Pit & Quarry, April 2013

Negligent inspection A private person who inspects a workplace can be held liable for injury or death due to hazards that should have been found and addressed That is effectively what the Supreme Court of Appeals of West Virginia recently held in answering a certified question posed by a U S Court of Appeals in need of advice on state law In Bragg v U S plaintiffs sought damages for the deaths of two miners who succumbed to carbon monoxide in a coal mine fire The case was brought against the U S government under the Federal Tort Claims Act FTCA for negligent inspection by MSHA According to the federal court inadequate safety measures included non matching threads on a fire hose that prevented coupling to the water outlet a main water valve that was closed cutting off water to the fire area ventilation controls that allowed smoke to flow into emergency escapeways no functioning carbon monoxide detectors and malfunctioning communications equipment For such a claim to proceed it must be determined that a private person could be held liable for negligent inspection in the state where the accident occurred As the West Virginia court noted the U S s sovereign immunity is waived under the FTCA for torts committed by federal employees acting within the scope of their employment under circumstances where the United States if a private person would be held liable to the claimant in accordance with the law of the place where the act or omission occurred A U S postal truck colliding with another vehicle is an easy example of BY MICHAEL T HEENAN when the federal government can be sued On Feb 5 2013 the West Virginia Supreme Court determined for the inquiring federal court that in West Virginia a private person could be held liable for negligent safety inspection of a workplace Private person liability The state court cited no case directly on point but it concluded that in matters of negligence liability attaches to a wrongdoer not because of a breach of a contractual relationship but because of a breach of duty that results in an injury to others The court cited the following four case examples to support its conclusion A builder of a home was subject to suit by a second owner of the home for repeated flooding problems An engineering firm was subject to suit because a road it designed for access to a business premises from a public highway was claimed to be faulty A design firm was subject to suit by a contractor who suffered costly delays in constructing a sewer line due to rocky substrata and underground utilities that had not been disclosed in plans and specifications A property owner was subject to suit by a cable installer who fell from a utility pole on private property that was faulty due to negligence of an electrician previously engaged by the property owner to work on the pole All of these involve people who undertook affirmative actions to design construct or see to proper performance of contracted work and thereby owed a duty of care to the beneficiaries of those services Exactly who is a beneficiary and why was not explained by the court In any event none of the examples If private inspectors are to be held liable for not looking in certain places not checking specific things or not catching what they simply miss companies may encounter new difficulties engaging private inspectors seems to equate to after the fact inspections Inspectors think of themselves as a helpful extra pair of eyes not creators or guarantors of safe conditions If private inspectors are to be held liable for not looking in certain places not checking specific things or not catching what they simply miss companies may encounter new difficulties engaging private inspectors While the Bragg case is about federal liability the West Virginia Supreme Courts opinion draws a road map for suits against private parties for alleged negligent inspections Although not prime actors such people have been brought under a liability spotlight as if they were prime actors Federal liability A seminal case on federal liability also involves an affirmative undertaking In 1955 the U S Supreme Court ruled in Indian Towing Co that the owner of a tugboat that went aground could sue the government under the FTCA The court pointed to affirmative undertakings by the government specifically active facility operation which is distinct from inspection only As the court stated the Coast Guard need not undertake the lighthouse service But once it exercised Continued on page 55 50 PIT QUARRY April 2013 www pitandquarry com