CHARLESTON – The state Supreme Court has answered affirmatively the certified question of whether a mine inspector can be liable for the wrongful death of a miner resulting from the inspector’s negligent inspection.

Justice Robin Jean Davis delivered the opinion of the court on Feb. 5, answering the question submitted by the United States Court of Appeals for the Fourth Circuit.

“The event giving rise to the lawsuit underlying this certified question action occurred on Jan. 19, 2006, when an over-accumulation of combustible coal dust caused a deadly fire in the Aracoma Coal Company’s Alma Mine #1 in Logan County, West Virginia,” the opinion states.

According to the order of certification issued in the matter by the Fourth Circuit, attempts to extinguish the fire and contain the smoke were inhibited by numerous inadequate measures including:

-A fire hose rendered useless because the threads on the coupling did not match the threads on the water outlet;

-A lack of water due to the water valve that fed the area where the fire started had been cut off;

-Inadequate ventilation controls and safety barriers that failed to warn the miners of the danger and allowed smoke to flow into the escape ways;

-The absence of functioning carbon monoxide detectors;

-Malfunctioning communications equipment;

-Unmarked doors; and

-Breathing devices known as Self-Contaminated Self-Rescuers that were useless because the miners had not been trained to operate them.

Twelve miners were trapped initially and 10 managed to escape. Don Israel Bragg and Ellery Hatfield succumbed to carbon monoxide and died as a result.

The Mine Safety & Health Administration determined that numerous violations of the Mine Act by the mine owner, Aracoma Coal Company, contributed to the cause and the severity of the fire. Additionally, MSHA’s investigation uncovered numerous inadequacies in its own inspections of the mine involved in the accident.

MSHA found that its own inspectors failed to “identify and cite numerous violations that were in existence, neither did they require the mine operator to take corrective actions.” MSHA determined that the inspectors were at fault for failing to identify or rectify many safety violations that had contributed to the fire.

“MSHA’s internal report speculated that conflicts of interest may have contributed to its inspectors’ inadequate and ineffective inspection and enforcement of the Mine’s compliance with mine safety regulations," the opinion says.

The internal investigation concluded, “The Aracoma Coal Company’s indifference to health and safety conditions at the [Mine] and MSHA’s failure to more effectively enforce the Mine Act allowed significant hazards, many of which otherwise might have been identified and addressed, to continue in existence prior to the fatal fire.

“The Agency’s culpability rests with all persons who directly or indirectly were responsible for administering the Mine Act at the [mine], from the inspectors who conducted the mine inspections through the headquarters office personnel who ultimately were responsible for overseeing MSHA activities throughout the Nation.”

Following the fire, Aracoma coal and several Aracoma supervisors at the mine pled guilty to federal charges of criminal negligence, and the company settled separate tort claims brought against it by the same plaintiffs in this suit, according to the opinion.

The widows of the deceased miners, Delorice Bragg and Freda Hatfield, filed a lawsuit against the United States in the United States District Court for the Southern District of West Virginia.

They filed pursuant to the Federal Tort Claims Act, which waives sovereign immunity 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 liable to the claimant in accordance the law of the place where the act or omission occurred."

The United States moved to dismiss the complaint, arguing that a private party inspecting mines in “like circumstance” to those alleged in the complaint would not be liable under West Virginia law. The district court agreed and dismissed the complaint.

Bragg and Hatfield appealed to the Fourth Circuit and the court, unable to find clear controlling West Virginia precedent to guide it on its decision, certified the following question to the West Virginia Supreme Court of Appeals: "Whether a private party conducting inspections of a mine and mine operator for compliance with mine safety regulations is liable for the wrongful death of a miner resulting from the private party’s negligent inspection?"

“The question certified to this Court seeks to aid the Fourth Circuit in determining whether the United States’ sovereign immunity is waived with respect to the claims asserted by Mrs. Bragg and Mrs. Hatfield,” Davis wrote.

“As noted above, the instant matter was brought pursuant to the FTCA, under which the United States’ sovereign immunity is waived 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 liable to the claimant in accordance with the law of the place where the act or omission occurred.”

Davis then did a survey of U.S. Supreme Court cases with fact patterns analogous to this case before applying precedent to the specific certified question at hand.

“The foregoing cases have found a duty owed to a third party based primarily upon the foreseeability that harm may result if care is not exercised," she wrote. "Consideration has also been given to the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant.

“We conclude that these factors weigh in favor of finding that a safety inspector owes a duty of care to the employees whose safety the inspection is intended to secure. That is to say that it is foreseeable that harm is likely to come to such employees if a safety inspection is negligently performed.

“The burden upon the inspector is merely to perform his or her duties with the ordinary skill, care, and diligence commensurate with that rendered by members of his or her profession.

“For these reasons, we now hold 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 to conduct inspections with ordinary skill, care, and diligence commensurate with that rendered by members of his or her profession.”

Davis concluded, “For the reasons set out in the body of this Opinion, we answer the question certified to this Court by the United States Court of Appeals for the Fourth Circuit in the affirmative and conclude that a private party conducting inspections of a mine and mine operator for compliance with mine safety regulations is liable for the wrongful death of a miner resulting from the private party’s negligent inspection.”

The case will now return to the Fourth Circuit Court, where it will resume proceedings informed by the state court’s opinion.

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