Mosley v. United States

• Citation: 456 F. Supp. 671
• Decision Date: 11 July 1978
• Docket Number: No. CIV-2-77-177.,CIV-2-77-177.
• Parties: Brenda P. MOSLEY, etc., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: United States District Courts. 6th Circuit. Eastern District of Tennessee

456 F. Supp. 671

Brenda P. MOSLEY, etc., Plaintiff, v. UNITED STATES of America, Defendant.

No. CIV-2-77-177.

United States District Court, E. D. Tennessee, Northeastern Division.

July 11, 1978.

Bobby Ray Tate, and M. Lacy West, Kingsport, Tenn., for plaintiff.

John H. Cary, U. S. Atty., and Richard K. Harris, Asst. U. S. Atty., Knoxville, Tenn., for defendant.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

This is an action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq., for damages for wrongful death. The Court treats the motion of the defendant United States of America (the government) for a dismissal for, inter alia, the failure of the plaintiff to state a claim against it on which relief can be granted or, alternatively, for a summary judgment as a motion for the latter and will dispose of it as provided in Rule 56, Federal Rules of Civil Procedure. Rule 12(b), Federal Rules of Civil Procedure.

The government, as the sovereign, is immune from suit except to the extent it consents to be sued; and, any such consent defines the parameters of this Court's jurisdiction to entertain actions against it. United States v. Orleans (1976), 425 U.S. 807, 813-814, 96 S.Ct. 1971, 1975-1976, 48 L.Ed.2d 390. The Federal Tort Claims Act, supra, constitutes but a limited waiver of this immunity. Ibid., 425 U.S. at 813, 96 S.Ct. at 19751.

Thereunder, the government is liable in tort "* * * in the same manner and to the same extent as a private individual under like circumstances. * * *" 28 U.S.C. § 2674; accord: Mider v. United States, C.A. 6th (1963), 322 F.2d 193, 1974. "* * * Only if the laws of the state in which the alleged wrongful act occurred provide recovery in similar situations involving private parties does the Tort Claims Act take effect. * * *" Myers & Myers, Inc. v. United States Postal Serv., C.A. 2d (1975), 527 F.2d 1252, 12609.

The gravamen of the plaintiff's claim herein, as amended, is that her husband, a crusher operator, was killed in Tennessee while working at his place of employment; that his employer was engaged in mining operations, the premises of which were inspected periodically by the government's employees in its Department of the Interior, division of mining enforcement and safety administration; that such federal employees were negligent: in inspecting a certain head pulley and conveyor system located thereon, in failing to require such equipment to be guarded adequately and equipped properly, in violation of the provisions of the Federal Metal and Nonmetallic Mine Safety Act (Mine Safety Act), 30 U.S.C. §§ 721, et seq., the regulations promulgated thereunder, and a Tennessee statute, and in failing to abate violations of such federal standards; that such negligence was a proximate cause of her decedent's death; and that the government's mine inspectors would, if acting under the same circumstances as private persons, be liable to her under the law of Tennessee for the wrongful death of her husband. Pretrial order of May 2, 1978 herein, II(a).¹ Under her claim, the law of Tennessee, including its rules governing conflict of laws, controls. Richards v. United States (1962), 369 U.S. 1, 11, 82 S.Ct. 585, 5927, 7 L.Ed.2d 492; Gowdy v. United States, C.A. 6th (1969), 412 F.2d 525, 5271, certiorari denied (1969), 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425, rehearing denied (1970), 396 U.S. 1063, 90 S.Ct. 750, 24 L.Ed.2d 756. The conflict of law rules of Tennessee require an allusion to the substantive law of this state. Telecommunications, E. S. & S. Co. v. Southern T. S. Co., C.A. 6th (1975), 518 F.2d 392, 3944; Winters v. Maxey (Tenn., 1972), 481 S.W.2d 755, 7561.

The plaintiff's claim, being that of actionable negligence, there are 3 elements necessary to support her cause of action herein: "* * * (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) a causal relation between the injury to the plaintiff and the defendant's breach of his duty of care. * * *" Shouse v. Otis (1969), 224 Tenn. 1, 448 S.W.2d 673, 6761. The government claims that it cannot be liable to the plaintiff for any negligence of its employees, because under the circumstances they owed no duty of care to the plaintiff's decedent in connection with their inspection activities. There is merit to this contention.

