Raymer v. U.S., 80-3033

Decision Date09 October 1981
Docket NumberNo. 80-3033,80-3033
Citation660 F.2d 1136
Parties1981 O.S.H.D. (CCH) P 25,704 Gwynith RAYMER, Administratrix of the Estate of Ronald Latney Raymer, Deceased; and Marilyn Gill, Administratrix of the Estate of David R. Gill, Deceased, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Alice Daniel, Asst. Atty. Gen., Civ. Div., Dept. of Justice, Washington, D. C., Albert Jones, U.S. Atty., Mikell T. Grafton, Asst. U.S. Atty., Louisville, Ky., Charles Mandolia, Raymond A. Nowak, Trial Attys., Torts Branch, James P. Klapps, Asst. Director, Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D. C., for the U. S.

Harold M. Streets, Greenville, Ky., Charles A. Williams, Paducah, Ky., William P. Hurley, Jr., Edward T. Ewen, Jr., Louisville, Ky., Damon A. Vaughn, Elizabeth E. Vaughn, Henderson, Ky., for plaintiffs-appellees.

Before EDWARDS, Chief Judge, and LIVELY and KEITH, Circuit Judges.

LIVELY, Circuit Judge.

This appeal requires us to decide a question previously reserved by the court: Whether an action lies against the government under the Federal Tort Claims Act for alleged negligence of employees of the Bureau of Mines of the Department of Interior in performing inspection activities required by the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. 1 (the 1969 Act). See Collins v. United States, 621 F.2d 832, 833 (6th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980).


The plaintiffs are the personal representatives of Ronald Latney Raymer and David R. Gill who died in an accident while working at a strip mine of Peabody Coal Company in Muhlenberg County, Kentucky on January 8, 1972. Raymer and Gill were directed by a supervisor to take a "front end loader" to a distant part of the mine for the purpose of assisting in the removal of another vehicle which had become stuck. Raymer and Gill never arrived at their destination. Sometime later the front end loader was found overturned at a point 27 feet below an elevated "levee road." Both occupants were fatally crushed. There were no witnesses to the accident. The levee road was owned by the Tennessee Valley Authority, but was used by Peabody employees in going from one part of the strip mine operation to another.

The complaint of each plaintiff charged negligent inspection and negligent enforcement of the 1969 Act and "other negligence on the part of Bureau of Mines personnel ..." as the basis for recovery under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and § 2671 et seq. (the FTCA). As developed in discovery and at trial the negligence charged consisted of the unwarranted granting of extensions of time to Peabody for the correction of one violation of the 1969 Act found by an inspector and the failure to discover and cite Peabody for a second alleged violation. On August 10, 1971 a Bureau of Mines inspector issued a citation to Peabody for violation of 30 C.F.R. § 77.403 (1971) which required roll over protection systems (ROPS) on mining equipment when necessary to protect the operator. This citation referred to front end loaders and bulldozers. The front end loader involved in the accident was not equipped with roll bars or other ROPS. Thereafter, this inspector and another one issued successive extensions of time for compliance with the August 10th citation. The final extension was granted on January 6, 1972, two days before the fatal accident. The plaintiffs also charged that the inspectors were negligent in not citing Peabody for failure to provide berms and guardrails on the elevated levee road, a claimed requirement of 30 C.F.R. § 77.1605(k) (1971).

The district court rendered two decisions in this case. In the first it entered an order and memorandum opinion denying the government's motion for summary judgment. Raymer v. United States, 455 F.Supp. 165 (W.D.Ky.1978). The memorandum opinion foreshadowed the later decision on the merits with its finding that, "in assuming the duty to inspect and regulate mining operations, the U.S. formulated a policy, the negligent execution of which will render it liable." Id. at 168. In granting judgment for wrongful death in favor of both plaintiffs following trial the district court concluded that the 1969 Act "imposes a duty on the defendant to see that mine safety regulations are vigorously and meticulously enforced." Raymer v. United States, 482 F.Supp. 432, 436 (W.D.Ky.1979). The breach of this duty which resulted in liability was stated thus: "In the case at bar, the Court finds that the affirmative act of perpetuating obviously hazardous conditions by granting unwarranted extensions to Peabody in the absence of any acceptable evidence that Peabody could not comply with the regulations amounts to actionable negligence for which the defendant is liable." Id. at 437.

