UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
February 10, 1978
WALTER B. BLESSING and DOROTHY L. BLESSING, h/w
UNITED STATES OF AMERICA; WALTER J. THOMAS and ANNA M. THOMAS, h/w v. UNITED STATES OF AMERICA
The opinion of the court was delivered by: BECKER
OPINION AND ORDER
EDWARD R. BECKER, J.
I. Preliminary Statement
These cases, now before us on Rule 12 motions, raise the important question whether a claim is stated against the United States under the Federal Tort Claims Act by a complaint alleging that personal injuries have been sustained by an employee of a private industrial plant as the result of a negligently conducted inspection of the facility by representatives of the Occupational Safety and Health Administration [hereinafter "OHSHA"].
As far as we can ascertain, this is a question of first impression.
In Thomas v. United States, C.A. 76-189, husband-plaintiff [hereinafter "plaintiff"] was injured at his place of employment when a heavy roll of paper was dislodged from its dispenser by the impact of a forklift truck's accidental collision with the dispenser. The roll of paper fell on him, causing severe physical injuries, including several broken bones. Plaintiff alleges that the paper dispenser was defective in that the roll of paper was not locked or otherwise securely affixed to the dispenser. He seeks damages from the United States on the grounds that a representative of OSHA had inspected the premises of plaintiff's employer some nine months before the accident, but, due to alleged negligence, had failed to examine the defective paper dispenser itself. As a result, plaintiff alleges, neither he nor his employer were made aware of the dispenser's dangerous design, nor were any safety precautions taken. It is plaintiff's contention that his injuries were therefore caused by the inspector's negligence and that the United States is liable for the injuries so caused.
The allegations in Blessing v. United States, C.A. 76-180, are similar to those made in Thomas. Husband-plaintiff [hereinafter "plaintiff"] was employed as the operator of a power press. As he worked at the press one day in January 1974, his right hand was crushed, necessitating amputation of his thumb and partial amputation of two other fingers on his right hand. About a year before the accident, an OSHA representative had visited plaintiff's place of employment for purposes of making a safety inspection and determining compliance with OSHA regulations. Plaintiff alleges that the press was operationally unsafe and had been so for several years, but that the OSHA safety inspector negligently failed to examine it. He further alleges that, because the inspector failed to observe the press' hazardous condition, and since the menace that the press constituted was thus never called to the attention of either plaintiff or his employer, no corrective action was taken. Plaintiff concludes, therefore, that the United States is liable for his injuries in that they were directly and proximately caused by the negligence of its agent, the OSHA safety inspector.
Plaintiffs premise the government's liability on the Federal Tort Claims Act [hereinafter "FTCA"], by which the United States has waived, with certain exceptions, see 28 U.S.C. § 2680; note 12 infra & accompanying text, its traditional sovereign immunity from suit for common law torts committed by its agents. In relevant part, the FTCA provides:
. . . the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under the 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). Since, as this provision establishes, the FTCA incorporates the tort law of the state in which the allegedly negligent act or omission occurred, and since both such acts relevant to these cases occurred in Pennsylvania, plaintiffs' claims depend on Pennsylvania law. Plaintiffs contend that had the inspections herein undertaken by the government instead been undertaken by a private person, under the facts of these two cases Pennsylvania would hold such a private person liable in tort for the plaintiffs' respective injuries. In support of their contention plaintiffs cite Mays v. Liberty Mutual Ins. Co., 323 F.2d 174 (3d Cir. 1963); Toppi v. United States, 327 F. Supp. 1277 (E.D.Pa. 1971); and Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), each of which is set out and examined in Part III, infra.
The United States, on the other hand, contends that the facts alleged in these cases do not give rise to liability under Pennsylvania tort law. It therefore has moved for dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state claims upon which relief can be granted. In addition, the government argues that the inspections at issue were discretionary in nature, implicating the so-called "discretionary function exception" to the FTCA, 28 U.S.C. § 2680(a), under which the United States remains immune from suit for any injuries sustained as a result of the exercise of governmental discretion, whether or not that discretion is exercised negligently or wrongfully. Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953). Because the Third Circuit has held the discretionary function exception to be a jurisdictional bar to federal liability, see text accompanying note 6 infra, we will treat this aspect of each of the government's motions as a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). If the government prevails on either of its contentions, therefore, the actions must be dismissed.
In order to place the governmental inspections challenged in these cases in their proper statutory setting, we observe that the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 [hereinafter "Act"], was enacted for the purpose of reducing nationwide the number and severity of work-related illnesses and injuries -- just the sort of injuries suffered by the plaintiffs in these cases.
Recognizing the national scope of the health and safety problem it confronted and the human and economic costs that existing conditions imposed,
Congress established a comprehensive program of regulation, research, and education that calls for the cooperation of and assumption of responsibilities by employers, employees, and both federal and state agencies.
As part of the Act's regulatory scheme, the Secretary of Labor, with input from the Secretary of Health, Education and Welfare and other federal agencies, 29 U.S.C. § 669, is to promulgate occupational health and safety standards, id. § 665, with which all employers subject to the Act
are to comply, id. § 654(a)(2). As a means of monitoring compliance with the Secretary's promulgated standards as well as with the more general statutory requirement that "[each] employer -- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees," id. § 654(a)(1), the Act authorizes representatives of the Secretary of Labor to enter, at reasonable times, any place of employment covered by the Act, to inspect all pertinent conditions, and privately to question both employers and employees, id. § 657. Enforcement procedures and penalties are established for violations of the Act or the regulations and standards issued by the Secretary of Labor pursuant to it. Id. §§ 658-666.
It is important to note at the outset that plaintiffs in these cases do not claim a private right of action against the United States under the Act itself.
Although the Act authorizes the inspections alleged by plaintiffs to have been performed negligently, and although regulations promulgated pursuant to the Act provide some of the specifics for such inspections, see 29 CFR §§ 1903.1-.12 (1976), neither the regulations nor the statute is at the heart of the present actions. Rather, plaintiffs' claims center on principles of common law tort, made applicable to claims against the United States by the FTCA, whereby one is rendered liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous. See Restatement (Second) of Torts §§ 323, 324A (1965). Succinctly put, it is their contention that, having undertaken to make particular inspections pursuant to the Occupational Safety and Health Act, the government assumed a duty to plaintiffs not to conduct those inspections negligently. Plaintiffs further contend that the government breached its duty to them by its allegedly negligent inspections and that it therefore became liable for the injuries that they subsequently suffered.
The Third Circuit treats the discretionary function exception as jurisdictional.
Griffin v. United States, 500 F.2d 1059, 1963 (3d Cir. 1974); Gibson v. United States, 457 F.2d 1391, 1392 n.1 (3d Cir. 1972). It has also held that jurisdictional issues must be resolved before other questions may properly be considered. Pacific Intermountain Express Co. v. Hawaii Plastics Corp., 528 F.2d 911, 912 (3d Cir. 1976). Therefore, we first must analyze the application of the discretionary function exception to these cases. Our discussion of the exception will be detailed and liberally footnoted; such treatment is a function of our search through the case law for a standard or a coherent set of principles that might govern. Rather than a seamless web, however, we found the law in this area to be a patchwork quilt. In the footnotes particularly we will detail conflicting approaches various courts have taken in applying the discretionary function exception. Yet despite some apparent judicial randomness, we have found sufficient guidance, especially from the Third Circuit in Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974), to tell us that the exception does not create pretrial jurisdictional bars in these cases, at least as the facts are now pleaded. The government's 12(b)(1) motions will therefore be denied, without prejudice to their later reassertion on fuller records.
