Irving v. USA

• Court: District Court, D. New Hampshire
• Decided: March 13, 1996
• Docket: CV-81-501-M
• Status: Published

Opinion

Irving v. USA CV-81-501-M 03/13/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gail Merchant Irving, Plaintiff,

v. Civil No. 81-501-M

United States of America, Defendant.

O R D E R

Plaintiff, Gail Irving, sues defendant, the United States,

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)

2671-2680, seeking damages for injuries she suffered in a

workplace accident. The government moves to dismiss Irving's

complaint for lack of subject matter jurisdiction. Fed. R. Civ.

P. 12(b)(1), and for failure to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). For the reasons

discussed below, the government's motion is denied.

I. PROCEDURAL AND FACTUAL BACKGROUND

The Court of Appeals for the First Circuit has remanded thi

case for a trial de novo. Irving v. United States, 49 F.3d 830,

837 (1st Cir. 1995) ("Irving II"). Consistent with the First

Circuit's mandate and with the express consent of the parties. the court has proceeded on the current record, supplemented by

oral argument. Before moving to the merits of the case, however,

the court must consider the government's potentially-dispositive

pre-trial motion to dismiss. This order addresses only that pre­

trial motion.

Irving suffered serious personal injuries while working at

Somersworth Shoe Company on October 10, 1979. Her hair was

caught in an unguarded horizontal drive-shaft which was rotating

at high speed. Regulations promulgated by the Occupational

Safety and Health Administration ("OSHA") reguired that the shaft

be guarded. On two occasions prior to Irving's accident, OSHA

compliance officers undertook inspections of the Somersworth Shoe

facility, for the purpose of detecting dangerous working

conditions. In neither inspection was the drive-shaft in

guestion identified or cited as being in violation of OSHA

regulations.

After filing an administrative claim with the United States

Department of Labor, Irving filed suit in this court in 1981,

seeking to hold the United States liable for her injuries under

the FTCA. The FTCA constitutes a limited waiver of sovereign

immunity under which the government has agreed to be liable for

the negligent acts and omissions of its employees "under

2 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." 28 U.S.C. § 1346(b).

Consistent with this provision, Irving asserts that the

government is liable for her injuries under the "Good Samaritan

doctrine" recognized by New Hampshire law. See Corson v. Liberty

M ut. Ins. C o ., 110 N.H. 210, 265 A.2d 315 (1970). This court has

twice determined that Irving's complaint states a claim under New

Hampshire's Good Samaritan doctrine. (Order, Feb. 22, 1982;

Order, Mar. 22, 1983.) The government does not challenge those

prior rulings.1

Instead, the government seeks to dismiss Irving's complaint

on three separate grounds. The government contends that this

court lacks subject matter jurisdiction because Irving's claim is

barred by the discretionary function exception, 28 U.S.C.

1 The government has, however, moved for "summary judgment," (Def't Mot. at 2.), on grounds that Irving has not carried her burden of establishing "her [Good Samaritan] case by a preponderance of the evidence." (Def't Mot. at 35.) The government reguests this court to weigh the evidence in the record and resolve disputed guestions of fact regarding portions of Irving's Good Samaritan claim, including issues related to proximate cause and comparative negligence. Resolution of material factual disputes at the summary judgment stage is, of course, inappropriate. Accordingly, the court declines to consider the government's arguments on these issues at this point. Rather, the court will address them in its forthcoming ruling on the merits.

3 § 2680(a), and the misrepresentation exception, 28 U.S.C.

§ 2680(h), to the FTCA. The government also argues that Irving's

claim should be dismissed because it is premised on OSHA

regulations that do not give rise to a private cause of action

assertable under the FTCA.

II. STANDARDS OF REVIEW

"When faced with a motion to dismiss for lack of subject

matter jurisdiction. Rule 12(b)(1), Fed. R. Civ. P., the party

asserting jurisdiction has the burden to establish by competent

proof that jurisdiction exists." Stone v. Dartmouth College, 682

F. Supp. 106, 107 (D.N.H. 1988) (citing O'Toole v. Arlington

Trust C o ., 681 F.2d 94, 98 (1st Cir. 1982); C. Wright & A.

Miller, 5 Federal Practice & Procedure § 1350, at 555 (1969 &

Supp. 1987)). Furthermore, the court "may consider pleadings,

affidavits, and other evidentiary materials without converting

the motion to dismiss to a motion for summary judgment." Lex

Computer & Management Corp. v. Eslinqer & Pelton, P.C., 676 F.

