[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-13484 June 25, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00003-CV-CDL-6
THOMAS C. PATE,
NELLIE PATE,
Plaintiffs-Appellees,
versus
OAKWOOD MOBILE HOMES, INC.,
et al.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 25, 2004)
Before BARKETT and KRAVITCH, Circuit Judges, and FORRESTER*, District
Judge.
*
Honorable J. Owen Forrester, United States District Court Judge for the Northern
District of Georgia, sitting by designation.
BARKETT, Circuit Judge:
The United States appeals a judgment awarding damages to Thomas Pate
(“Pate”)1 against the Occupational Safety and Health Administration (“OSHA”)
pursuant to the Federal Tort Claims Act (“FTCA”) for injuries Pate suffered as a
result of unsafe work conditions at his work site. The United States challenges the
district court’s legal conclusion that OSHA’s negligence in this case creates a
cognizable claim under the FTCA. Because we agree that there is no basis for
liability under the facts of this case, we reverse.
BACKGROUND
Pate, a roofer employed by the private roofing contractor Howard
Enterprises (“Howard”), sustained serious injuries when he fell from the top of a
mobile-home on which he was working at a mobile-home manufacturing plant in
Georgia owned by Destiny Industries, Inc. (“Destiny”). Over a year before Pate’s
accident, inspectors from OSHA issued a citation against both Destiny and
Howard for the failure to provide adequate fall protection at the facility where Pate
was injured. The citations informed Destiny and Howard that the fall protection
1
Nellie Pate, Pate’s wife, was also awarded damages for loss of consortium related to her
husband’s injuries.
2
violations were to be abated within a month.2 While Destiny and Howard abated
some of the hazards cited by OSHA, they failed to abate the specific hazard that
led to Pate’s injury.
For its part, OSHA was required, pursuant to its own regulations, to ensure
the abatement of the fall protection violation by (1) making certain that Destiny
and Howard certified that the hazards had been abated and (2) requiring that
Destiny and Howard timely submitted documents confirming the abatement of the
hazards. The OSHA inspector involved in this case was unaware of these
requirements. Furthermore, when Destiny and Howard did not provide the
appropriate certification, OSHA failed to initiate procedures designed to ensure
the abatement had been accomplished.
After a bench trial, the district court found that had OSHA fulfilled its
mandatory responsibility to ensure abatement, Pate’s accident would have been
prevented because the appropriate safety equipment would have been installed.
Accordingly, the district court entered judgment on Pate’s behalf pursuant to the
FTCA.
DISCUSSION
2
Pate fell on February 1, 1999. OSHA had inspected the relevant facilities on November
13 and 14, 1997. The citations were issued on December 19, 1997. The relevant citation stated in
prominent, highlighted text: “Date By Which Violation Must be Abated:12/31/97.”
3
We review the application of the FTCA de novo. Andrews v. United States,
121 F.3d 1430, 1438 (11th Cir. 1997) (internal citations omitted). The FTCA
provides that the United States may be held liable for the negligent conduct of its
employees “in the same manner and to the same extent as a private individual
under like circumstances.” 28 U.S.C. § 2674. Congress’s chief intent in drafting
the FTCA was not “to create new causes of action” but “simply to provide redress
for ordinary torts recognized by state law.” Howell v. United States, 932 F.2d
915, 917 (11th Cir. 1991). It was not “intended as a means to enforce federal
statutory duties.” Id. Indeed, “even where specific behavior of federal employees
is required by 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.” Sellfors v. United States, 697 F.2d 1362, 1367 (11th Cir. 1983).
Thus, in this case liability is not automatically established by the fact that OSHA
inspectors failed to perform their mandatory obligations. The United States can
only be found liable if a comparable private party would likewise be liable under
Georgia law.
Of course, a private party would not ordinarily be engaged, as is OSHA, in
enforcing compliance with workplace safety regulations. However, we have
rejected the position that the FTCA does not afford a remedy for negligence in the
4
performance of “uniquely governmental functions” simply “because there is no
identical private activity for purposes of comparison.” Howell, 932 F.2d at 918.
We have held that the “comparison of activities need not be exact.” Id. In this
case, however, we cannot find support for OSHA’s liability under either the cases
cited by the district court or under the closest state law analogy, the good
samaritan doctrine. See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 64-
65 (1955); Howell, 932 F.2d at 918 n.3; Sellfors, 697 F.2d at 1367.