As to the 12(b)(6) motions, under Pennsylvania law, as the records now stand plaintiffs have not stated claims upon which relief can be granted. But we have stopped at the brink of dismissal for failure to state claims. In keeping with the spirit of the federal rules, we shall not now enter orders of dismissal; rather, we shall give the parties opportunity for discovery on the issues of jurisdiction (discretionary function) and liability, after which time plaintiffs may file amended complaints appropriately sharpened to be in conformity with the guidelines of this opinion, if they can do so in good faith. If plaintiffs do not amend, the actions will be dismissed for failure to state claims upon which relief can be granted. If they do amend, the government will be free to renew its motions or, with discovery having gone forward, to amend them to include motions for summary judgment under Rule 56.
II. The Discretionary Function Exception
The question to which we first turn is whether OSHA inspections are "discretionary functions" within the meaning of the FTCA. If they are, we are without jurisdiction of these cases by virtue of the FTCA's discretionary function exception, 28 U.S.C. § 2680(a),
and must therefore dismiss the actions under Rule 12(b)(1).
Seeking to clarify the issue for us, the government contends that whatever might be the substantive merits of plaintiffs' allegations, the discretionary function exception excludes "from coverage of the [FTCA] claims arising from acts or activities of a regulatory nature." Government Memorandum of Points and Authorities in Support of Motion to Dismiss, No. 76-180, at 18 [hereinafter "Government Memorandum"]. Insofar as the inspections by representatives of OSHA giving rise to the instant suits were "activities of a regulatory nature," the government would therefore have us conclude that the suits are barred by the exception.
The broad implications of the government's contention would, if valid, render any possible negligence in our cases nonactionable, for it cannot be gainsaid that the OSHA inspectors were, while inspecting the plaintiffs' respective places of employment, engaged in regulatory activities. Therefore, under the government's reading of the statute, we would be obliged to dismiss for want of jurisdiction any claims, including these two, brought under the FTCA and in which the bases of the complaints were negligently conducted OSHA inspections.
The government, of course, does not contend that merely because a tort is committed by an agent of a regulatory body while in the course of his employment the tort "arises from" the regulatory activity and therefore may not serve as the basis for suit. Such an interpretation of the discretionary function exception would virtually emasculate the FTCA. Thus, while arguing that an accident resulting from a negligent OSHA inspection is not covered by the FTCA, the government concedes, Government Memorandum, supra, at 19-20, that a collision with a regulatory agency's vehicle while that vehicle was engaged in agency business would be covered, even though the sine qua non for both accidents was regulatory activity.
The government distinguishes the two situations by asserting that the latter is a common law tort while the former is an injury arising from regulatory activity. Government Memorandum, supra, at 19-20. So phrased, however, such a distinction is little more than a conclusory application of labels, for it does not focus on whatever elements distinguish an actionable common law tort from a nonactionable regulatory activity.
This lack of focus becomes important for analysis when we note that Pennsylvania apparently recognizes a tort action for negligent inspection under certain circumstances, see Mays v. Liberty Mutual Ins. Co., 323 F.2d 174 (3d Cir. 1963); Toppi v. United States, 327 F. Supp. 1277 (E.D. Pa. 1971); Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961); we then face a situation in which common law tort and regulatory activity coalesce.
The government nevertheless seeks to support its broad proposition by citing to some of the discretionary function exception's legislative history. It calls our attention to early drafts of the FTCA that exempted claims arising from the activities of certain regulatory agencies
and notes that when the present § 2680(a) was substituted for these particular exclusions the general legislative intent to exclude regulatory activities apparently remained the same. Thus, a committee memorandum explained the revision by stating that it was "designed to preclude . . . application of the act to a claim against a regulatory agency . . .. Since the language used . . . exempts from the act claims against federal agencies growing out of their regulatory activities, it is not necessary expressly to except such agencies . .. by name . . .." Explanatory of Committee Print of H.R.5373, 77th Cong. 2d Sess. 8 (1942) (Memorandum for the Use of the Committee on the Judiciary).
To the extent that the government argues that this sampling of the FTCA's legislative history supports its proposition that the discretionary function exception bars all claims based upon regulatory activity, we think that the government reads too much into its examples and that the true exclusionary intent of the statute's framers was less sweeping. The Federal Tort Claims Act was enacted as a waiver of federal sovereign immunity designed to provide relief to those injured in their persons or property by common law torts committed by agents of the United States acting within the scope of their employment.
Dalehite v. United States, 346 U.S. 15, 24-25, 27-28 & n.17, 97 L. Ed. 1427, 73 S. Ct. 956 (1953). Although giving its general consent to being sued in tort, the government carved out a number of exceptions to its waiver of sovereign immunity. Most of the exceptions are reasonably specific, tied to a particular, recognizable government activity, and interpreted without undue difficulty.
Not so § 2680(a), which broadly exempts from tort liability the execution in due care of a statute or regulation as well as the exercise or performance, whether or not in due care, of any discretionary function or duty.
Read as a whole and with an eye to discerning a policy behind this provision, it seems to us only to articulate a policy of preventing tort actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government and of protecting "the Government from liability that would seriously handicap efficient government operations," United States v. Muniz, 374 U.S. 150, 163, 10 L. Ed. 2d 805, 83 S. Ct. 1850 (1963). Statutes, regulations, and discretionary functions, the subject matter of § 2680(a), are, as a rule, manifestations of policy judgments made by the political branches. In our tripartite governmental structure, the courts generally have no substantive part to play in such decisions.
Rather, the judiciary confines itself -- or, under laws such as the FTCA's discretionary function exception, is confined -- to adjudication of facts based on discernible objective standards of law. In the context of tort actions, with which we are here concerned, these objective standards are notably lacking when the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political, or economic decisions.
All of this, of course, is traditional doctrine of separation powers and judicial restraint; little seems added by the formula set out in § 2680(a). But that is just the point, for there is evidence within the FTCA's legislative history that such fundamental separation of powers dogma is precisely what the discretionary function exception was designed to embody. When the present discretionary function exception was substituted for the earlier versions of the FTCA that excepted from the waiver of sovereign immunity specific spheres of federal activity, see note 10 supra & accompanying text, an Assistant Attorney General explained inclusion of the discretionary function exception in the new draft of the FTCA before the House Committee on the Judiciary by observing that
. . . the cases embraced within [the new] subsection would have been exempted from [the prior] bill by judicial construction. It is not probable that the courts would extend a Tort Claims Act into the realm of the validity of legislation or discretionary administrative action, but H.R. 6463 makes this specific.
Hearings on H.R. 5373 and 6463 Before the House Committee on the Judiciary. 77th Cong., 2d Sess. 29 (1942) (statement of Francis M. Shea). Thus, subject to glosses imposed by subsequent judicial interpretation, the discretionary function exception seems at first to have been designed simply to incorporate the basic tenets of judicial restraint and proper separation of powers.
Whatever our evaluation of the legislative history of the FTCA and the legislative intent concerning the discretionary function exception, the government nevertheless cites an extensive list of cases which it claims supports its contention that in the context of these actions we should equate discretionary function and regulatory function.
Government Memorandum, supra, at 21-22. Our own review of the applicable case law, however, leads us to a contrary conclusion.
The case on which the government most heavily relies is the leading case of Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953), which contains the Supreme Court's only extended discussion of the discretionary function exception.
