Delorice Bragg v. United States

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2013 Term
FILED
February 5, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 12-0850 SUPREME COURT OF APPEALS
OF WEST VIRGINIA

DELORICE BRAGG, as Administratrix of the

Estate of DON ISRAEL BRAGG and

FREDA HATFIELD, as Administratrix of the

Estate of ELLERY HATFIELD,

Plaintiffs Below, Petitioners

UNITED STATES OF AMERICA,

Defendant Below, Respondent

Certified Question from The United States Court

of Appeals for the Fourth Circuit

Case No. 11-1342

CERTIFIED QUESTION ANSWERED

Submitted: October 17, 2012

Filed: February 5, 2013

Bruce E. Stanley R. Booth Goodwin, II
Reed Smith LLP United States Attorney
Pittsburgh, Pennsylvania Fred B. Westfall, Jr.
Attorney for the Petitioners Assistant United States Attorney
Charleston, West Virginia
Benjamin S. Kingsley
U.S. Department of Justice
Washington, District of Columbia
Attorneys for the Respondent
JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE BENJAMIN, deeming himself disqualified, did not participate.

JUDGE PAUL T. FARRELL, sitting by temporary assignment.

SYLLABUS BY THE COURT

1. “This Court undertakes plenary review of legal issues presented by

certified question from a federal district or appellate court.” Syllabus point 1, Bower v.

Westinghouse Electric Corp., 206 W. Va. 133, 522 S.E.2d 424 (1999).

2. “In the 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.” Syllabus point 2, Sewell v. Gregory, 179 W. Va. 585, 371

S.E.2d 82 (1988).

3. “The ultimate test of the existence of a duty to use care is found in the

foreseeability that harm may result if it is not exercised. The test is, would the ordinary man

in the defendant’s position, knowing what he knew or should have known, anticipate that

harm of the general nature of that suffered was likely to result?” Syllabus point 3, Sewell v.

Gregory, 179 W. Va. 585, 371 S.E.2d 82 (1988).

4. A private inspector who inspects a work premises for the purpose of

furthering the safety of employees who work on said premises owes a duty of care to those

employees to conduct inspections with ordinary skill, care, and diligence commensurate with

that rendered by members of his or her profession.

i
Davis, Justice:

In this action presenting a certified question from the United States Court of

Appeals for the Fourth Circuit, this Court is asked “whether a private party conducting

inspections of a mine and mine operator for compliance with mine safety regulations is liable

for the wrongful death of a miner resulting from the private party’s negligent inspection?”

After considering the parties’ arguments and the relevant law, we answer this certified

question affirmatively.

FACTUAL AND PROCEDURAL HISTORY

The event giving rise to the lawsuit underlying this certified question action

occurred on January 19, 2006, when an over-accumulation of combustible coal dust caused

a deadly fire in the Aracoma Coal Company’s Alma Mine #1 in Logan County, West

Virginia. Twelve miners were trapped inside the mine by smoke and fire. Attempts to

extinguish the fire and contain smoke resulting therefrom were inhibited by numerous

inadequate safety measures. According to the Order of Certification issued in this matter by

the Fourth Circuit Court of Appeals, the inadequate safety measures included:

a fire hose rendered useless because “the threads on the fire hose
coupling did not match the threads on the outlet”; a lack of
water because “the main water valve had been closed at the
source, cutting off water to the area where the fire had started”;
inadequate ventilation controls and ventilation safety barriers
that failed to warn the miners of the danger and allowed smoke
to flow “in the wrong direction, deeper into the

mine . . . flooding the emergency escapeways”; and the absence
of functioning CO [carbon monoxide] detectors, as well as
malfunctioning communications equipment, that delayed
warning the miners of the danger and delayed evacuation.

The Fourth Circuit further noted that a personnel door was unmarked, and breathing devices

known as Self-Contained Self-Rescuers were rendered useless to miners trapped by the

smoke because the miners had not been trained to operate the devices. Ultimately, ten of the

trapped miners managed to escape the mine, but Don Israel Bragg and Ellery Hatfield

succumbed to carbon monoxide intoxication and died as a result thereof.

