A private person who inspects a workplace can be held liable for injury or death due to hazards that should have been found and addressed. That is effectively what the Supreme Court of Appeals of West Virginia recently held in answering a certified question posed by a U.S. Court of Appeals in need of advice on state law.

In Bragg v. U.S., the plaintiffs sought damages for the death of two miners who succumbed to carbon monoxide in a coal mine fire. The case was brought against the U.S. government under the Federal Tort Claims Act (FTCA) for negligent inspection by the Mine Safety and Health Administration (MSHA). According to the federal court, inadequate safety measures included:

  • Non-matching threads on a fire hose that prevented coupling to the water outlet;
  • A main water valve that was closed, cutting off water to the fire area;
  • Ventilation controls that allowed smoke to flow into emergency escapeways;
  • Lack of functioning carbon monoxide detectors; and
  • Malfunctioning communications equipment.

For such a claim to proceed, it must be determined that a private person could be held liable for negligent inspection in the state where the accident occurred. As the West Virginia court noted:

Under the FTCA, the United States’ sovereign immunity is waived for torts committed by federal employees acting within the scope of their employment “under circumstances where the United States, if a private person, would be held liable to the claimant in accordance with the law of the place where the act or omission occurred.”

A U.S. postal truck colliding with another vehicle is an easy example of when the federal government can be sued. On February 5, 2013, the West Virginia Supreme Court determined for the inquiring federal court that, in West Virginia, a private person could be held liable for negligent safety inspection of a workplace.

Private Person Liability

The state court cited no case directly on point, but concluded: “In matters of negligence, liability attaches to a wrongdoer, not because of a breach of a contractual relationship, but because of a breach of duty which results in an injury to others.” The court cited the following four case examples to support its conclusion.

  • A builder of a home was subject to suit by a second owner of the home for repeated flooding problems.
  • An engineering firm was subject to suit because a road it designed for access to a business premises from a public highway was claimed to be faulty.
  • A design firm was subject to suit by a contractor who suffered costly delays in constructing a sewer line due to rocky substrata and underground utilities that had not been disclosed in plans and specifications.
  • A property owner was subject to suit by a cable installer who fell from a utility pole on private property that was faulty due to negligence of an electrician previously engaged by the property owner to work on the pole.

All of these involve persons who undertook affirmative actions––to design, construct, or see to proper performance of contracted work—and thereby owed a duty of care to the beneficiaries of those services. Exactly who is a beneficiary and why was not explained by the court. In any event, none of the examples seems to equate to after-the-fact inspections.

Inspectors think of themselves as a helpful extra pair of eyes—not creators or guarantors of safe conditions. If private inspectors are to be held liable for not looking in certain places, not checking specific things, or not catching what they simply miss, companies may encounter new difficulties in engaging private inspectors­­.

While the Bragg case is about federal liability, the West Virginia Supreme Court’s opinion draws a road map for suits against private parties for alleged negligent inspections. Although not prime actors, such persons have been brought under a liability spotlight as if they were prime actors.

Federal Liability

A seminal case on federal liability also involves an affirmative undertaking. In 1955, the U.S. Supreme Court ruled in Indian Towing Company that the owner of a tug boat that went aground could sue the government under the FTCA. The court pointed to affirmative undertakings by the government—active facility operation (distinct from inspection only). As the court stated:

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain the light was kept in good working order; and if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to the petitioners, the United States is liable under the Tort Claims Act.

The Bragg case is based on admissions by MSHA in its official report:

MSHA’s investigation…revealed the inadequacies of its own previous inspections of the Mine. For example…MSHA inspectors … failed to “identify and cite numerous violations that were in existence, neither did they require the mine operator to take corrective actions. *** Accordingly, MSHA determined that its own inspectors were at fault for failing to identify or rectify many obvious safety violations that contributed to the fire.


It is often said that “bad facts make bad law.” This may be one of those cases. What was at issue in Bragg was whether the federal government could be liable. For this, the state court had to find that a private person could be liable. And that is what the court did. This is not the end of the story. Inevitably, the state court’s opinion will be cited against federal inspectors or private inspectors, not only in West Virginia, but in other states as well––wherever plaintiffs may claim injury due to negligent inspection.

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