Relying on United States v. Aretz, 280 S.E.2d 345 (Ga. 1981) and Phillips
v. United States, 956 F.2d 1071 (11th Cir. 1992), the district court found that
“under Georgia law, a private actor who assumes a particular responsibility for
employee safety can be liable if he negligently discharges that responsibility and
that negligence proximately causes injuries to the employees his undertaking was
designed to protect.” We do not find these cases applicable because OSHA cannot
be said to have “assume[d] a particular responsibility for employee safety.” While
OSHA’s laudable goal 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(b),
OSHA does not take final responsibility for achieving this end. See 29 U.S.C. §
654(a); Irving v. United States,162 F.3d 154, 169 (1st Cir. 1998) (en banc) (The
Occupational Health and Safety Act (“OSH Act”) “in no uncertain terms, places
5
primary responsibility for workplace safety on employers, not on the federal
government.”); Galvin v. Occupational Safety & Health Admin., 860 F.2d 181,
185 (5th Cir. 1988) (“the Occupational Safety and Health Act squarely places the
burden of compliance with workplace safety standards on the employer”
(emphasis in original)); Cunningham v. United States, 786 F.2d 1445, 1447 (9th
Cir. 1986) (noting as part of discretionary function analysis that under OSH Act,
“[t]he employer has the statutory responsibility for maintaining a safe
workplace”); see also Otis Elevator Co. v. OSHRC, 581 F.2d 1056, 1058 (2d Cir.
1978) (“‘Final responsibility for compliance with the requirements of this act
remains with the employer.’” (quoting legislative history)).
Furthermore, the two cases the district court relied upon are not analogous.
In Aretz the Georgia Supreme Court found that the government had a duty to warn
the employees of a contractor about a danger the government itself had created.
In that case, the government initially mis-classified a hazardous material as non-
detonative and, when it learned the material was actually detonative, failed to warn
the independent contractor storing the material. Aretz, 280 S.E. 2d at 348-49.
Despite the fact that the government provided in its agreement with the contractor
that the contractor was not entitled to rely on the government’s storage
classifications, id. at 348, the Georgia Supreme Court found that the government
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nevertheless could be held liable because it owed a duty to warn the contractor
that it had mis-classified the hazardous material. Id. at 350-51 (“Where one by his
own act, although without negligence on his part, creates a dangerous situation, he
is under a duty to remove the hazard or give warning of the danger so as to prevent
others from being injured where it is reasonably foreseeable to occur.”).
In Pate’s case, by contrast, OSHA did not itself “create[] a dangerous
situation.” OSHA inspected a manufacturing plant where it found a pre-existing
dangerous situation. Cf. Howell, 932 F.2d at 919 (finding that an FAA inspector’s
failure to ground or initiate an investigation of a plane that was suspected of
containing contaminated fuel “did not increase the risk of harm under Georgia
law” because the “inspector caused no such change in the condition of this plane
or its fuel”). Indeed, OSHA acted to lessen the danger by issuing a citation stating
that the employer was to abate the hazard by a certain date. Thus, the current case
is completely at odds with Aretz. In Aretz, the government had created a danger
and failed to warn an employer, with whom it had a contractual agreement, of the
danger; in this case, OSHA did not create a hazard but nevertheless warned Pate’s
employer that a hazard existed.
Phillips is similarly distinguishable. In that case, as in Aretz, the harm at
issue occurred in the performance of a government contract in which work was
7
being done for the government’s benefit. In Phillips, the Army Corps of Engineers
(“Army Corps”) hired an independent contractor to construct extensions to aircraft
hangers on an Army base. 956 F.2d at 1073. Phillips, an employee of the
contractor, was injured during the construction when the scaffolds he was working
on collapsed under him. Id. We found that the Army Corps had a duty of care
because in its contractual relationship with Phillip’s employer it “assumed safety
responsibilities” that it failed to discharge with ordinary care. Id. at 1078. Citing
to the regulation that contained the pertinent contractual provisions, we affirmed
the district court’s conclusion “that the Army Corps had specific responsibilities
with regard to the construction project’s safety.”3 Id. at 1074 (citing 29 C.F.R. §
52.236-13 (1991)). Furthermore, we noted that the Army Corps met with the
contractor in a “mutual understanding meeting” in which the government informed
the contractor of some of the safety procedures. See id. at 1073. Thus, there was
convincing evidence in Phillips that the Army Corps contractually retained certain
safety responsibilities involving the construction project. Indeed, an Army Corps
engineer at the project testified that “his office had the responsibility for assuring
3
While some of the government’s safety responsibilities derived from the Army Corps
Safety Manual, the applicability of this manual itself was incorporated into the agreement
between the government and the contractor. See Phillips, 956 F.2d at 1074; 29 C.F.R. § 52.236-
13 (1991).