It was determined from a subsequent investigation by the Mine Safety &

Health Administration (hereinafter “MSHA”) that numerous violations of the Mine Safety

and Health Act (hereinafter “Mine Act”)1 by mine owner Aracoma Coal Company

contributed to the cause and severity of the fire. In addition, however, MSHA’s investigation

uncovered numerous inadequacies in its own inspections of Alma Mine #1. The “Order of

Certification” issued by the Fourth Circuit in this case summarized MSHA’s conclusions as

follows:

MSHA’s investigation of the Mine fire revealed
numerous violations of the Mine Safety and Health Act (“Mine
Act”), 30 U.S.C. § 801, et. seq., by Aracoma Coal Company
(“Aracoma Coal”) that contributed to the cause and severity of
the fatal fire. MSHA’s investigation also revealed the
inadequacies of its own previous inspections of the Mine. For

1
The Mine Safety and Health Act is codified at 30 U.S.C. § 801 et seq.

example, by late 2005, MSHA inspectors issued 95 citations to
Aracoma Coal for safety violations but failed to “identify and
cite numerous violations that were in existence, neither did they
require the mine operator to take corrective
actions.” . . . Likewise, MSHA personnel “failed to follow
explicit Agency policy regarding Section 103(i) inspections [i.e.,
spot inspections]” by failing to “undertake reasonable efforts to
detect mine hazards”, through a “gross misallocation of
inspector resources,” and by exhibiting “a lack of initiative to
appropriately conduct Section 103(i) inspections.” . . .

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. In relation to
training, MSHA concluded that its inspector “assigned to inspect
the [Mine] did not determine whether the [atmospheric
monitoring system] operator[, who ignored the CO [carbon
monoxide] alarms during the fire,] was adequately familiar with
his duties and responsibilities, even though this determination
was required of and understood by the inspector.” . . . The
MSHA investigation also revealed that “[a]n adequate
inspection by MSHA [of the atmospheric monitoring system
(“AMS”)] would have identified the deficiencies with the AMS,
including the fact that no alarm unit had been installed.” . . . In
relation to the ventilation controls, the MSHA investigation
confirmed that its inspectors, “demonstrated a lack of initiative
to identify basic violations . . . even though the unmarked doors
and missing stoppings were obvious and easily
identifiable . . . [such that] an adequate MSHA
investigation . . . would have identified the missing
stoppings.” . . . The MSHA investigation also revealed . . . other
contributing factors to the fire including its “inadequate”
inspection of the conveyor belts and its “ineffective use of
MSHA’s enforcement authority” in issuing citations for
accumulated coal dust. . . .

MSHA’s internal report speculated that conflicts of
interest may have contributed to its inspectors’ inadequate and
ineffective inspection and enforcement of the Mine’s
compliance with mine safety regulations:

The internal review team has concluded that mine
inspectors neglected to issue citations in some
situations in which citations were justified and
that mine inspectors on occasion underestimated
[Aracoma Coal’s] negligence and/or the gravity of
the hazardous conditions when violations were
cited. . . . The failure to propose more significant
civil penalties likely interfered with the deterrent
value that civil penalties are designed to have
under the Mine Act. . . . [(]The internal review
team believes that some of the identified
deficiencies may have stemmed from the
relationship that MSHA developed with Massey
Energy Company representatives in early
2001. . . . [U]sing enforcement personnel in this
manner to assist the Aracoma Coal Company with
its compliance efforts may have created a conflict
of interest that, over time, may have affected the
level of scrutiny MSHA provided at [the Mine]
during subsequent mine inspections[).]

....

In light of its extensive findings of inadequacy and
ineffectiveness in its inspections, supervision and enforcement
at the Mine, MSHA’s internal investigation concluded as
follows:

It is the internal review team’s conclusion that, in
the year before the January 19, 2006, fatal fire at
the [Mine], MSHA did not conduct inspections in
a manner that permitted us to effectively identify
hazardous conditions at the mine, and did not
utilize the Mine Act to effectively enforce health
and safety standards promulgated to provide
miners with the protections afforded by the
statute. The Aracoma Coal Company’s
indifference to health and safety conditions at the
[Mine] and MSHA’s failure to more effectively
enforce the Mine Act allowed significant hazards,
many of which otherwise might have been

identified and addressed, to continue in existence
prior to the fatal fire. The Agency’s culpability
rests with all persons who directly or indirectly
were responsible for administering the Mine Act
at the [Mine], from the inspectors who conducted
the mine inspections through the headquarters
office personnel who ultimately were responsible
for overseeing MSHA activities throughout the
Nation.