Dalehite was a wrongful death action arising out of a disastrous explosion of ammonium nitrate fertilizer stored in ships in the harbor at Texas City, Texas. Although produced and shipped by private firms, the fertilizer was manufactured and distributed for foreign use according to detailed plans and specifications developed by federal officials and under the over-all control and supervision of the United States. The district court held the United States liable based on findings of governmental negligence in the drafting and adoption of the plans for production and export of the highly explosive fertilizer, in particular aspects of the governmentally mandated manufacturing process, and in the United States' failure to police the shipboard loading of the finished product. 346 U.S. at 23-24. In affirming the Fifth Circuit Court of Appeals, which reversed the district court, 197 F.2d 771 (5th Cir. 1952), the Supreme Court did not disturb the trial court's findings of fact. Rather, in a 4-3 decision, the Court held that, even assuming the existence of the asserted acts of negligence, by virtue of the Federal Tort Claims Act's discretionary function exception the facts did not confer jurisdiction of the case on the district court under the FTCA because each of the allegedly negligent acts was discretionary in nature. 346 U.S. at 38-44.
After reviewing the history and policies of the FTCA and the discretionary function exception, the Court endeavored to set out broad guidelines for distinguishing discretionary from nondiscretionary acts.
The "discretion" protected by the section is not that of the judge -- a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one's judgment of the best course . . .
. . .
It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.
346 U.S. at 34-36 (footnotes omitted). Applying its analysis, the Court determined that the alleged acts of negligence in adopting and instituting the plans and specifications for manufacture and export were committed at the discretionary level of what the Court characterized as a two-tiered scheme of governmental activity:
In short, the alleged "negligence" does not subject the Government to liability. The decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government's fertilizer program.
Id. at 42. Similarly, the asserted failure of the government to regulate more strictly loading and storage procedures was cast as a traditionally legislative type of activity and so found to be "classically within the exception." Id. at 43.
Unfortunately, despite the Court's efforts, Dalehite seems to have left the meaning of the discretionary function exception somewhat unclear, with the result that lower court decisions since Dalehite do not comprise a particularly coherent body of case law.
Compare, e.g., Ashley v. United States, 215 F. Supp. 39, 45-46 (D.Neb. 1963) (field decision how to handle a troublesome bear in a national park protected by discretionary function exception), aff'd, 326 F.2d 499 (8th Cir. 1964), with Downs v. United States, 522 F.2d 990 (6th Cir. 1975) (FBI agent's decision how to handle an airplane hijacking not a protected act of discretion), and Miller v. United States, 410 F. Supp. 425 (E.D.Mich. 1976) (negligent operation of waterworks protected by discretionary function exception) with Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2d Cir.) (negligent operation of airport control tower not a protected act of discretion), cert. denied, 389 U.S. 931, 19 L. Ed. 2d 292, 88 S. Ct. 295 (1967). In part, this confusion may stem from the fact that the Court's planning/operational distinction, instructive as it may be on a theoretical level, can become exceedingly problematic when applied to concrete facts.
See, e.g., Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 19 L. Ed. 2d 106, 88 S. Ct. 76 (1967); Dolphin Gardens, Inc. v. United States, 243 F. Supp. 824, 826 (D.Conn. 1965). Further confusion may be added by language in the Court's opinion that could be read to suggest a limited construction of the discretionary function exception
even in the face of a specific holding that seems to establish a more expansive view of the exception.
Also contributing may be Supreme Court decisions after Dalehite, which, while ostensibly not involving the discretionary function exception at all,
arguably limit the expansive reading of Dalehite's interpretation of the exception. See Indian Towing Co. v. United States, 350 U.S. 61, 100 L. Ed. 48, 76 S. Ct. 122 (1955);
Rayonier Inc. v. United States, 352 U.S. 315, 1 L. Ed. 2d 354, 77 S. Ct. 374 (1957).
In order to decide the cases before us, however, we need not resolve whatever tensions may be implicit in Dalehite and its progeny. The Third Circuit's word binds us, and in Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974), the Third Circuit construed the discretionary function exception in a way that we find to dispose of the government's contention as stated. Griffin was an action brought against the United States for tragic injuries allegedly sustained when defective live-virus polio vaccine, which the United States, through the Division of Biologic Standards (DBS) of the Department of Health, Education and Welfare, had a duty to inspect, was ingested by the plaintiff. DBS had inspected and approved for release to the public the suspect batch of vaccine. Regulations provided that a vaccine batch was to be approved only if the neurovirulence of the batch test lot did not exceed that of the National Institute of Health "reference strain," 500 F.2d at 1062-63 n.7, and the regulations further set out five criteria to be considered as evidence of neurovirulence. 42 C.F.R. § 73.114(b)(1)(iii). Plaintiff contended that if the test lot exceeded the reference strain as to any one of the five criteria, DBS was to reject the batch. DBS, on the other hand, interpreted the regulations in a way that would permit it to weigh the criteria according to its evaluation of how accurately each criterion reflected neurovirulence. Although the Griffin court accepted DBS' interpretation of the rule, which allowed DBS legally to exercise its judgment in the weight to be accorded each criterion in determining whether to reject a batch of vaccine, the court nonetheless held that, despite DBS' permissible regulatory exercise of professional or scientific judgment, the government was liable under the FTCA if that judgment were exercised negligently. 500 F.2d at 1066. Such judgment was found not to be the type of discretion the discretionary function exception was aimed at protecting. Id.25
In steering between the Scylla of judicial overreaching and the Charybdis of judicial abdication as it applied the discretionary function exception to the regulatory situation before it, the Griffin court plainly rejected for this circuit the short-answer litmus test of "regulatory activity" that the government would have us adopt. The government activities challenged in Griffin manifestly arose out of regulatory activity; i.e., they arose directly out of DBS' mandate to inspect live-virus polio vaccine and to prevent distribution of any vaccine that was excessively neurovirulent. The mere fact of the activity's regulatory nature, however, was insufficient to insulate the agency's negligence; so too was the fact that the activity involved a regulatory inspection and an exercise of judgment. Therefore, the government's argument for dismissal, insofar as it rests on the mere fact that the OSHA inspectors were engaged in regulatory activity, must be rejected on the authority of Griffin.
Of course, such a conclusion does not necessarily resolve these cases. That some regulatory activity is nondiscretionary most assuredly does not mean that none is. Analyzing the nature of the discretion left immune to private tort claims by the discretionary function exception, the Griffin court focused on the Supreme Court's language in Dalehite that located protected discretion "[where] there is room for policy judgment and decision." Dalehite, supra, 346 U.S. at 36 (emphasis in Griffin, 500 F.2d at 1064). The Third Circuit noted that "[the] decisions held discretionary in Dalehite involved, at minimum, some consideration as to the feasibility or practicability of Government programs," 500 F.2d at 1064, and further observed that "[such] decisions involved considerations of public policy, calling for a balance of such factors as cost of Government programs against the potential benefit." Id. In contrast, the evaluative judgment made by DBS in Griffin had no policyweighing components and was much more narrowly circumscribed in terms of programmatic impact.
The judgment . . . was that of a professional measuring neurovirulence. It was not that of a policy-maker promulgating regulations by balancing competing policy considerations in determining the public interest. Neither was it a policy planning decision nor a determination of the feasibility or practicability of a government program. At issue was a scientific, but not policymaking, determination as to whether each of the criteria listed in the regulation was met and the extent to which each such factor accurately indicated neurovirulence. DBS' responsibility was limited to merely executing the policy judgments of the Surgeon General. It had no authority to formulate new policy in the immunization program.
Id. at 1066 (footnotes omitted). When judgments exercised by regulatory agency officials are professional or scientific in nature rather than policy oriented, the Griffin court was of the opinion that the courts are "fully capable of scrutinizing the processes and conclusions of the decision-maker by the usual standards applied to cases of professional negligence." Id. at 1066-67 (quoting Griffin v. United States, 351 F. Supp. 10, 33 (E.D.Pa. 1972)). Thus, the critical inquiry for the Third Circuit, as it must be for us, was "not merely whether judgment was exercised but also whether the nature of the judgment called for policy considerations." Id. at 1064.
