On January 19, 2006, twelve miners became trapped inside Aracoma Coal Company’s Alma #1 coal mine in Logan County, West Virginia due to smoke and fire resulting from a belt fire inside the mine. Ten of the miners eventually escaped the mine alive, but two of the miners, Don Bragg and Ellery Hatfield, succumbed to carbon monoxide poisoning and died.
An investigation conducted by MSHA after the accident found that attempts to extinguish the fire and contain smoke were inhibited by inadequate safety measures and that numerous violations of the Mine Safety and Health Act contributed to the cause and severity of the belt fire. The MSHA investigation also found inadequacies in its own previous inspections of the mine. Specifically, the investigation found that, although the mine had been cited for 95 safety violations as of late 2005, MSHA failed to issue citations for numerous other violations, failed to require the mine operator to take corrective action for such violations, and failed to follow clear agency policy regarding Section 103(i) inspections.
Aracoma’s parent company, Massey Energy, reached settlements with the widows of Don Bragg and Ellery Hatfield as a result of the Alma #1 tragedy. Some of its officials were also charged criminally. But the widows’ search for retribution for the deaths of their husbands did not end with the coal company and its officials. The widows also sued The United States of America claiming that its MSHA inspectors who were responsible for performing safety inspections at the mine were negligent in such inspections.
The suit against the Government was brought in the United States District Court for the Southern District of West Virginia pursuant to the Federal Tort Claims Act (“FTCA”), which waives the sovereign immunity of the United States Government “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.’” Bragg v. United States, 2013 W. Va. LEXIS 47, 9 (W. Va. 2013) (quoting 28 U.S.C. § 1346(b)(1) (1996) (2006 ed.).).
The District Court, upon motion of the United States, dismissed the widows’ Complaint against the Government, holding that West Virginia law would not hold a private analogue to the MSHA inspectors liable for negligent inspections of the mine resulting in the wrongful death of the miners. The widows subsequently appealed that decision to the United States Court of Appeals for the Fourth Circuit. In turn, the Fourth Circuit certified the following question of law to the Supreme Court of Appeals of West Virginia (“The 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 Supreme Court of Appeals answered the certified question in the affirmative in its opinion in Bragg v. United States, issued on February 5, 2013, in which the Court held 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.” Bragg, 2013 W. Va. LEXIS 47 at 29. The decision was based upon West Virginia case law holding that the existence of a duty to third parties is based primarily upon the foreseeability that harm may result if care is not exercised. In the Bragg case, the Court found that it was forseeable to mine inspectors that that third-party mine employees could be injured where mine inspections are performed negligently.
The implications of the Bragg decision will reach far beyond potential liability for MSHA. MSHA has been under fire since the Aracoma disaster and even more so since the 2010 Upper Big Branch Disaster (“UBB”) for what some perceive to be relaxed inspection practices by MSHA inspectors. The perception after UBB is that this criticism has made MSHA inspectors much more critical during their inspections of mining operations. Minor safety issues or alleged violations of questionable validity that might have, in the past, been ordered corrected without a citation are now being cited. Obviously, MSHA inspectors would rather be reversed in the litigation of these questionable citations than to not issue a citation and later be blamed for an accident causing serious injuries or death. The Bragg decision certainly provides additional and, assuredly more powerful incentive, for MSHA inspectors to subject mine operators to even stricter scrutiny under the Mine Health and Safety Act.