Supp. 399, 402 (D.N.H. 1987); see also Richmond, F & P R. Co. v.

United States, 945 F.2d 765, 768 (4th Cir. 1991), cert, denied,

503 U.S. 984 (1992); Lawrence v. Dunbar, 919 F.2d 1525, 1529

(11th Cir. 1990). But, the court "should apply the standard

4 applicable to a motion for summary judgment, under which the

nonmoving party must set forth specific facts beyond the

pleadings to show that a genuine issue of material fact exists."

Richmond, 945 F.2d at 768 (citing Celotex Corp. v. Catrett, 477

U.S. 317, 323-24 (1986)). "The moving party should prevail only

if the material jurisdictional facts are not in dispute and the

moving party is entitled to prevail as a matter of law." Id.

(citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d

1553, 1558 (9th Cir. 1987)).

A motion to dismiss under Fed. R. Civ. P. 12(b) (6), on the

other hand, is one of more limited inguiry, focusing not on

"whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims."

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) . In considering a

motion to dismiss, "the material facts alleged in the complaint

are to be construed in the light most favorable to the plaintiff

and taken as admitted, with dismissal to be ordered only if the

plaintiff is not entitled to relief under any set of facts he

could prove." Chasan v. Village District of Eastman, 572 F.

Supp. 578, 579 (D.N.H. 1983), aff'd without opinion, 745 F.2d 43

(1st Cir. 1984) (citations omitted).

5 III. DISCUSSION

The government advances three separate arguments in support

of its motion to dismiss. The court will address each in turn.

A. Discretionary Function Exception

The government first moves to dismiss Irving's complaint for

lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1),

claiming that the negligent acts Irving alleges all come within

the discretionary function exception to the FTCA. In urging

dismissal of Irving's complaint, the government represents that

there remain no disputed, material, jurisdictional facts. That

representation, however, seems to ignore both the present posture

of this case and the First Circuit's mandate in Irving II.

The procedural history of this case, which includes three

separate appeals to the First Circuit, is convoluted to be sure.

But, it is plain that the court of appeals has determined that

further fact finding i_s necessary to decide the discretionary

function guestion presented by this case. In Irving v. United

States, 909 F.2d 598 (1st Cir. 1990) ("Irving I"), the court of

appeals stated, " [A]n issue of fact lingers in the evidence of

record: whether OSHA policy left the thoroughness of inspections

a matter of choice for its compliance officers." Id. at 605. In

6 Irving II, 49 F.3d at 853, the court was even more direct stating

" [W]e reject the government's argument that the discretionary

function guestion can be decided in its favor without further

fact finding."

Under the "law of the case" doctrine, "a decision by an

appellate court on a particular issue, unless vacated or set

aside, governs the issue during all subseguent stages of the

litigation." CPC Intern, v. Northbrook Excess & Surplus Ins., 46

F.3d 1211, 1215 (1st Cir. 1995). A mandate by the court of

appeals is "completely controlling" on the district court to

which the case is remanded. Commercial Union Ins. Co. v.

Walbrook Ins. Co., 41 F.3d 764, 770 (1st Cir. 1994) (guoting

Elias v. Ford Motor Co., 734 F.2d 463, 465 (1st Cir. 1984)). The

First Circuit recognizes only three narrowly cabined exceptions

to this doctrine. An issue should not be reopened unless: (1)

the evidence at a subseguent trial is substantially different;

(2) a controlling authority has since made a contrary decision of

law applicable to the issue; or (3) the decision was clearly

erroneous and would work a manifest injustice. United States v.

Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.) (citing White v.

Murtha, 377 F.2d 428, 432 (5th Cir. 1967)), cert, denied, 502

U.S. 862 (1991) .

7 The government advances none of these bases, nor any other,

in support of its argument that the discretionary function

exception issue can be decided without further fact finding, and

the court finds none of them applicable here. Therefore, this

court is bound to follow the mandate of the First Circuit in

Irving II and deny the government's motion to dismiss for lack of

subject matter jurisdiction based on the discretionary function

exception, since further fact finding is reguired and the

material facts are obviously disputed.

B. Misrepresentation Exception

As an additional limit on the FTCA's broad waiver of

sovereign immunity, 28 U.S.C. § 2680(h) excepts from the statute

"[a]ny claim arising out of . . . misrepresentation [or] deceit."

