Irving v. U.S.
| Decision Date | 29 August 1996 |
| Docket Number | Civil No. 81-501-M. |
| Parties | Gail Merchant IRVING, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of New Hampshire |
Paul R. Cox, Burns, Bryant, Hinchey, Cox & Rockefeller, Dover, NH, for Gail Merchant Irving.
Gretchen Leah Witt, U.S. Attorney's Office, Concord, NH, Phyllis Jackson Pyles, U.S. Department of Justice, Washington, DC, for United States.
Plaintiff, Gail Merchant Irving, sues defendant, the United States, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, seeking damages for serious injuries she suffered in a workplace accident. On October 10, 1979, Irving's hair became caught in the unguarded rotating drive shaft of a die-out machine located near her work station at Somersworth Shoe Company. Regulations promulgated by the Occupational Safety and Health Administration ("OSHA") required that the rotating shaft be guarded. Before the accident, in 1975 and again in 1978, OSHA compliance officers inspected the Somersworth Shoe facility for the purpose of ensuring compliance with OSHA safety standards, but in neither inspection was the unguarded drive shaft identified or cited as violating OSHA standards. Irving claims in her sole cause of action that the OSHA compliance officers breached their duty under New Hampshire's common law "Good Samaritan" doctrine to conduct the pre-accident inspections in a non-negligent manner. She also alleges that their failure to identify and cite the unguarded drive shaft as a violation of OSHA standards caused or contributed to cause her injuries. Irving's claim against the United States was tried to the court.
Because the procedural history of this case is unusual, a brief survey of Irving v. United States is necessary to put the issues in proper context.
As mentioned, Gail Irving was severely injured in a workplace accident on October 10, 1979. Seeking to hold the United States liable for her injuries, she filed a timely administrative claim for damages with the appropriate federal agency, the United States Department of Labor. See 28 U.S.C. § 2675(a). Her claim was denied and, on October 7, 1981, she filed suit in this court. See id.
A bench trial on the merits began on February 11, and concluded on February 14, 1985. Following trial, the court took the matter under advisement and, on January 27, 1988, dismissed Irving's suit without reaching the merits. The court determined that the discretionary function exception to the FTCA applied to OSHA inspections and, because the United States retained its sovereign immunity from suit involving such matters, the court was without subject matter jurisdiction over Irving's sole cause of action. Irving v. United States, No. C81-501-D, slip op. (D.N.H. Jan. 27, 1988) (Devine, C.J.). Irving appealed.
Shortly after the district court's dismissal order, but before the appeal was resolved, the United States Supreme Court decided Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). The Berkovitz decision clarified the law concerning the FTCA's discretionary function exception as it pertains to governmental regulatory activities. Accordingly, the First Circuit vacated the district court's dismissal of Irving's complaint and remanded the case for further consideration in light of the new standards established in Berkovitz. Irving v. United States, 867 F.2d 606 (1st Cir.1988) (unpublished order).
Responding to the First Circuit's mandate, the district court analyzed Irving's claim in light of a then-recent post-Berkovitz OSHA case in which the Court of Appeals for the Fifth Circuit found the discretionary function exception applicable. Irving v. United States, No. C81-501-D, slip op. at 3 (D.N.H. Feb. 14, 1989) (Devine, C.J.) (citing Galvin v. OSHA, 860 F.2d 181 (5th Cir.1988)). The trial court again dismissed Irving's suit, holding that it remained barred by the discretionary function exception. Id. at 4-5.
Irving again appealed, and the First Circuit again remanded the case, insisting on a case-specific application of Berkovitz. Irving v. United States, 909 F.2d 598, 605 (1st Cir. 1990) ("Irving I").2 The Court of Appeals directed the district court to make explicit factual findings as to whether "the thoroughness of [OSHA] inspections was ... left up to the individual compliance officers" and whether those compliance officers had "policy-level discretion to fail to note and tell the employer about the violation which allegedly was the cause of Ms. Irving's injuries." Id. (emphasis added).