(Internal citations to joint appendix filed in the Fourth Circuit omitted).

The United States notes that, following the fire, Aracoma Coal and several

Aracoma supervisors at the mine plead guilty to federal charges of criminal negligence. The

company also settled separate tort claims brought against it by the same plaintiffs in this suit.

The petitioners, Delorice Bragg (hereinafter “Mrs. Bragg”) and Freda Hatfield

(hereinafter “Mrs. Hatfield”), who are the widows of Don Israel Bragg and Ellery Hatfield,

filed the underlying lawsuit against the United States. The suit was filed in the United States

District Court for the Southern District of West Virginia pursuant to the Federal Tort Claims

Act (“FTCA”). 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 liable to the claimant

in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.

§ 1346(b)(1) (1996) (2006 ed.).

The United States moved to dismiss the complaint under Fed. R. Civ. P.

12(b)(1) for lack of subject matter jurisdiction, arguing that a private party inspecting mines

in “like circumstances” to those alleged in the complaint would not be held liable under West

Virginia law. According to the Fourth Circuit, the District Court agreed and dismissed the

complaint on the grounds that

West Virginia law would not hold a private analogue to the
MSHA inspectors liable for negligence resulting in the wrongful
death of the miners. In doing so, the district court rejected
theories of liability based upon: (1) West Virginia’s general
negligence principles as identified in Aikens v. Debow, 208
W. Va. 486, 541 S.E.2d 576 (2000), because “[i]rrespective of
the foreseeability of risk” to the miners that may flow from the
MSHA’s negligent inspection, . . . “overriding public policy
concerns caution against imposing a legal duty upon the MSHA
inspectors,” . . . and (2) West Virginia’s “special relationship”
theory identified in Aikens because “based upon the relevant
West Virginia case law, it does not appear that a private
analogue to the MSHA inspectors would be held liable to the
decedent miners under a special relationship theory.” . . .

(Internal citations to joint appendix filed in the Fourth Circuit omitted).

Mrs. Bragg and Mrs. Hatfield appealed to the United States Court of Appeals

for the Fourth Circuit. Finding no clear controlling West Virginia precedent to guide its

decision, the Fourth Circuit certified to this Court the following question:

Whether a private party conducting inspections of a mine and
mine operator for compliance with mine safety regulations is
liable for the wrongful death of a miner resulting from the
private party’s negligent inspection?

This Court accepted the certified question by order entered July 19, 2012.

II.

STANDARD OF REVIEW

The instant matter is before this Court on certified question from the United

States Court of Appeals for the Fourth Circuit. “This Court undertakes plenary review of

legal issues presented by certified question from a federal district or appellate court.” Syl.

pt. 1, Bower v. Westinghouse Elec. Corp., 206 W. Va. 133, 522 S.E.2d 424 (1999). Accord

Syl. pt. 1, Light v. Allstate Ins. Co., 203 W. Va. 27, 506 S.E.2d 64 (1998) (“A de novo

standard is applied by this Court in addressing the legal issues presented by a certified

question from a federal district or appellate court.”). Accordingly, we will fully consider the

question herein certified.

III.

DISCUSSION

The question certified to this Court seeks to aid the Fourth Circuit in

determining whether the United States’ sovereign immunity is waived with respect to the

claims asserted by Mrs. Bragg and Mrs. Hatfield. As noted above, the instant matter was

brought pursuant to the FTCA, under which 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 liable to the claimant

in accordance with the law of the place where the act or omission occurred.”

28 U.S.C. § 1346(b)(1). Thus, under the FTCA, “[t]he United States shall be liable,

respecting the provisions of this title relating to tort claims, in the same manner and to the

same extent as a private individual under like circumstances[.]” 28 U.S.C. § 2674 (1988)

(2006 ed.). See Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009) (commenting that

“[a]n action under the FTCA may only be maintained if the Government would be liable as

an individual under the law of the state where the negligent act occurred,” and citing 28

U.S.C. § 1346(b)(1)).

