Taylor v. United States, Civ. A. No. 81-0018-0(G).

• Court: United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
• Citation: 521 F. Supp. 185
• Docket Number: Civ. A. No. 81-0018-0(G).
• Parties: Linda L. TAYLOR, Plaintiff, v. UNITED STATES of America, Defendant.
• Decision Date: 07 August 1981

521 F. Supp. 185

Linda L. TAYLOR, Plaintiff,
v.
UNITED STATES of America, Defendant.

Civ. A. No. 81-0018-0(G).

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

August 7, 1981.

521 F. Supp. 186

A. V. Conway, II, Beaver Dam, Ky., for plaintiff.

Alexander T. Taft, Jr., U. S. Atty., Louisville, Ky., James P. Klapps, Asst. Dir., Karen M. Shickman, Trial Atty., Torts Branch, Civil Division, U. S. Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM OPINION

JAMES F. GORDON, Senior District Judge.

The plaintiff, Linda Taylor, brings this action under the Federal Tort Claims Act, Title 28 U.S.C. § 1346(b), for injuries allegedly sustained as a result of negligent inspections of a mine in Ohio County, Kentucky, by employees of the defendant, United States of America. Currently pending is the defendant's motion to dismiss either for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1) and (6). For reasons hereinafter set forth, the defendant's motion is granted.

28 U.S.C. § 1346(b) reads in relevant part as follows:

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. (emphasis supplied).

As a threshold matter, it appears to the Court that subject matter jurisdiction must be established prior to the consideration of any objections to the sufficiency of the averments in the plaintiff's complaint. It is important to recognize, however, that the two questions are interrelated within the context of the Tort Claims Act. Further, in order to determine whether the Court possesses such jurisdiction, it is patent that the question whether, under similar circumstances, a private person would be liable under Kentucky law must first be answered. In this respect, the plaintiff, in her complaint, makes the following allegations:

5. That at the time of the aforementioned accident, the scoop machine had no

521 F. Supp. 187

brakes or other necessary functioning safety equipment as required by law. That at numerous times immediately prior to January 22, 1979, said scoop machine had been inspected by agents, servants or employees of the Defendant while acting within the nature and scope of their employment and pursuant to the Federal Mine Safety and Health Act of 1977.

6. That the aforementioned agents, servants and employees of the Defendant, while acting in the nature and scope of their employment, did fail to properly inspect said scoop machine and further did fail to follow up on their inspections and that as a direct result of said negligence ... said scoop machine had no operative brakes or other necessary functioning safety equipment all of which caused said accident ....

A logical analysis necessarily should begin with reference to cases decided by courts residing within this District. In Holland v. United States, 464 F.Supp. 117, 123 (1978), we merely assumed, without deciding, that the United States owed an actionable tort duty to the plaintiff's decedent therein. As Holland did not resolve the "duty" question, it is not particularly helpful to a determination of the instant motion. In Raymer v. United States, 455 F.Supp. 165 (W.D.Ky.1978), the Honorable Thomas A. Ballantine held that the United States owed a duty to the plaintiff's decedent by virtue of the mandatory language of the Federal Coal Mine Health and Safety Act (the Act), 30 U.S.C. § 801 et seq., and the settled rule 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." 455 F.Supp. at 166. The Raymer Court (after a trial without a jury at 482 F.Supp. 432 (1979)) was aware of the Holland decision, but found it factually distinguishable.

The plaintiff places substantial reliance on Raymer, and contends that it is controlling with respect to the instant motion to dismiss. We disagree. Instead, we are constrained to conclude that the plaintiff has not stated a claim which, under Kentucky law, would warrant recovery against the defendant if it were a private person. Therefore, we are without the subject matter jurisdiction pursuant to 28 U.S.C. § 1346(b) necessary to entertain the plaintiff's claims.

As regards the imposition of liability upon the United States as a consequence of its asserted assumption of a duty following enactment of the Federal Coal Mine legislation, we conclude that Kentucky's adoption of Sections 323 and 324A of the Second Restatement of Torts¹ is not dispositive. In support of her contentions, the plaintiff cites Louisville Cooperage Co. v. Lawrence, 313 Ky. 75, 230 S.W.2d 103, 105 (1950), wherein the court stated:

A duty voluntarily assumed cannot be carelessly abandoned without incurring liability for injury resulting from the

521 F. Supp. 188

abandonment. (citations omitted). As characteristically stated by Judge Cardozo in Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276, 23 A.L.R. 1425, 1427, `It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.'

See also, Haddad v. Louisville Gas & Electric Company, 449 S.W.2d 916 (Ky.1969). These general statements of the applicable rule, if applied blindly, might result in the imposition of...