United States Supreme Court Holds MSHA May be Found Liable for Negligent Inspections 


By: Helena E. Racin
Wyatt, Tarrant & Combs, LLP

     The recent mining disasters in West Virginia and Kentucky have caused increased attention to be paid to the Mine Safety and Health

Helena E. Racin

 Administration, also known as

     "MSHA." This attention is understandable when one considers that in 1968, the 78 men who died in explosions and fire at a Farmington, West Virginina mine initially prompted Congress to enact the Mine Safety and Health Act. Similarly, in the wake of the numerous mining tragedies which occurred this year, both state and federal officials are currently proposing additional mine legislation. 
    The United States Supreme Court has also played a role in determining inspection standards and most importantly, in determining MSHA's possible legal liability while conducting inspections. On November 8, 2005, the Supreme Court decided United States v. Olson, et al., U.S., No. 04-759, 74 U.S.L.W. 4007, which came before the Court from the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit includes all federal courts in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands. 
    Unfortunately, before filing this case, Olson and his mining colleague were permanently disabled when a nine-ton slab of earth fell from the ceiling of the Arizona mine in which they were working. As a result, the plaintiffs sued MSHA alleging that the agency was responsible for the miners' injuries due to its failure to carry out mandatory policies and procedures. The plaintiffs specifically alleged that a field office supervisor failed to evaluate six written and oral complaints he received regarding safety hazards at the mine, and that an inspector failed to inspect the mine thoroughly and in its entirety. Of course, MSHA would be the proper party to sue if such a lawsuit was to succeed, because the inspectors themselves cannot be held personally liable for negligently performing their MSHA duties. 
The plaintiffs sued under a federal statute entitled the "Federal Tort Claims Act" which authorizes private law suits against the government "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." See 28 U.S.C. 1346(b)(1). 
    In laymen's terms and as applied to the Olson case, the Supreme Court determined that the Federal Tort Claims Act imposed responsibility on the United States, and therefore, MSHA, in circumstances in which a private person could also be held liable under Arizona law. Thus, the Supreme Court stated that the trial court should have looked to the Arizona law which imposes responsibility on a private person or entity for certain acts or non-acts to determine whether or not the United States government would be held responsible to the miners for their injuries. 
    This analysis could be somewhat confusing when one considers that MSHA's inspectors are performing activities that private persons do not perform. Thus, the Supreme Court instructed the lower court to look at similar law regarding private persons in order to determine MSHA's legal liability. The Court concluded that even if private persons are not conducting mine safety inspections, they are nonetheless creating relationships with third parties that are similar to the relationships between inspectors and miners. Further, the Court instructed the lower court to examine that law and determine if a private person would be held responsible for failing to conduct themselves properly in a similar situation. 
    When the case goes back to the lower court in Arizona, the miners must prove that MSHA's inspectors owed them a duty to behave differently during their inspections, and as a result of their irresponsibility, MSHA should be held liable for the damages the miners incurred. This analysis has not yet been conducted, but the importance of the Supreme Court's opinion in Olson is that MSHA can be sued, pursuant to the Federal Tort Claims Act, if their inspectors act irresponsibly and fail in their duties. With the recent push by some legislators to increase the number of inspectors, this case presents a real concern to MSHA, making it vulnerable to lawsuits from miners if any inspectors perform their duties improperly. cl


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