The United States Supreme Court addressed the language of 28 U.S.C.A.

§ 2674 in Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48

(1955). The Indian Towing plaintiffs alleged that the U.S. Coast Guard had negligently

operated a lighthouse, which negligence led to a tug boat going aground and damaging the

cargo on a barge being towed by the tug. A lawsuit under the FTCA was brought, and the

United States argued that the imposition of liability “‘in the same manner and to the same

extent as a private individual under like circumstances . . .’ must be read as excluding

liability in the performance of activities which private persons do not perform. Thus, there

would be no liability for negligent performance of ‘uniquely governmental functions.’”

Indian Towing, 350 U.S. at 64, 76 S. Ct. at 124, 100 L. Ed. 48. In a five to four decision, the

Supreme Court rejected this argument and observed that “all Government activity is

inescapably ‘uniquely governmental’ in that it is performed by the Government.” Id. at 67,

76 S. Ct. at 126, 100 L. Ed. 48. Recognizing its competing duties when interpreting a statute

such as the FTCA, the Supreme Court commented further that: “Of course, when dealing

with a statute subjecting the Government to liability for potentially great sums of money, this

Court must not promote profligacy by careless construction. Neither should it as a

self-constituted guardian of the Treasury import immunity back into a statute designed to

limit it.” Id. at 69, 76 S. Ct. at 126, 100 L. Ed. 48. Finally, the Supreme Court concluded:

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 that 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
petitioners, the United States is liable under the Tort Claims Act.

Id. at 69, 76 S. Ct. at 126-27, 100 L. Ed. 48.

More recently, the United States Supreme Court analyzed the proper analysis

to be applied in determining, for purposes of the FTCA, whether there exists under state law

a private analogy to the factual circumstances presented in a given action in the case of

United States v. Olson, 546 U.S. 43, 126 S. Ct. 510, 163 L. Ed. 2d 306 (2005). The

unanimous Olson Court explained that “the words ‘“like circumstances”’ do not restrict a

court’s inquiry to the same circumstances, but require it to look further afield.” 546 U.S. at

46, 126 S. Ct. at 511, 163 L. Ed. 2d 306 (first emphasis added) (quoting Indian Towing, 350

U.S. at 64, 76 S. Ct. at 124, 100 L. Ed. 48).

The facts presented in Olson were somewhat similar to those of the instant

case: An injured miner sued MSHA under the FTCA alleging that negligence of federal

mine inspectors helped bring about a serious accident at an Arizona mine.2 The district court

granted MSHA’s motion to dismiss. On appeal, the Ninth Circuit Court of Appeals

concluded there was no private analogue for imposing liability on mine inspectors. The

circuit court then analogized Arizona law that held state government mine inspectors liable

for failure to conduct mandatory inspections to find that federal immunity was waived under

the FTCA. The United States Supreme Court reversed based upon its conclusion that

[t]he Federal Tort Claims Act (FTCA or Act) authorizes
private tort actions against the United States “under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1). We here interpret these words to mean what they
say, namely, that the United States waives sovereign immunity
“under circumstances” where local law would make a “private
person” liable in tort. (Emphasis added.) And we reverse a line
of Ninth Circuit precedent permitting courts in certain
circumstances to base a waiver simply upon a finding that local
law would make a “state or municipal entit[y]” liable.

546 U.S. at 44, 126 S. Ct. at 511-12, 163 L. Ed. 2d 306. Thus, the Supreme Court has made

clear that a state law analogy of “like circumstances” must consider only causes of action

against private, as opposed to government, parties. With respect to the term “like

2
A nine-ton slab of earth fell from the ceiling of the mine.

circumstances,” the Supreme Court further explained that

[t]he Act makes 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 (emphasis added). As this
Court said in Indian Towing, the words “‘like circumstances’”
do not restrict a court’s inquiry to the same circumstances, but
require it to look further afield. 350 U.S., at 64[, 76 S. Ct. at
122]; see also S. Rep. No. 1400, 79th Cong., 2d Sess., 32 (1946)
(purpose of FTCA was to make the tort liability of the United
States “the same as that of a private person under like
circumstance, in accordance with the local law”). . . .