8
‘safety with a dedicated commitment to free the job site of unsafe conditions and
activities which may result in injury.’” Id. (emphasis added).
In sum, Phillips involved the government acting in its capacity as a
contracting-party and a landowner. Had the Army Corps endeavored to construct
the project itself, there would be no question that it would be responsible for the
safety conditions of the project. In Phillips the issue was simply whether the
Army Corps had delegated its safety responsibilities in hiring a contractor to do
the construction project for the Army Corps. We found that under the facts of that
case, the government indeed had retained certain responsibilities which were
negligently carried out. In contrast to Phillips, in the case at hand the harm did not
take place on government property, the government did not contract with the
employer, and the employer was not providing the government with a service.
Instead, OSHA was acting in its capacity as a regulator-enforcer to promote the
welfare of all workers.
Normally, the most analogous approach in determining whether the
government is liable in the regulator-enforcer context under state law is the good
samaritan doctrine. See Howell, 932 F.2d at 918 & n.3. While the good samaritan
doctrine may not always be the only appropriate approach in this context, here it is
far more analogous than the government contract cases. However, even the good
9
samaritan doctrine cannot support liability here. Georgia has adopted the good
samaritan doctrine as set forth in Section 324A of the Restatement (Second) of
Torts, which states:
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 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.
Howell, 932 F.2d at 918. Pate only asserts the third prong, 324A(c), as a basis for
liability,4 arguing that his employers relied on OSHA. We need only make two
points. First, there is insufficient evidence to support a finding that Pate's
employers relied on OSHA in their failure to abate the hazard. Indeed, OSHA
issued a citation for the safety violations it found which unequivocally stated in
4
The other two prongs clearly do not apply. With regard to the first prong of analysis,
under Georgia law “risk is only increased ‘when a nonhazardous condition is made hazardous
through the negligence of a person who changed its condition or caused it to be changed.’”
Howell, 932 F.2d at 919 (quoting Argonaut Ins. Co. v. Clark, 267 S.E.2d 797, 799 (Ga. App.
1980)). Under this standard, we determined that an FAA inspector’s failure to ground a plane
that was suspected of containing contaminated fuel “did not increase the risk of harm under
Georgia law” because the “inspector caused no such change in the condition of this plane or its
fuel.” Id. The same is true in this case: OSHA only failed to ensure the abatement of a pre-
existing hazard–it did not increase the hazard. Liability similarly cannot be established under the
second prong because the OSH Act makes the employer, not OSHA, responsible for workplace
safety. 29 U.S.C. § 654(a).
10
highlighted text: “Date By Which Violation Must be Abated: 12/31/97.” This date
was more than a year before Pate’s injury. Second, even if for some reason Pate’s
employers did rely on the fact that OSHA had not followed up in ensuring
abatement, this reliance would not be justified under the facts of this case. As
stated above, the OSH Act places ultimate responsibility on the employer in
ensuring compliance with safety regulations, not OSHA. Pate's employers would
not be justified in relying on OSHA’s omissions in their failing to abate a known
hazard. Cf. Myers v. United States, 17 F.3d 890, 903-04 (6th Cir. 1994)(reliance
upon mine inspectors under Mine Safety and Health Act would be “manifestly
unreasonable and unjustified” “[i]n light of the clear Congressional purpose to
ensure that the primary responsibility for safety remains with the mine owners and
miners”).5
For the foregoing reasons, this matter is REVERSED and REMANDED for
further proceedings consistent herewith.
5
Pate further argues that Daley v. United States, 792 F.2d 1081 (11th Cir. 1986) supports
a finding of liability. Citing to Gill v. United States, 429 F.2d 1072, 1075 (5th Cir. 1970), in
Daley we found that air traffic controllers owed a duty of care to comply with the government's
Air Traffic Control Manual. 792 F.2d at 1085-86. However, Gill makes clear that liability in air
traffic controller cases stems from the public’s reliance on such controllers. Gill, 429 F.2d at
1075 (“The United States may be liable under the Federal Tort Claims Act for negligent
provision of services upon which the public has come to rely.”). As discussed above, under the
facts of this case, we do not believe that Pate or his employers justifiably relied on OSHA’s
omissions.
11