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West Virginia court rules inspectors can be sued for negligence
February 6, 2013

The West Virginia Supreme Court ruled that private and federal mine safety inspectors can be be held liable and sued when a negligent inspection results in the wrongful death of a coal miner.

Justice Robin Davis wrote the unanimous ruling in which she stated inspectors owe “a duty of care” to workers who count on them to do their jobs “with ordinary skill, care, and diligence” expected by members of their profession. Inspectors, the ruling said, know that negligence is likely to result in foreseeable harm to miners, The Associated Press reported.

The ruling is a win for the widows of Don Israel Bragg and Ellery Elvis Hatfield, and is a victory in a continuing battle for justice for those behind by the January 2006 fire at Massey Energy's Aracoma Coal Co. Alma No. 1 Mine in West Virginia's Logan County.

A faulty ventilation system at Aracoma caused smoke from the fire to flood the mine’s escape route, reducing visibility. The miners also struggled to find an unmarked personnel door in the dark and tried to use their breathing devices but lacked the training to properly activate them.

Bragg and Hatfield died of carbon monoxide poisoning. Their widows accused MSHA of negligence, arguing the inspectors who had failed to do their jobs before the fire should held be liable under state law.

After the case was dismissed in District Cour,t which said inspectors could not be deemed negligent under state laws as they are currently written, the widows appealed. The U.S. 4th Circuit Court of Appeals in Richmond, VA, asked the West Virginia justices to specifically address the liability question.

In a ruling last summer, the appellate court said it had found no case law, constitutional authority or state statute to definitively answer what it called “a pure question of state law” that had yet to be specifically addressed. It urged the justices to decide the question once and for all, calling it “a matter of exceptional importance” for West Virginia.

The state’s response, crafted to address a certified question relating to private or third-party inspectors, may help Delorice Bragg and Freda Hatfield pursue their appeal and revive the case against MSHA. They settled with Massey in 2008 for undisclosed terms.

In October, the state Supreme Court heard arguments that included a description of how flammable shavings from a misaligned conveyor belt were allowed to grow into a 4- to 5-foot pile. It was among many safety violations that MSHA inspectors had a duty to catch, Stanley argued, accusing District 4 inspectors of getting “too cuddly” with the company.

The government’s attorney argued that while MSHA could have done its job better, the burden to run a safe mine was on Massey.

He also noted that Massey later agreed to pay $4.2 million in criminal fines and civil penalties, while five supervisors pleaded guilty to criminal negligence.
 

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