The reference to the absence of evidence of Peabody's inability to comply with the August 10th citation relates to a disputed issue of fact. In granting the extensions the inspectors apparently relied on their knowledge that promulgation of the regulations had created a great demand for ROPS and that mine operators were experiencing difficulty in acquiring the kits used in equipping their machinery and vehicles with roll over protection. Further, there was some evidence that Peabody had placed an order for a kit to be used on the front end loader. Nevertheless, the finding of the district court on this factual issue is not clearly erroneous, and it is treated as correct on appeal. Rule 52(a), Fed.R.Civ.P. The district court did not base its liability holding on any finding or conclusion with respect to the absence of berms and guardrails along the levee road though their absence was found, along with the absence of ROPS, to be a "substantial factor" in the deaths of the two employees. 482 F.Supp. at 435. The parties disagreed on whether such protection was required for the levee road or whether the regulation applied only to "haulage" roads. The district court did not resolve this issue.


The government makes three arguments on appeal. First, it contends that it is not liable to the plaintiffs because regulatory enforcement activities of mine inspectors constitute "discretionary functions." This argument is based on an exception contained in the FTCA, 28 U.S.C. § 2680(a):

The provisions of this chapter and section 1346(b) of this title shall not apply to

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

The second argument is that regulatory enforcement activities do not give rise to "an actionable tort duty" cognizable under the Federal Tort Claims Act. In the third place the government argues that, assuming a duty existed, the court erroneously concluded that a breach of that duty was proven in this case. We examine the second argument, which appears dispositive.


The two provisions of the FTCA which establish jurisdiction in the district court for actions against the United States based on negligence of its agencies and employees are 28 U.S.C. §§ 1346(b) and 2674. 2 As shown by the texts reproduced in the footnote, both sections limit liability of the United States to those circumstances in which a private individual would be liable. The determination of whether a private individual would be liable under like circumstances is to be made "in accordance with the law of the place where the act or omission occurred." § 1346(b).

The district court examined the 1969 Act and concluded that it imposed a duty upon the government to enforce its provisions "meticulously" and that the granting of unwarranted extensions of its remedial order constituted a breach of this duty. The court further concluded that under Kentucky law a private individual would be liable for a similar breach of duty under like circumstances. Though the district court relied upon the language of the 1969 Act in finding for the plaintiffs, it did not hold that there is a private right of action under the Mine Safety Act. Rather, the 1969 Act was held to define the duty of the government and liability for the breach of this duty was founded on the Federal Tort Claims Act. We agree that the 1969 Act did not create a private right of action by mine employees against the government. See Blessing v. United States, 447 F.Supp. 1160, 1166 n.5 (E.D.Pa.1978).


The main thrust of the government's argument is that there is no liability under Kentucky law for negligence in the conduct of regulatory inspection and enforcement activities. The government contends that even where a federal statute or regulation imposes a specific duty on federal employees, there is no liability to beneficiaries of the statute or regulation under the FTCA if state law imposes no similar obligation or duty on private persons. The government maintains that the district court actually found liability on the basis of the requirements of the 1969 Act rather than on the basis of any state-created duty.


The plaintiffs argue that Kentucky recognizes the "good Samaritan" doctrine in the context of a third-party inspection. Under this doctrine one who undertakes an inspection and in doing so finds a danger has an obligation either to abate the danger or to see that the owner of affected premises does so. Thus they contend, once the government assumed the task of inspecting coal mines, with enforcement powers to correct violations of safety rules and regulations, it was required to act with reasonable care and is liable where it failed to...

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