Irving v. USA
Opinion
Irving v. USA CV-81-501-M 08/29/96 P 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.
MEMORANDUM DECISION
Plaintiff, Gail Merchant Irving, sues defendant, the United
States, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 1346(b), 2671-2680, seeking damages for serious injuries she
suffered in a workplace accident. On October 10, 1979, Irving's
hair became caught in the unguarded rotating drive shaft of a
die-out machine located near her work station at Somersworth Shoe
Company. Regulations promulgated by the Occupational Safety and
Health Administration ("OSHA") reguired that the rotating shaft
be guarded. Before the accident, in 1975 and again in 1978, OSHA
compliance officers inspected the Somersworth Shoe facility for
the purpose of ensuring compliance with OSHA safety standards,
but in neither inspection was the unguarded drive shaft
identified or cited as violating OSHA standards. Irving claims
in her sole cause of action that the OSHA compliance officers breached their duty under New Hampshire's common law "Good
Samaritan" doctrine to conduct the pre-accident inspections in a
non-negligent manner. She also alleges that their failure to
identify and cite the unguarded drive shaft as a violation of
OSHA standards caused or contributed to cause her injuries.
Irving's claim against the United States was tried to the court.
PROCEDURAL HISTORY1
Because the procedural history of this case is unusual, a
brief survey of Irving v. United States is necessary to put the
issues in proper context.
As mentioned, Gail Irving was severely injured in a
workplace accident on October 10, 1979. Seeking to hold the
United States liable for her injuries, she filed a timely
administrative claim for damages with the appropriate federal
agency, the United States Department of Labor. See 28 U.S.C.
§ 2675(a). Her claim was denied and, on October 7, 1981, she
filed suit in this court. See id.
A bench trial on the merits began on February 11, and
concluded on February 14, 1985. Following trial, the court took
1 The procedural history recitation is taken, in substantial part, from the First Circuit's most recent opinion in this case, Irving v. United States, 49 F.3d 830 (1st Cir. 1995) .
2 the matter under advisement and, on January 27, 1988, dismissed
Irving's suit without reaching the merits. The court determined
that the discretionary function exception to the FTCA applied to
OSHA inspections and, because the United States retained its
sovereign immunity from suit involving such matters, the court
was without subject matter jurisdiction over Irving's sole cause
of action. Irving v. United States, No. C81-501-D, slip op.
(D.N.H. Jan. 27, 1988) (Devine, C.J.). Irving appealed.
Shortly after the district court's dismissal order, but
before the appeal was resolved, the United States Supreme Court
decided Berkovitz v. United States, 486 U.S. 531 (1988). The
Berkovitz decision clarified the law concerning the FTCA's
discretionary function exception as it pertains to governmental
regulatory activities. Accordingly, the First Circuit vacated
the district court's dismissal of Irving's complaint and remanded
the case for further consideration in light of the new standards
established in Berkovitz. Irving v. United States, 867 F.2d 606
(1st Cir. 1988) (unpublished order).
Responding to the First Circuit's mandate, the district
court analyzed Irving's claim in light of a then-recent post-
Berkovitz OSHA case in which the Court of Appeals for the Fifth
Circuit found the discretionary function exception applicable.
3 Irving v. United States, No. C81-501-D, slip op. at 3 (D.N.H.
Feb. 14, 1989) (Devine, C.J.) (citing Galvin v. OSHA, 860 F.2d
181 (5th Cir. 1988)). The trial court again dismissed Irving's
suit, holding that it remained barred by the discretionary
function exception. Id. at 4-5.
Irving again appealed, and the First Circuit again remanded
the case, insisting on a case-specific application of Berkovitz.
Irving v. United States, 909 F.2d 598, 605 (1st Cir. 1990)
("Irving I") .2 The Court of Appeals directed the district court
to make explicit factual findings as to whether "the thoroughness
of [OSHA] inspections was . . . left up to the individual
compliance officers" and whether those compliance officers had
"policy-level discretion to fail to note and tell the employer
about the violation which allegedly was the cause of Ms. Irving's
injuries." Id. (emphasis added).
Four years later, the district court issued a memorandum
opinion, Irving v. United States, No. C81-501-SD, slip op.
(D.N.H. June 6, 1994) (Devine, S.J.). Instead of resolving the
discretionary function issue, however, the trial court decided
2 Although Irving v. United States, 909 F.2d 598 (1st Cir. 1990) was, in fact, the First Circuit's second opinion in this case, it has, as the first published opinion, been assigned the label "Irving I ."
4 the case on its merits, finding that during the 1975 and 1978
OSHA inspections the die-out machine that caused Irving's injury
was positioned "some two feet closer to the wall to its rear."
Id. at 4. Therefore, the court determined that the drive shaft
actually did comply with OSHA regulations during the earlier
inspections because it had been "guarded by location" — "it was
then in such location that employees working near it would not be
exposed to injury." Id. at 3. And, because the drive shaft for
the die-out machine was actually guarded by location during the
1975 and 1978 inspections, the court reasoned, OSHA compliance
officers were not negligent in failing to identify or cite it as
a violation of OSHA safety standards. Accordingly, judgment was
again entered for the government, although this time on the
merits.
Irving appealed for a third time, arguing, inter alia, that
the district court's guarded-by-location finding was clearly
erroneous and unsupported by the evidence. The government
countered that the record supported the guarded by location
finding and again argued that the discretionary function
exception to the FTCA barred Irving's suit in any event. Once
again, the Court of Appeals found for Irving. Irving v. United
States, 49 F.3d 830 (1st Cir. 1995) ("Irving II").
5 Addressing the government's renewed discretionary function
argument first, the court of appeals reiterated its holding in
Irving I :
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Irving v. USA CV-81-501-M 08/29/96 P 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.
MEMORANDUM DECISION
Plaintiff, Gail Merchant Irving, sues defendant, the United
States, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 1346(b), 2671-2680, seeking damages for serious injuries she
suffered in a workplace accident. On October 10, 1979, Irving's
hair became caught in the unguarded rotating drive shaft of a
die-out machine located near her work station at Somersworth Shoe
Company. Regulations promulgated by the Occupational Safety and
Health Administration ("OSHA") reguired that the rotating shaft
be guarded. Before the accident, in 1975 and again in 1978, OSHA
compliance officers inspected the Somersworth Shoe facility for
the purpose of ensuring compliance with OSHA safety standards,
but in neither inspection was the unguarded drive shaft
identified or cited as violating OSHA standards. Irving claims
in her sole cause of action that the OSHA compliance officers breached their duty under New Hampshire's common law "Good
Samaritan" doctrine to conduct the pre-accident inspections in a
non-negligent manner. She also alleges that their failure to
identify and cite the unguarded drive shaft as a violation of
OSHA standards caused or contributed to cause her injuries.
Irving's claim against the United States was tried to the court.
PROCEDURAL HISTORY1
Because the procedural history of this case is unusual, a
brief survey of Irving v. United States is necessary to put the
issues in proper context.
As mentioned, Gail Irving was severely injured in a
workplace accident on October 10, 1979. Seeking to hold the
United States liable for her injuries, she filed a timely
administrative claim for damages with the appropriate federal
agency, the United States Department of Labor. See 28 U.S.C.
§ 2675(a). Her claim was denied and, on October 7, 1981, she
filed suit in this court. See id.
A bench trial on the merits began on February 11, and
concluded on February 14, 1985. Following trial, the court took
1 The procedural history recitation is taken, in substantial part, from the First Circuit's most recent opinion in this case, Irving v. United States, 49 F.3d 830 (1st Cir. 1995) .
2 the matter under advisement and, on January 27, 1988, dismissed
Irving's suit without reaching the merits. The court determined
that the discretionary function exception to the FTCA applied to
OSHA inspections and, because the United States retained its
sovereign immunity from suit involving such matters, the court
was without subject matter jurisdiction over Irving's sole cause
of action. Irving v. United States, No. C81-501-D, slip op.
(D.N.H. Jan. 27, 1988) (Devine, C.J.). Irving appealed.
Shortly after the district court's dismissal order, but
before the appeal was resolved, the United States Supreme Court
decided Berkovitz v. United States, 486 U.S. 531 (1988). The
Berkovitz decision clarified the law concerning the FTCA's
discretionary function exception as it pertains to governmental
regulatory activities. Accordingly, the First Circuit vacated
the district court's dismissal of Irving's complaint and remanded
the case for further consideration in light of the new standards
established in Berkovitz. Irving v. United States, 867 F.2d 606
(1st Cir. 1988) (unpublished order).
Responding to the First Circuit's mandate, the district
court analyzed Irving's claim in light of a then-recent post-
Berkovitz OSHA case in which the Court of Appeals for the Fifth
Circuit found the discretionary function exception applicable.
3 Irving v. United States, No. C81-501-D, slip op. at 3 (D.N.H.
Feb. 14, 1989) (Devine, C.J.) (citing Galvin v. OSHA, 860 F.2d
181 (5th Cir. 1988)). The trial court again dismissed Irving's
suit, holding that it remained barred by the discretionary
function exception. Id. at 4-5.
Irving again appealed, and the First Circuit again remanded
the case, insisting on a case-specific application of Berkovitz.
Irving v. United States, 909 F.2d 598, 605 (1st Cir. 1990)
("Irving I") .2 The Court of Appeals directed the district court
to make explicit factual findings as to whether "the thoroughness
of [OSHA] inspections was . . . left up to the individual
compliance officers" and whether those compliance officers had
"policy-level discretion to fail to note and tell the employer
about the violation which allegedly was the cause of Ms. Irving's
injuries." Id. (emphasis added).
Four years later, the district court issued a memorandum
opinion, Irving v. United States, No. C81-501-SD, slip op.
(D.N.H. June 6, 1994) (Devine, S.J.). Instead of resolving the
discretionary function issue, however, the trial court decided
2 Although Irving v. United States, 909 F.2d 598 (1st Cir. 1990) was, in fact, the First Circuit's second opinion in this case, it has, as the first published opinion, been assigned the label "Irving I ."
4 the case on its merits, finding that during the 1975 and 1978
OSHA inspections the die-out machine that caused Irving's injury
was positioned "some two feet closer to the wall to its rear."
Id. at 4. Therefore, the court determined that the drive shaft
actually did comply with OSHA regulations during the earlier
inspections because it had been "guarded by location" — "it was
then in such location that employees working near it would not be
exposed to injury." Id. at 3. And, because the drive shaft for
the die-out machine was actually guarded by location during the
1975 and 1978 inspections, the court reasoned, OSHA compliance
officers were not negligent in failing to identify or cite it as
a violation of OSHA safety standards. Accordingly, judgment was
again entered for the government, although this time on the
merits.
Irving appealed for a third time, arguing, inter alia, that
the district court's guarded-by-location finding was clearly
erroneous and unsupported by the evidence. The government
countered that the record supported the guarded by location
finding and again argued that the discretionary function
exception to the FTCA barred Irving's suit in any event. Once
again, the Court of Appeals found for Irving. Irving v. United
States, 49 F.3d 830 (1st Cir. 1995) ("Irving II").
5 Addressing the government's renewed discretionary function
argument first, the court of appeals reiterated its holding in
Irving I :
[T]he applicability of the discretionary function exception [cannot] be decided without findings as to whether OSHA policy left the thoroughness of inspections a matter of choice for individual inspectors, and whether the inspectors had policy-level discretion to fail to note and tell the employer about the violation which allegedly caused plaintiff's injuries.
Irving II, 49 F.3d at 834 (citing Irving I, 909 F.2d at 605)
(emphasis added). The Court of Appeals set aside the district
court's finding that the rotating shaft of the die-out machine
was guarded by location during the 1975 and 1978 inspections, id.
at 836,vacated the judgment of the district court, and granted
Irving's reguest for a trial de novo before a different district
court judge, committing to the discretion of the new trial judge
whether to proceed solely on the record of the 1985 trial. Id.
at 837.
Consistent with the First Circuit's mandate, and with the
express approval of the parties, this court proceeded on the
trial record, supplemented by counsels' oral argument on November
21, 1995. The court earlier denied the government's motion to
dismiss, rejecting an argument that the misrepresentation
6 exception to the FTCA deprived the court of subject matter
jurisdiction over Irving's cause of action. Irving v. United
States, No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.).
In addition, the court denied Irving's motion to increase her ad
damnum to an amount in excess of the $1,000,000 she sought in her
initial administrative claim in 1980. Irving v. United States,
No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.). With all
motions now disposed of, the court decides the case on the merits
in light of all the evidence introduced at trial3 and the
arguments advanced by the parties, both orally and in their
written submissions.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
As the procedural history of this case indicates, the
parties' legal sparring over the last fifteen years has focused
on two issues. First, the parties dispute whether the
discretionary function exception to the FTCA preserves the
government's sovereign immunity and deprives this court of
subject matter jurisdiction over Irving's cause of action.
3 That evidence, of course, takes the form of trial exhibits and a complete transcript of the trial testimony. Throughout this order, full trial exhibits are referred to as "Ex. ____ " and trial testimony is identified by witness, date, and transcript page.
7 Second, the parties dispute whether the machine on which Irving
was injured was, in fact, guarded by location during the 1975 and
1978 OSHA inspections. Each issue is, by itself, potentially
dispositive of Irving's suit.
Because the discretionary function guestion implicates the
court's subject matter jurisdiction, it would normally be
addressed first. However, as Irving I and Irving II make clear,
an acceptable answer to the discretionary function guestion
depends on several, guite specific, findings of fact. Therefore,
the court will first explain its factual findings related to
Irving's accident and the OSHA inspections, including the
location of the die-out machine during the 1975 and 1978
inspections. Then, based on the facts found, the court will
explain why the discretionary function exception does not apply
here, and, finally, the court will resolve the case on its
I. FACTUAL BACKGROUND
In October of 1979, Gail Merchant Irving was working at the
Somersworth Shoe Company plant in Somersworth, New Hampshire.
Although Irving had worked in different shoe factories, including
Somersworth Shoe, on and off for about four years (Irving, 2/11/85, p. 4), at the time of the accident she had been steadily
employed at Somersworth Shoe only since mid-September, 1979.
(Irving, 2/11/85, p. 6.)