In the context of the pleadings in these cases, we can conceive of facts, that, if proven at trial, would divest this court of jurisdiction under Griffin's construction of the discretionary function exception, which focuses on policy input as the hallmark of protected discretion.
For example, it might be shown that noninspection of the allegedly defective equipment was the result of an authorized decision to limit the scope of the inspections due to limitations of manpower, time, or the like.
Such decisions establishing priorities would likely be found to be discretionary in nature and therefore protected from tort liability because enforcement decisions along these lines would involve balancing policy considerations -- e.g., given limited resources, whether to conduct spot inspections at many plants or comprehensive inspections at just a few.
In Griffin's (and Dalehite's) terms, these sorts of decisions would directly affect the feasibility or practicability of the government's inspection program, for without the authority to set priorities the OSHA safety inspection program well might be crushed by the total weight of the task assigned to it. Judicial intervention in such decisionmaking through the vehicle of private tort suits would involve the courts in political, economic, and social decisions in apparent violation of the separation of powers principle that we perceive the discretionary function exception statutorily to embody.
Further, precisely because these decisions would require consideration of factors that are primarily political, social, and economic in nature, they, unlike the professional evaluative judgments challenged in Griffin, would not be the type of determinations that the courts are "fully capable of scrutinizing . . . by the usual standards applied to cases of professional negligence."
500 F.2d at 1066-67 (quoting Griffin v. United States, 351 F. Supp. 10, 33 (E.D.Pa. 1972)). In light of these considerations, such priority setting would likely be held discretionary under Griffin. This would be true at whatever level the judgments were made, assuming that the officer making the judgment had the authority to make it.
Plaintiffs, however, could, consistently with the pleadings, demonstrate that a different hypothetical, under which the jurisdictional bar of the discretionary function exception would be avoided, more accurately reflects the facts of these cases. It is possible that policy decisions were made to inspect the equipment alleged by plaintiffs to have been defective or, at the very least, the instructions under which the inspectors operated might have been such that as a non-policy professional matter it would have been negligent to omit inspections of the equipment. Indeed, it is conceivable that "discretion" was permitted in structuring the inspections, but that it was professional discretion; that is, discretion to examine only those things that would be considered, as a professional matter and under objective standards, more likely to cause injury. Such a scenario would be factually analogous to Griffin.32 Failure to inspect the equipment under such circumstances would not have been grounded in an authorized policy decision; review of the noninspection would therefore not affect the programmatic ability of OSHA to structure its inspections according to its evaluation of the "best course," Dalehite, supra, at 34, for the decision not to inspect would not have gone to the feasibility or practicability of the program; further, the omission would be reviewable under judicially manageable tort standards of due care and reasonableness, informed as necessary by expert testimony of scientific or professional norms.
Under this latter hypothetical, we do not perceive that Griffin would authorize dismissal for want of jurisdiction since judicial review and a judgment of liability, were negligence actually demonstrated, would not intrude on policy judgments made by the political branches.
Thus, on the basis of the plaintiff's strong hypothetical and our accompanying analysis, we reject without prejudice to its later reassertion on a fuller record, the government's argument based on the discretionary function exception. There is certainly room for operation of the discretionary function exception in this area and perhaps in these very cases, as the hypothetical more favorable to the government illustrates. The problem is that even after briefing and argument we do not know which is the correct hypothetical; we therefore do not know whether we have jurisdiction. In the ordinary case, a jurisdictional issue is usually determinable on the face of the pleadings or with a minimum of discovery. Here, we cannot make the jurisdictional findings without a trial and resultant factual findings. In such a case, it seems that the discretionary function exception actually operates more as an affirmative defense than as a bar to jurisdiction.
Bound on this issue by the clear language of the statute on the one hand and the Third Circuit on the other, however, we were constrained first to resolve the discretionary function question as a jurisdictional matter.
Having done so to the extent possible, our resolution can only be that maybe we have jurisdiction and maybe we do not. Insofar as we have treated the governments' motions as ones under Fed.R.Civ.P. 12(b)(1), they must, at least for now, be denied because, as pleaded, plaintiffs' claims would permit development of facts that would not run afoul of the discretionary function exception. See Supchak v. United States, 365 F.2d 844 (3d Cir. 1966).
III. Dismissal Under 12(b)(6)
We turn now to the government's motions under Fed.R.Civ.P. 12(b)(6) to dismiss for failure to state claims upon which relief can be granted. The FTCA makes the United States liable for tortious acts or omissions committed by its agents "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). We therefore must look to the tort law of Pennsylvania to assess the merits of the government's motions, for the allegedly tortious omissions of the OSHA inspectors took place in that state.
Pennsylvania recognizes the so-called "good Samaritan" rule, see generally, e.g., Prosser, Handbook of the Law of Torts § 56, at 343-48 (4th ed. 1971), whereby one who undertakes, whether gratuitously or for consideration, to render services to another is held liable for negligent rendering of those services if the negligence causes injury either to the person on whose behalf the services are being performed or to a foreseeable third party.
See, e.g., Pirocchi v. Liberty Mutual Insurance Co., 365 F. Supp. 277 (E.D.Pa. 1973); Pascarella v. Kelley, 378 Pa. 18, 105 A.2d 70 (1954); Hamil v. Bashline, 224 Pa.Super. 407, 307 A.2d 57 (1973), allocatur refused 224 Pa.Super. xxxvi. This rule is articulated in Restatement (Second) of Torts §§ 323 & 324 A (1965),
both of which sections have been treated by the courts as correctly stating Pennsylvania law. See, e.g., Evans v. Liberty Mutual Insurance Co., 398 F.2d 665 (3d Cir. 1968) (§§ 323 & 324 A); Toppi v. United States, 327 F. Supp. 1277 (E.D.Pa. 1971) (§ 324 A); Hamil v. Bashline, supra (§ 323). Further, Pennsylvania courts and federal courts applying Pennsylvania law have applied the rule in the context of inspections allegedly conducted negligently. See Evans v. Liberty Mutual Insurance Co., supra; Mays v. Liberty Mutual Insurance Co., 323 F.2d 174 (3d Cir. 1963); Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961). Even more significantly for our purposes, the rule has been applied pursuant to Pennsylvania law under the FTCA to inspections negligently conducted by United States Government inspectors. See Toppi v. United States, supra.
Plaintiffs rely heavily on Evans v. Otis Elevator Co., supra, Mays v. Liberty Mutual Insurance Co., supra, and Toppi v. United States, supra, asserting that, in the context of negligently conducted safety inspections, these cases establish a Pennsylvania good Samaritan rule such that the allegations now before us are sufficient to state claims upon which we could grant relief. Our task is to apply the good Samaritan rule as set out in these and other cases to the facts of the two cases at bar.
The foundational requirement of the good Samaritan rule is that in order for liability to be imposed upon the actor, he must specifically have undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative legal duty to perform that undertaking carefully. See generally Restatement, supra. Thus, in Pennsylvania it is established that essential to a finding of liability is a particular undertaking in fact, not merely the expectation of one or the legal right to pursue one. DeJesus v. Liberty Mutual Insurance Co., 423 Pa. 198, 223 A.2d 849 (1966) (per curiam). Further, the extent of an undertaking actually begun is a question of fact, the answer to which determines the scope of the act upon which liability may be premised. Mays v. Liberty Mutual Insurance Co., supra at 175-76; Pirocchi v. Liberty Mutual Insurance Co., supra at 288. In our view, it is questionable whether under Pennsylvania law plaintiffs have made sufficient allegations of an undertaking to state a claim upon which relief could be granted.