Four years later, the district court issued a memorandum opinion, Irving v. United States, No. C81-501-SD, slip op., 1994 WL 287750 (D.N.H. June 6, 1994) (Devine, S.J.). Instead of resolving the discretionary function issue, however, the trial court decided the case on its merits, finding that during the 1975 and 1978 OSHA inspections the die-out machine that caused Irving's injury was positioned "some two feet closer to the wall to its rear." Id. at WL*3. Therefore, the court determined that the drive shaft actually did comply with OSHA regulations during the earlier inspections because it had been "guarded by location" — "it was then in such location that employees working near it would not be exposed to injury." Id. at WL*3. And, because the drive shaft for the die-out machine was actually guarded by location during the 1975 and 1978 inspections, the court reasoned, OSHA compliance officers were not negligent in failing to identify or cite it as a violation of OSHA safety standards. Accordingly, judgment was again entered for the government, although this time on the merits.
Irving appealed for a third time, arguing, inter alia, that the district court's guarded-by-location finding was clearly erroneous and unsupported by the evidence. The government countered that the record supported the guarded by location finding and again argued that the discretionary function exception to the FTCA barred Irving's suit in any event. Once again, the Court of Appeals found for Irving. Irving v. United States, 49 F.3d 830 (1st Cir.1995) ("Irving II").
Addressing the government's renewed discretionary function argument first, the court of appeals reiterated its holding in Irving I:
[T]he applicability of the discretionary function exception [cannot] be decided without findings as to whether OSHA policy left the thoroughness of inspections a matter of choice for individual inspectors, and whether the inspectors had policy-level discretion to fail to note and tell the employer about the violation which allegedly caused plaintiff's injuries.
Irving II, 49 F.3d at 834 (citing Irving I, 909 F.2d at 605) (emphasis added). The Court of Appeals set aside the district court's finding that the rotating shaft of the die-out machine was guarded by location during the 1975 and 1978 inspections, id. at 836, vacated the judgment of the district court, and granted Irving's request for a trial de novo before a different district court judge, committing to the discretion of the new trial judge whether to proceed solely on the record of the 1985 trial. Id. at 837.
Consistent with the First Circuit's mandate, and with the express approval of the parties, this court proceeded on the trial record, supplemented by counsels' oral argument on November 21, 1995. The court earlier denied the government's motion to dismiss, rejecting an argument that the misrepresentation exception to the FTCA deprived the court of subject matter jurisdiction over Irving's cause of action. Irving v. United States, No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.). In addition, the court denied Irving's motion to increase her ad damnum to an amount in excess of the $1,000,000 she sought in her initial administrative claim in 1980. Irving v. United States, No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.). With all motions now disposed of, the court decides the case on the merits in light of all the evidence introduced at trial3 and the arguments advanced by the parties, both orally and in their written submissions.
As the procedural history of this case indicates, the parties' legal sparring over the last fifteen years has focused on two issues. First, the parties dispute whether the discretionary function exception to the FTCA preserves the government's sovereign immunity and deprives this court of subject matter jurisdiction over Irving's cause of action. Second, the parties dispute whether the machine on which Irving was injured was, in fact, guarded by location during the 1975 and 1978 OSHA inspections. Each issue is, by itself, potentially dispositive of Irving's suit.
Because the discretionary function question implicates the court's subject matter jurisdiction, it would normally be addressed first. However, as Irving I and Irving II make clear, an acceptable answer to the discretionary function question depends on several, quite specific, findings of fact. Therefore, the court will first explain its factual findings related to Irving's accident and the OSHA inspections, including the location of the die-out machine during the 1975 and 1978 inspections. Then, based on the facts found, the court will explain why the discretionary function exception does not apply here, and, finally, the court will resolve the case on its merits.
In October of 1979, Gail Merchant Irving was working at the Somersworth Shoe Company plant in Somersworth, New Hampshire. Although Irving had worked in different shoe factories, including Somersworth Shoe, on and off for about four years (Irving, 2/11/85, p. 4), at the time of the accident she had been steadily employed at Somersworth Shoe only since mid-September, 1979. (Irving, 2/11/85, p. 6.)
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Irving v. U.S.
...OSHA inspectors had acted negligently; and that such negligence was actionable under applicable state law. See Irving v. United States, 942 F.Supp. 1483 (D.N.H.1996) (Irving III ). The court awarded the plaintiff $1,000,000 in damages. See id. at A divided panel of this court affirmed the j......