Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 1742 -- George N. Leighton, Judge.
Bauer, Wood, and Eschbach, Circuit Judges. Bauer, Circuit Judge, dissenting.
Plaintiff, Donna M. Hylin, appeals from the judgment of the district court in favor of defendant, the United States, in an action brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (FTCA). The district court found that the allegedly negligent acts and omissions of federal mine inspectors were not the proximate cause of death of plaintiff's husband, Donald Hylin. The government supports this finding, but, contrary to the district court's ruling, also argues that federal regulatory enforcement activities, conducted under the authority of the Federal Metal and Nonmetallic Mine Safety Act, 30 U.S.C. § 721 et seq. (1976) (Mine Safety Act), cannot give rise under these circumstances to a cause of action under the FTCA. We reverse the district court's finding with respect to proximate cause and hold that plaintiff is entitled to recovery under the FTCA.
The facts in this case are largely undisputed. Donald Hylin, a twenty-year employee of the Ristokrat Clay Products Company, a business engaged in mining clay and manufacturing clay bricks in the State of Illinois, was electrocuted on September 1, 1977 when he came into contact with a defective electrical junction box in a conveyor room at the mine. The box was located on the east wall of a passageway connecting the grinding room with a dust bin area. Running the entire length of the passageway was a conveyor belt which carried the mined clay. On both sides of the belt were narrow walkways. The walkway on the east side ran the entire length of the conveyor and up the incline to the dust bin area. The walkway on the west side only extended to the incline ramp. Each walkway, at the time of the accident, was separated from the conveyor belt by newly erected handrails which are at issue in this case and which were erected by the mine in an attempt to comply with a citation resulting from a federal inspection. The clearance between the junction box, located approximately halfway down the east walkway, and the handrail on that side of the conveyor was reduced to about fourteen inches by the new handrails.
At the time of Hylin's death, and for many previous years, the junction box was in damaged and dangerous condition and in violation of federal standards.*fn1 The cover of the box lacked effective means to keep it closed, the wires entering the box were inadequately insulated where the conductors entered the box, and there were two holes in the cover of the box that had been caused by a short circuit or ground fault some seven or eight years prior to Hylin's death.
As a clay mine operation, Ristokrat was subject to the jurisdiction of the Mine Enforcement and Safety Administration (MESA). It was MESA's function, under the authority of the Secretary of the Interior, to enforce the provisions of the Mine Safety Act as amended, including the mandatory safety standards promulgated thereunder and published under Title 30, Part 55 of the Code of Federal Regulations. On February 10 and 11, 1977, several months before Hylin's death, the mine was inspected, pursuant to the Act, by MESA inspectors Donald Johnson and John Guthrie. Neither during this regular inspection nor at a follow-up spot inspection conducted on March 1, 1977, did MESA inspectors inspect the junction box although they observed it and saw its dangerous condition. The inspectors also noticed that the conveyor belt was unguarded and that the workers had a practice of crossing over the conveyor while the belt was in use. The inspectors cited the mine for a violation of 30 C.F.R. § 55.9-7 which required that all conveyors either have guards or be equipped with emergency stop devices.*fn2 Notice was given of the violation with directions that the condition be abated.*fn3
The nature of the continuous processing of clay dust from the grinding operation to the conveyor to the dust bins rendered the installation of an emergency stop device on the conveyor infeasible. The use of a stop device would result in clay piling up on the conveyor and jamming the machines. At the time of the citation, the infeasibility of using the stop device was explained by mine personnel to inspector Guthrie who acknowledged that the handrail therefore necessarily would be the mine's response to the Notice of Violation. The mine, with the inspectors' knowledge, subsequently constructed two-by-four handrails along both sides of the conveyor.*fn4
At the time of the inspection, the senior MESA inspector, Johnson, was aware from observing footprints and from conversations with Ristokrat's employees that it had been the employees' previous custom to travel from the grinding room to the dust bin area by walking along the west side of the conveyor, crossing the conveyor, and then walking up the incline ramp; this route was preferred to the east walkway because it was wider and not obstructed by chutes and the electric junction box. After the handrails were constructed pursuant to the MESA citation, the workers were forced to traverse the narrower east passageway that was already partially obstructed by the junction box; the construction of the handrails further narrowed the clearance in the passageway between the box and the conveyor by at least four inches. It was in the course of following this newly necessitated route that plaintiff was electrocuted by the junction box.