A. Physical Layout of the Accident Scene in October, 1979
On October 10, 1979, Irving was at work in the stock fitting
room of Somersworth Shoe operating a "marker" machine used to
stamp the inner soles of shoes. The marker was a manually
operated machine attached to a workbench; it did not have an
electric power source. (Irving, 2/11/85, p. 8, 67; Rothwell,
2/12/85, p. 5.) Attached to the east end of the same workbench
was a die-out machine.4 (Ex. 6, Floor Plan; Rothwell, 2/12/85,
p. 4-5; Perron, 2/11/85, p.111.)
Unlike the marker, the die-out machine was powered by a
four- or five-horsepower electric motor. (Irving, 2/11/85,
p. 67; Rothwell, 2/12/85, p. 5-6; Paul, 2/14/85, p. 36.) The
motor was bolted to the concrete floor, directly beneath the west
end of the workbench. It was connected to the die-out machine by
means of a drive shaft which ran underneath the workbench. (Ex.
1, Photo of Bench Assembly; Ex. 14B, Photos 1-5.) The drive
4 Together, the marker machine, die-out machine, and workbench were known as the "bench assembly." (See, e.g., O'Connell, 2/13/85, p. 18.) shaft ran horizontally (west to east), approximately 14 inches
above the floor and was located approximately 16 inches inside
(south of) the rear (north) edge of the workbench.5 When the
motor was running, the horizontal drive shaft rotated at high
speed. (O'Connell, 2/12/85, p. 35.)
The eastern-most edge of the workbench abutted the east wall
of the stock fitting room, (Rothwell, 2/12/85, p. 13; O'Connell,
2/13/85, p. 18; 2/14/85, p. 45), while the western-most edge of
the workbench was on a main aisle. (Ex. 6, Floor Plan; Ex. 14B,
Photo 2; Rothwell, 2/12/85, p. 4-5.) Approximately to 3 feet
behind (north of) the workbench was a die rack. The die rack was
approximately the same length as the workbench and also extended
5 Shortly after Irving's accident, and before any material alterations were made to the bench assembly, three different people measured the location of the drive shaft. The measurements taken by Paul O'Connell, an OSHA safety engineer, indicate that the drive shaft was 12 inches above the floor and 16 inches in from the rear edge of the workbench. (O'Connell, 2/12/85, p. 166.) The measurements taken by Igor Paul, plaintiff's industrial engineering expert, indicate that the shaft was 14 inches above the floor and 16: 4 inches in from the rear edge of the workbench. (Paul, 2/14/85, p. 13.) Ronald W. Perron, a captain with the Somersworth Police Department, measured the drive shaft to be 14" above the floor, and, although he did not measure the space between the edge of the workbench and the shaft, he estimated the distance to be about feet. (Perron, 2/11/85, p. 108, 113.) The evidence, then, most strongly supports the finding that the shaft was located approximately 14 inches above the floor and approximately 16 inches south of the plane created by the rear (north) edge of the workbench.
10 from the east wall of the stock fitting room to the aisle. (Ex.
6, Floor Plan; Ex. 14B, Photos 2, 14, 17; O'Connell, 2/13/85,
p. 34.) Stored in the die rack were patterns, dies, and ink
ribbons for use on the marker and die-out machines. (Irving,
2/11/85, p. 12; O'Connell, 2/13/85, p. 42.)
From time to time, Somersworth Shoe employees working on the
marker were reguired to change the ribbon and/or the pattern on
the machine. (Irving, 2/11/85, p. 8.) In order to retrieve
patterns and ribbons from the die rack, it was necessary for the
marker operator to enter the to 3 foot-wide aisle between the
rear edge of the workbench and the die rack. (Ex. 6, Floor Plan;
Ex. 14B, Photos 16, 17; O'Connell, 2/13/85, p. 42.) Employees
also used this aisle to reach the power switch for the motor that
ran the die-out machine. Because the switch was mounted on the
east wall of the stock fitting room between the bench assembly
and the die rack, the aisle between the workbench and the die
rack provided the only access to the power switch. (Ex. 14B,
Photos 13, 14; O'Connell, 2/13/85, p. 19.)
B. The Accident
On the afternoon of October 10, 1979, Irving needed to
change the pattern and the ink ribbon on the marker machine. She
11 picked up a pair of latex gloves that marker operators used to
avoid getting ink on their hands when changing the ribbon and
walked around the back of the bench assembly to retrieve a new
pattern and ribbon from the die rack. While standing in the
aisle between the workbench and the die rack, Irving
inadvertently dropped one of her gloves. (Irving, 2/11/85,
p. 12.)
When Irving bent over and reached down to retrieve the glove
from the floor, her hair was drawn toward the drive shaft
underneath the bench by the vacuum the shaft created as it
rotated at high speed.6 Irving's hair became entangled in the
shaft, and the force of the shaft's rotation wrenched her entire
body down toward the floor and pulled her head into contact with
the shaft, tearing her scalp from her skull and rendering her
unconscious. (Gosselin, 2/11/85, p. 91; Wayne Irving, 2/11/85,
p. 99-100; Rothwell, 2/12/85, p. 7-8.) As Irving's body lay over
the drive shaft, with her hair still caught, the motor that
6 Professor Igor Paul, plaintiff's industrial engineering expert, testified to the vacuum effect created by any smooth, rapidly rotating shaft. (Paul, 2/14/85, p. 18.) Additional evidence that the rotating drive shaft for the die-out machine did, in fact, create the expected vacuum can be found in Exhibit 14B, photographs 20 through 24, which clearly show the many threads and fibers that had been drawn toward and wrapped around the shaft over the years.
12 powered the die-out machine continued to run. (Rothwell,
2/12/85, p. 7; Gosselin, 2/11/85, p. 90.)
Two of Gail Irving's co-workers, Joan Gosselin and Wayne
Irving, extricated her from the drive shaft by turning off the
motor and cutting her hair free. (Gosselin, 2/11/85, p. 85;
Wayne Irving, 2/11/85, p. 99.) An ambulance crew arrived a short
time later and took Irving to Wentworth-Douglass Hospital. She
was later transferred to Maine Medical Center, where she was
treated for severe neurological damage. (Wayne Irving, 2/11/85,
p. 101-103; Ex. 23, Videotaped Testimony of Dr. McCann.)
C. Post-Accident OSHA Inspection
On October 16, 1979, OSHA conducted a post-accident
inspection of Somersworth Shoe, before any material changes were
made to the bench assembly. (Amirault, 2/12/85, p. 26.) During
the post-accident inspection, senior safety engineer Paul
O'Connell examined the marker/die-out bench assembly on which
Irving was injured, taking measurements and photographs.
(O'Connell, 2/12/85, p. 157; Ex. 14B, Photographs of Bench
Assembly.) O'Connell found the bench assembly to be in violation
of three separate but related OSHA safety standards. (Ex. 10,
Citation and Notification of Penalty at 1.) First, the bench
13 assembly was in violation of an OSHA regulation that states,
"Shafting under bench machines shall be enclosed by a stationary
casing, or by a trough at sides and top or sides and bottom, as
location reguires." 29 C.F.R. § 1910.219(c)(2)(ii) (1995).7
O'Connell found that the horizontal drive shaft that delivered
power to the die-out machine was not guarded in any fashion. He
then classified the violation as "serious," meaning that there
was a "substantial probability that death or serious physical
harm could result from [the] condition." 29 U.S.C. § 666(h);
(O'Connell, 2/12/85, p. 159.) Indeed, the violation was so
severe, and the unguarded shaft so dangerous, that O'Connell gave
the violation a "severity value" of eight, the highest severity
value used by OSHA at that time. (O'Connell, 2/12/85, p. 189;
Ex. 10, OSHA Worksheet at 2.)
In addition to the unguarded horizontal shaft, O'Connell
found two other violations of OSHA standards. Specifically, the
pulley and drive belt on the electric motor that supplied power
to the shaft were also unguarded in violation of 29 C.F.R.
§§ 1910.219(d)(1) and 1910.219(e)(3)(1). These violations, too.
7 The court has referred to the most recent version of the Code of Federal Regulations. However, the applicable regulations have not been materially altered since 1973, long before the earliest date relevant to this case.
14 were deemed "serious" in nature. (Ex. 10, Citation and
Notification of Penalty at 1.) On October 23, 1979, OSHA fined
Somersworth Shoe a total of $1800 for the three violations and
ordered the company to abate the violations by November 10, 1979.
The fine was later reduced to $1440. (Ex. 10, Penalty
Modification at 1.)
D. Pre-Accident OSHA Inspections
OSHA compliance officers had also inspected the Somersworth
Shoe facility on at least two occasions prior to Irving's
accident. Compliance officer William Chase III inspected the
plant on June 26, 1975 (the "1975 inspection"), and compliance
officer John Ritchie inspected the plant on April 6, 1978 (the
"1978 inspection"). In order to fully understand the
significance of the 1975 and 1978 inspections, it is important,
first, to review the regulatory framework within which they were
conducted.
1. OSHA Regulatory Framework
In passing the Occupational Safety and Health Act of 1970,
29 U.S.C. §§ 651-678 (the "Act"), Congress sought to improve
workplace safety by authorizing the Secretary of Labor to develop
15 and promulgate mandatory occupational safety and health
standards. 29 U.S.C. §§ 651(b)(3) & (b)(9). Employers and
employees are of course duty bound to comply with all safety and
health standards promulgated under the Act. 29 U.S.C. § 654.
Nonetheless, in order to enforce compliance with those standards,
the Secretary of Labor is authorized to "enter without delay and
at reasonable times any . . . workplace or environment where work
is performed by an employee of an employer" and to "inspect and
investigate during regular working hours and at other reasonable
times . . . any such place of employment and all pertinent
conditions . . . therein." 29 U.S.C. § 657(a)(1) & (a)(2).
Regulations promulgated pursuant to 29 U.S.C. § 655 give
OSHA Area Directors and compliance officers the authority to
decide when and where workplace inspections will take place. 29
C.F.R. § 1903.7(a); Irving I, 909 F.2d at 603. In addition, OSHA
regulations grant individual compliance officers significant
control over the manner in which particular inspections are
performed. Irving I, 909 F.2d at 603 ("[FJormal regulations
. . . give the individual compliance officers discretion to
decide how to conduct the inspections."); see also 2 9 C.F.R.
1903.7(b) & (d) (compliance officers may employ any "reasonable
investigative technigues" as long as they do not amount to
16 "unreasonable disruption of the operations of the employer's
establishment").
OSHA routinely conducts inspections in response to workplace
accidents, employee complaints, and as part of its "programmed"
enforcement efforts. (Amirault, 2/12/85, p. 26-27.) After
inspecting a workplace, the compliance officer is reguired to
informally advise the employer of any apparent safety violations
disclosed by the inspection. Irving I, 909 F.2d at 604; 29
C.F.R. § 1903.7(e). The compliance officer then prepares an
inspection report describing all of the violations he or she
observed. See 29 C.F.R. § 1903.14(a); (Amirault, 2/12/85,
p. 57.) The compliance officer's superior, the Area Director,
then reviews the inspection report. "If, on the basis of the
report the Area Director believes that the employer has violated
a [health or safety standard] . . . , he shall issue to the
employer either a citation or a notice of de minimis violations
. . . ." 29 C.F.R. § 1903.14 (a) .
There are three levels of OSHA violations, categorized
according to the level of risk they pose to employees. At one
end of the spectrum are "de minimis" violations — violations of
OSHA standards that have "no direct or immediate relationship to
safety or health;" a de minimis violation cannot be the basis of
17 a citation or monetary penalty. 29 U.S.C. § 658(a); 29 C.F.R.
§ 1903.14(a). At the other end of the spectrum are "serious"
violations, which exist "if there is a substantial probability
that death or serious physical harm could result from" the
violative condition. 29 U.S.C. § 666(h). Any violations deemed
neither de minimis nor serious in nature fall in the middle, and
are designated as "non-serious" violations. 29 U.S.C. § 666(c);
Hackney, Inc. v. McLaughlin, 895 F.2d 1298, 1299 n.l (10th Cir.
1990). The OSHA Area Director "shall" issue a citation for a
serious or non-serious violation, "shall" assess a civil penalty
of up to $1,000 for each serious violation, and "may" assess a
civil penalty of up to $1000 for each non-serious violation. 29
C.F.R. § 1903.14(a); 29 U.S.C. §§ 658, 666(b) & (c). In addition
to subjecting the employer to citation and possible monetary
penalty, conditions that constitute serious or non-serious
violations of OSHA safety standards must be abated by the
employer within the time period fixed by the Area Director. 29
C.F.R. § 1903.14 (b) .
2. OSHA Policy Governing the 1975 & 1978 Inspections
While the Act and OSHA regulations generally leave many
decisions regarding inspections in the hands of Area Directors
18 and compliance officers, the scope of the Somersworth Shoe
inspections William Chase and John Ritchie performed in 1975 and
1978 was dictated by less formal, but no less binding, OSHA
policy. Francis Richard Amirault, the Area Director for whom
both Chase and Ritchie worked, testified extensively and with
obvious candor as to what was required of the two compliance
officers during their inspections of Somersworth Shoe. In
addition. Chase and Ritchie testified about their own
understandings of their inspection duties.
Chase and Ritchie were both instructed to perform "wall-to-
wall" inspections of the Somersworth Shoe facility. (Amirault,
2/12/85, p. 27; Chase, 2/12/85, p. 102; Ritchie, 2/12/85,
p. 147.) In conducting wall-to-wall inspections of the plant,
both compliance officers were "charged to look at the entire
plant," (Amirault, 2/12/85, p. 51), and "required" to perform a
"complete inspection of the facility." (Chase, 2/12/85, p. 133;
see also Amirault, 2/12/85, p. 28; Ritchie, 2/12/85, p. 147.) As
the First Circuit noted, the compliance officers "could not
choose simply to spot check certain areas." Irving I, 909 F.2d
at 604.