We find Evans v. Liberty Mutual Insurance Co., supra, to control this aspect of these cases. In Evans v. Liberty Mutual, an employee was injured while attempting to dismantle a machine that cut cardboard boxes. The employer's workmen's compensation insurance carrier had previously made safety inspections of the employer's plant and had made certain safety recommendations based on those inspections. No inspection, however, had been made of the cutting machine, nor had any safety recommendations been made concerning it. The employee therefore sued the insurance carrier for having conducted negligent inspections that resulted in his injuries. Under the facts of the case, including the fact that no inspections were made of the cutting machine, 398 F.2d at 666, the Third Circuit held, inter alia, that absent a showing that the insurance carrier had undertaken to make an inspection of the entire plant of the plaintiff's employer, no legal duty owed by the carrier to the employee was established. Id. at 667. Since the evidence indicated that only "spot" inspections had been undertaken, the district court, which had directed a verdict for the carrier at the close of the evidence, was affirmed.
After Evans v. Liberty Mutual, it appears that when an inspector is not under an otherwise enforceable legal or contractual duty to inspect an employer's premises or equipment, an employee can recover for a negligently performed inspection only where the inspector has physically undertaken to inspect (1) the specific instrumentality causing the injury, or (2) the entire physical plant of which the specific instrumentality is a part.
This simply follows basic tort law under the good Samaritan rule; duty is measured by undertaking.
The pleadings in the two cases before us do not unambiguously satisfy the Evans v. Liberty Mutual standard.
The pleadings allege only that "a representative of the Occupational Safety and Health Administration visited the premises of plaintiff's employer for the purpose of making a safety inspection to determine whether any recognizable hazards existed on the said premises." Such pleadings might be said to be insufficient to allege either that the OSHA inspectors undertook to inspect the entire plants at which plaintiffs worked or that the inspectors undertook to inspect the particular machines that caused the plaintiffs' injuries. To be sure, the extent of an undertaking is ultimately a question of fact, but at this stage of the proceedings the issue is not one of factual proof, but of factual allegations.
Under Evans v. Liberty Mutual and its construction of Pennsylvania law, it simply is not enough to claim that a safety inspection was undertaken, for the extent of inspection is critical to liability. In the absence of sufficient allegations of extent, we well might doubt that a claim upon which relief could be granted has been made.
The authorities cited by plaintiffs would not militate against such a conclusion. In Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), an employee injured while riding on a defective elevator at his place of employment sued the defendant elevator company for allegedly having conducted a negligent inspection of the elevator. The elevator company was under contract with the plaintiff's employer to make periodic safety inspections of the elevator, and had in fact done so. The Pennsylvania Supreme Court held Otis liable to the plaintiff for a negligent inspection conducted pursuant to the contract, despite the fact that the employee was not privy to it.
The orbit of Otis' duty to third persons is measured by the nature and scope of his contractual undertaking with Sperling and, if, as presently appears, Otis undertook to inspect the elevator at regular intervals, and, if the elevator was in a defective or dangerous condition discoverable by reasonable inspection, Otis would be liable to third persons, regardless of any privity of contract, who might be injured by Otis' failure to properly perform its contractual undertaking of inspection.
403 Pa. at 19, 168 A.2d at 576.
An obvious and fundamental difference between Evans v. Otis Elevator and the cases before us is the presence in the former case of a contract, which helped define the nature and scope of the undertaking. The court's language suggests that because of the special nature of the contractual undertaking, even had an Otis inspector, in breach of the contract, never in fact looked at the elevator, the contractual undertaking nevertheless would have made Otis liable to the plaintiff, despite lack of privity.
Generally a party to a contract does not become liable for a breach thereof to one who is not a party thereto. However, a party to a contract by the very nature of his contractual undertaking may place himself in such a position that the law will impose upon him a duty to perform his contractual undertaking in such manner that third persons -- strangers to the contract -- will not be injured thereby. It is not the contract per se which creates the duty; it is the law which imposes the duty because of the nature of the undertaking in the contract.
403 Pa. at 18, 168 A.2d at 575 (citation omitted, emphasis supplied). No contractually defined undertaking is at issue in our cases, however. Nor, as plaintiffs would have us conclude, see Brief of Plaintiffs Contra Defendant's Motion to Dismiss, 76-189, at 7; Id., 76-180, at 7, can the Occupational Safety and Health Act, which authorizes industrial safety inspections, be deemed a surrogate for the contractual definition of the undertaking without running directly into the obstacles erected by the protection of agency enforcement of statutes and regulations preserved for the government by the discretionary function exception to the FTCA, see note 28 supra, and by the lack of a private right of action against the government under the Occupational Safety and Health Act, see note 5 supra.44
Even without consideration of the contractual nature of the undertaking in Evans v. Otis Elevator, however, that case is distinguishable from ours. In the former case Otis had in fact physically undertaken the particular inspection of the particular elevator alleged to have been defective. Ignoring the contract, therefore, the case still falls squarely within the parameters of Evans v. Liberty Mutual, for the physical undertaking was an inspection of the very instrumentality at issue. In our cases, however, this particularity is lacking.
The same point -- particularity -- also distinguishes Toppi v. United States, 327 F. Supp. 1277 (E.D.Pa. 1971). In that case the government supplied inspectors to a private corporation for the purpose of inspecting production and incineration of a certain chemical which was sold to the United States. Due to alleged negligence by these government inspectors, incinerated chemicals exploded, causing injuries to the plaintiff. The plaintiff thereupon sued under the FTCA, relying on Restatement, supra, § 324A. A government motion for summary judgment was denied. From the court's opinion in Toppi, it appears that the plaintiff there had specifically alleged that the government had undertaken to inspect production of the particular chemical that caused the explosion. This is in sharp contrast to the very general and vague allegations in the cases before us.
It is arguable, however, that plaintiff's pleadings could reasonably be construed more favorably to plaintiffs than was done in the foregoing discussion.
Thus, we might, by emphasizing the word "any," read the pleadings to allege a comprehensive safety inspection designed to uncover any safety hazards found anywhere on the premises.
[A] representative of the Occupational Safety and Health Administration visited the premises of plaintiff's employer for the purpose of making a safety inspection to determine whether any recognizable hazards existed on the said premises.
Thomas Complaint, 76-189, at 5 (emphasis supplied).
So construed, the pleading would allege, in accordance with Evans v. Liberty Mutual, an undertaking to inspect the entire premises. Alternatively, we might read the following pleading altogether disjunctively:
The said inspection was conducted in a negligent fashion in that the said inspector failed to examine and/or call the attention of husband-plaintiff's employer to the hazardous and dangerous condition of the said [equipment].
Id.47 So construed, this pleading would then allege either that the equipment was not inspected or that, in accordance with Evans v. Liberty Mutual, the OSHA inspector did in fact undertake to inspect the particular equipment but negligently failed to note or report its hazardous condition.
We, of course, recognize our obligation liberally to construe pleadings in the face of a motion to dismiss. Citing considerable authority, Professor Moore understands the proper standard to be that under the federal rules
a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Pleadings are to be liberally construed. Mere vagueness or lack of detail is not ground for a motion to dismiss, but should be attacked by a motion for a more definite statement.
2A Moore's Federal Practice P 12.08, at 2271-85 (2d ed. 1975). The Third Circuit is in apparent accord with this formulation, tending to focus, for purposes of 12(b)(6) dismissals, on the infirmity of claims rather than the mere insufficiency of pleadings.
See, e.g., Miller v. American Telephone & Telegraph Co., 507 F.2d 759 (3d Cir. 1974); Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972); Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (3d Cir. 1965). We further note that in cases, such as the ones before us, in which the courts and litigants confront new and unsettled areas of the law, a clear preference exists for deciding the cases on the merits rather than precipitously disposing of them on the pleadings. See, e.g., Scott v. Plante, 532 F.2d 939, 947 (3d Cir. 1976); Builders Corp. of America v. United States, 259 F.2d 766, 770-71 (9th Cir. 1958). Therefore, for purposes of the present motions, we shall give the plaintiffs the benefits of our doubts as to the conformity of their pleadings with the Evans v. Liberty Mutual criteria and hold that, although they are unfocused and only barely satisfy the Rule 8(a)(2) threshold, they are sufficient to survive 12(b)(6) motions.