The plaintiff, individually and as administratrix of her husband's estate, sued the United States under the FTCA for the alleged negligence of the MESA inspectors. Plaintiff's first contention was that the negligent failure of the inspectors to observe and cite for corrections the dangerous electrical junction box caused her husband's death. Alternatively, she claimed that the enforcement of the mandatory safety standard requiring handrails, recognized by both the mine owner and the inspectors as the only practical solution, had either created or increased the risk of injury from the defective junction box.
The district court, without a jury, tried only the liability issue. The government offered no evidence.
The court ruled in favor of the government on both liability theories proffered by the plaintiff -- negligent failure to inspect, and negligent enhancement of risk. With regard to the latter theory, the court concluded that there was no evidence that the defendant had ever enhanced the risk of electrocution by ordering erection of the handrail and that the evidence instead showed that the erection of the handrail resulted from Ristokrat's choice. The district court further held that the erection of the handrail was not a proximate cause of plaintiff's death. With respect to the first theory -- negligent failure to inspect and cite -- the district court did not explicitly determine whether the inspectors' failure was negligent, but instead held that the plaintiff's death was not proximately caused by the defendant's failure to inspect but rather by Ristokrat's negligence in maintaining the box in defective condition.
Plaintiff appeals from the district court's finding with respect to both theories, arguing that the evidence clearly establishes negligence and proximate cause. The defendant argues that the district court's determination regarding proximate cause was correct, but argues further that, even if it were not correct, the Federal Mine Safety Act creates no duty or reliance between the defendant and the plaintiff or the mine sufficient to support a finding of negligence under Illinois tort law, which is expressly made applicable by the FTCA.
The Federal Tort Claims Act renders the United States "liable . . . in the same manner and to the same extent as a private individual under like circumstances. . . ." 28 U.S.C. § 2674. The substantive law governing the imposition of liability in each FTCA case is "the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b). It is well established, moreover, that FTCA liability may be based even on conduct which is "uniquely governmental," such as inspection and certification, as long as the state in which the conduct occurred would recognize liability if the government tortfeasor were a private person. Indian Towing Co. v. United States, 350 U.S. 61, 69, 100 L. Ed. 48, 76 S. Ct. 122 (1955). While the government is correct in asserting that the violation of a duty created by a federal statute and its implementing regulations alone does not create an FTCA cause of action, Baker v. F. & F. Investment Co., 489 F.2d 829, 835 (7th Cir. 1973), the issue here is not the violation of a federal duty alone but whether the conduct complained of breached a duty existing under Illinois law. United Scottish Insurance Co. v. United States, 614 F.2d 188, 193 (9th Cir. 1982); Raymer v. United States, 660 F.2d 1136, 1140 (6th Cir. 1981). That the United States may thereby become liable under "novel and unprecedented forms of liability," United States v. Muniz, 374 U.S. 150, 159, 10 L. Ed. 2d 805, 83 S. Ct. 1850 (1962), does not undermine the FTCA's admonition that the government shall be liable "in accordance with the law of the place where the act or omission occurred." Thus, the first issue put before this court by the government is really whether Illinois law would permit the finding of negligence in this case if the United States were a private person. Blessing v. United States, 447 F. Supp. 1160, 1186 (E.D. Pa. 1978).
We think that the Illinois courts would permit a finding of negligence here under the plaintiff's second theory of liability -- the increase in risk of injury created by the MESA inspectors' effectively non-optional instruction to build a handrail which had, as we discuss infra, the foreseeable effect of diverting worker ingress to the dust bin past the dangerous junction box through a passageway which was further narrowed by the erection of the handrail. Because we find that Illinois law would permit a finding of negligence in this extraordinary instance of the positive creation of increased danger by an inspector, we need not determine today whether Illinois would recognize liability under the plaintiff's first -- and frankly more troubling -- theory of mere negligent failure to inspect the junction box and order correction.
The basis of liability under both of plaintiff's theories is the "good samaritan doctrine" as enunciated in the Restatement (Second) of Torts § 324A (1965) and adopted by the Illinois courts. Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 210, 35 Ill. Dec. 530, 399 N.E.2d 596 (1979) ("In assessing [the inspector's] duty in tort owed to Pippin as a result of its contract with the Authority, we find section 324A of the Restatement (Second) of Torts to be apposite."); Cross v. Wells Fargo Alarm Services, 82 Ill. 2d 313, 317, 45 Ill. Dec. 121, 412 N.E.2d 472 (1980); Chisolm v. Stephens, 47 Ill. App. 3d 999, 1005, 7 Ill. Dec. 795, 365 N.E.2d 80 (1st Dist. ...