The Government in effect concedes that similar “good
Samaritan” analogies exist for the conduct at issue here. It says
that “there are private persons in ‘like circumstances’” to federal
mine inspectors, namely, “private persons who conduct safety
inspections.” Reply Brief for United States 3. And other Courts
of Appeals have found ready private person analogies for
Government tasks of this kind in FTCA cases. E.g., Dorking
Genetics v. United States, 76 F.3d 1261 (C.A.2 1996)
(inspection of cattle); Florida Auto Auction of Orlando, Inc. v.
United States, 74 F.3d 498 (C.A.4 1996) (inspection of
automobile titles); Ayala v. United States, 49 F.3d 607 (C.A.10
1995) (mine inspections); Myers v. United States, 17 F.3d 890
(C.A.6 1994) (same); Howell v. United States, 932 F.2d 915
(C.A.11 1991) (inspection of airplanes). These cases all
properly apply the logic of Indian Towing. Private individuals,
who do not operate lighthouses, nonetheless may create a
relationship with third parties that is similar to the relationship
between a lighthouse operator and a ship dependent on the
lighthouse’s beacon. Indian Towing, supra, at 64-65, 69[, 76
S. Ct. 122]. The Ninth Circuit should have looked for a similar
analogy in this case.

Olson, 546 U.S. at 46-47, 126 S. Ct. at 513, 163 L. Ed. 2d 306. Thus, it is not necessary for

state tort law to provide a duplicate of the circumstances presented in a given case; it is

sufficient if there is a “similar analogy.” Olson, 546 U.S. at 47, 126 S. Ct. at 513, 163

L. Ed. 2d 306 (emphasis added). See also Carter v. United States, 982 F.2d 1141, 1144 (7th

Cir. 1992) (“The national government is never situated identically to private parties. Our

task is to find a fitting analog under private law. Thus the United States may be liable for

negligence in carrying out acts that no private person performs, because there are ‘like’

circumstances that lead to private liability.” (citation omitted)).

A “similar analogy” to holding an MSHA inspector liable to a third-party mine

employee may be found in at least four cases in which this Court has held that a duty may

be owed to a third party: Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d 82 (1988); Louk

v. Isuzu Motors, Inc., 198 W. Va. 250, 479 S.E.2d 911 (1996); Eastern Steel Constructors

v. Salem, 209 W. Va. 392, 549 S.E.2d 266 (2001); and Kizer v. Harper, 211 W. Va. 47, 561

S.E.2d 368 (2001) (per curiam).

In Sewell v. Gregory, 179 W. Va. 585, 371 S.E.2d 82, second purchasers of a

home, who did not purchase the home from the builder, sued the builder for, inter alia,

negligently designing and constructing the home insofar as the home was subject to repeated

flooding. The circuit court dismissed the counts whereby the second purchasers of the home

sued the builder directly. This Court reversed on appeal. With regard to liability based upon

negligence, this Court held that “[i]n the 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.” Syl. pt. 2, Sewell, 179 W. Va. 585, 371 S.E.2d 82.

The Sewell Court then considered how other courts had addressed negligence suits by

subsequent purchasers against home builders and reasoned that

[t]he courts which have allowed negligence actions have
done so because it is entirely foreseeable that there will be
subsequent owners of the houses built.

Liability will be imposed, however, only if
it is foreseeable that the contractor’s work, if
negligently done, may cause damage to the
property or injury to persons living on or using
the premises.

....

Coburn[ v. Lenox Homes], 173 Conn. [567,] 575-76, 378 A.2d
[599,] 602-03 [(1977)] (citations omitted). The Appellee
foresaw that there would be subsequent purchasers when he
constructed the house in question. Indeed, he took economic
advantage of that eventuality by acting as the real estate agent
in the sale to the Appellants.

Sewell, 179 W. Va. at 588, 371 S.E.2d at 85. Based upon its analysis of the existence of a

duty to a third party, the Sewell Court clarified that

[t]he ultimate test of the existence of a duty to use care is
found in the foreseeability that harm may result if it is not
exercised. The test is, would the ordinary man in the
defendant’s position, knowing what he knew or should have
known, anticipate that harm of the general nature of that
suffered was likely to result?

