GUEST BLOG: Inspector liability for flawed inspections raises concerns

| Published on March 6, 2013

by Adele L. Abrams, Esq., CMSP

What could be worse than having the Mine Safety and Health Administration (MSHA) show up to conduct a hazard complaint-based inspection? Having this occur where the inspectors themselves can be held personally liable if they do not thoroughly investigate hazards, and then an accident and injury occur. This scenario has arisen in a coal case that is still being litigated in federal court, on behalf of the so-called “Aracoma Widows” (the families of the two miners who died in the Aracoma mine disaster in 2006). The action against MSHA comes after the company settled separate tort claim actions and several Aracoma supervisors plead guilty to criminal negligence charges.

Adele Abrams, Esp., CMSP

Adele Abrams, Esp., CMSP

A ruling in the Supreme Court of Appeals for West Virginia, interpreting and applying state law to the question of inspector liability that was certified for review by the federal court, was issued on Feb. 5, 2013 and raises the stakes for all MSHA inspections in the future. It also reaffirms the exposure that private safety and health consultants face when they provide inspection services such as safety or health audits at mining operations.

The case of Bragg v. United States of America was filed in the U.S. Court of Appeals for the Fourth Circuit (which covers West Virginia, Virginia, Maryland, North Carolina, and South Carolina) and so the ultimate decision will be binding precedent in those states and can serve as persuasive precedent in other jurisdictions. The federal court asked the West Virginia judges to decide whether a private inspector could be held liable for negligent inspections, taking the position that if the answer was in the affirmative, a federal mine inspector employed by MSHA could similarly be held personally liable.

This builds on a U.S. Supreme Court decision in United States v. Olson, 546 U.S. 43 (2005), where the issue was whether the United States (through its inspectors), in an action brought under the Federal Tort Claims Act for negligence in performing an inspection required by federal law, should be held liable under state law in the way in which a private person is held liable, or rather whether the United States should be held liable in the way in which a state or local government is held liable. The doctrine of “sovereign immunity” holds that the United States government generally cannot be sued without its consent. But the exception to this is the Federal Tort Claims Act (FTCA), which specifies circumstances in which the government waives its sovereign immunity and allows itself to be sued.

In Olson, two injured miners who worked at an Arizona copper mine sued MSHA and its inspectors because, after responding to a hazard complaint, no citations were issued, and the mine roof collapsed shortly thereafter, injuring the miners.  The court held that the FTCA makes the United States liable “in the same manner and to the same extent as a private individual under like circumstances.” Although FTCA claims must be brought in federal court, the substantive law that governs claims under the FTCA is the law of the state in which the alleged tort occurred

In the still-pending Bragg matter, the court found that, in matters of negligence, liability attached because of a breach of duty which results in an injury to others. The test of that duty is found in the foreseeability that harm may result if care is not exercised, and the inquiry is whether an ordinary person in the government’s position would anticipate harm of the general nature of that suffered — here, mine fatalities resulting from unrecognized and uncorrected hazards. The court noted that a private inspector who inspects work premises for the purpose of “furthering the safety of employees who work on said premises” owes a duty of care to those employees and must conduct inspections with ordinary skill, care, and diligence commensurate with that rendered by others in the profession of conducting safety inspections.

The West Virginia court answered “yes” to the question of whether a private party conducting mine inspections for compliance with mine safety regulations is liable for the wrongful death of a miner resulting from that private party’s negligent inspection. In the Aracoma disaster, the inadequate safety measures included an inoperable fire hose, a lack of water because the valve had been closed at the source, inadequate ventilation controls and safety barriers, malfunctioning carbon monoxide detectors, lack of training on the use of SCSRs, unmarked doors, and broken communications equipment.

While MSHA held the Aracoma Coal Co. liable for the numerous violations, its own investigation also found many inadequacies in its own inspections of the mine that contributed to the cause and severity of the fatal fire, including those occurring in previous inspections of the mine.

MSHA’s report found that the agency failed to identify and cite numerous violations that existed, and failed to require the mine operator to take corrective actions. In addition, MSHA personnel “failed to follow explicit Agency policy regarding Section 103(i) [spot] inspections,” by failing to take reasonable efforts to detect mine hazards, misallocation of inspector resources, and “exhibiting a lack of initiative to appropriately conduct” inspections.

In this way, MSHA effectively conceded that its own inspectors were at fault by failing to identify and rectify many obvious violations. MSHA also speculated that conflict of interest may have contributed to its inspectors’ ineffective inspections because it had developed a “relationship” with the Massey Energy Co. that affected its level of scrutiny at the mine. Its report concluded: “The Agency’s culpability rests with all persons who directly or indirectly were responsible for administering the Mine Act…from the inspectors who conducted the mine inspections through the headquarters office personnel who, ultimately, were responsible for overseeing MSHA activities throughout the Nation.”

Relying on the Olson decision, which held that the terms “like circumstances” in the FTCA do not limit a court to the same circumstances in order to find liability, but permit it to look “further afield,” the state court found that the key is looking at whether similar scenarios would render private parties liable, not whether a state or municipal entity would be held liable. It ruled that a “similar analogy” to holding an MSHA inspector liable to a mine employee was present in at least four other West Virginia cases (none of which involved MSHA) and that the key issue is the foreseeability of harm that may result if care is not exercised. It wrote:

In order to conduct an adequate safety inspection, a safety inspector necessarily must be familiar with the laws applicable to the industry being inspected and be able to identify and report violations of the same. It follows, therefore, that such an inspector certainly would be able to foresee the harm that likely would result if unlawful conditions are not reasonably identified and appropriate action taken to remedy the same.

Therefore, for purposes of prosecuting MSHA inspectors for inadequate inspections going forward, a duty of care will be imputed to them if catastrophe results as a result of uncited and uncorrected safety or health violations. The bottom line is that mine operators should expect more “CYA” [cover your *ss] citations to be issued going forward in both routine and hazard-related inspections, from inspectors who are not willing to give the benefit of the doubt when it can put their livelihood, property, and pensions at risk in a resulting personal injury or wrongful death action if the worst subsequently occurs at the mine.

About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional, and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health, and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies. She is a member of the Maryland, D.C., and Pennsylvania Bars, the U.S. District Courts of Maryland and D.C., the U.S. Court of Appeals, D.C. Circuit and 4th Circuit, and the United States Supreme Court. She is a graduate of the George Washington University’s National Law Center and earned her Bachelor of Science in Journalism from the University of Maryland, College Park. For more information, contact her at safetylawyer@aol.com or visit the The Law Office of Adele L. Abrams on the Web at www.safety-law.com.

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