Mercer v. United States

• Decision Date: 17 August 1978
• Docket Number: No. C-2-77-107.,C-2-77-107.
• Citation: 460 F. Supp. 329
• Parties: Darlene MERCER, for herself as Administratrix of the Estate of William B. Mercer, and as next friend of Lauree Ann Mercer, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Ohio

460 F. Supp. 329

Darlene MERCER, for herself as Administratrix of the Estate of William B. Mercer, and as next friend of Lauree Ann Mercer, Plaintiffs, v. UNITED STATES of America, Defendant.

No. C-2-77-107.

United States District Court, S. D. Ohio, E. D.

August 17, 1978.

David William T. Carroll, Columbus, Ohio, for plaintiffs.

James P. Klapps, David B. Waller, Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM AND ORDER

DUNCAN, District Judge.

This is an action against the United States for the wrongful death of plaintiff's decedent, William R. Mercer, who was killed on January 29, 1975, during the course of his employment at the Blue Rock Quarry Mines in Perry Township, Fayette County, Ohio. On October 2, 1974, and on other prior occasions, agents of the federal government undertook to inspect the Blue Rock Quarry Mine pursuant to 30 U.S.C. § 723(2). Plaintiff alleges that these inspections were negligently performed because they failed to disclose and that the defendant failed to order the correction of certain violations of safety standards which proximately resulted in the decedent's death.

Jurisdiction is asserted under 28 U.S.C. § 1346(b) which provides in relevant part:

. . . the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or 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.

The government has moved for dismissal or for summary judgment because the plaintiff has alleged no act which would subject the United States, "if a private person," to liability under Ohio law. The Court believes this position to be well taken.

Section 1346(b) is part of the Federal Tort Claims Act (hereinafter referred to as the FTCA), which waives the federal government's sovereign immunity for torts which would be actionable under state law if committed by a private person under similar circumstances. It is well settled that the FTCA created no new causes of action but merely established a remedy for existing "ordinary common-law torts" of the government. Dalehite v. United States, 346 U.S. 15, 25 n.10, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Feres v. United States, 340 U.S. 135, 141-42, 71 S.Ct. 153, 95 L.Ed. 152 (1950). It is also clear that the basis for liability must be the law of the place in which the act or omission occurred; a claim based exclusively on federal law will not invoke the Act. See Baker v. F & F Investment Co., 489 F.2d 829, 835 (7th Cir. 1973); Devlin Lumber & Supply Co. v. United States, 488 F.2d 88, 89 (4th Cir. 1973); Frazier v. United States, 412 F.2d 22 (6th Cir. 1969); United States v. Smith, 324 F.2d 622 (5th Cir. 1963). Whether the United States is subject to liability under § 1346(b), and, therefore, whether the jurisdiction of this Court is properly invoked, depends on whether a cause of action exists under the law of Ohio against a private person under like circumstances.

No Ohio case has been cited by the parties which would subject a private person to liability for the negligent performance of an inspection authorized by federal statute. Ohio law appears to distinguish those inspections which are conducted pursuant to statute from those which are undertaken pursuant to other legal authority such as a contractual agreement. Thus in Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, 139 N.E.2d 10 (1956), the Supreme Court of Ohio recognized that one who contracts to inspect and maintain an elevator and whose negligence in fulfilling those contractual obligations proximately results in injury to a third person is liable for those injuries.

Yet no liability has been imposed by Ohio law for the failure to perform a duty of inspection imposed by statute alone. Shelton v. Industrial Commission, 51 Ohio App.2d 125, 367 N.E.2d 51 (1976). Shelton was an action against a state agency for failure to inspect. In the context of the state waiver of immunity statute, an Ohio court of appeals addressed a question analogous to that presented here: whether the action would lie against a private party. The court reasoned that a private party's duty to inspect and enforce safety standards is not created by statute, but arises only by virtue of some other legal relationship, and that there is no rule of law making a private party liable for a failure to perform statutory duties of inspection. Therefore, the statute created no duty that would subject a state agency to liability under similar circumstances.

Plaintiff urges that in the absence of a contractual duty to inspect, once an inspection is undertaken, the inspector incurs a duty to perform the inspection with due care. Under certain circumstances that general proposition may be so. Moreover, today's decision is not a determination that a government inspector's personal torts while on the premises he inspects may never be within this Court's jurisdiction pursuant to 28 U.S.C. § 1346(b). However, the Court does not believe that liability attaches when, as here, the government is neither contractually obligated to perform an inspection nor otherwise is in possession or control of the subject of the inspection, but is conducting an inspection in accordance with a statute which seeks to cause mine operators to comply with safety standards as discussed hereinafter.

This Court agrees with the analysis of similar facts in Davis v. United States, 395 F.Supp. 793 (D.Neb.1975), aff'd., 536 F.2d 758 (8th Cir. 1976). In Davis, plaintiff sought to impose liability on the United States for the...