Because this so-called "misrepresentation exception" to the FTCA

limits the United States' waiver of sovereign immunity, it

removes from the federal courts' subject matter jurisdiction all

claims falling within the exception. Mullens v. United States,

976 F.2d 724 (1st Cir. 1992) (per curiam). The government argues

that because Irving's claim is based on her detrimental reliance

upon alleged government-communicated misinformation regarding the

safety of the Somersworth Shoe plant, this court must dismiss the case for lack of subject matter jurisdiction. Fed. R. Civ. P.

12(b)(1). Irving counters that her suit actually alleges breach

of a clear duty imposed by New Hampshire's Good Samaritan

doctrine, a duty entirely distinct from that recognized by the

tort of negligent misrepresentation. Resolution of the

government's motion depends primarily on the effect of two

Supreme Court decisions interpreting the misrepresentation

exception. United States v. Neustadt, 366 U.S. 696 (1961), and

Block v. Neal, 460 U.S. 289 (1983).

In United States v. Neustadt, the plaintiffs sued the United

States after a Federal Housing Administration ("FHA") inspection

failed to disclose defects in a house plaintiffs bought.

Plaintiffs relied on the FHA inspection in going forward, but

defects later became apparent in the house. In their complaint,

plaintiffs alleged that "the FHA's inspection and appraisal of

the property . . . had been conducted negligently" and that they

"were justified in relying upon the results of that inspection

and appraisal." Neustadt, 366 U.S. at 700.

The Supreme Court held that plaintiffs' claim was barred by

the misrepresentation exception, 28 U.S.C. § 2680(h). Id. at

711. In crafting the misrepresentation exception. Congress "had

in mind" the "traditional and commonly understood legal definition of the tort of 'negligent misrepresentation.1"2 Id.

at 706-07; see also Jimenez-Nieves v. United States, 682 F.2d 1,

3-4 (1st Cir. 1982) ("In determining the proper scope of the

§ 2680(h) exceptions, we must turn to the 'traditional and

commonly understood definition of the tort.1"). Negligent

misrepresentation was defined by the Neustadt Court as breach of

the "duty to use due care in obtaining and communicating

information upon which [the plaintiff] may reasonably be expected

to rely." Id. at 706 (emphasis added).

While the misrepresentation exception is relatively narrow,

a plaintiff cannot escape its effect simply by arguing that the

"gist" or "gravamen" of the claim is the "negligence underlying

the inaccurate representation." Neustadt, 366 U.S. at 703, 704.

Rather, a plaintiff must allege breach of a "specific duty" owed

by the government, separate from that imposed by the common law

tort of negligent misrepresentation. Id. at 708. The Court held

that the plaintiffs in Neustadt alleged breach of no duty

independent of the duty to exercise due care in obtaining and

communicating information upon which others will reasonably rely,

the duty recognized by the tort of negligent misrepresentation.

2 The Neustadt Court also held that section 2680(h) comprehends willful as well as negligent misrepresentation. Id. at 702-03.

10 Id. at 706. Therefore, plaintiffs' claim was barred by 28 U.S.C.

§ 2680(h).

United States v. Block, 460 U.S. 289 (1983), addressed a

fact pattern similar to that of Neustadt. A Farmers Home

Administration ("FmHA") official inspected a house three times,

both during and immediately after its construction, and issued a

report confirming that the house met all applicable FmHA

standards. Plaintiff bought the house and later experienced

problems with the heat pump. The FmHA reinspected the house and

found fourteen defects in its construction. The plaintiff sued

the United States for damages, alleging negligent inspection

under the Good Samaritan doctrine, that is, "one who undertakes

to act, even though gratuitously, is reguired to act carefully

and with the exercise of due care and will be liable for injuries

proximately caused by failure to use such care." Id. at 293

(citing Restatement (Second) of Torts § 323 (1965)).

In determining whether plaintiff's claim was barred by the

misrepresentation exception of 28 U.S.C. § 2680(h), the Block

Court began by reaffirming Neustadt's holding that the exception

applies "only when the action itself falls within the commonly

understood definition of a misrepresentation claim," and by

distinguishing negligent misrepresentation from the "many

11 familiar forms of negligent misconduct [which] may be said to

involve an element of 'misrepresentation' [only] in the generic

sense of that word." Id. at 296 n.5 (internal guotations and

citations omitted). The Court then went on to clarify the thrust

of Neustadt - that the misrepresentation exception "does not bar

negligence actions which focus not on the Government's failure to

use due care in communicating information, but rather on the

Government's breach of a different duty." Id. at 297 (emphasis

added).

