Legal Issues
By Adele L. Abrams, Esq., CMSP
Inspector Liability for Flawed
Inspections Raises Concerns
W
hat could be worse than having MSHA show
up to conduct a hazard complaint-based
inspection? Inspectors 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 “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 pled guilty to criminal negligence charges.
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 February 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 court found
that, in matters of
negligence, liability
is attached because
of a breach of duty
that results in an
injury to others.
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
U.S. v. Olson, 546 U.S. 43 (2005), where the issue was
whether the U.S. (through its inspectors), in an action
brought under the Federal Tort Claims Act (FTCA) 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 U.S. 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 U.S. government
generally cannot be sued without its consent. But the
exception to this is the 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 them. The court held that the FTCA
makes the U.S. 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 is attached because of
a breach of duty that 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 a 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
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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 self-contained self-rescue devices, 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 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:
“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 occurs as a
result of uncited and uncorrected safety or health violations. The bottom line is that mine operators should expect
more “CYA” citations to be issued going forward in both
routine and hazard-related inspections from inspectors
who are not willing to give the benefit of a 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. •
Adele L. Abrams, Esq., CMSP, is an attorney and president
of the Law Office of Adele L. Abrams P.C., a nine-attorney firm
focusing on OSHA and MSHA litigation and safety consultation
nationwide. She is a member of ASSE’s Mining, Construction and
Consultants Practice Specialties, among others, and the Women in
Safety Engineering common interest group.
Reprinted with permission. Originally published in Aggregates
Manager E-news (March 2013).
MSHA’s POV
Monitoring Tool
M
SHA’s Pattern of Violations (POV)
Monitoring Tool on the POV Single
Source Page went into effect on March 25,
2013, the effective date of MSHA’s new POV
rule. This tool uses the same POV screening
criteria that are currently in effect, except for
adjustments necessary to comply with the new
rule. Those who have been using the monitoring tool will recognize that the only change to
the criteria is the elimination of the final order
requirements. Mine operators and other stakeholders are invited to use this tool to monitor the accident and injury records of mines
against the POV screening criteria. •
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