Mine No. 1, Peabody Coal Co., Greenville, Muhlenberg County, Kentucky, was killed when he became caught in a piece of underground equipment known as a belt conveyor tailpiece.

2. Holland died as a result of head injuries and a broken neck resulting from the accident aforesaid.

3. The River Queen Underground Mine No. 1 is enormous in size,¹ and a proper understanding of this case requires some description of its method of operation. In very general terms, coal at the River Queen is mined underground at the "face," transported from the face area in shuttle cars to another point underground, discharged onto belt conveyors, and transported by belt to the surface. Typical of underground coal mines, the River Queen is not "lighted" like a room. Its "tunnels" are in fact elaborate systems of several separate entries which parallel one another, separated by coal for support purposes, which follow a seam of coal underground. The seam of coal at the River Queen averages only 48 inches in height.

4. At the time of the accident, the particular tailpiece within which Holland became caught was located along the belt entry of the "6 west" submain running off of the "main north," outby the intersection of the "1 south" panel.

5. This particular tailpiece was a "homemade" device which had been constructed in the River Queen shop, and was merely one of many tailpieces located in the mine.

6. There is little evidence as to how long this particular tailpiece had been in the River Queen Mine. Mine manager Russell Revlett could only testify that the tailpiece had been constructed and placed in the mine somewhere between 3-6 months prior to the accident, when the "2 south" panel was driven off the "6 west" submain. Such 3-6 month period constitutes the relevant time period for purposes herein.

7. Revlett further testified that subsequent to the mining of the "2 south" panel, and prior to the driving off of the "1 south" panel — a period of as much as 2-3 months — this particular tailpiece could not have been in use in the "6 west" submain, since it would not accommodate a certain piece of equipment (ratio feeder) needed for mining operations during this period.

8. The particular tailpiece within which Holland became caught was only used intermittently in the "6 west" submain during the 3-6 month period preceding the death of Kenneth Holland.

9. "On the day of his death, Holland was employed as a general laborer (belt cleaner) underground, assigned to clean the numbers "1 south" and "6 west" belts.

10. There were no eyewitnesses to the fatal accident involving Kenneth Wayne Holland.

11. Shortly before the accident, at approximately 8:30 a. m., Holland had been observed by Junior Wagner, a fellow employee, shoveling along the number "1 south" belt.

12. Holland was not seen again until approximately 9:15 a. m., when he was found caught between the end of the tail pulley and the belt frame structure of the tailpiece by Ronnie Bennett, a fellow employee.

13. Prior to the April 9, 1973 accident in litigation, federal mine inspectors with the Bureau of Mines, Department of the Interior² had been present at the River Queen Underground Mine for the purpose of conducting periodic health and safety inspections pursuant to the Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801, et seq. (1970).

14. At the time of the accident, the particular tailpiece within which Kenneth Wayne Holland became caught was unguarded.

15. On March 31, 1973 — just ten (10) days prior to the accident in litigation — a new regulation published at 38 Fed.Reg. 4976 (Friday, February 23, 1973), and later codified at 30 C.F.R. § 75.1722 (July, 1973), became effective, requiring in relevant part that "(a) . . . tail . . . pulleys . . . which may be contacted by persons, and which may cause injury to persons shall be guarded" and "(b) guards at . . conveyor tail-pulleys shall extend a distance sufficient to prevent a person from reaching behind the guard and becoming caught between the belt and the pulley."

16. There is no evidence that any federal inspectors in the River Queen Mine during the ten (10) day period subsequent to the effective date of the new regulation March 31, 1973 and prior to the date of the accident April 9, 1973 ever observed the particular tailpiece within which Holland became caught.

17. There is no evidence from which this Court can infer that any federal inspectors in the River Queen Mine during the ten (10) day period subsequent to the effective date of the new regulation March 31, 1973 and prior to the date of the accident April 9, 1973 should have seen the particular tailpiece within which Holland became caught.

18. The mere failure of federal inspectors to observe the particular tailpiece within which Holland became caught during the ten (10) day period subsequent to the effective date of the new regulation March 31, 1973 and prior to the date of the accident April 9, 1973 does not demonstrate a want of care in the conduct of their inspection activities during such ten (10) day period.

19. Prior to the new regulation which became effective on March 31, 1973, there had been no regulation specifically requiring mechanical equipment guards on belt conveyor tail pulleys.

20. Prior to March 31, 1973, the particular tailpiece within which Holland became caught violated no mandatory health or safety standard.³

21. Prior to March 31, 1973, if observed by a federal mine inspector, such inspector could have determined that no enforcement action was warranted against such tailpiece. Alternatively, such inspector could have determined that such tailpiece was appropriately the subject of either a "safeguard notice"⁴ or a "withdrawal and debarment closure order."⁵ However, the issuance of either a safeguard notice or a closure order does not call for the application of a clear rule to a clear factual situation, but rather is discretionary with the individual inspector.

22. Plaintiff called as witnesses James E. Franks, Darold N. Gamblin and Gazi Bokkon, federal mine inspectors who had been in the River Queen Underground Mine No. 1 prior to March 31, 1973, for the purpose of conducting periodic health and safety inspections. None of these inspectors testified to having seen the particular tailpiece within which Holland became caught during any of their inspection activities.

23. There is no evidence that any federal mine inspectors in the River Queen Mine prior to March 31, 1973 ever observed the particular tailpiece within which Holland became caught.

24. There is no evidence from which this Court can infer that any federal inspectors in the River Queen Mine prior to the March 31, 1973 effective date of the new regulation should have seen the particular tailpiece within which Holland became caught.

25. There is no evidence from which this Court can infer that, even if defendant's inspectors did or should have seen this particular tailpiece prior to the March 31, 1973 effective date of the new regulation, the decision of whether to have taken any regulatory enforcement action with respect to such tailpiece would have been anything but a matter falling within their discretion.

26. There is no evidence from which this Court can find or infer any negligence on the part of the defendant's mine inspectors in the conduct of their inspections at the River Queen Underground Mine No. 1 prior to the date of the accident in litigation.

27. The acts of defendant's mine inspectors in conducting their regulatory activities at the River Queen Underground Mine No. 1 were neither the cause-in-fact, nor a proximate cause, of the death of Kenneth Wayne Holland.

28. Following notification of the accident, the Bureau of Mines conducted an investigation into the mishap. This investigation resulted in the issuance of the following orders and notices:

(a) Order No. 1 WMC, issued April 9, 1973, at 10:15 a. m., requiring the closure of the mine for the purpose of the Bureau completing its investigation into the accident. This Order was modified by Order No. 1 CED, issued April 9, 1973, at 1:00 p. m., to allow production to resume at the mine during the pendency of the accident investigation.

(b) Notice No. 1 CED, issued April 9, 1973, at 12:30 p. m., for Peabody Coal Co.'s violation of that standard found at 38 Fed. Reg. 4976 (Friday, February 23, 1973), codified at 30 C.F.R. § 75.1722 (...