Magazine article Security Management


Magazine article Security Management


Article excerpt

The U.S. Court of Appeals for the First Circuit has ruled that the Occupational Safety and Health Administration (OSHA) can be held liable for negligent safety inspections. The court upheld a $1 million award to an employee who was injured by faulty machinery that should have been cited by OSHA during two inspections.

Gail Merchant Irving worked for the Somersworth Shoe Company in Somersworth, New Hampshire. In October 1979, she was severely injured after her hair was caught in an unguarded rotating shaft of a die-out machine.

Irving sued under the Federal Tort Claims Act (FTCA), a statute that allows individuals to sue the federal government (see "Legal Reporter," July 1995). Irving claimed that OSHA inspectors had reviewed the plant twice but had failed to report the dangerous machine. Had inspectors discovered the violation in either their 1975 or 1978 inspections, the company would have had to fix the machine, argued the plaintiff, and Irving would never have been injured.

The government claimed that Irving's case should be dismissed because OSHA inspectors are protected under the "discretionary function" provision of the FTCA. The discretionary function section states that the government cannot be held liable for "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...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."

The district court twice denied the government's motion to dismiss but ultimately dismissed the plaintiff's claims, reversing its earlier rulings and finding that the discretionary function exception did apply to the OSHA inspectors.

Irving appealed to the U.S. Court of Appeals for the First Circuit. The appeals court reversed the district court's decision and remanded the case to the district court for further consideration. The appeals court instructed the lower court to determine whether the OSHA inspectors' failure to report the defective die-out machine had been a matter of choice or a dereliction of duty. If the inspectors had the option to choose which problems to report, then their action was discretionary and, therefore, protected. If, however, OSHA policy required the inspectors to note all violations, the discretionary function exception would not apply.

The district court did not determine this issue, but instead ruled that Irving did not have sufficient evidence for a case and found in favor of the government. Irving appealed again.

The appeals court again ruled that the question of discretionary action had not been resolved and remanded the case to the district court a second time, directing the court to consider "whether OSHA policy left the thoroughness of inspections a matter of choice for its compliance officers." The appeals court noted that there was some evidence that "compliance officers did not have policy-level discretion to fail to note and tell the employer about the violation which allegedly was the cause of Ms. Irving's injuries."

The district court issued an opinion four years later. However, instead of addressing the discretionary rule, the court again considered the merits of the plaintiff's case. …

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