Indeed, OSHA policy dictated the thoroughness required of
the 1975 and 1978 inspections to an even greater degree. Chase
19 and Ritchie had to do more than merely walk through each room of
the Somersworth Shoe plant. Rather, OSHA policy required them to
"observe any place where an employee w o r k [ e d ] ( A m i r a u l t ,
2/12/85, p. 30, 55.) Toward that end, compliance officers had to
"look at every operation" in the facility. (Amirault, 2/12/85,
p. 30.) Thus, they had no choice but to inspect every
operational machine and work station in the plant.8
As noted earlier, OSHA regulations required the Area
Director to review the compliance officers' inspection reports
for the purpose of categorizing violations and issuing notices
and citations. In order to make the Area Director's review
meaningful, OSHA policy required Chase and Ritchie to document or
record all of the violations they observed as they conducted
their inspections, whether those violations appeared to them to
8 At oral argument, the government conceded that OSHA policy required Chase and Ritchie to inspect every "operation" in the Somersworth Shoe facility. (See Transcript of 11/21/95 Oral Argument ("Tr.") at 107-109.) The government argues, however, that a duty to inspect every "operation" is somehow different from a duty to inspect every "machine." (Tr. at 108.) But the evidence makes clear, and the government does agree, that the term "operation" as used by Area Director Amirault included every machine that was operational or, phrased differently, every machine or workstation at which an employee normally worked, regardless of whether an employee was actually operating the machine during the inspection itself. (Tr. at 108-09; Amirault, 2/12/85, p. 30, 55 (agreeing that inspection should take place "machine by machine by machine."); Chase, 2/12/85, p. 129-131.)
20 be de minimis, serious, or non-serious in nature. (Amirault,
2/12/85, p. 55, 57.) As Area Director Amirault stated. Chase and
Ritchie were required to "document any hazardous conditions that
they would see." (Amirault, 2/12/85, p. 28; see also 2/12/85,
p. 25, 57-58.)
OSHA policy did not, however, require Chase and Ritchie to
record nominal violations of applicable requlations if there was
no potential employee exposure to the violative condition. In
order to constitute even a de minimis violation of OSHA safety
standards, a workplace condition must both: (1) fail to satisfy
the terms of an applicable safety requlation promulqated by the
Secretary of Labor; and (2) be located in a position such that
employees could potentially be exposed to it. (Amirault,
2/12/85, p. 58, 94-95.) Because potential exposure is a
necessary component of a violation, the OSHA compliance officers
were not required to report a condition that nominally violated
OSHA requlations but posed no risk of exposure to employees.
OSHA policy, then, required Chase and Ritchie to perform
wall-to-wall inspections of the Somersworth Shoe plant, which
included a requirement that they inspect every operational
machine in the facility. In addition, the compliance officers
were required to document every violation they observed, whether
21 it appeared to be a de minimis, serious, or non-serious violation
of OSHA safety standards.9
3. 1975 Inspection
On June 26, 1975, OSHA compliance officer William Chase III
inspected the Somersworth Shoe facility. Because Chase was not
familiar with the layout of the plant, he relied on a Somersworth
Shoe representative to show him every room in which employees
worked. (Chase, 2/12/85, p. 124.) Chase was taken into every
room in the plant, including the stock fitting room. (Chase
2/12/85, p. 124, 127; Ex. 8, OSHA Compliance Worksheet at 4, item
8 .)
During the course of his inspection. Chase noticed and
documented a total of 39 violations of 9 separate OSHA standards,
including 14 power transmission mechanisms left unguarded in
contravention of 29 C.F.R. § 1910.219. (Chase, 2/12/85, p. 126,
140; Ex. 8, OSHA Proposed Penalty Worksheet at col. 2.) Three of
the unguarded power transmission mechanisms were horizontal drive
shafts located in the cutting department. (Ex. 8, OSHA
9 The answer to the Court of Appeals's explicit guestion — "Did OSHA policy leave the thoroughness of the inspections a matter of choice for individual inspectors?" — is, therefore, "No." See Irving II, 49 F.3d at 833.
22 Compliance Worksheet at 3, item 6; Chase, 2/12/85, p. 126.)
Chase did not, however, notice or document any violative
conditions related to the bench assembly on which Irving was
later injured. (Chase, 2/12/85, p. 128; Ex. 8, OSHA Compliance
Worksheet.)
Immediately following his inspection. Chase held a closing
conference with Samuel Freedman, then the general manager of
Somersworth Shoe. The two men discussed all of the violations
Chase found and agreed upon an abatement schedule. (Ex. 8, OSHA
Narrative at 5 12.) On July 7, 1975, OSHA issued a citation to
Somersworth Shoe for nine separate groups of non-serious
violations. OSHA did not, however, levy a monetary penalty
against Somersworth Shoe for any of the cited violations. The
bench assembly on which Irving was later injured was not cited.
(Ex. 8, Citation at 1-3.)
4. 1978 Inspection
On April 6, 1978, OSHA compliance officer John Ritchie
inspected Somersworth Shoe. During the course of his inspection,
Ritchie noticed and documented ten separate violations of OSHA
safety standards. (Ex. 9, OSHA Worksheet at 1-10.) Three of
those violations concerned unguarded drive belts. (Ex. 9, OSHA
23 Worksheet at 7-9; Ritchie, 2/12/85, p. 150.) None of the
violations Ritchie documented was located in the stock fitting
room. (Ex. 9, OSHA Worksheet at 1-10.) Ritchie also found that
Somersworth Shoe had an inadequate safety training program and no
health or safety staff. (Ex. 9, OSHA Narrative at 5 15; Ritchie,
2/12/85, p. 150.)
As Chase had done three years earlier, Ritchie held a
closing conference with Samuel Freedman in which the two men
reviewed all of the violations Ritchie found during his
inspection. On April 12, 1978, OSHA cited Somersworth Shoe for
eight separate groups of violations, including three instances of
unguarded drive belts. OSHA did not fine Somersworth Shoe, but
ordered all violations abated by May 8, 1978. The bench assembly
on which Irving was later injured was not cited. (Ex. 9,
Citation and Notification of Penalty at 1-2.)
E. Chase and Ritchie's Failure to Note Violation
It is the failure of Ritchie and Chase to identify and
document the unguarded horizontal drive shaft on the bench
assembly, and OSHA's failure to cite it, that form the basis of
Irving's cause of action. As noted earlier, the decision to cite
an employer for a violation of OSHA safety standards is,
24 according to applicable regulations, made by an OSHA Area
Director after his or her review of a compliance officer's
inspection report. See 29 C.F.R. § 1910.14(a).10 The inspection
reports of Ritchie and Chase did not in any way reference the
drive shaft in guestion. (See Ex. 8, OSHA Compliance Worksheet,
Narrative, Proposed Penalty Worksheet; Ex. 9, OSHA Worksheet,
Narrative.) Therefore, the court must determine the reason or
reasons why neither compliance officer identified or recorded the
drive shaft as being in violation of OSHA safety standards.
Both parties agree that the drive shaft was not guarded by a
stationary casing or trough as reguired by 29 C.F.R.
§ 1910.219(c)(2)(ii) during the 1975 and 1978 inspections. In
fact, the evidence overwhelmingly supports the conclusion that
the shaft was not guarded by a casing or trough at any time prior
to Irving's accident. (Rothwell, 2/12/85, p. 14-15; Couture,
2/12/85, Supp. at 8-9; Brooks, 2/12/85, Supp. at 13-15.) While
10 Under 29 C.F.R. § 1903.21(e), the Area Director may delegate to a compliance officer his or her responsibility to review inspection reports and issue citations. There is no evidence that Area Director Amirault so delegated his responsibilities in this case. Although compliance officer O'Connell signed the 1978 citation "for F.R. Amirault," the Area Director reviewed the 1975 and 1978 inspection reports for the purpose of categorizing violations and issuing appropriate citations. (See Ex. 8, OSHA Inspection Report at 1, § 36; Ex. 8, Citation at 2, 3, 5 14; Ex. 9, OSHA Inspection Report at 1, 5 38 .)
25 the parties agree that the shaft had no guard, the government and
Irving concur on few other facts related to the 1975 and 1978
inspections.
1. Guarded by Location
In order to hold OSHA liable for her injuries, Irving must
first prove that the drive shaft was in violation of OSHA safety
standards during one or both of the pre-accident inspections.
Although the government concedes that the horizontal drive shaft
was not guarded by a casing or trough, it has argued vigorously
from the outset of this case that the shaft was "guarded by
location" during both the 1975 and 1978 inspections.
As discussed earlier, potential employee exposure is a
necessary component of a documentable violation of OSHA safety
standards. The government argues that during the 1975 and 1978
inspections there existed no potential exposure to the unguarded
horizontal drive shaft because it was guarded by location. That
is, the government contends that in 1975 and 1978 the bench
assembly was located approximately two feet to the rear (north)
of the position it occupied when the accident occurred. With the
bench in that position, the argument continues, access to the
rear of the assembly would have been blocked by the die rack.
26 Without access to the back of the bench, employees would not have
been exposed to the serious danger otherwise posed by the
unguarded rotating drive shaft. Therefore, the government
concludes, in 1975 and 1978 there was no violative condition for
Chase and Ritchie to notice and document.
Irving counters that the evidence shows that in 1975 and
1978 the bench assembly was in substantially the same location
and condition it was in at the time of her accident.11
In support of its argument that the bench assembly was
moved, the government relies heavily on the testimony of
compliance officer Chase. Although Chase apparently had no
11 In support of her position, Irving contends that under New Hampshire law "where the location of an object is at issue, evidence of the prior or subseguent location of that same object is considered strongly suggestive of its position at the time of the occurrence in guestion." (Plaintiff's Reguest for Findings of Fact and Conclusions of Law at 12, 5 50.) By this, Irving seems to suggest that evidence of the bench assembly's 1979 location is entitled to some special weight. Under New Hampshire law, evidence of the location of an object is admissible for the purpose of showing that the object occupied the same position at a prior point in time. State v. Harris, 101 N.H. 95, 96, 133 A.2d 483, 484 (1957), Dube v. Bickford, 92 N.H. 362, 31 A.2d 64 (1943). However, the evidence of subseguent location does not create a legal presumption to that effect, or carry more legal weight than any other evidence egually probative of prior location. Harris, 101 N.H. at 96, 133 A.2d at 484. The court will, therefore, consider the location of the bench assembly in 1979 as evidence of the location it occupied in 1975 and 1978 but will only credit it commensurate with its probative value in light of all of the evidence introduced at trial.
27 independent recollection of the bench assembly (Chase, 2/12/85,
p. 118), he testified that the machine must have been guarded by
location during the 1975 inspection. Chase's opinion was based
largely on his belief that he simply would not have failed to
notice a violation as flagrant as the unguarded shaft on which
Irving was injured, had it existed during his inspection.
(Chase, 2/12/85, p. 110, 119.) He stated:
I wouldn't miss something like that on inspection, not when I already found the unguarded shafts on another piece of eguipment. There's no way I missed it. Something has had to change relative to that piece of eguipment [between my inspection and Irving's accident].
(Chase, 2/12/85, p. 119.) In fact. Chase felt that the unguarded
rotating shaft on which Irving was injured was such a flagrant
violation of OSHA safety standards that, assuming he inspected
every operation in the Somersworth Shoe plant, he would not have
failed to note the violation even in a "careless moment" or on
his "wors[t] day." (Chase, 2/12/85, p. 134.)
In essence, then. Chase testified that because he did not
notice or document that the drive shaft was in violation of OSHA
safety standards the machine must have been guarded by location;
and the machine must have been guarded by location because he did
not notice or record the violation. Reciting the argument
28 highlights its circularity. But, to point out the circular
nature of the government's position is not necessarily to
discredit it entirely or deem it hopelessly inconsistent with
what actually happened. The argument's circularity, however,
does render it suspect to the extent it is not corroborated by
extrinsic evidence.
In hopes of bolstering its theory that the machine was
guarded by location during the 1975 and 1978 inspections, the
government points to the testimony of two long-time Somersworth
Shoe employees. Roger Couture worked at Somersworth Shoe from
1944 until 1979. From approximately 1974 until early 1979, he
was foreman of the stock fitting room. (Couture, 2/12/85, Supp.
at 3-4.) Couture testified on direct examination that the bench
assembly "might have been moved, probably the whole thing, one or
two feet, but that was it." (Couture, 2/12/85, Supp. at 5.) On
cross examination he added, "The only thing is it was moved . . .
a little back . . . about maybe a foot." (Couture, 2/12/85,
Supp. at 9.) Similarly, Bruce Brooks, who worked in the stock
fitting room from 1950 until early 1984 and regularly operated
the die-out machine in guestion, noted that Somersworth Shoe "had
moved a bench and they had moved a motor machine in that area at
29 one time. Just when that was, I couldn't tell you." (Brooks,
2/12/85, Supp. at 18.)
The government relies heavily on these inconclusive
statements, but ignores a larger body of evidence that
overwhelmingly supports the notion that the rotating shaft was
neither guarded by location nor otherwise inaccessible at any
time prior to Irving's accident. In fact, the testimony of
Couture and Brooks, viewed in its entirety, also supports the
notion that the bench assembly had not been altered or moved in
any material fashion in the five years before the accident.
Couture stated that the machine had been in the same place and in
the same condition throughout his tenure as foreman, that is,
from 1974 until early 1979. (Couture, 2/12/85, Supp. at 4-5.)
He further testified that in 1979 the condition of the machine
was exactly the same as it had been in 1975 and 1978. (Couture,
2/12/85, Supp. at 8.)
The bulk of Brooks' testimony also strongly supports the
proposition that the machine had been at or near its present
position "years before Gail was on it." (Brooks, 2/12/85, Supp.
at 17; see also, 2/12/85, Supp. at 15-17.) Significantly, Brooks
testified that throughout his tenure at Somersworth Shoe
employees had access to the unguarded rotating shaft from both
30 the front and rear of the bench assembly. (Brooks, 2/12/85,
Supp. at 15 .)
In addition to the testimony of those personally familiar
with the bench assembly's condition and location during the 1975
and 1978 inspections, Irving points to physical and testimonial
evidence establishing the permanence of the position the bench
and motor occupied during the 1975 and 1978 inspections and
through the time of the accident. The most convincing evidence
came in the form of photographs taken by Paul O'Connell during
his post-accident inspection. The photos were introduced at
trial as plaintiff's Exhibit 14B (O'Connell, 2/12/85, p. 157),
and clearly show that the workbench, the electric motor that
drove the die-out machine, and the supports for the drive shaft
were all securely bolted to the concrete floor of the stock
fitting room. (Ex. 14B, Photos 1, 2, 4, 5, 15, 20, 21, 22, 23.)
Igor Paul, plaintiff's expert witness, also examined the bench
assembly after the accident and concluded that it could only be
repositioned by removing all of the bolts from the concrete floor
and, presumably, reinserting them into the floor at a different
location. (Paul, 2/14/85, p. 14, 30.)