The purpose of the Mine Safety Act, supra, was to extend federal supervision of mine safety to mines of all types and character other than coal and lignite mines (which are regulated under different statutes). Chaneyfield v. City of New York, C.A. 2d (1975), 525 F.2d 1333, 1335, certiorari denied (1976), 425 U.S. 912, 96 S.Ct. 1509, 47 L.Ed.2d 763. It was not the congressional intention, however, to create thereby a private cause of action by, or on behalf of, an employee injured or killed as a result of a violation of that statute. Ibid., 525 F.2d at 13351; see also 30 U.S.C. § 738(c).²

The inspection provisions of the Mine Safety Act and its regulations apply only to federal officers and employees. The obligations thereunder are imposed upon such federal officers and employees, and a private person has no duty thereunder to inspect or cause the inspection of mines. These federal inspection provisions can have no counterpart in private activity and give rise to no liability under the common law. Devlin Lumber & Supply Corp. v. United States, C.A. 4th (1973), 488 F.2d 88, 89 (involving an alleged breach of duty under the Miller Act). So, an action cannot be maintained against the government under the Tort Claims Act for an alleged negligent inspection by federal mine inspectors, since such conduct does not constitute a duty, the breach of which would give rise to a private civil remedy. Martha Krajnik, administratrix, etc., plaintiff, v. John F. Meisner Engineers, Inc., et al., defendants, no. 74-10071 in the Eastern District of Michigan, Northern Division, memorandum opinion and order of March 17, 1976. Cf. also Davis v. United States, D.C.Neb. (1975), 395 F.Supp. 793, 795-7963, 4, affirmed C.A. 8th (1976), 536 F.2d 758, and Hobart H. Kirby, plaintiff, v. Insurance Company of North America, et al., defendants, civil action no. 77-L-0146-NE in the Northern District of Alabama, Northeastern Division, order of October 20, 1977, (with reference to the alleged negligence of federal employees acting under the Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651, et seq.). See also Russell v. Bartley, C.A. 6th (1974), 494 F.2d 334 (holding that OSHA creates no private civil remedy in favor of employees). Thus, the inspection provisions of the Mine Safety Act, supra, and regulations promulgated pursuant thereto do not impose any duty under Tennessee law on a private person acting under circumstances such as the federal inspectors are alleged to have acted herein.

The plaintiff next claims the government inspectors were negligent by their violation of the provisions of T.C.A. § 58-1107(a).³ There is no applicability of this state statute to the facts the plaintiff alleged herein. It, along with related mine safety statutes of Tennessee, imposes duties both upon employers, T.C.A. § 58-1102, and upon employees, T.C.A. § 58-1103. It imposes no duty upon a mine inspector (and certainly none upon a private person), and it creates no right of action for money damages against any person alleged to have failed to have guarded adequately any item of equipment listed therein. For such reason, a private person would not be liable to the plaintiff under the circumstances presented.

Citing as support therefor State v. Clymer (1943), 27 Tenn.App. 518, 182 S.W.2d 425, certiorari denied (1943), the plaintiff then contends that, under the common law of Tennessee, inspectors of mines are liable civilly to persons injured or killed as a proximate result of the negligent performance of their (the inspectors') duties. That contention lacks merit.

Clymer, supra, involved an action to recover damages against two state mine inspectors and the sureties on their official bonds for personal injuries and the death of mine employees, in a mine explosion. It was alleged therein that the inspectors breached the conditions of their bonds by failing: to inspect the mine involved at least once in every 60 days, to place notices at the entrances thereof warning miners of the unsafe conditions therein, and to require the owners or operators of the mines to return them to a safe condition "* * * all as required by the Tennessee statutes. * * *" Ibid., 182 S.W.2d at 427. The appellate court of Tennessee outlined the duties imposed upon those state inspectors by virtue of their public office and noted that those obligations were absolute, imperative and ministerial, and not merely discretionary. It was for the state mine inspectors' failure, as public officers, to discharge their statutory duties that they were "* * * civilly responsible to the parties injured. * * *" Ibid., 182 S.W.2d at 4309.

That Court summarized a line of Tennessee cases holding that, as a general...