Even so, the vagueness of the pleadings suggest that plaintiffs would do well to amend them. Indeed, the pleadings will have to be made more specific before pretrial memoranda are filed, for we think it would be improper to go to trial with the cases in such muddled postures. We recognize, however, that the information necessary to enable plaintiffs to amend their complaints properly, if the facts indeed would enable them to do so in good faith and in compliance with Rule 11, may not be in their hands. Therefore, we shall allow a 60 day period for discovery, after which time plaintiffs may amend their complaints more precisely to track the Evans v. Liberty Mutual standards.
Upon submission of the amended complaints, if any are forthcoming, the government may renew its motions or amend them as motions for summary judgment under Rule 56.
We have not yet reached the end of the 12(b)(6) matter, however, for there is a still more serious problem with plaintiffs' complaints; that is, the failure of plaintiffs' pleadings adequately to allege causation under Pennsylvania law and the applicable sections of the Restatement. Sections 323 and 324A
of the Restatement provide that physical harm is proximately caused by negligent performance of an undertaking if the negligence increased the risk of harm, §§ 323(a), 324A(a), or if the harm was suffered because of reliance on the undertaking by the person being served, §§ 323(b), 324A(c), or by a foreseeable third party, § 324A(c).
See Hamil v. Bashline, supra, 224 Pa.Super. at 414-16, 307 A.2d at 61-62. In addition to premising liability on either of the alternatives of reliance or increased risk of harm -- basis for liability shared by § 323 and § 324A -- § 324A states a third possible ground of good Samaritan liability: causation is also shown when the actor's negligence results in injury to a third person, if, in performing a service to another, the actor undertook to perform a duty owed by the other to the third person. Restatement, supra, § 324A(b).
Addressing first the question of possible causes of action based on § 324A(b), we hold that plaintiffs may not premise liability on the theory that OSHA inspectors undertook to perform duties owed to plaintiffs by plaintiffs' employers. The language of the Restatement suggests that, in order to trigger liability under § 324A(b) in these cases, more is required than a limited functional congruence of OSHA safety inspections conducted pursuant to the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, and employer safety inspections conducted as part of the employers' common law duty to provide to their employees a safe workplace. That is, the Restatement provision seems to reach not the situation in which one undertakes to perform functions coordinate to -- or even duplicative of -- activities imposed on another by a legal duty, but rather the situation in which one actually undertakes to perform for the other the legal duty itself. Thus, § 324A provides that:
one who undertakes . . . to render services to another which he should recognize as necessary for the protection of a third person . . . is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect [ sic ] his undertaking, if
. . .
(b) he has undertaken to perform a duty owed by the other to the third person . . . .
Under what would appear to be the fair import of the language of § 324A(b), assuming for present purposes negligent inspections and resultant harm, the United States would be liable to plaintiffs only if by undertaking to make inspections at plaintiffs' workplaces OSHA actually undertook not merely to supplement the employers' own safety inspections, but rather to supplant those inspections, at least as to those areas and instrumentalities in fact inspected by OSHA inspectors.
The Comment and Illustrations to § 324A(b) confirm what the plain language suggests. The drafters of the Restatement provide as examples situations in which a managing agent takes charge of a building for the owner and agrees to keep it in proper repair, in which a telephone company contracts with another company to inspect its telephone poles, or in which a person is employed to superintend construction work, including inspection of scaffolding erected by a subcontractor. The applicable examples cited in the Appendix to the Restatement are virtually all of like effect. In each of these examples of § 324A(b) liability, the one held liable when he negligently performed his undertaking and injury to a third person resulted had undertaken to perform tasks on behalf of another and in lieu of that other. In such circumstances, it is logical to impose on the actor the duty of due care that otherwise would rest solely on the person for whom he is acting. When, however, the actor's performance is undertaken independently of any duty or obligation imposed on the other by law, although the actor well may have assumed duties of his own to third persons by operation of such factors as reliance or increased risk of harm, there appears no sound reason why the duties and liabilities of the other should also be imposed on him.
Although we have found no Pennsylvania or Third Circuit cases in which § 324A(b) has been construed, those federal courts that have construed it have done so along the lines the foregoing discussion would suggest. See, for example, Davis v. Liberty Mutual Ins. Co., 525 F.2d 1204 (5th Cir. 1976), the most recent in a line of cases out of the Fifth Circuit that has construed § 324A(b). In Davis, an employee who was injured at his workplace sued his employer's workmen's compensation carrier for having negligently inspected the corrugating machine that caused his injury. Suit was premised on § 324A. Although the carrier had undertaken to make inspections of the employer's premises, the court found this undertaking insufficient to state a claim under § 324A(b).
As to subpart (b), despite Davis' argument to the contrary, there is no evidence that Liberty Mutual undertook to perform a duty owed by the employer . .. to its employees. As in most states, the law in Alabama is clear that an employer has a legal obligation to provide his employees with a safe place to work. . .. Although it is true that on occasions [the employer] requested that Liberty Mutual send representatives to assist in conducting plant inspections and to make recommendations for safety improvements, there is no evidence that [the employer] ever delegated any part of its direct and primary duty to discover unsafe conditions. Rather, it appears that [the employer] used Liberty Mutual for recommendations as an aid to the company in fulfilling its own duty to provide a safe place to work.
525 F.2d at 1207-08. See also Tillman v. Travelers Indemnity Co., 506 F.2d 917, 921 (5th Cir. 1975) (insurer undertook safety inspections, but court refused to impose liability on insurer under § 324A(b) where "the record was void of any indication that the employer had delegated to the insurer any part of its direct and primary duty to discover unsafe conditions"); Stacy v. Aetna Casualty & Surety Co., 484 F.2d 289, 293-94 (5th Cir. 1973) (§ 324A(b) requires that the insurer's undertaking to inspect "amounted to an assumption of a duty of inspection owed by [the employer] to its employees," and where the employer did not delegate to the insurer "either by contract or by a course of conduct, any part of its direct and primary duty to discover unsafe conditions" the necessary "systemwide assumption of [the employer's] duty to discover latent hazards" was not shown).
An instructive comparison to these Fifth Circuit cases is provided by Hill v. James Walker Memorial Hospital, 407 F.2d 1036 (4th Cir. 1969), in which the Fourth Circuit imposed liability under § 324A(b). There a hospital had contracted with an exterminating company for the control of rats. The plaintiff was injured when she fell into a bathtub after being frightened by a rat running across her feet. The court found that the hospital had a legal duty to exercise reasonable care for the safety of its patients. Then, in telling contrast to the facts of the Fifth Circuit cases that made § 324A(b) inapplicable, the Fourth Circuit expressly found that the exterminating company "had undertaken to perform a certain aspect of [the hospital's] duty in the hospital's behalf." 407 F.2d at 1042 (emphasis supplied). It is apparent that the Hill court employed the same analysis as that used by the Fifth Circuit, but that the nature and extent of the actor's undertaking distinguishes Hill from the other cases. That is, only where the actor's undertaking is to perform a duty of another are the liabilities of the other imposed on him. Where the actor's undertaking only parallels the activities required by a duty of another without being an undertaking in substitution for it, § 324A(b) does not apply. See also Jeffries v. United States, 477 F.2d 52, 56 (9th Cir. 1973); Ruddy v. United States Fidelity and Guaranty Co., 288 F. Supp. 315, 318 (M.D.Pa. 1968). But cf. Clark v. Employers Mutual of Wausau, 297 F. Supp. 286 (E.D.Pa. 1969). Of course, without regard to what the actor in fact undertook to do, under some circumstances the other might reasonably perceive the undertaking to be in substitution for his own performance, and so rely on the undertaking to the detriment of a third person. Such a case, however, is properly considered under § 324A(c) of the Restatement (reliance of the other or a third person upon the undertaking) and not under § 324A(b).