The photographs do not support the hypothesis that the bench
had been moved between the OSHA inspections and the accident. In
31 fact, O'Connell's photos are convincing evidence that the bench
assembly never occupied a position in the Somersworth Shoe plant
other than the position it occupied in 1979. The concrete floor
around the bench assembly contains no empty bolt holes or other
blemishes that one would expect to find if the bench assembly had
been unbolted, relocated, and rebolted to the floor, especially
if it had been moved only a few feet. (Ex. 14B, Photos 1-5, 14-
16, 20-24.) In addition, the wear marks beneath the foot pedal
of the marker machine indicate that the bench assembly had, in
1979, occupied the same position for quite some time. (Ex. 14B,
Photos 1, 2, 4, 5.)
Finally, the position of the bench assembly vis-a-vis the
die rack and the power switch renders it highly unlikely that the
drive shaft was guarded by location as a result of its proximity
to the rack or to any other workplace condition. Neither party
contends, and the evidence does not show, that the die rack was
moved or materially altered at any time between 1975 and 1979.12
The die rack had shelves extending down to the floor behind the
12 Indeed, the die rack was considered so permanent a fixture that O'Connell treated it as if it were a partition or wall within the stock fitting room. (O'Connell, 2/13/85, p. 18.) Rothwell testified that the rack could only be repositioned through disassembly and was, in effect, immovable. (Rothwell, 2/12/85, p. 13-14.)
32 bench assembly, and Somersworth Shoe employees required regular
access to the dies and patterns kept on those shelves. (Ex. 14B,
Photos 1-3, 16, 17; Irving, 2/11/85, p. 8; O'Connell, 2/13/85,
p. 42.) In addition, the aisle between the bench assembly and
the die rack provided the only access to the power switch for the
die-out machine. (Ex. 14B, Photos 13, 14.)13 Because employees
needed access to the dies, patterns, and power switch, and
because the narrow aisle between the rack and the bench assembly
provided the only access to these items, the aisle could not be
eliminated without rendering both the die-out and marker machines
useless.
Yet, in order for the drive shaft to have been effectively
guarded by location, the aisle between the bench assembly and the
die rack would have to have been eliminated entirely. At trial,
O'Connell implied that if the bench assembly had been positioned
one or two feet to the rear of the position it occupied in 1979
13 The court recognizes, as did Paul O'Connell, that the power switch was theoretically moveable. (See O'Connell, 2/13/85, p. 37.) However, the photographs of the switch indicate that it was attached to the east wall of the stock fitting room in a secure and relatively permanent manner and reveal no signs that it was recently moved. (Ex. 14B, Photos 13, 14.) In addition. Couture and Rothwell confirmed that there had been no changes made to the set-up of the die-out machine from 1974 through 1979. (Couture, 2/12/85, p. 9; Rothwell, 2/12/85, p. 4- 6 .)
33 the shaft would have been guarded by location yet employees still
would have been able to use the aisle to reach patterns, dies,
and the power switch. (O'Connell, 2/13/85, p. 34-42.) The
implication is not persuasive. The drive shaft could not have
been effectively guarded by location if a functional aisle
existed between the bench assembly and the die rack. In fact, if
the width of the aisle had been reduced even further, but the
aisle had not been eliminated, employees' exposure to the
rotating shaft would have been more, not less dangerous, because
they would have had less room to maneuver between the shaft and
the rack, especially if they bent over to pick up a dropped item
or to retrieve a pattern from the bottom shelf. Therefore, even
if the government were correct in postulating that during the
1975 and 1978 inspections the bench assembly was located one or
two feet to the rear of its 1979 position, the shaft still would
not have been effectively guarded by location.
The court finds that Irving has demonstrated, by a decided
preponderance of the evidence, that during the 1975 and 1978
inspections the bench assembly was in the same position it
occupied at the time of her injury. It was not guarded by
location. Operation of the die-out machine while the drive shaft
remained unguarded was in flagrant violation of OSHA safety
34 standards. The die-out machine was in operation during both
inspections .14
2. Failure to Inspect Every Machine
Despite the flagrant nature of the OSHA violation. Chase and
Ritchie did not notice or document the dangerous condition during
the 1975 and 1978 inspections. The government argues, however,
that those failures cannot, even if they amounted to actionable
negligence under New Hampshire law, support the imposition of
liability under the FTCA because OSHA inspections are
discretionary functions, for which Congress has preserved the
government's immunity from suit. In order to determine whether
the discretionary function exception to the FTCA's immunity
waiver applies to this suit, it is first necessary to determine
why the inspectors failed to notice and document the unguarded
drive shaft.
14 Necessary to this conclusion is a finding that the die- out machine was not taken out of operation, thereby eliminating worker exposure to the rotating shaft, for any significant period of time. The evidence establishes that the die-out machine was in near-continuous operation during the relevant time frame. Both its position and condition remained virtually unchanged. (Rothwell, 2/12/85, p. 4-5; Couture, 2/12/85, Supp. at 8; Brooks, 2/12/85, Supp. at 17; Chase, 2/12/85, p. 131.)
35 The existence of the safety violation in 1975 and 1978
having been established, the evidence is arguably consistent with
two plausible explanations for the compliance officers'
oversight. First, Chase and Ritchie could have inspected the
bench assembly but failed to notice the unguarded drive shaft.
Second, both compliance officers could have neglected to inspect
this particular bench assembly and, as a result, failed to notice
the obvious unguarded drive shaft.15 It is, of course, very
difficult to determine precisely what happened during two
separate inspections approximately two decades ago. But, upon
careful examination of the record, the preponderance of the
evidence introduced at trial supports the conclusion that both
Chase and Ritchie failed to inspect the bench assembly on which
Irving was subseguently injured, and the court so finds.
15 The government suggests a third possibility: Both compliance officers noticed the unguarded drive shaft and, despite the obvious nature of the violation, made a judgment call that there was not sufficient potential employee exposure to justify documenting the condition as a violation of OSHA safety standards. The record does not support this suggestion and the court rejects it as a factual matter; neither compliance officer testified that he noticed the unguarded drive shaft, much less engaged in the judgment analysis the government seeks to ascribe to him. To the contrary. Chase testified that he never noticed the unguarded drive shaft and, if he had, he would have recognized it as a blatant and unmistakable violation of OSHA safety standards.
36 Both Chase and Ritchie were required to examine every
operation in the Somersworth Shoe plant during their respective
wall-to-wall inspections and did not possess the discretion to do
otherwise. Chase testified that he walked down every aisle of
every floor that management indicated employees worked on.
(Chase, 2/12/85, p. 134.) In addition. Chase's inspection report
shows that he inspected many machines in the stock fitting room
and elsewhere in the plant. (Ex. 8, OSHA Compliance Worksheet at
1-4.) The bench assembly was located directly on a main aisle in
the stock fitting room. (Ex. 6, Floor Plan.) Chase did not
testify, however, that he inspected every operation in the
facility. Ritchie did not testify at all regarding the
thoroughness of his inspection in 1978, but his inspection report
indicates that he, too, inspected many machines in the plant.
(Ex. 9, OSHA Worksheet at 1-10.) Unfortunately, none of these
facts, taken alone or together, is direct, probative evidence of
whether or not the compliance officers actually inspected the
particular bench assembly in question.
There is, however, considerable circumstantial evidence
regarding the scope of the inspections actually performed. Every
trained person who laid eyes on the bench assembly, or saw a
photograph of it after the accident, recognized the unguarded
37 drive shaft as a blatant and very serious violation of OSHA
safety standards. Chase testified that if he had, in fact,
inspected the bench assembly, he could not have failed to
recognize that the drive shaft was a serious violation. (Chase,
2/12/85, p. 134.) While he acknowledged that inspectors do, on
occasion, fail to notice violations, he "wouldn't miss something
like that; it's too obvious, positively." (Chase, 2/12/85,
p. 113.)
Area Director Amirault concurred, stating that if a prudent
inspector saw the bench assembly depicted in O'Connell's post
accident pictures, he should have noticed the unguarded drive
shaft and recognized it as a violation of OSHA safety standards.
(Amirault, 2/12/85, p. 66-67.) O'Connell, too, confirmed the
obvious nature of the violation, classifying it as "serious" and
assigning it a severity value of eight. (O'Connell, 2/12/85,
p. 159.)
In light of that evidence, a finding that Chase and Ritchie
inspected the bench assembly but failed to notice the unguarded
drive shaft or recognize it as a violation of OSHA safety
standards would be tantamount to a finding that both compliance
officers were not merely negligent, but utterly incompetent. As
Chase stated, any compliance officer looking at the bench
38 assembly would have recognized the unguarded drive shaft as a
serious violation on his or her worst day.
Of course, the record would not support a finding that Chase
and Ritchie were utterly incompetent. The evidence establishes
that both men were guite skilled and thorough in identifying and
documenting violative conditions. Both were experienced
workplace inspectors who obviously took their responsibilities
seriously. (Chase, 2/12/85, p. 100-01; Ritchie, 2/12/85, 145-
46.) Chase had performed approximately 180 workplace inspections
prior to inspecting the Somersworth Shoe plant. (Chase, 2/12/85,
p. 100-01.) During the 1975 inspection. Chase noticed and
documented 39 violations of OSHA safety standards, including 14
power transmission mechanisms left unguarded in violation of 29
C.F.R. 1910.219, the same general regulation under which Irving's
bench assembly was later cited. Similarly, Ritchie noticed and
recorded 10 separate violations during his inspection of
Somersworth Shoe, including three unguarded drive belts. The
preponderance of the evidence, therefore, decidedly supports the
conclusion that both Chase and Ritchie would have recognized that
the bench assembly violated OSHA safety standards reguiring the
guarding of power transmissions if they had, in fact, inspected
it.
39 Given these findings,16 there is but one probable, realistic
explanation for Chase and Ritchie's failure to notice and
document the unguarded drive shaft: Neither compliance officer
actually inspected the bench assembly during his tour of the
Somersworth Shoe plant. Chase and Ritchie were not incompetent;
they simply were not as comprehensive in their inspections as
OSHA policy reguired them to be. Rather than inspect every
operation in the plant, they inspected most of them, in effect
spot-checking (albeit thoroughly) the facility for violations of
OSHA safety standards. It is the inspectors' failure to inspect
every operation, as was reguired of them, that properly forms the
basis of Irving's cause of action under New Hampshire's Good
Samaritan doctrine and the FTCA.
II. DISCRETIONARY FUNCTION EXCEPTION
16 The relevant findings include: (1) The drive shaft was not guarded by a casing or trough during the 1975 or 1978 inspections; (2) the drive shaft was not guarded by location or otherwise rendered inaccessible to employees or inoperative during the 1975 or 1978 inspections; (3) Chase and Ritchie did not observe the unguarded shaft and make a judgment call that it was not a violation of OSHA safety standards; and (4) had Chase and Ritchie inspected the bench assembly they would have noticed and documented the unguarded drive shaft as a serious violation of OSHA safety standards.
40 Irving necessarily brings her Good Samaritan action against
the government under the FTCA, 28 U.S.C. §§ 1346(b), 2671-2680.
The FTCA operates as a broad waiver of sovereign immunity, giving
district courts jurisdiction to hear tort suits against the
United States for damages caused by federal employees acting
within the scope of their duties, where the United States, if a
private person, would be liable under the law of the place where
the tort occurred. 28 U.S.C. §§ 1346(b), 2674; see also Irving
I, 909 F.2d 598, 600 (1st Cir. 1990). This broad waiver of
sovereign immunity is, however, subject to several statutory
exceptions, including the so-called "discretionary function
exception," which exempts:
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a). Section 2680 "marks the boundary between
Congress' willingness to impose tort liability upon the United
States and its desire to protect certain governmental activities
from exposure to suit by private individuals." United States v.
Varig Airlines, 467 U.S. 797, 808 (1984); see also Irving I, 90 9
41 F.2d at 600. "Because § 2680(a) is a limitation on the waiver of
sovereign immunity, cases which fall within the discretionary
function exception are dismissed for lack of subject matter
jurisdiction." Irving I, 909 F.2d at 600.
"The determination of whether the discretionary function
exception bars a suit against the Government is guided by several
established principles." Berkovitz v. United States, 486 U.S.
531, 536 (1988). First, "it is the nature of the conduct, rather
than the status of the actor, that governs whether the
discretionary function exception applies in a given case." Id.
(guoting Varig Airlines, 467 U.S. at 813). The inguiry, then,
focuses on the "permissible range of action available to the
government employee allegedly at fault." Irving I, 909 F.2d at
600. Specifically, "[i]n examining the nature of the challenged
conduct, a court must first consider whether the action is a
matter of choice for the acting employee. This inguiry is
mandated by the language of the exception; conduct cannot be
discretionary unless it involves an element of judgment or
choice." Berkovitz, 486 U.S. at 536; Irving I, 909 F.2d at 600.
"[T]he reguirement of judgment or choice is not satisfied if a
'federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow,1 because 'the
42 employee has no rightful option but to adhere to the directive.'"
Irving II, 49 F.3d 830, 835 (1st Cir. 1995) (quoting United
States v. Gaubert, 499 U.S. 315, 322 (1991)) (internal quotations
omitted, emphasis supplied in Irving II).
Even if the challenged conduct is the product of an
employee's permissible exercise of judgment, suit is barred only
if that judgment "is of the kind that the discretionary function
exception was designed to shield. The basis for the
discretionary function exception was Congress' desire to 'prevent
judicial "second-guessing" of legislative and administrative
decisions grounded in social, economic, and political policy
through the medium of an action in tort.1" Berkovitz, 486 U.S.
at 536-37 (quoting Varig Airlines, 467 U.S. at 814). "The
exception, properly construed, therefore protects only
governmental actions and decisions based on considerations of
public policy." Id. at 537. "In sum, the discretionary function
exception insulates the Government from liability if the action
challenged in the case involves the permissible exercise of
policy judgment." Id. (emphasis added).