Syl. pt. 3, Sewell, id. The Court then applied the foregoing principle to hold that

[a] builder is under a common law duty to exercise
reasonable care and skill in the construction of a building and a
subsequent homeowner can maintain an action against a builder
for negligence resulting in latent defects which the subsequent
purchaser was unable to discover prior to purchase.

Syl. pt. 4, id.

A second example of this Court finding that a duty may be owed to a third

party is found in the case of Louk v. Isuzu Motors, Inc., 198 W. Va. 250, 479 S.E.2d 911.

The facts of Louk involved a fatal automobile accident that occurred when the decedent, Mrs.

Louk, was exiting a Wal-Mart store parking lot via an access road to an abutting state

highway. The access had been designed and constructed for Wal-Mart by Gray Engineering

Consultants, Inc. (hereafter “Gray”). Mrs. Louk’s estate subsequently filed suit against

numerous parties including Gray. The estate alleged that Gray had negligently planned and

designed the access. Gray asserted, inter alia, that it owed no duty to Mrs. Louk and that

nothing it did or failed to do caused Mrs. Louk’s collision. The circuit court granted a

directed verdict in favor of Gray. On appeal, this Court adopted

the principle of Sewell, that “[t]he ultimate test of the existence
of a duty to use care is found in the foreseeability that harm may
result if it is not exercised.” Sewell, 179 W. Va. at 588, 371
S.E.2d at 85, quoting Coburn v. Lenox Homes, 173 Conn. 567,
575, 378 A.2d 599, 603 (1977). We believe that principle to be
properly applicable to the matter before us. Certainly, one who
designs an access road to lead from a business location to a
major highway and proposes to encroach on the public way by
means of that access must foresee that the invitees of that
business will use the access and depend upon its design.

Louk, 198 W. Va. at 260, 479 S.E.2d at 921. Accordingly, the Louk Court reversed the

directed verdict and held that

[a]n independent contractor, who claims special skill or
knowledge to plan and design an access road and encroachment

onto a public highway, and negligently prepares such a plan and
design, may be liable to persons injured as a proximate result of
such negligence before or after the plan or design has been
accepted by the owner or employer of the independent
contractor and regardless of privity.

Syl. pt. 5, Louk, 198 W. Va. 250, 479 S.E.2d 911.

The third case in which this Court has found the existence of a duty owed to

a third party is Eastern Steel Constructors v. Salem, 209 W. Va. 392, 549 S.E.2d 266.

Eastern Steel Constructors (hereafter “Eastern”) was a contractor that had been hired by the

City of Salem (hereafter “Salem”) to construct a sewer line to a new sewer treatment plant.

During construction, Eastern encountered subsurface rock and existing utility service lines

that had not been disclosed in plans and specifications prepared by Kanakanui Associates

(hereafter “Kanakanui”), the design professional hired by Salem for the sewer project. The

undocumented subsurface conditions caused significant delays and, according to Eastern,

caused it to incur substantial economic damages. Notwithstanding the fact that Eastern’s

agreement with Salem specified that Eastern was “‘responsible for the installation of the

facilities regardless of the type, nature, or quantity of subsurface conditions, including rock,

on the Project,’” it sued the City of Salem and Kanakanui. Eastern Steel, 209 W. Va. at 395,

549 S.E.2d at 269. In granting summary judgment to Kanakanui, the circuit court concluded

that “there is not a duty owed by the engineer/architect [i.e., design professional] to the

building contractor regarding the plans, drawings and specifications, [and for] the adequacy

or inadequacy of any or all of them.” Eastern Steel, id.

