The opinion of the court was delivered by: BLOCH
ALAN N. BLOCH, United States District Judge
This opinion addresses the defendant's renewed motion to dismiss this action. The defendant relies upon the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), contending that the decision of the United States Supreme Court in United States v. S. A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984), is controlling.
Plaintiff brings this action in her capacity as the administratrix of the estate of John Marn, deceased. The complaint alleges that on September 19, 1979, a clamp was incorrectly attached to a cable and escape capsule in an air intake shaft at the Mathies Coal Company mine. Plaintiff further alleges that agents of the United States, namely a civil engineer and an inspector from the Federal Mine Safety and Health Administration (MSHA), were present at the mine on the aforesaid date and were conducting an inspection. Plaintiff contends these individuals allowed plaintiff's decedent to enter the escape capsule and to be lowered into the mine. According to the complaint, the capsule was lowered approximately 100 feet when the cable became slack and the capsule fell approximately 185 feet to the bottom of the shaft, resulting in the death of John Marn.
The complaint alleges that the government was negligent in that MSHA and its servants, agents and employees ordered a change in the manner in which the escape capsule was to be attached to the cable without suggesting any method of attaching the capsule, and that use of a clamp was approved by an MSHA civil engineer without knowledge of how it should be installed. In addition, plaintiff's complaint alleges that the MSHA engineer made an inspection of the escape capsule at the air intake shaft, informed company and union officials of the fact that he had made an inspection, but failed to shutdown the mine, although the attachment was improper. Plaintiff contends that the MSHA civil engineer did nothing to inform the mine officials, union representatives, or plaintiff's decedent that the civil engineer himself did not know the proper way to use the clamp to attach the escape capsule to the cable. Finally, plaintiff contends that the MSHA civil engineer did nothing to stop plaintiff's decedent from entering the capsule or from ceasing operation of the capsule, despite the fact that the engineer himself was neither knowledgeable about the safety of the capsule nor was absolutely certain that it was safe.
In ruling upon a motion to dismiss, this Court must construe all allegations in the plaintiff's complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The United States Supreme Court described the standard to be applied as follows:
When a federal court reviews the sufficiency of a complaint, before reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that in passing on a motion to dismiss . . . the allegations of the complaint should be construed favorably to the pleader.
This Court previously has had an opportunity to address defendant's contention that the discretionary function exception to the Federal Tort Claims Act entitles the government to judgment in its favor. In an opinion dated September 14, 1982, this Court denied defendant's motion to dismiss, holding that given the factual allegations of plaintiff's complaint the discretionary function exception would not operate as a bar to the relief requested. Defendant has renewed its motion, relying upon a change in the applicable law.
The Federal Tort Claims Act, [FTCA] 28 U.S.C. § 1346(b), provides in pertinent part as follows:
The district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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 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.
The Federal Tort Claims Act constitutes a limited waiver of the sovereign immunity of the United States. United States v. S. A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984).
An important exception to the waiver of sovereign immunity contained in the Federal Tort Claims Act concerns so-called "discretionary functions." Title 28 U.S.C. § 2680 provides that the Act shall not apply to:
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, whether or not such statute or regulation be valid, 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 ...