We endorse the position suggested by the language of the Restatement, supported by the Illustrations, and heretofore adopted by the courts. Focusing on the facts of these cases in the light most favorable to plaintiffs in order to ascertain whether the OSHA inspections at issue could be undertakings to perform duties owed by plaintiffs' employers to plaintiffs, it is important that the fact that OSHA undertook to make inspections not be evaluated for purposes of § 324A(b) liability without reference to the context provided by the enabling legislation. We have previously set out an overview of the Occupational Safety and Health Act, see notes 2-5 supra & accompanying text, and will not here repeat ourselves. We think it clear from a reading of the Act that the United States did not, by undertaking to make inspections, undertake on behalf of plaintiffs' employers to perform the duty of inspection owed by the employers to plaintiffs. Indeed, 29 U.S.C. § 654(a)(1) provides:
Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. . . .
This provision, of course, though now included in a statutory enforcement scheme, is essentially a restatement of the common law duty of employers to employees, and was apparently understood as such by the proponents of the Act.
Under principles of common law, individuals are obliged to refrain from actions which cause harm to others. Courts often refer to this as a general duty to others. Statutes usually increase but sometimes modify this duty. The committee believes that employers are equally bound by this general and common duty to bring no adverse effects to the life and health of their employees throughout the course of their employment. Employers have primary control of the work environment and should insure that it is safe and healthful. Section 5(a), in providing that employers must furnish employment "which is free from recognized hazards so as to provide safe and healthful working conditions," merely restates that each employer shall furnish this degree of care.
S. Rep. No. 1282, 91st Cong., 2d Sess., reprinted in  U.S. Code Cong. & Ad. News 5177, 5186. See also 116 Cong. Rec. 38371, 38382-83 (1970). Thus, rather than purporting to relieve employers of any of their safety duties through the Act and inspections conducted pursuant to it, Congress recognized employer's safety responsibilities in the context of a remedial statute characterized by extensive regulatory and enforcement provisions. Although § 654 (a)(1) speaks only of "recognized" hazards and some language in the Senate Report could conceivably be read to suggest that the employers' duty of inspection for previously unrecognized hazards had been assumed by the United States, we think that, in light of the purposes of the Act and the general congressional intent, such an interpretation would be manifestly incorrect.
Indeed, § 653(4) of the Act unequivocally supports our view.
Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. (emphasis supplied)
This section carefully specifies that the Act leaves intact, inter alia, the common law duties of employers to their employees.
On the basis of the foregoing, it is clear to us that the United States has not, through OSHA, undertaken to perform any duties of the employer, but rather has undertaken to make inspections that are supplemental to, but independent of, inspections required of employers by their common law duties to their employees. Therefore, § 324A(b) is inapplicable to these cases, and plaintiffs cannot, as a matter of law, state claims upon which relief can be granted under that subsection.
Our disposition of these cases must be less conclusive, however, insofar as plaintiffs' claims may be based, not on Restatement § 324A(b), but rather on the alternative grounds of good Samaritan liability set out in Restatement §§ 323 and 324A(a), (c) -- increased risk of harm or reliance.
Plaintiffs' complaints are defective because we can find in the pleadings no allegations that plaintiffs or their employers relied on the OSHA inspections or that the alleged negligence of the OSHA inspectors in any way increased the plaintiffs' risk of harm. The only pleadings that might at all go to causation allege only that "[as] a result of the negligence" of the OSHA inspectors the plaintiffs sustained certain injuries.
Such boilerplate pleadings may provide an adequate allegation of proximate cause for some common law torts, but they would appear to be insufficient under §§ 323 and 324A. Insofar as both of these sections provide that a negligent actor is liable for "physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if " the plaintiff or the one to whom the actor undertook to render services relied on the undertaking or " if " the negligence increased the plaintiff's risk of harm (emphasis supplied), the language of the Restatement assumes that the injuries somehow factually "result" from the defendant's negligence before it even reaches the issues of reliance of increased risk -- questions of legal cause. In other words, that harm "results" from the negligence charged is inadequate under the Restatement unless the harm is caused by increased risk or reliance. Plaintiffs' allegations never get past the "resulting from" language of the Restatement, and so could be said not to address at all the issue of legal cause.
Thus, we do not here have ambiguous pleadings that might conceivably be read to include the necessary allegations, as we did on the issue of extent of the undertaking. Rather, here we have a total failure to include, ambiguously or otherwise, any pleadings reaching the crucial causation factors under §§ 323 and 324A. Because proximate cause is a critical element of a plaintiff's prima facie case in tort, when under § 323 or § 324A the requisite reliance or increased risk of harm does not appear, courts have dismissed, DeJesus v. Liberty Mutual Insurance Co., supra, rendered summary judgment, Clark v. Employers Mutual of Wausau, 297 F. Supp. 286 (E.D.Pa. 1969), or directed verdicts for defendant, Evans v. Liberty Mutual Insurance Co., supra, as the case's procedural posture made appropriate. In our cases, the proper resolution would be dismissal, for without an allegation of legal causation, plaintiffs have not stated a claim that would entitle them to relief under Pennsylvania law. See DeJesus v. Liberty Mutual Insurance Co., supra.
The case law plaintiffs have presented in support of their position that under the circumstances of these cases reliance or increased risk are not necessary components of their causes of action does not persuade us otherwise. Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), see text accompanying note 44 supra, involved a maintenance contract under which the defendant elevator company specifically contracted to perform the safety inspections and maintenance that otherwise would have been the duty of the plaintiff's employer to perform. Under such circumstances, a finding of liability would have been quite appropriate under § 324A(b) without reference to reliance or increased risk of harm; of course, the Second Restatement of Torts, which included § 324A for the first time, was not yet promulgated when Otis Elevator was decided. Because we find § 324A(b) inapplicable to these cases, see text accompanying note 52 supra, Otis Elevator is of no help to plaintiffs. Adcox v. Pennsylvania Mfrs.' Ass'n Casualty Ins. Co., 37 D. & C. 2d 157 (Phila. C.P. 1964) is only a Common Pleas case and, furthermore, antedates the Second Restatement as well as the Pennsylvania Superior and Supreme Court and Third Circuit cases that require a showing of reliance or increased risk of harm. See Evans v. Liberty Mutual Ins. Co., 398 F.2d 665 (3d Cir. 1968); DeJesus v. Liberty Mutual Ins. Co., 423 Pa. 198, 223 A.2d 849 (1966) (per curiam); Hamil v. Bashline, 224 Pa.Super. 497, 307 A.2d 57 (1973), allocatur refused 224 Pa.Super. xxxvi. In any case, Adcox did not specifically address the particular question with which we are here concerned. For all these reasons, Adcox is far from compelling precedent. Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 199 N.E. 2d 769 (1964), is not from Pennsylvania, being a case in which the Illinois Supreme Court construed Florida law. Furthermore, Nelson also antedates the Second Restatement and the Pennsylvania cases on which we rely. Nelson can hardly be cited as questioning the analysis and conclusions of cases that, when Nelson was written, had not yet been decided. Moreover, the Nelson court specifically found that reliance by the employer on the insurer's safety inspections was present, so its digression on the non-necessity of proving reliance is arguably mere dicta. To the extent that, despite the foregoing, Nelson can be construed to support plaintiffs' position, we find telling and persuasive the analytical criticisms leveled at the Nelson decision by legal commentators. See, e.g., 51 U.Va.L.Rev. 347 (1965); 18 Vand.L.Rev. 1615 (1965).