The first step in deciding the discretionary function
exception question presented here, then, is determining exactly
what constitutes the "challenged conduct." See, e.g., Gaubert,
43 499 U.S. at 327-28; Berkovitz, 486 U.S. at 539-40, 543-44; Varig
Airlines, 467 U.S. at 814-15, 819. Irving's complaint alleges
that "[t]he [1975 and 1978] inspections of said Somersworth Shoe
Company were performed in a negligent . . . manner in that the
defendant failed to issue citations for violations of the said
Occupational Safety and Health Act." (Irving's Complaint at 3,
5 9.) It adds that the government "breached its duty to the
employees of said Somersworth Shoe Company, including the
plaintiff, by negligently performing the said inspections of said
shoe shop." Id. at 3, 5 10. Irving's complaint, therefore,
challenges the manner in which Chase and Ritchie conducted the
1975 and 1978 inspections and is phrased broadly enough to
encompass all of the discrete actions the compliance officers
took, or failed to take, during those inspections.17
17 Reading Irving's complaint to allege negligence on the part of the compliance officers in their performance of the several specific actions that constituted the 1975 and 1978 inspections is consistent with a liberal reading of the complaint and is in harmony with the Supreme Court's assessment of the complaints in both Berkovitz and Varig. In Berkovitz the Court read plaintiffs' broad averment of negligent licensing and release of a polio vaccine as alleging negligence at each relevant step of the multi-stage licensing and release procedures. Berkovitz, 486 U.S. at 539-40, 543-44. Similarly, in Varig Airlines the Court read plaintiff's allegation that the FAA was negligent in failing to inspect certain elements of aircraft design as "necessarily challeng[ing] two aspects of the certification procedure: the FAA's decision to implement the 'spot-check' system of compliance review, and the application of
44 At trial, Irving's proof established that the inspectors
were negligent, if at all, in failing to inspect the marker/die-
out bench assembly. As the court has found, the evidence would
not support a finding that the actions of the compliance officers
or any other Department of Labor employee were deficient, much
less negligent, at any other stage of the 1975 and 1978
inspections or subseguent citation processes. Therefore, it is
Chase's and Ritchie's failure to inspect the bench assembly
during the 1975 and 1978 inspections that forms the basis of
Irving's cause of action and constitutes the "challenged conduct"
for the purposes of applying the discretionary function
exception.18
With the facts surrounding the 1975 and 1978 inspections
found, and the challenged conduct defined, resolution of the
that 'spot-check' system to the particular aircraft involved." Varig Airlines, 467 U.S. at 819.
18 Because the court has already found that the OSHA compliance officers failed to inspect every operational machine, as reguired by OSHA policy, this order does not delve into whether each stage of the multi-step inspection and citation process involved a discretionary or mandatory function. Rather, it addresses in depth the only step relevant in light of the evidence presented at trial — the failure to inspect every operational machine. As explained more fully below, whether or not the compliance officers performed other discretionary functions is irrelevant because Irving has not proven that they acted improperly or breached a duty owed Irving at any other point during the inspection and citation process.
45 discretionary function issue becomes relatively straightforward
in light of Berkovitz: the discretionary function exception does
not deprive this court of subject matter jurisdiction over
Irving's suit because OSHA policy governing the 1975 and 1978
inspections did not give inspecting compliance officers any
discretion to not inspect particular operational machines within
the Somersworth Shoe facility. Rather, OSHA policy prescribed a
definite and mandatory course of action for the compliance
officers to follow. They were reguired to inspect every
operational machine in the plant and could not do less; anything
less would amount to an unauthorized spot-check of the facility.
Having alleged and proven the existence of that mandatory duty,
Irving may maintain her suit to the extent it focuses on Chase's
and Ritchie's failure to comply with it.19
Indeed, this case is strikingly similar to Berkovitz, in
which the plaintiff sued the government alleging that the
National Institute of Health's Division of Biologic Standards
("DBS") licensed a polio vaccine without first receiving test
19 At oral argument, the government agreed that such a failure on the part of OSHA inspectors implicates a mandatory duty. Attorney Pyles stated, "If there's a reguirement to look at every machine and he does not look at every machine, then I would agree that that's a violation of a mandatory regulation." (Tr. at 111.)
46 data on the safety of the vaccine. Applicable statutes and
regulations required, as a precondition to licensing, that the
DBS receive safety test data on the vaccine from the
manufacturer. Because the DBS had no discretion to issue the
license without first receiving the test data, the discretionary
function exception did not bar the plaintiff's suit. Berkovitz,
486 U.S. at 540-43. Here, Irving has likewise proven that OSHA
compliance officers had a duty to inspect every operational
machine before they compiled the inspection reports upon which
citation decisions were based. She has also proven that the
compliance officers did not inspect the bench assembly before
preparing their inspection reports. She may, therefore, maintain
her suit challenging the compliance officers' failure to inspect
the bench assembly.
In contrast, this case is readily distinguished from Varig
Airlines, in which the discretionary function exception did bar
suit because FAA inspectors were "specifically empowered" to
spot-check aircraft under construction for compliance with FAA
regulations. Varig Airlines, 467 U.S. at 820. Here, "the
compliance officers were required by OSHA to inspect the entire
Somersworth Shoe plant; they could not choose simply to spot
check certain areas." Irving I, 909 F.2d at 604.
47 Although the government concedes that the compliance
officers were under a mandatory duty to inspect every operation
(Tr. at 107), it points to a number of discretionary functions
performed by Chase and Ritchie during the course of the 1975 and
1978 inspections in support of its argument that the
discretionary function exception bars Irving's suit entirely. It
is undoubtedly true that both Chase and Ritchie did exercise
policy-level discretion in performing certain of their assigned
duties. For instance, the compliance officers could and did
exercise discretion, informed by public policy concerns, when
they made determinations regarding whether or not particular
workplace conditions presented sufficient risks of employee
exposure to justify documenting them as potential violations of
OSHA safety standards. Similarly, the Area Director, when
classifying violations as de minimis, non-serious, or serious,
exercised policy-level discretion.
But while the government's premise is sound — Chase and
Ritchie did perform discretionary functions during the 1975 and
1978 inspections — its conclusion that the discretionary function
exception bars Irving's suit does not follow. Irving's suit is
barred only to the extent it alleges that OSHA employees were
negligent in performing any of those discretionary functions.
48 Irving could not, for example, sue the government if OSHA had
decided not to inspect the Somersworth Shoe plant at all. Varig
Airlines, 467 U.S. at 819-20 ("When an agency determines the
extent to which it will supervise safety procedures of private
individuals, it is exercising discretionary regulatory authority
of the most basic kind."). She also could not bring an action
under the FTCA if OSHA formulated and followed a policy of spot-
checking machines and, as a result, failed to find the violative
condition leading to her injury. Id. at 820; Berkovitz, 486 U.S.
at 546. She likewise could not sue if OSHA left it up to the
assigned inspectors to determine how thorough an inspection to
conduct. Nor could she sue the government if the compliance
officers inspected the bench assembly but wrongly concluded that
there was insufficient employee exposure to justify a citation,
however gross an abuse of discretion that judgment might have
been. Berkovitz, 486 U.S. at 544-45. And she could not sue if
OSHA mistakenly categorized a serious violation as de minimis.
Id. Each of those situations would involve, at most, an abuse of
discretion, but the exercise of discretion nonetheless, and the
exercise of discretion is generally immune from scrutiny under
the FTCA.
49 But while the discretionary function exception would bar
many, if not most, suits arising from negligent OSHA inspections,
it does not bar Irving's suit. This is so because none of the
scenarios advanced by the government actually occurred in this
case. Instead, Chase and Ritchie failed to inspect the bench
assembly at issue despite a mandatory duty to inspect it. Under
Berkovitz, Irving may sue the government for that failure.20
In light of the court's finding that Chase and Ritchie
failed to inspect the bench assembly despite a mandatory duty to
do so, the government is limited to arguing, in effect, that the
fact that the compliance officers performed several other
discretionary functions shields their challenged conduct from
suit, even though the challenged conduct implicates a mandatory
duty. This argument ignores the clear lesson of both Varig
20 This is not to imply that this is the only conceivable failure on the part of OSHA that could give rise to a cause of action under the FTCA. For instance, if Irving had proved that Chase and Ritchie inspected the bench assembly, noticed the unguarded rotating drive shaft, determined that sufficient employee exposure to the hazard existed, but failed to document the violative condition, Irving could likely maintain a suit against the government for that failure consistent with the discretionary function exception. Similarly, if Irving demonstrated that OSHA actually decided there existed a substantial probability that death or serious physical harm could result from a violative condition, yet refused to issue a citation for that condition, Irving could maintain a suit challenging that failure. Some actions become mandatory once discretion has actually been exercised.
50 Airlines and Berkovitz that the proper inquiry is whether the
"challenged conduct . . . is a matter of choice for the acting
employee." Berkovitz, 486 U.S. at 536 (emphasis added); see also
Variq Airlines, 467 U.S. at 813. While Irving cannot maintain a
suit based on the government's failure to properly perform a
discretionary function, she may indeed sue for breach of
mandatory duties that did, in fact, occur.21
Finally, to avoid a decision on the merits of Irving's suit,
the government advances another version of the same argument
rejected above. The government argues that Irving has not
identified any statute, regulation, or policy requiring OSHA
compliance officers to "notice" or "find" every safety violation
that existed within the four walls of the Somersworth Shoe plant.
21 Of course, in order to succeed on the merits of her Good Samaritan claim, Irving must prove that the compliance officers' failure to inspect the bench assembly breached a duty recognized under state law and was causally related to her injury. The causal chain may include proof that OSHA employees would more likely than not have performed certain actions that are discretionary in character (i.e. classifying the unguarded drive shaft as a violation and citing Somersworth Shoe for that violation). The causal chain may include functions that are discretionary without barring suit over the violation of mandatory duties. This notion is implicit in Berkovitz, 486 U.S. at 544-45, where the Supreme Court allowed a suit in which it was alleged that the DBS licensed a polio vaccine without receiving the required test data; DBS employees would have exercised discretion in making the licensing determination once they received the required test data.
51 and, as a result, the discretionary function exception bars any
suit alleging that the injury occurred as a result of OSHA's
failure to find or cite a violative condition.22
Once again, the government's premise is correct: Irving has
not proven the existence of a policy reguiring Chase and Ritchie
to find or notice every safety violation in the facility. The
Court of Appeals said in Irving I, 909 F.2d at 604-05, that there
is some evidence in the record suggesting the existence of such a
duty and perhaps it's a plausible suggestion. For instance, in
response to a guestion by plaintiff's counsel regarding the scope
of the 1975 and 1978 inspections. Area Director Amirault stated,
" [Y]ou would have to ask the compliance officer exactly how he
proceeded, but he should be observing and documenting any
violative condition . . . ." (Amirault, 2/12/85, p. 29-30
(emphasis added).) But, while this and similar statements by
22 The court addresses this argument separately because both parties have hotly disputed its validity and the First Circuit has twice directed the district court to determine whether there existed a mandatory "duty to find," Irving I, 909 F.2d at 604, or "reguir[ement] . . . to notice," Irving II, 49 F.3d at 835, all safety violations within the four walls of the Somersworth Shoe plant. As phrased, the answer to the Court of Appeals's specific guestion, did "the inspectors [have] policy-level discretion to fail to note and tell the employer about the violation"? Irving II, 49. F.3d at 834, is: The inspecting officers were not mandated or reguired to find or notice every violation, but were reguired to report all de minimus, non-serious, and serious violations that they did find.
52 Amirault could conceivably be interpreted as meaning that OSHA
policy required Chase and Ritchie to notice every violation
within the plant (a stretch this court is unwilling to make ) , the
vast majority of the evidence presented at trial, including the
bulk of Amirault's testimony, establishes that OSHA policy
imposed upon the compliance officers only the more realistic duty
to document all violations that they did, in fact, notice during
their inspections. OSHA policy did not (and as a practical
matter could not reasonably) require them to find every single
violation that existed in the facility, perfection being more
aspirational than achievable. Amirault repeatedly stated that
the inspectors' job was to inspect every operation in the plant
and "document any hazardous conditions that they would see."
(Amirault, 2/12/85, p. 28 (emphasis added); see also 2/12/85, p.
25, 57, 58, 88-89.) In fact, Amirault nearly always qualified
his answers in an attempt to distinguish between the duty to
record recognized violations and the duty to notice all
violations that existed. (See, e.g., Amirault, 2/12/85, p. 55.)
Irving could not, therefore, sue the government under the FTCA
for OSHA's mere failure to conduct perfect safety inspections.
For the reasons discussed above, however, the fact that
Chase and Ritchie were under no mandatory duty to find every
53 violative condition is neither here nor there. What is important
is that they were under a mandatory duty to inspect every
operational machine and failed to do so. In fact, it was by
inspecting every operational machine that OSHA expected to meet
its goal of identifying and eliminating all workplace safety
hazards to the extent humanly possible. It makes sense, then,
that Irving can maintain her suit for negligent failure to
inspect every operational machine, even though she could not
bring a cause of action based on Chase's or Ritchie's failure to
carry out their inspection of each machine perfectly, had they
actually looked at every machine.
Because Irving has proven the existence of a mandatory duty
on the part of Chase and Ritchie, and because her suit is based
on their failure to carry out that duty, the discretionary
function exception to the FTCA does not deprive this court of
subject matter jurisdiction over Irving's sole cause of action.
With the jurisdictional guestion resolved, the court now proceeds
to consider the merits of Irving's claim under New Hampshire's
Good Samaritan doctrine.
III. GOOD SAMARITAN DOCTRINE
54 Under the FTCA, the United States is liable in tort "in the
same manner and to the same extent as a private individual under
like circumstances," 28 U.S.C. § 2674, "in accordance with the
law of the place where the act or omission occurred." 28 U.S.C.
§ 1346(b). The FTCA, then, does not create new causes of action,
but, instead, waives sovereign immunity for certain causes of
action founded on state law. In fact, "even 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). [T]he test established by the Tort Claims Act for
determining the United States1 liability is whether a private
person would be responsible for similar negligence under the laws
of the State where the acts occurred.1" Dorking Genetics v.
United States, 76 F.3d 1261, 1266 (2d Cir. 1996) (quoting
Ravonier, Inc. v. United States, 352 U.S. 315, 319 (1957))
(alteration in Dorking Genetics) .
The court must, therefore, first look to the law of New
Hampshire to determine whether the United States could be liable
for Irving's injuries. Under New Hampshire law, a plaintiff
55 claiming negligence on the part of a defendant must show that:
(1) the defendant owed the plaintiff a duty; (2) the defendant
breached that duty; (3) the plaintiff suffered an injury; and (4)
the defendant's breach of duty was the proximate cause of
plaintiff's injury. Ronavne v. State, 137 N.H. 281, 284, 632
A.2d 1210, 1212 (1993) .