The duty imposed upon the government by the Good Samaritan

doctrine was deemed a duty separate from that recognized by the

tort of negligent misrepresentation. Id. at 297-98. That the

facts underlying plaintiff's Good Samaritan claim would also

support a claim for negligent misrepresentation was considered

unimportant. "[T]he partial overlap between these two tort

actions does not support the conclusion that if one is excepted

under the Tort Claims Act, the other must be as well." Id. at

298. Therefore, the plaintiff's action under the Good Samaritan

doctrine was recognized as a distinct and viable claim,

unaffected by the misrepresentation exception.

This court has already stated that "New Hampshire law does

impose the 'Good Samaritan duty1 that one who gratuitously

12 undertakes to assist in the safety of plant operations is liable

to an injured employee for making negligent inspections which are

causal of the injury to said employee." (Order, Feb. 22, 1982 at

11.) By claiming that OSHA undertook to inspect the Somersworth

Shoe plant yet conducted that inspection negligently, and that

OSHA's negligence caused her injuries, Irving has stated a claim

under the Good Samaritan doctrine. (Order, Feb. 22, 1982; Order,

M ar. 22, 1983.)

Despite the fact that Irving states an otherwise valid Good

Samaritan claim, the government argues that her claim is barred

because it still relies, to an extent, on misinformation

communicated to a third party by the government.3 But mere

reliance on a government misrepresentation does not convert a

valid Good Samaritan claim into a barred negligent

misrepresentation claim. " [M]isrepresentation runs all through

the law of torts as a method of accomplishing various types of

[other] tortious conduct." Jimenez-Nieves, 682 F.2d at 4

(internal guotations and citations omitted). But the

misrepresentation exception does not bar all tort claims against

3 Irving claims that OSHA told Somersworth Shoe that its factory met OSHA standards, and, relying on that misinformation, Somersworth Shoe failed to guard the drive-shaft that caused Irving's injury.

13 the government that involve some element of misrepresentation.

As long as communication of the negligently generated information

is a "causal element[] of [an]other tort[] . . . the

misrepresentation exception does not apply." Id. at 5. Indeed,

a contrary interpretation would "encourage the Government to

shield itself completely from tort liability by adding

misrepresentations to whatever otherwise actionable torts it

commits." Block, 460 U.S. at 298.

By stating a claim under New Hampshire's Good Samaritan

doctrine, Irving has alleged breach of a duty that is distinct

from the duty recognized by the tort of negligent

misrepresentation. Therefore, her claim is not barred by the

misrepresentation exception to the FTCA. Accordingly, the

government's motion to dismiss for lack of subject matter

jurisdiction is denied.

C. Duty Arising From a Federal Regulation

The government also argues that because Irving's claim is

predicated on an alleged violation of federal regulations, OSHA

standards applicable to Somersworth Shoe, the suit should be

dismissed for failure to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6). Violation of a federal

14 regulation does not, in and of itself, create an actionable tort

under the FTCA. "[E]ven where specific behavior of federal

employees is required by federal statute, liability to the

beneficiaries of that statute may not be founded on the Federal

Tort Claims Act if state law recognizes no comparable private

liability." Zabala Clemente v. United States, 567 F.2d 1140,

1149 (1st Cir. 1977), cert, denied, 435 U.S. 1006 (1978).

But, as this court has noted and the United States

recognizes elsewhere in its brief, Irving has not simply alleged

non-compliance with OSHA regulations. Rather, Irving claims that

the government breached a duty imposed by the Good Samaritan

doctrine, a creature of New Hampshire common law. See Corson v.

Liberty Mut. Ins. Co., 110 N.H. 210, 265 A.2d 315 (1970) .

Therefore, the government's motion to dismiss for failure to

state a claim upon which relief can be granted is denied.

IV. CONCLUSION

Irving has adequately asserted a cause of action under New

Hampshire's Good Samaritan doctrine, alleging that the

government, having undertaken to inspect the Somersworth Shoe

plant breached its duty to conduct that inspection in a non-

negligent manner, and that the government's negligence caused or

15 contributed to her injuries. (Order, Feb. 22, 1982; Order, Mar.

22, 1983.) Therefore, her suit states a claim upon which relief

can be granted, and it is not barred by the misrepresentation

exception to the FTCA. Additional fact finding is necessary in

order to determine whether Irving's suit is barred by the

discretionary function exception to the FTCA. Accordingly, the

government's motion to dismiss, or in the alternative, for

summary judgment (document no. 146) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 13, 1996

cc: Phyllis Jackson Pyles, Esg. Gretchen Leah Witt, Esg. Paul R. Cox, Esg.