Raymer v. United States, Civ. A. No. 76-0119-0(B).

CourtU.S. District Court — Western District of Kentucky
Writing for the CourtBALLANTINE
Citation455 F. Supp. 165
PartiesGwynith RAYMER, Administratrix of the Estate of Ronald Latney Raymer, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. Marilyn GILL, Administratrix of the Estate of David R. Gill, Deceased, Intervening Plaintiff, v. UNITED STATES of America, Defendant.
Decision Date22 June 1978
Docket NumberCiv. A. No. 76-0119-0(B).

455 F. Supp. 165

Gwynith RAYMER, Administratrix of the Estate of Ronald Latney Raymer, Deceased, Plaintiff,
v.
UNITED STATES of America, Defendant.

Marilyn GILL, Administratrix of the Estate of David R. Gill, Deceased, Intervening Plaintiff,
v.
UNITED STATES of America, Defendant.

Civ. A. No. 76-0119-0(B).

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

June 22, 1978.


455 F. Supp. 166

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

James P. Klapps, Asst. Chief, Torts Section, U. S. Dept. of Justice, Washington, D. C., Albert Jones, U. S. Atty., W. D. Ky., Louisville, Ky., for defendant.

ORDER AND MEMORANDUM OPINION

BALLANTINE, District Judge.

This matter is pending on the motion of the United States for summary judgment.

Plaintiffs' decedents were killed when the vehicle in which they were riding overturned. It is alleged, and for the purposes here it will be assumed, that the vehicle failed to meet the safety standards required by the Federal Coal Mine Health and Safety Act, that the roadway on which the accident occurred failed to comply with safety standards set up by the Act, Title 30 U.S.C. Section 801 et seq., and that the United States failed to require compliance.

The pivotal question is whether the Congressional mandate that the Secretary of the Interior (now the Secretary of Labor) develop, promulgate and revise mandatory safety standards for mines and the failure to enforce those standards has the effect of imposing common law tort liability on the United States under the Federal Tort Claims Act, Title 28 U.S.C. Sections 2674 and 2680(a).

It is well settled that one who undertakes to render service for another which he recognizes as necessary for the protection of the other is liable for physical harm resulting from his failure to exercise due care if his failure to exercise due care results in increased risk of harm. See Restatement, Law of Torts 2d, Section 323. 28 U.S.C. Section 2674 imposes tort liability on the United States "to the same extent as a private individual under like circumstances."

Negligent conduct, to be actionable, must be based on a duty, a breach of that duty and resultant damage. Plaintiffs urge that the United States owed a duty to their decedents to enforce the regulations, that they failed in this duty and that the plaintiffs were damaged thereby.

The troublesome question is whether the United States owed a duty to the decedents to enforce the regulations. No case involving mining regulations has been cited or found. In Clemente v. United States, 567 F.2d 1140 (1st Cir. 1977), cert. denied 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978), one may find a comprehensive discussion of the bases of government tort liability. In Clemente liability was sought to be imposed upon the United States for the failure of Federal Aviation Administration inspectors to warn plaintiffs' decedents that the aircraft on which they were about to embark was overweight and lacked a proper crew. The action arose when the airplane was lost in the Caribbean. The District Court held the United States liable, reasoning that the duty to inspect and warn was generally created by the passage of the Act and was precisely created by the adoption of regulations. Clemente v. U. S., 422 F.Supp. 564 (D.P.R.1976). In reversing,...

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8 practice notes
  • Canipe v. National Loss Control Service Corp., No. 83-4346
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 23, 1984
    ...459-60 (discussing United States Fidelity & Guar. Co. v. Jones, Ala.1978, 356 So.2d 596, 597-98); Raymer v. United States, W.D.Ky.1978, 455 F.Supp. 165, 167 (citing Haddad v. Louisville Gas & Elec. Co., Ky.1970, 449 S.W.2d 916); Fuller v. Aetna Casualty & Sur. Co., S.D.Miss.1974, 369 F.Supp......
  • Gunnells v. United States, Civ. A. No. 75-0026-H.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 31, 1981
    ...the part of federal employees to supervise the safe operation of the nation's mines pursuant to the Mine Act. Raymer v. United States, 455 F.Supp. 165 (W.D.Ky.1978), appeal docketed, No. 80-3033 (6th Cir.). Another court, however, has held that decisions made by federal employees as to inve......
  • Adam v. State, No. 84-950
    • United States
    • United States State Supreme Court of Iowa
    • January 15, 1986
    ...(S.D.N.Y.1981) (unreliably and irresponsibly providing FBI with information gives rise to claim for damages); Raymer v. United States, 455 F.Supp. 165 (W.D.Ky.1978) (negligently assumed inspection and regulation under Federal Coal Mine Health Act creates liability); Brennen v. City of Eugen......
  • Holland v. United States, Civ. A. No. 75-0158-0(G).
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • December 18, 1978
    ...at the time of the accident in litigation (April 9, 1973) controls herein for all relevant purposes. 8 See Raymer v. United States, 455 F.Supp. 165 (W.D.Ky.1978). Contra: Darlene Mercer, et al. v. United States, 460 F.Supp. 329 (E.D. Ohio 1978); Mosley v. United States, 456 F.Supp. 671 (E.D......
  • Request a trial to view additional results
8 cases
  • Canipe v. National Loss Control Service Corp., No. 83-4346
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 23, 1984
    ...459-60 (discussing United States Fidelity & Guar. Co. v. Jones, Ala.1978, 356 So.2d 596, 597-98); Raymer v. United States, W.D.Ky.1978, 455 F.Supp. 165, 167 (citing Haddad v. Louisville Gas & Elec. Co., Ky.1970, 449 S.W.2d 916); Fuller v. Aetna Casualty & Sur. Co., S.D.Miss.1974, 369 F.Supp......
  • Gunnells v. United States, Civ. A. No. 75-0026-H.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • March 31, 1981
    ...the part of federal employees to supervise the safe operation of the nation's mines pursuant to the Mine Act. Raymer v. United States, 455 F.Supp. 165 (W.D.Ky.1978), appeal docketed, No. 80-3033 (6th Cir.). Another court, however, has held that decisions made by federal employees as to inve......
  • Adam v. State, No. 84-950
    • United States
    • United States State Supreme Court of Iowa
    • January 15, 1986
    ...(S.D.N.Y.1981) (unreliably and irresponsibly providing FBI with information gives rise to claim for damages); Raymer v. United States, 455 F.Supp. 165 (W.D.Ky.1978) (negligently assumed inspection and regulation under Federal Coal Mine Health Act creates liability); Brennen v. City of Eugen......
  • Holland v. United States, Civ. A. No. 75-0158-0(G).
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • December 18, 1978
    ...at the time of the accident in litigation (April 9, 1973) controls herein for all relevant purposes. 8 See Raymer v. United States, 455 F.Supp. 165 (W.D.Ky.1978). Contra: Darlene Mercer, et al. v. United States, 460 F.Supp. 329 (E.D. Ohio 1978); Mosley v. United States, 456 F.Supp. 671 (E.D......
  • Request a trial to view additional results

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