A. Duty
The threshold inguiry in any negligence action is whether
the defendant had a legal duty to defend the plaintiff against
injury. Here, Irving relies on the so-called "Good Samaritan"
doctrine, as described in the Restatement (Second) of Torts
§ 324A and recognized by New Hampshire law, as the basis for the
government's duty. See Williams v. O'Brien, 140 N.H. 595, 669
A.2d 810 (1995); Walls v. Oxford Management Co., 137 N.H. 653,
659, 633 A.2d 103, 106 (1993); Corson v. Liberty Mut. Ins. Co.,
110 N.H. 210, 212-14, 265 A.2d 315, 318-19 (1970); Kirk v. United
States, 604 F. Supp. 1474, 1482 (D.N.H. 1985). Section 324A
provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his
56 failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965).
In order to establish that the United States owed her a duty
of care, therefore, Irving must establish that OSHA undertook to
render services to Somersworth Shoe necessary for the protection
of Somersworth Shoe's employees, including Irving. Irving must
also prove that: (1) OSHA's failure to exercise due care in
rendering services increased the risk of harm to her; c>r (2) OSHA
undertook a duty owed by Somersworth Shoe to her; .or (3) she
suffered harm because of her reliance, or the reliance of
Somersworth Shoe, upon OSHA's undertaking.23
23 Courts differ as to whether the three disjunctive prongs of the Good Samaritan doctrine are most appropriately viewed as creating defendant's duty to plaintiff or in establishing the reguirements of proximate cause. See Blessing v. United States, 447 F. Supp. 1160, 1193 n.51 (E.D. Pa. 1978) (noting the disagreement and stating that Pennsylvania courts construe the three disjunctive reguirements of section 324A to state the reguirements of proximate cause). This difference in approach is at once understandable and immaterial to the outcome, as the definitions of both duty and proximate cause reguire the foreseeability that these three prongs guarantee. See Corso v. Merrill, 119 N.H. 647, 651, 406 A.2d 300, 303 (1979). Both the New Hampshire Supreme Court and the Court of Appeals for the
57 " [A]pplication of the 'Good Samaritan1 doctrine is at bottom
a question of state law . . . Variq Airlines, 467 U.S. at 815
n.12. In this case, the task of determining whether the
government owed Irving a duty enforceable under the FTCA is
simplified greatly by the fact that New Hampshire has already
imposed the Good Samaritan duty upon workplace inspectors in a
situation that is the precise private analogue to that presented
here. In Corson v. Liberty Mutual Ins. Co., 110 N.H. 210, 265
A.2d 315 (1970), the New Hampshire Supreme Court considered
"whether a company which undertakes to assist accident prevention
by additional inspections and advice rendered to the company
primarily charged with the duty can be liable for negligent
inspection to an injured employee." Id. at 212. The court
answered the question in the affirmative, finding that the
relationship between the inspecting and inspected companies could
give rise to a duty on the part of the inspecting company to use
due care in conducting the inspection. Id. Further, the court
considered it "beyond debate that if a duty on the part of the
[inspector] were found to have existed, that duty extended to
First Circuit have treated these three requirements as prerequisites to establishing that the defendant's duty extends to the plaintiff. See Corson, 110 N.H. at 212-14, 265 A.2d at 318-19; Walls v. Oxford, 137 N.H. at 659, 633 A.2d at 106; Zabala Clemente, 567 F.2d at 1145.
58 [the injured employee of the inspected company] who was clearly
within the orbit of risk which would be created by negligent
performance of the duty."24 Id. at 213.
The reasoning of Corson applies with egual force here, and,
under the New Hampshire Supreme Court's interpretation of the
Good Samaritan doctrine, the government owed Irving a duty to
exercise due care in carrying out its inspection of the
Somersworth Shoe plant. First, OSHA undertook to provide
precisely the same service considered in Corson and contemplated
by section 324A of the Restatement — "to assist accident
prevention by additional inspections and advice rendered to the
company primarily charged with the duty" to ensure workplace
24 The Restatement and Corson present slightly different formulations of the Good Samaritan doctrine. For instance, the "orbit of risk" reguired by the Corson formulation appears to serve the same function as do the three disjunctive reguirements of section 324A of the Restatement — all ensure that the injured third person is a reasonably foreseeable plaintiff, an essential element of establishing the existence of a duty under New Hampshire law. "'The risk reasonably to be perceived defines the duty to be obeyed.1" Corso v. Merrill, 119 N.H. 647, 651, 400 A.2d. 300, 303 (1979) (guoting Palsqraf v. Long Island R.R., 162 N.E. 99, 100 (N.Y. 1928)); see also White v. Schnoebelen, 91 N.H. 273, 274-75, 18 A.2d 185 (1941). In this decision, the court will attempt to address the issue of duty in a manner that references both formulations. Of course, to the extent the Corson Good Samaritan doctrine differs substantively from the language of the Restatement, the New Hampshire Supreme Court's interpretation of the doctrine controls.
59 safety.25 Id. at 212. Area Director Amirault stated that the
inspections "provided a lot of assistance to employers" as they
strove to meet their obligation to prevent workplace accidents.26
25 The obvious similarity between the inspection considered in Corson, which was performed by an insurer, and the inspections performed by OSHA, is underscored by the testimony of Bruce Brooks who stated that he, as an employee of Somersworth Shoe, never distinguished between the private inspectors and OSHA compliance officers who periodically inspected the plant. (Brooks, 2/12/85, Supp. at 15-16.) From his point of view, both types of inspections served the single purpose of identifying and correcting unsafe working conditions.
26 The government contends that the "punitive" nature of the inspection process reguires a finding that the 1975 and 1978 inspections were not "services" within the meaning of New Hampshire's Good Samaritan doctrine. The argument fails on several grounds. First, it ignores the weight of the evidence. Area Director Amirault testified with apparent candor that the inspection process served both to enforce OSHA health and safety standards (an arguably punitive purpose) and to assist employers in improving workplace safety (a decidedly non-punitive end). Second, and more fundamentally, under the Good Samaritan doctrine as applied to the government via the FTCA, "[t]he reason for undertaking the inspection is not important. While the existence of a federal statutory duty as the reason for undertaking the action will not automatically create liability, neither will such a duty preclude liability." United Scottish Ins. Co. v. United States, 614 F.2d 188, 193-94 (9th Cir. 1979), aff'd in relevant part sub nom. United States v. Variq Airlines, 467 U.S. 797 (1984). Finally, and on a closely related note, the government's argument is tantamount to a suggestion that the government may avoid liability under the FTCA for "uniguely governmental functions" such as enforcement activities in general or regulatory enforcement in particular. The Supreme Court rejected these contentions in Indian Towing Co. v. United States, 350 U.S. 61, 67 (1955), and Berkovitz, 486 U.S. at 538-39, respectively.
60 (Amirault, 2/12/85, p. 47; see also 2/12/85, p. 45-48.)
The government's duty to use due care in rendering services
extends to Irving for the same reason it extended to the
plaintiff in Corson: an inspector's failure to act with due care
in carrying out a safety inspection can fairly be said to
increase the risk of harm by "'cloak[ing] the defect, dull[ing]
the call to vigilance, and so aggravat[ing] the danger.1"
Corson, 110 N.H. at 214, 265 A.2d at 319 (guoting Marks v. Nambil
Realty C o ., 245 N.Y. 256, 259, 157 N.E. 129, 130 (1927) (Cardozo,
C.J.)). Here, Somersworth Shoe employees and employees of Wood
Heel, another shoe company housed in the same building, were
aware of the existence, purpose, and scope of the OSHA
inspections, as well as the fact that their employers were
reguired to abate any cited violations. (Irving, 2/11/85, p. 37;
Gosselin, 2/11/85, p. 87-94; Brooks, 2/12/85, Supp. at 15.) As a
result, the inference that negligence on the part of OSHA in
performing its inspections increased the risk of harm to
Somersworth Shoe employees by dulling their vigilance regarding
workplace hazards is a valid one. The compliance officers'
oversight did, in fact, "negligently mak[e] matters worse."
Rodrigue v. United States, 968 F.2d 1430, 1434 (1st Cir. 1992).
Irving is, therefore, a foreseeable plaintiff to whom OSHA owed a
61 duty of reasonable care. See Restatement (Second) of Torts
§ 324A(a).
OSHA's duty extends to Irving for a second reason not
addressed in Corson, but contemplated by section 324A(c) of the
Restatement: Somersworth Shoe reasonably relied on OSHA to
perform its inspections in a non-negligent manner. See
Restatement (Second) of Torts § 324A(c), cmt. e. Roger Couture,
foreman of the stock fitting room, gave unrebutted testimony that
Somersworth Shoe "actually depend[ed]" on the OSHA inspections to
find safety problems that the company had overlooked.27
(Couture, 2/12/85, Supp. at 7.) Therefore, under the Good
27 The government argues that even if Somersworth Shoe did rely on the OSHA inspections, such reliance was not reasonable because the primary duty to comply with OSHA safety standards remained at all times with Somersworth Shoe and its employees. See 2 9 U.S.C. § 654. Once again, the government draws a faulty conclusion from a perfectly valid premise. Somersworth Shoe of course retained its own duty to comply with OSHA safety standards. And for this reason, the court finds that OSHA did not "undertake[] to perform a duty owed by [Somersworth Shoe] to [Irving]," as contemplated by section 324A(b) of the Restatement. But the fact that Somersworth Shoe retained its own duty does not mean that it could not reasonably expect OSHA compliance officers to use due care when they acted to assist it in meeting its obligations under the Act. In Corson, the inspecting company owed the inspected company a duty to use due care despite the fact that the inspected company retained primary responsibility for preventing workplace accidents. Corson, 110 N.H. at 212, 265 A.2d at 317-18.
62 Samaritan doctrine, the government owed Irving a duty to exercise
due care in conducting its wall-to-wall inspections.
B. Breach
Under the Good Samaritan doctrine, the defendant's duty is
created by the "relation between the parties which the service
makes." Corson, 110 N.H. at 212, 265 A.2d at 318 (internal
guotation marks omitted). The scope of the duty, then, is
measured by the extent of the service undertaken by the
defendant. See Blessing v. United States, 447 F. Supp. 1160,
1189 (E.D. Pa. 1978). Here, the government undertook to perform
wall-to-wall inspections of the Somersworth Shoe plant,
inspecting every operational machine in the facility. Therefore,
Chase and Ritchie had a duty to exercise due care in carrying out
the wall-to-wall inspections. "The test of due care is what
reasonable prudence would reguire under similar circumstances."
Weldv v. Town of Kingston, 128 N.H. 325, 330-31, 514 A.2d 1257,
1260 (1986) .
Under the circumstances presented here, a reasonably prudent
inspector would have inspected the bench assembly at issue during
the 1975 and 1978 OSHA inspections. Both compliance officers
were charged with the mandatory duty to inspect every operational
63 machine in the Somersworth Shoe plant. Both officers were taken
through the entire plant, including the stock fitting room, by
Somersworth Shoe personnel. The marker/die-out bench assembly
was located on a main traffic aisle in the stock fitting room and
was not blocked or otherwise obscured from view during either
inspection. Further, the bench assembly was the type of machine
on which both compliance officers had found drive-train
violations elsewhere in the plant. The record reveals no basis
upon which the court could conclude that a reasonable OSHA
inspector charged with the duty to look at every machine could
reasonably fail to look at this machine. In light of these
facts. Chase's and Ritchie's failure to inspect the bench
assembly can only be explained by their failure to exercise due
care in carrying out their mandatory duties to conduct wall-to-
wall inspections of the Somersworth Shoe facility. The
government, therefore, breached the duty of care it owed
Irving.28
28 Although neither party raised the issue, an argument could be made that OSHA's mandatory policy of inspecting every operational machine itself created the standard of care applicable to Irving's Good Samaritan claim, the violation of which would constitute negligence per se. See Johnson v. Sawyer, 4 F.3d 369, 376-77 (5th Cir. 1993). Because the court finds that Chase and Ritchie breached the ordinary standard of care applicable to normal negligence actions, it need not consider whether the compliance officers' actions also constituted
64 C. Harm
Irving has proven beyond any doubt that she suffered
grievous harm when she became entangled with the unguarded
rotating shaft. The government only contests the economic impact
of Irving's injuries, not their existence. Irving's injuries are
detailed here and the economic effects of those injuries are
discussed below in the context of damages.
Prior to the accident, Irving was a healthy 21-year-old
woman. The exposed drive shaft avulsed her scalp, fractured and
dislocated her second cervical vertebra, and left her with
permanent neurological damage.29 Immediately after she became
entangled in the drive shaft, Irving suffered cardiac and
respiratory arrest. When she arrived at Maine Medical Center by
ambulance, she was experiencing guadriplegia as a result of her
negligence per se. Because Irving has proven that the government owed and breached a duty under New Hampshire's Good Samaritan doctrine, the government's renewed argument that the misrepresentation exception to the FTCA, 28 U.S.C. § 2680(h), bars Irving's suit fails. See United States v. Block, 460 U.S. 289 (1983); Irving v. United States, No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.).
29 Unless otherwise attributed, the findings of fact relating to Irving's injuries are based on Exhibit 23, the videotaped testimony of Eithne C. McCann, M.D. Dr. McCann practices rehabilitative medicine and oversaw Irving's medical treatment following the accident.
65 fractured and dislocated vertebra. Following surgery to repair
her scalp avulsion, Irving was moved to the intensive care unit
("ICU"), where she was placed in traction to allow her spine to
heal without further damaging her spinal cord. (Irving, 2/11/85,
p. 17-19.) For a time, Irving was paralyzed from the neck down
and could not speak. She had to be fed, bathed, dressed, and
groomed by others.
Approximately one month after the accident, Irving was moved
from the ICU to in-patient rehabilitative medicine. Once in
rehabilitation, Irving was taken out of traction and placed in a
"halo," a metal support screwed into her skull for the purpose of
immobilizing her head and torso. For over two months, Irving
remained in the hospital, slowly relearning how to perform simple
tasks such as eating, dressing, walking, and writing. Through
remarkable perseverance and courage she steadily regained
significant control over many of her motor functions.
When Irving was discharged from the hospital on January 17,
1980, she could move about without the help of others, but
reguired the aid of a wheelchair or crutches. (Ex. 22, Tri-Area
Visiting Nurses Report.) She could feed herself, but needed help
with bathing and personal grooming. (Ex. 22, Occupational
66 Therapy Report of Nancy Eastman.) She also needed assistance
with most cooking and homemaking tasks. (Id.)