Eastern appealed, and this Court reversed the circuit court’s grant of summary

judgment with respect to Eastern’s claim of professional negligence against Kanakanui.3

Relying, in part, on this Court’s decision in Sewell, 179 W. Va. 585, 371 S.E.2d 82, the

Eastern Steel Court concluded that Eastern could

properly assert a cause of action for negligence against
Kanakanui if it [could] establish[] that Kanakanui owed a duty
of care to Eastern. See also Syl. pt. 3, Aikens v. Debow, 208
W. Va. 486, 541 S.E.2d 576 (2000) (“‘“In order to establish a
prima facie case of negligence in West Virginia, it must be
shown that the defendant has been guilty of some act or
omission in violation of a duty owed to the plaintiff. No action
for negligence will lie without a duty broken.” Syl. Pt. 1,
Parsley v. General Motors Acceptance Corp., 167 W. Va. 866,
280 S.E.2d 703 (1981).’ Syl. Pt. 4, Jack v. Fritts, 193 W. Va.
494, 457 S.E.2d 431 (1995).”).

Eastern Steel, 209 W. Va. at 396-97, 549 S.E.2d at 270-71. The Eastern Steel Court further

remarked that,

[i]n defining the proper considerations for ascertaining the
existence of a duty, we observed in [Aikens v. Debow, 208
W. Va. 486, 541 S.E.2d 576 (2000),] that, in addition to the
primary question of foreseeability of risk in discerning the
existence of a duty, consideration must also be given to “‘the
likelihood of injury, the magnitude of the burden of guarding
against it, and the consequences of placing that burden on the
defendant.’” Aikens, 208 W. Va. at 491, 541 S.E.2d at 581

3
The circuit court’s grant of summary judgment also was reversed with respect
to Eastern’s claim for implied warranty and was affirmed with respect to Eastern’s claim that
it was a third party beneficiary of the contract between Kanakanui and Salem. These two
issues are not relevant to the case at hand.

(quoting Robertson v. LeMaster, 171 W. Va. 607, 301 S.E.2d
563 (1983)).

Eastern Steel, 209 W. Va. at 397, 549 S.E.2d at 271.

Because Eastern Steel involved purely economic damages, meaning there was

no personal injury or property damage suffered by the plaintiff, the Eastern Steel Court went

on to analyze the need for a special relationship between the plaintiff and the defendant in

addition to analyzing the traditional factors for ascertaining the existence of a duty. This

analysis was conducted to overcome the “general rule precluding economic damages in a

cause of action . . . where negligence is claimed in the absence of either physical injury,

property damage or a contract.” Eastern Steel, 209 W. Va. at 397, 549 S.E.2d at 271. The

facts of the instant case involve physical injury; therefore, no special relationship analysis

is required.

The Eastern Steel Court ultimately found that the design professional owed a

duty of care to the third-party contractor and would be liable for purely economic damages

where a special relationship existed. See Syl. pt. 6, Eastern Steel, 209 W. Va. 392, 549

S.E.2d 266 (“A design professional (e.g. an architect or engineer) owes a duty of care to a

contractor, who has been employed by the same project owner as the design professional and

who has relied upon the design professional’s work product in carrying out his or her

obligations to the owner, notwithstanding the absence of privity of contract between the

contractor and the design professional, due to the special relationship that exists between the

two. Consequently, the contractor may, upon proper proof, recover purely economic

damages in an action alleging professional negligence on the part of the design

professional.”). The Eastern Steel Court further held that

[w]hen a special relationship exists between a design
professional and a contractor, the specific parameters of the duty
of care owed by the design professional to the contractor must
be defined on a case-by-case basis. However, in general, the
duty of care owed by a design professional to a contractor with
whom he or she has a special relationship is to render his or her
professional services with the ordinary skill, care and diligence
commensurate with that rendered by members of his or her
profession in the same or similar circumstances.

Syl. pt. 7, Eastern Steel, 209 W. Va. 392, 549 S.E.2d 266.

The final case we will discuss in which this Court found that a third party could

be held liable is Kizer v. Harper, 211 W. Va. 47, 561 S.E.2d 368. The plaintiff in Kizer was

an employee of a cable company who was injured when he fell from a utility pole located on

private property. The fall was caused by the negligence of an electrician who had been hired

by the property owner’s son, Mr. Harper, to upgrade the electrical wiring to her home.

Relevant to the instant matter, the cable company employee filed suit against Mr. Harper for

the injuries he sustained as a result of the negligence of the electrician. Following a trial, the

jury found Mr. Harper was liable. Mr. Harper’s post-trial motion for a new trial or judgment

as a matter of law was denied by the trial court and he appealed. This Court affirmed in a

per curiam opinion, thereby concluding that Mr. Harper had been properly held liable to a

third party.