Although neither reliance nor increased risk are alleged in plaintiffs' complaints and although plaintiffs have not persuaded us that reliance or increased risk of harm are unnecessary to their causes of action, in accordance with our perception, noted at text accompanying note 48 supra, of the proper and limited role of 12(b)(6) dismissals, we shall nevertheless decline to dismiss at this stage. It is possible that sufficient legal causation exits under § 323 or § 324A(a) or (c), to entitle plaintiffs to relief, but that the pleadings simply do not properly allege it. Therefore, rather than dismiss, we think the better course is to give the plaintiffs the opportunity to file more specific pleadings by way of amended complaints within 75 days, after engaging (to a limit of 60 days) in whatever proper discovery they consider necessary.
See, e.g., Sarter v. Mays, 491 F.2d 675, 676 (5th Cir. 1974). If amended pleadings are not forthcoming after this opportunity to amend, we shall dismiss the complaints under Rule 12(b)(6) for failure to allege sufficient legal causation, hence to state claims upon which relief can be granted.
Our determination strictly to require allegations of either reliance or increased risk of harm is supported by the policy and reasoning of Clemente v. United States, 567 F.2d 1140 (1st Cir. 1977), which arose out of the tragic plane crash in which baseball star Roberto Clemente was killed while taking relief supplies to the victims of the Nicaraguan earthquake of 1972. The district court had granted judgment for the plaintiffs, concluding that the FAA staff in Puerto Rico was negligent in failing to inspect the aircraft in question as they were required to do under internal orders of the FAA's Southern Region. The First Circuit, Coffin, C.J., reversed on the grounds that an internal agency order, without more, does not impose on the government a duty running to members of the public that is enforceable by tort action.
Not all acts and orders of the United States government are so sovereign that they must be treated as commands which create legal duties or standards, the violation of which involves breaking the law. A considerable part of the government's conduct is in the context of an employer-employee relationship, a relationship which includes reciprocal duties between the government and its staff, but not necessarily a legal duty to the citizenry.
Id. at 1144. Rather said the court, for there to be a legal duty -- analogous common law liability must exist in the place where the tort occurred, in this case meaning that the "good Samaritan" requirements of the Restatement must be met.
No Puerto Rico case alleging a remotely similar basis for liability has been brought to our attention. Moreover, the Restatement of Torts 2d §§ 323 and 324A makes it clear that liability in such a situation must be predicated on one of three grounds: the conduct of the employee actually increased the risk of harm to the damaged firm; the harm to the damaged firm resulted from its reliance on the employee carrying out the inspection as ordered; or there existed a prior duty to inspect owed by the employer to the damaged firm. . . None of these conditions apply to . . . plaintiffs' claims in the matter before us. . . . Therefore there can be no basis for liability under general principles of tort law and the Federal Tort Claims Act.
To hold otherwise would be to interpret every command made as an exercise of discretion by the supervisory or administrative staff of any federal agency as creating a duty of the federal government to the beneficiaries of that command such that the government would be liable to the beneficiary if the command was not carried out. We do not believe the Federal Tort Claims Act was intended to expose the government to such limitless liability and would not so hold unless we were required to do so by established precedent.
In reaching its decision, the First Circuit incorporated the requirements of reliance or increased risk of harm into the notion of assumption of an undertaking under §§ 323 and 324A, whereas we have followed Pennsylvania law in including them in the causation element. See note 51 supra. The effect of our emphasis on reliance or increased risk for the causation element, however, is in practical effect the same as the First Circuit's approach. The provisions of §§ 323 and 324A ensure that before a good Samaritan is held liable for negligent performance of his undertaking, he in some positive way must have contributed to the injury, either by increasing risk of harm, §§ 323(a), 324A(a), by interposing himself between another person and the duty that the other person owed to someone else, § 324(b), see text accompanying note 52 supra, or by inducing reliance on his undertaking, §§ 323(b), 324A(c). Without such protections, we doubt that the government would undertake to perform what are, in most cases, services beneficial to the public. We do not agree with the proposition that we should extend liability beyond that established by §§ 323 and 324A on the theory that even when the requirements of the Restatement are not met, no inspection at all is better than a negligent one. This "all or nothing" position is correct only if the negligence contributes to subsequent injury, and we perceive that the negligence so contributes only when the requirements of the Restatement are met. Otherwise, while the inspections may not have improved matters, neither did they worsen them. On the other hand, in countless other situations, government OSHA inspections have doubtless helped to prevent serious injury and perhaps death. The confessedly unfortunate failure of the inspections in the cases before us to achieve the congressional goal of preventing employee injury does not lead inexorably to the conclusion that the allegedly negligent inspections were a proximate cause of the injuries (or, alternatively, that the United States breached an enforceable duty it owed to the plaintiffs). When operational governmental negligence contributes to private injury, the government should be held accountable no less than is any one else. When the situation is otherwise, however -- when, in other words, proximate causation (or duty) is not present -- the point the First Circuit made in Clemente is apposite:
[To] attempt to expand the relief available to victims and their families through the Federal Tort Claims Act in circumstances similar to those to this case would, we believe, have an unfortunate inhibiting effect on government safety measures. The end result of attaching liability to government attempts at all levels to supplement the safety precautions of private individuals and businesses, even when there is no reliance on the government's assistance, is far more likely to increase the reluctance of the government to involve itself in such matters than it is to install a higher quality of performance in the federal employees assigned to carry such functions out. We do not believe that the expanded role of the federal government in the safety area through such legislation as OSHA indicates an intent of Congress to make the United States a joint insurer of all activity subject to inspection under the statute or others. Nor do we believe that there is any sound policy basis for requiring that government attempts to protect the public must be accompanied by per se tort liability if they are unsuccessfully carried out.
Id. at 1150-1151.
We find, at least tentatively, that we have jurisdiction under the FTCA despite the discretionary function exception. We therefore deny defendant's 12(b)(1) motions without prejudice to its right to reassert them on a fuller record. That record may, at least in part, develop from the 60 day period of discovery that we shall afford to the parties, principally to give plaintiffs opportunity to develop evidence of legal cause (reliance or increased risk of harm),
although also to permit them to sharpen their allegations of duty (the extent of the OSHA inspectors' undertakings). Plaintiffs are granted leave to amend their complaints within 75 days, assuming, of course, that they can do so with fidelity to Fed.R.Civ.P. 11.
If plaintiffs do not amend, we will dismiss the actions for failure to allege sufficient legal causation, hence to state claims upon which relief can be granted. If, however, plaintiffs do file amended complaints, defendant is granted 20 days after service thereof to answer, to renew its motions to dismiss (under either Rule 12(b)(1) or Rule 12(b)(6)), or to move for summary judgment.
An appropriate order follows.
AND NOW, this 1oth day of February, 1978, in accordance with the foregoing opinion, it is hereby ORDERED that: (1) defendant's motions under Fed.R.Civ.P. 12(b)(1) to dismiss for lack of jurisdiction over the subject matter are DENIED without prejudice; (2) the parties are granted a period of 60 days in which to conduct discovery in accordance with this opinion; (3) plaintiffs are granted leave to file amended complaints within 75 days; (4) if no amended complaints are filed within 75 days, the actions will be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state claims upon which relief can be granted;
/ (3) if amended complaints are filed within 75 days, defendant will have 20 days from the date such complaints are served to answer, to renew its motions to dismiss, or to move for summary judgment under Fed.R.Civ.P. 56.
BY THE COURT:
EDWARD R. BECKER, J.