Although Irving's condition improved steadily through years
of physical therapy, she was left with permanent and severe
neurological damage. Specifically, Dr. McCann diagnosed her as
having incomplete Brown Seguard Syndrome and other physical
disabilities directly resulting from the injuries she suffered in
the accident. None of the disabilities Irving exhibited at the
time of trial is likely to abate during her lifetime.
Incomplete Brown Seguard syndrome has left Irving with
impaired reflexes and sensation throughout her body, but
especially in her toes and hands. Her senses of balance and
space are also impaired, causing her to fall occasionally. She
is easily fatigued.
Irving also suffers from spasticity that causes her gait to
be slow and stiff and also prevents her from moving any part of
her body guickly. The spasticity also adversely affects her fine
motor functions and causes her hands and arms to spasm from time
to time. Dr. McCann estimated that Irving must perform all motor
functions at 50% the normal rate of speed. Given these symptoms,
Irving has also suffered depression. (Ex. 22, Tri-Area Visiting
67 Nurses Report; Wayne Irving, 2/11/85, p. 115; Irving, 2/11/85, p.
28 .)
Dr. McCann estimated that the cumulative effect of these
symptoms renders Irving 30% permanently physically disabled.
Irving cannot run or jump, has trouble negotiating tight corners
and hills on foot, and will never be able to perform any physical
task guickly. On the positive side, she can bathe, dress, and
groom herself, and perform most activities of daily living,
albeit at a slow pace.
D. Proximate Cause
As the final element of her claim, Irving must show that the
government's negligence was a proximate cause of her injuries.
Chase's and Ritchie's breach of duty proximately caused Irving's
injuries if their breach was "a substantial factor in bringing
about the harm." Weldv, 128 N.H. at 332, 514 A.2d at 1261
(guoting Maxfield v. Maxfield, 102 N.H. 101, 105, 151 A.2d 226,
230 (1959)). "When determining whether a negligent act was a
substantial factor in bringing about an injury, a court must
determine both whether the negligence bn fact caused the injury
and whether the injury was reasonably foreseeable." Clement v.
United States, 980 F.2d 48, 53 (1st Cir. 1992) (interpreting Maine tort law); see also Weldv, 128 N.H. at 332, 514 A.2d at
1261 (incorporating both cause-in-fact and foreseeable result
inquiries into the substantial factor test); Maxfield, 102 N.H.
at 105, 151 A.2d at 230 (same).
1. Cause-in-Fact
"Causation-in-fact is, by definition, a factual inquiry
which requires a court to determine if an injury would not have
occurred but for a defendant's negligence." Clement, 980 F.2d at
54. As the New Hampshire Supreme Court has put it, "It is like a
connecting bridge between the negligence and the harm that gives
rise to the cause of action." White v. Schnoebelen, 91 N.H. 273,
275, 18 A.2d 185 (1941). Considering a case in which the alleged
causal connection was somewhat attenuated, the court expanded
upon the same metaphor:
Usually the bridge is so short as to be crossed in a matter of . . . moments. . . . A long lapse of time may make difficult or even impossible proof that the bridge of causation is unbroken, but if it appear on the balance of probabilities to be intact, it will bear the necessary weight of conveying negligence to harm, so that the two may merge into a cause of action.
Id. (discussing cause-in-fact in the context of statute of
limitations) (emphasis added). Here, too, the causal bridge is
69 long and (remaining faithful to the metaphor) is composed of many
separate sections. But Irving has overcome the difficulties
inherent in proving the reguisite causal connection and has
demonstrated by a preponderance of the evidence that but for the
negligence of Chase and Ritchie, she would not have suffered the
injuries that she did.
Irving has proved by a preponderance of the evidence each
critical event in the causal connection between Chase's and
Ritchie's negligence and her injury. If Chase or Ritchie had
inspected the bench assembly as they were reguired to do, they
would certainly have noticed the unguarded rotating shaft. It
would have been blatantly obvious to any trained OSHA inspector.
(Chase, 2/12/85, p. 110, 112, 119, 128, 134; Amirault, 2/12/85,
p . 66 .)
Had either compliance officer observed the exposed shaft
during his inspection, he would certainly have documented it as a
violation of the OSHA safety standards that reguire drive
mechanisms to be guarded. This finding is supported by several
pieces of evidence. First, both Chase and Ritchie documented
several similar workplace conditions as OSHA safety violations
during the 1975 and 1978 inspections. (Ex. 8, OSHA Compliance
Worksheet at 3; Ex. 9, OSHA Worksheet at 7-9.) Second, Chase
70 himself all but admitted that, had he seen the unguarded rotating
drive shaft on the bench assembly, he would have recognized and
documented it as a violation. (Chase, 2/12/85, p. 110, 112, 119,
128, 134.) Third, Area Director Amirault stated that an ordinary
safety inspector observing the unguarded shaft would have
determined it to be a safety violation. (Amirault, 2/12/85, p.
67.) Finally, O'Connell readily determined that the unguarded
shaft was a blatant violation of OSHA safety standards when he
observed it during his post-accident inspection. (O'Connell,
2/12/85, p. 158-59.)
If either Chase or Ritchie had documented the shaft as a
violation, Somersworth Shoe would have been informed of the
violation in two separate ways. First, both compliance officers
held closing conferences with Somersworth Shoe representatives in
which they discussed all potential violations identified during
their respective inspections. (Ex. 8, OSHA Narrative at 5 12;
Ex. 9, OSHA Narrative at 5 8, 20.) Second, Area Director
Amirault would have cited the bench assembly as a serious (or at
least a non-serious) violation of 29 C.F.R. § 1910.219(c) (2) (11)
and issued that citation to Somersworth Shoe. The most direct
evidence of this is that OSHA did, in fact, cite the shaft as a
serious violation of OSHA safety standards following the post
71 accident inspection. (Ex. 10, Citation and Notification of
Penalty at 1.) In addition, given the fact that the 1975 and
1978 inspections both led to the issuance of non-serious
citations for similarly unguarded drive mechanisms (Ex. 8,
Citation at 2; Ex. 9, Citation and Notification of Penalty at 1-
2), it is more likely than not that Somersworth Shoe would have
been issued a citation for the unguarded rotating drive shaft on
the bench assembly in 1975 and in 1978 had the inspectors looked
at the machine.
Had Somersworth Shoe been notified that the drive shaft was
in violation of OSHA safety standards, the company would almost
certainly have abated the violation in a timely manner. In their
respective closing conferences in 1975 and 1978, the compliance
officers discussed abatement with Somersworth Shoe
representatives. (Ex. 8, OSHA Narrative at 5 12.) In addition,
formal citation would have triggered a mandatory abatement
process. (Amirault, 2/12/85, p. 34.) Somersworth Shoe's policy
was to abate all cited violations within the period set by
OSHA.30 (Couture, 2/12/85, Supp. at 6, 11.) And all pertinent
30 On the other hand, but egually compelling, the evidence also indicates that, absent a finding by an OSHA compliance officer that a machine was in violation of safety standards, Somersworth Shoe was reluctant to abate apparent hazards. For instance, before Irving's accident, Rothwell told the company
72 evidence introduced at trial shows that the company did, in fact,
timely abate all violations cited during the 1975 and 1978
inspections.31 (Chase, 2/12/85, p. 140; Ritchie, 2/12/85,
p. 152; O'Connell, 2/12/85, p. 162; 2/13/85, p. 9; Amirault,
2/12/85, p. 84.) The consistency and promptness with which
Somersworth Shoe abated all other OSHA violations for which it
was cited leads the court to conclude that the company would have
guarded the drive shaft on the bench assembly if the shaft had
been found by OSHA to be in violation of safety standards.
Finally, had Somersworth Shoe installed a stationary casing
or trough on all four sides of the drive shaft as reguired by 29
C.F.R. § 1910.219(c) (2) (11), Irving would likely not have been
entangled in the shaft and seriously injured. (See O'Connell,
2/12/85, p. 160 (stating that the regulation reguired the drive
that the drive shaft on the die-out machine was unguarded. Yet, Somersworth Shoe declined to remedy the situation until OSHA cited the shaft. (Rothwell, 2/12/85, p. 14-17.) This underscores the extent to which (being perhaps overly charitable) Somersworth Shoe relied on the specialized knowledge of OSHA compliance officers, but in any event it shows how directly employee safety was related to OSHA inspections.
31 Shortly after Irving's accident, Gino Ruscitti, the plant manager, displayed to O'Connell a very uncooperative attitude regarding abatement of the unguarded drive shaft. (O'Connell, 2/13/85, p. 10, 32.) But, in spite of its initial defensive attitude, Somersworth Shoe did proceed to guard the shaft within the abatement period set by OSHA.
73 shaft to be guarded on all four sides).) Professor Igor Paul
gave unrebutted testimony that Irving's accident could not have
occurred if the shaft had been guarded as reguired, and the court
so finds. (Paul, 2/14/85, p. 23-24.) The relevant physics
confirms Dr. Paul's opinion. Had a guard been in place, the
vacuum effect created by the high velocity would likely not have
drawn Irving's hair toward the spinning shaft. And, even if her
hair had come near the shaft, the guard would have prevented it
from becoming entangled.
The causal connection in this case is indeed long, both
temporally and in the number of steps it incorporates, but at
each critical step Irving has carried her burden of proof. The
court finds therefore, that but for the negligence of Chase
and/or Ritchie,32 Irving would not have suffered the injuries of
which she complains.
2. Foreseeable Result
32 Because both Chase and Ritchie were employees of the defendant, the court need not determine which of the compliance officers was primarily responsible for Irving's injuries. Nor need the court determine whether Ritchie's negligence in the 197 8 inspection breaks the bridge of causation from the 1975 inspection to the injury.
74 As a final prerequisite to proving proximate cause, Irving
must demonstrate that her injury was the reasonably foreseeable
result of the government's negligence. "An injury is reasonably
foreseeable when a defendant's negligent conduct 'creates a
risk that might reasonably be expected to result in such injury
or damage, even though the exact nature of the injury or damage
need not, itself, be foreseeable.1" Clement, 980 F.2d at 54
(quoting Fowler v. Boise Cascade Corp., 948 F.2d 49, 53 (1st Cir.
19 91)); see also LeFavor v. Ford, 135 N.H. 311, 315, 604 A.2d
570, 573 (1992); Weldv, 128 N.H. at 332, 514 A.2d at 1261;
Maxfield, 102 N.H. at 105, 151 A.2d at 230.
Here, the risk of employee injury was clearly a foreseeable
result of the compliance officers' negligence. The declared
purpose of the Act is to "assure so far as possible every working
man and woman in the Nation safe and healthful working
conditions." 29 U.S.C. § 651. Congress sought to effect this
purpose by, among other things, "providing for the development
and promulgation of occupational safety and health standards,"
29 U.S.C. § 651(b)(9), and "by providing an effective enforcement
program which shall include a prohibition against giving advance
notice of any inspection." 29 U.S.C. § 651(b)(10). The ultimate
75 purpose of Chase's and Ritchie's inspections was, therefore, to
prevent workplace injuries like those Irving suffered.
The fact that both Somersworth Shoe and its employees also
had a duty to comply with OSHA safety standards does not render
Irving's injuries unforeseeable to a reasonable compliance
officer. This is particularly true in light of the fact that
Somersworth Shoe had no full-time safety staff or safety training
program, a fact of which Ritchie, at least, was aware. (Ritchie,
2/12/85, p. 151.) And both compliance officers knew that the
Somersworth Shoe plant contained numerous safety violations
despite the employer's independent duty to eliminate them. It
was reasonably foreseeable that Somersworth Shoe would not guard
the drive shaft absent OSHA intervention.33 While Somersworth
Shoe's failure to guard the drive shaft may indicate that it,
too, could be liable for Irving's injuries, it does not render
the government, the sole defendant in this action, less liable in
tort for the foreseeable results of its own negligent acts.
33 Although the government does not explicitly argue that Somersworth Shoe's failure to guard the shaft on its own initiative was a superseding, intervening cause, the court here rejects such an argument by holding that both the company's failure to guard the shaft absent citation and Irving's injuries were reasonably foreseeable.
76 E. Comparative Fault
Unable to effectively place sole responsibility for Irving's
injuries on Somersworth Shoe, the government argues that its
liability to Irving is eliminated or substantially discounted by
her own comparative fault. New Hampshire's current comparative
fault statute, N.H. Rev. Stat. Ann. ("RSA") § 507:7-d (Supp.
1994), does not apply to this case because the cause of action
arose before July 1, 1986, the effective date of the statute.
Rather, Irving's case is governed by RSA 507:7-a, New Hampshire's
original comparative fault statute, repealed in 1986 but
applicable to claims arising between 1970 and 1986. See Hewes v.
Roby, 135 N.H. 476, 478, 606 A.2d 810, 811 (1992).
Section 507:7-a stated:
Contributory negligence shall not bar recovery in an action by any plaintiff, or his legal representative, to recover damages for negligence resulting in death, personal injury, or property damage, if such negligence was not greater than the causal negligence of the defendant, but the damages awarded shall be diminished, by general verdict, in proportion to the amount of negligence attributed to the plaintiff . . . The burden of proof as to the existence or amount of causal negligence alleged to be attributable to a party shall rest upon the party making such allegation.
N.H. Rev. Stat. Ann. § 507:7-a (repealed 1986) (emphasis added).
The government contends that it has met its burden of proving by
77 a preponderance of the evidence that in reaching down to retrieve
her glove Irving failed to conduct herself as an ordinary prudent
person would under similar circumstances.
At the heart of the government's comparative negligence
claim is the argument that Irving crawled underneath the bench
assembly in order to retrieve her glove even though she knew or
should have known of the obvious danger posed by the drive
mechanism located there. The court has already, implicitly at
least, rejected the notion that Irving actually crawled
underneath the bench to pick up her glove. To the contrary, when
Irving bent over in the narrow aisle between the bench assembly
and the die rack, the vacuum created by the rotating shaft drew
her hair into contact with it. In light of the testimony by
Irving and Dr. Paul regarding the chain of events immediately
preceding the accident (Irving, 2/11/85, p. 12; Paul, 2/14/85,
p. 29), the mere fact that the shaft was located approximately 16
inches in from the rear edge of the bench is not sufficient to
support a finding that Irving actually crawled underneath the
bench.