The foregoing cases have found a duty owed to a third party based primarily

upon the foreseeability that harm may result if care is not exercised.4 Consideration has also

4
Respondent, the United States, directs this Court’s attention to the case of
Miller v. Whitworth, 193 W. Va. 262, 455 S.E.2d 821 (1995), wherein this Court held that,

[u]nder the common law of torts, a landlord does not
have a duty to protect a tenant from the criminal activity of a
third party. However, there are circumstances which may give
rise to such a duty, and these circumstances will be determined
by this Court on a case-by-case basis. A landlord’s general
knowledge of prior unrelated incidents of criminal activity
occurring in the area is not alone sufficient to impose a duty on
the landlord. However, a duty will be imposed if a landlord’s
affirmative actions or omissions have unreasonably created or
increased the risk of injury to the tenant from the criminal
activity of a third party.

Syl. pt. 6, id. The United States asserts that Mrs. Bragg and Mrs. Hatfield seek to hold mine
inspectors liable for the criminal conduct of a third party–the mine operator. Thus, according
to the United States, Mrs. Bragg and Mrs. Hatfield are required to establish that the mine
inspectors “unreasonably created or increased the risk of injury” to their decedent husbands.
Syl. pt. 6, in part, Miller v. Whitworth, 193 W. Va. 262, 455 S.E.2d 821. We disagree with
this proposition. The Miller Court recognized that “[g]enerally, a person does not have a
duty to protect others from the deliberate criminal conduct of third parties. 57A Am. Jur. 2d
Negligence § 104 (1989). See Restatement (Second) of Torts § 302B cmt. d (1965).” Miller,
193 W. Va. at 266, 455 S.E.2d at 825. In addition, the Miller Court explained that “a person
usually has no duty to protect others from the criminal activity of a third party because the
foreseeability of risk is slight, and because of the social and economic consequences of
placing such a duty on a person.” Miller v. Whitworth, id.

We find the circumstances presented in the context of a safety inspector are
distinguishable from the circumstances discussed in Miller. In order to conduct an adequate
safety inspection, a safety inspector necessarily must be familiar with laws applicable to the
(continued...)

been given to “the likelihood of injury, the magnitude of the burden of guarding against it,

and the consequences of placing that burden on the defendant.” Eastern Steel, 209 W. Va.

at 397, 549 S.E.2d at 271 (quotations and citations omitted). We conclude that these factors

weigh in favor of finding that a safety inspector owes a duty of care to the employees whose

safety the inspection is intended to secure. That is to say that it is foreseeable that harm is

likely to come to such employees if a safety inspection is negligently performed. The burden

upon the inspector is merely to perform his or her duties with “the ordinary skill, care, and

diligence commensurate with that rendered by members of his or her profession.” Syl. pt.

9, in part, Eastern Steel, 209 W. Va. 392, 549 S.E.2d 266. For these reasons, we now hold

that a private inspector who inspects a work premises for the purpose of furthering the safety

of employees who work on said premises owes a duty of care to those employees to conduct

inspections with ordinary skill, care, and diligence commensurate with that rendered by

members of his or her profession.

Applying this holding to the question herein certified, i.e., “whether a private

party conducting inspections of a mine and mine operator for compliance with mine safety

regulations is liable for the wrongful death of a miner resulting from the private party’s

4
(...continued)
industry being inspected and be able to identify and report violations of the same. It follows,
therefore, that such an inspector certainly would be able to foresee the harm that likely would
result if unlawful conditions are not reasonably identified and appropriate action taken to
remedy the same.

negligent inspection,” leads us to answer the question in the affirmative.

IV.

CONCLUSION

For the reasons set out in the body of this Opinion, we answer the question

certified to this Court by the United States Court of Appeals for the Fourth Circuit in the

affirmative and conclude that a private party conducting inspections of a mine and mine

operator for compliance with mine safety regulations is liable for the wrongful death of a

miner resulting from the private party’s negligent inspection.

Certified Question Answered.