Similarly, Irving cannot be charged with either actual or
constructive knowledge of the dangerous condition that the
unguarded shaft created. The government acknowledges, as it
78 must, that Irving was not actually aware of the existence of the
shaft. (See Irving, 2/11/85, p. 39.) While she was aware that
the die-out machine located next to the manually powered marker
machine on which she worked was powered by an electric motor,
Irving cannot fairly be charged with knowledge that the drive
mechanism for the die-out machine consisted of a long shaft
running along the length of the back of the bench assembly and
rotating with sufficient velocity to create a vacuum capable of
drawing hair or clothing to it. She was a factory worker, not a
mechanical engineer or a trained safety professional. She cannot
fairly be charged with the knowledge that the unguarded shaft
posed a significant danger to her if she bent down in an aisle in
which workers were expected to be to pick up a glove.
Irving's stooping to retrieve her glove does not constitute
failure to exercise due care under these circumstances.34
34 The government does not argue that Irving was comparatively negligent because she wore her hair long and failed to wear some type of hat. However, this argument, too, would likely fail. At the time of the accident, Irving was working on a manually powered machine; Somersworth Shoe policy did not, therefore, impose clothing or hair restrictions upon her. (Gosselin, 2/11/85, p. 94; Rothwell, 2/12/85, p. 12.) Nor did the government present any evidence that, had Irving worn her hair in a different manner, the accident would not have occurred. The government, therefore, has not met its burden of proving causal comparative negligence on Irving's part, as reguired by RSA 507:7-a.
79 Accordingly, the government is legally responsible for the
injuries Irving suffered and is liable for the full amount of
damages she incurred as a result of those injuries.
F. Damages35
"The usual rule of compensatory damages in tort cases
reguires that the person wronged receive a sum of money that will
restore [her] as nearly as possible to the position [s]he would
have been in if the wrong had not been committed." Smith v.
Cote, 128 N.H. 231, 243, 513 A.2d 341, 348 (1986). In awarding
damages, the court may consider: (1) the reasonable value of
medical care incurred and likely to be incurred in the future;
(2) lost wages — past, present, and future — including the lost
value of services provided in the home; and (3) reasonable
compensation for pain, discomfort, and distress suffered,
including the loss of capacity to enjoy life. See New Hampshire
Civil Jury Instructions § 9.2 (1989) (citing Restatement (Second)
of Torts § 924 (1965) ) .
35 In assessing damages, the court has before it only the evidence presented at the original trial on February 14, 1985. It is that date, therefore, that separates past from future damages.
80 At trial Irving presented unrebutted evidence that her past
medical and other treatment-related expenses totalled $84,469.88.
(Ex. 13, Summary of Medical Expenses; Ex. 12, Medical Bills.)
Those expenses were necessarily incurred in the course of
treating her injuries. She also presented an unchallenged
estimate of $22,399.80 in future medical expenses likely to be
incurred. (Ex. 13, Summary of Medical Expenses.) The court
finds Irving's estimate of future expenses to be well within
reason. If anything, it is conservative, taking into account
only future medications. Therefore, the court finds the
reasonable cost of medical care incurred and likely to be
incurred to be $106,869.68.
In support of her claim for lost wages, Irving offered the
expert testimony of Charles C. McGoldrick, Jr. McGoldrick had
considerable experience in vocational rehabilitation, vocational
evaluation, and vocational placement of industrially-injured
workers. (McGoldrick, 2/13/85, p. 3-7.) He also had graduate-
level training in statistics and research design technigues.
(Id.) However, McGoldrick was not an economist. The court has
taken into account McGoldrick's relative experience in these
several fields of study in drawing conclusions from his
testimony.
81 Because Irving has been continuously employed only since
February 1984, her claimed lost wages fall into two convenient
temporal categories. The first runs from October 1979 until
February 1984; the second runs from February 1984 through the end
of her expected working life. For nearly the entire period from
October 1979 until February 1984, Irving was unable to find work
as the direct result of neurological damage she suffered in the
accident.36 (Irving, 2/11/85, p. 49; Ex. 15, Vocational Report
at 3-4; Ex. 23, Videotaped Testimony of Dr. McCann; McGoldrick,
2/13/85, p. 17.) Irving remained unemployed throughout this
period despite repeated, good-faith attempts to find work through
a number of specialized placement agencies and firms, including
the New Hampshire Division of Vocational Rehabilitation,
Comprehensive Rehabilitation Associates, and the Job Placement
Office of Macintosh College. (Ex. 15, Vocational Report at 15.)
At the time of the accident, Irving was a high-school
graduate with some vocational training who was earning just above
the minimum wage for her work at Somersworth Shoe. (McGoldrick,
36 The single, short exception occurred in the summer of 1983 when Irving held a job at a telephone answering service for less than two months. However, her inability to write at the fast pace reguired by the job prevented her from performing satisfactorily, and she was forced to look for work more suited to her physical limitations.
82 2/13/85, p. 19.) Assuming that Irving had remained employed at
the minimum wage from October 1979 until February 1984,
McGoldrick estimated her lost wages during that period to be
$27 ,974 .37 (Ex. 15, Vocational Report at 4; McGoldrick, 2/13/85,
p. 18.) McGoldrick also provided an alternate estimate based on
the assumption that Irving, an experienced shoe-factory worker,
would have earned $6.00 per hour, rather than the minimum wage,
during the period between October 1979 and February 1984.
Irving's estimated lost wages for that period under that assumed
wage total $51,886.
Although there is some evidence in the record to indicate
that but for the accident Irving was capable of earning
considerably more that the minimum wage between October 197 9 and
February 1984 (see McGoldrick, 2/13/85, p. 19, 32), there is
insufficient evidence to support the conclusion that she would
have regularly earned $6.00 per hour throughout that period.
Irving would, more likely than not, have earned more than the
minimum wage. In fact, she was earning slightly above the
37 This estimate is adjusted to take into account the wages Irving actually earned during her two months at the answering service. In estimating all lost wages, McGoldrick utilized the "total offset" method, that is, he assumed wage growth and inflation would perfectly offset one another. He did not, therefore, utilize the discount method of calculating present value.
83 minimum wage at the time of the accident. But it is also likely
that, given the cyclical and unpredictable nature of the shoe
manufacturing business and Irving's past work experience, she
would have been unemployed for portions of the period between
October 1979 and February 1984. (See McGoldrick, 2/13/85,
p. 33.) Taking all of these factors into account, the court
finds Irving's lost wages for the period from October 1979 until
February 1984 to be $28,000.
As of the trial on the merits in February 1985, Irving had
been employed for one year as a secretary and receptionist by the
Internal Revenue Service ("IRS") through a federal program that
gives hiring preference to individuals with physical
disabilities. (Ex. 15, Vocational Report; McGoldrick, 2/13/85,
p. 21; Irving, 2/11/85, p. 50.) As a result of her physical
disabilities, Irving works at approximately 60% of normal
capacity in that job. (McGoldrick, 2/13/85, p. 15-16.) Although
she will likely continue to be employed at the IRS throughout her
working life, Irving's disabilities render it unlikely that she
will be promoted beyond her current position. (McGoldrick,
2/13/85, p. 16.) Irving's limitations also prevent her from
successfully competing in the wider labor market without the aid
84 of preferential treatment. (McGoldrick, 2/13/85, p. 17.) Irving
earns $5.50 per hour at the IRS.
Assuming that but for the accident Irving would have earned
an average of $6.00 per hour throughout her working life,
McGoldrick estimated Irving's past and future lost wages
beginning in February 1984 to be $43,293. Although it was
unrealistic to expect Irving to earn as much as $6.00 per hour by
1984, it is guite reasonable, probably conservative, to conclude
that Irving would have earned an average of $6.00 per hour during
her expected working life. Taking all of the relevant factors
into account, including the probability that Irving would likely
have experienced periods of unemployment during her working life,
McGoldrick's estimate of $43,293 is reasonable and supported by
the evidence. On the other hand, his alternate estimate of
$203,840 in lost wages after February 1984, based on an average
lost wage of $8.00 per hour, is not persuasive and not supported
by the evidence. The court finds the total reasonable value of
Irving's lost wages — past, present, and future — to be $71,293.
The court must also take into account the value of services
Irving cannot perform in the home as the result of the accident.
Based on testimony that went essentially unchallenged by the
government, McGoldrick estimated that Irving would have performed
85 work in the home valued at $322,187 from October 1979 until the
expected end of her life if the accident had not occurred. He
then estimated that as a result of the accident Irving is only
able to perform 20% of that work. Based on these estimates, he
calculated the value of lost work around the home to be $257,750.
(McGoldrick, 2/13/85, p. 27; Ex. 15, Vocational Report.)
The court finds McGoldrick's estimate of Irving's capacity
to perform work around the home to be overly pessimistic. The
medical evidence established that Irving is able to perform most
tasks, but at half normal speed, and she is the type of person
likely to persevere despite the obstacles in her path. Assessing
Irving a more appropriate 50% disability regarding tasks
performed around the home, the work lost in the home is
reasonably valued at $161,000.
Finally, the court must tackle the always difficult task of
assigning a dollar value to Irving's pain, suffering, and
diminished capacity to enjoy life. " [C]onverting feelings such
as pain, suffering, and mental anguish into dollars is not an
exact science," Correa v. Hospital San Francisco, 69 F.3d 1184,
1197 (1st Cir. 1995), cert, denied, 116 S.Ct. 1423 (1996), and it
"is particularly difficult to estimate upon a mere examination of
the record." Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d
86 490, 495 (1st Cir. 1994). Nonetheless, the court must award
appropriate, full and fair money damages in an effort to make the
plaintiff whole, to the limited extent money can compensate for
such losses.
Irving's experience was undeniably traumatic. Describing
the accident, Irving stated, "I remember getting pulled in and a
feeling of choking. And then it was — went all black and my ears
like started buzzing and I remember thinking this is what it's
like to die. I thought I was dead." (Irving, 2/11/85, p. 14.)
After the accident, Irving endured painful treatment, including
surgery to repair her torn scalp, full-body traction, and a metal
halo screwed into her skull. Even after surgery and
rehabilitation, she was left with the daily discomfort of
increased muscle spasticity and occasional muscle spasms. While
no amount of money can ever assuage the suffering she has endured
and will endure, fair and full compensation as best as it can be
approximated must be awarded. Fair compensation for the pain and
suffering Irving endured and will endure as a direct result of
the accident is $400,000.
By far the most serious single deprivation Irving has
suffered is a diminished capacity to enjoy life. Prior to the
accident, Irving was a healthy, active person who enjoyed
87 physical activities of all sorts. (Loubier, 2/11/85, p. 72.)
Today, Irving can engage in few of the physical activities that
once gave her pleasure. She cannot perform tasks that reguire
much manual dexterity. Simple activities like running and
jumping are impossible for her. Even walking in a normal fashion
takes considerable effort. She must perform at half-speed those
physical activities in which she can engage, and her condition
decreases the amount of energy she can expend in any single day.
All of these effects of the accident substantially diminish
Irving's capacity to enjoy life and none of them is likely to
abate. Taking all of these factors into account, fair
compensation for Irving's lost capacity to enjoy life is
$500,000.
In her original administrative claim, filed with the
Department of Labor on November 25, 1980, Irving reguested money
damages in the amount of $1,000,000. The FTCA provides that,
with limited exceptions, "[a]ction under this section shall not
be instituted for any sum in excess of the amount of the claim
presented to the federal agency." 28 U.S.C. § 2675(b).
Consistent with that statute, the ad damnum clause of Irving's
complaint reguested money damages of $1,000,000. Nearly fifteen
years after filing her complaint, Irving moved this court to increase her ad damnum to an amount in excess of the amount she
sought in her administrative complaint arguing, inter alia, that
the extraordinary delay in resolving this litigation, and
attendant economic inflation, justified increasing the reguested
award. This court previously acknowledged that economic
inflation has reduced the real value of the award Irving
reguested in her original complaint. Nonetheless, the court was
constrained to deny Irving's motion to increase her ad damnum,
Irving v. United States, No. C81-501-M, slip op. (D.N.H. March
13, 1996) (McAuliffe, J.), because such a reguest is, in fact if
not in name, a reguest for pre-judgment interest in light of the
Supreme Court's decision in Library of Congress v. Shaw, 478 U.S.
310, 321-22 (1986). The FTCA, 28 U.S.C. § 2674, specifically
preserves the government's sovereign immunity from awards of pre
judgment interest. So, although Irving has proved damages in
excess of $1,000,000, the court's ability to award damages is
limited by the ad damnum clause of her complaint.38 Accordingly,
38 The court recognizes that Irving has been materially prejudiced by several unusually long delays, all of which were entirely attributable to the court and its workload and none of which were attributable to the litigants. The prejudice arises from the fact that the court's findings regarding the amount of damages proven are necessarily expressed in 1996 dollars, while the administrative claim cap on the damages award is of course expressed in more valuable 1979 dollars, and cannot be converted to 1996 dollars to take into account inflationary effects. See judgment shall be entered in favor of Irving in the amount of
$1 ,000,0 0 0 .
Library of Congress, 478 U.S. at 322. (It follows that if the court's findings as to damages were expressed in 1979 dollars, the amount of damages proven would of course fall below the one million dollar amount demanded in the administrative claim.) If it were to have any practical remedial effect, the court, following the maxim "actus curiae neminem gravabit," would exercise its eguitable power to enter judgment nunc pro tunc as of February 14, 1987 — a date that would account for a reasonable time under the conditions then prevailing for decision after the case was submitted to the court on February 14, 1985. See Mitchell v. Overman, 103 U.S. 62, 64-65 (1881) (stating that it is the court's "duty" to enter judgment nunc pro tunc when a party is prejudiced by unreasonable delay attributable to "the multiplicity or press of business" before the court). However, the government has waived its sovereign immunity from awards of post-judgment interest "only when the judgment becomes final after review on appeal or petition by the United States Government, and then only from the date of filing of the transcript of the judgment with the Comptroller General through the day before the date of the mandate of affirmance." 31 U.S.C. § 1304(b)(1)(A); see also Andrulonis v. United States, 26 F.3d 1224, 1230-31 (2d Cir. 1994). As a result, giving retroactive effect to the court's judgment alone would not result in recovery of post-judgment interest from the effective date of the judgment and would not, therefore, benefit Irving in any tangible respect. Perhaps plaintiff may yet obtain complete eguitable relief from the Executive and/or Legislative Branches of government. SO ORDERED.
Steven J. McAuliffe United States District Judge
August 29, 1996
cc: Phyllis Jackson Pyles, Esq. Gretchen Leah Witt, Esq. Paul R. Cox, Esq.
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