Irving v. USA CV-81-501-M 08/29/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gail Merchant Irving, Plaintiff,

v. Civil No. 81-501-M

United States of America, Defendant.

MEMORANDUM DECISION

Plaintiff, Gail Merchant Irving, sues defendant, the United

States, under the Federal Tort Claims Act ("FTCA"),

(b), 2671-2680, seeking damages for serious injuries she

suffered in a workplace accident. On October 10, 1979, Irving's

hair became caught in the unguarded rotating drive shaft of a

die-out machine located near her work station at Somersworth Shoe

Company. Regulations promulgated by the Occupational Safety and

Health Administration ("OSHA") reguired that the rotating shaft

be guarded. Before the accident, in 1975 and again in 1978, OSHA

compliance officers inspected the Somersworth Shoe facility for

the purpose of ensuring compliance with OSHA safety standards,

but in neither inspection was the unguarded drive shaft

identified or cited as violating OSHA standards. Irving claims

in her sole cause of action that the OSHA compliance officers breached their duty under New Hampshire's common law "Good

Samaritan" doctrine to conduct the pre-accident inspections in a

non-negligent manner. She also alleges that their failure to

identify and cite the unguarded drive shaft as a violation of

OSHA standards caused or contributed to cause her injuries.

Irving's claim against the United States was tried to the court.

PROCEDURAL HISTORY1

Because the procedural history of this case is unusual, a

brief survey of Irving v. United States is necessary to put the

issues in proper context.

As mentioned, Gail Irving was severely injured in a

workplace accident on October 10, 1979. Seeking to hold the

United States liable for her injuries, she filed a timely

administrative claim for damages with the appropriate federal

agency, the United States Department of Labor. See

(a). Her claim was denied and, on October 7, 1981, she

filed suit in this court. See

A bench trial on the merits began on February 11, and

concluded on February 14, 1985. Following trial, the court took

1 The procedural history recitation is taken, in substantial part, from the First Circuit's most recent opinion in this case, Irving v. United States,

(1st Cir. 1995) .

2 the matter under advisement and, on January 27, 1988, dismissed

Irving's suit without reaching the merits. The court determined

that the discretionary function exception to the FTCA applied to

OSHA inspections and, because the United States retained its

sovereign immunity from suit involving such matters, the court

was without subject matter jurisdiction over Irving's sole cause

of action. Irving v. United States, No. C81-501-D, slip op.

(D.N.H. Jan. 27, 1988) (Devine, C.J.). Irving appealed.

Shortly after the district court's dismissal order, but

before the appeal was resolved, the United States Supreme Court

decided Berkovitz v. United States,

(1988). The

Berkovitz decision clarified the law concerning the FTCA's

discretionary function exception as it pertains to governmental

regulatory activities. Accordingly, the First Circuit vacated

the district court's dismissal of Irving's complaint and remanded

the case for further consideration in light of the new standards

established in Berkovitz. Irving v. United States,

(1st Cir. 1988) (unpublished order).

Responding to the First Circuit's mandate, the district

court analyzed Irving's claim in light of a then-recent post-

Berkovitz OSHA case in which the Court of Appeals for the Fifth

Circuit found the discretionary function exception applicable.

3 Irving v. United States, No. C81-501-D, slip op. at 3 (D.N.H.

Feb. 14, 1989) (Devine, C.J.) (citing Galvin v. OSHA,

(5th Cir. 1988)). The trial court again dismissed Irving's

suit, holding that it remained barred by the discretionary

function exception. Id. at 4-5.

Irving again appealed, and the First Circuit again remanded

the case, insisting on a case-specific application of Berkovitz.

Irving v. United States,

(1st Cir. 1990)

("Irving I") .2 The Court of Appeals directed the district court

to make explicit factual findings as to whether "the thoroughness

of [OSHA] inspections was . . . left up to the individual

compliance officers" and whether those compliance officers had

"policy-level discretion to fail to note and tell the employer

about the violation which allegedly was the cause of Ms. Irving's

injuries."

(emphasis added).

Four years later, the district court issued a memorandum

opinion, Irving v. United States, No. C81-501-SD, slip op.

(D.N.H. June 6, 1994) (Devine, S.J.). Instead of resolving the

discretionary function issue, however, the trial court decided

2 Although Irving v. United States,

(1st Cir. 1990) was, in fact, the First Circuit's second opinion in this case, it has, as the first published opinion, been assigned the label "Irving I ."

4 the case on its merits, finding that during the 1975 and 1978

OSHA inspections the die-out machine that caused Irving's injury

was positioned "some two feet closer to the wall to its rear."

Id. at 4. Therefore, the court determined that the drive shaft

actually did comply with OSHA regulations during the earlier

inspections because it had been "guarded by location" — "it was

then in such location that employees working near it would not be

exposed to injury." Id. at 3. And, because the drive shaft for

the die-out machine was actually guarded by location during the

1975 and 1978 inspections, the court reasoned, OSHA compliance

officers were not negligent in failing to identify or cite it as

a violation of OSHA safety standards. Accordingly, judgment was

again entered for the government, although this time on the

merits.

Irving appealed for a third time, arguing, inter alia, that

the district court's guarded-by-location finding was clearly

erroneous and unsupported by the evidence. The government

countered that the record supported the guarded by location

finding and again argued that the discretionary function

exception to the FTCA barred Irving's suit in any event. Once

again, the Court of Appeals found for Irving. Irving v. United

States,

(1st Cir. 1995) ("Irving II").

5 Addressing the government's renewed discretionary function

argument first, the court of appeals reiterated its holding in

Irving I :

[T]he applicability of the discretionary function exception [cannot] be decided without findings as to whether OSHA policy left the thoroughness of inspections a matter of choice for individual inspectors, and whether the inspectors had policy-level discretion to fail to note and tell the employer about the violation which allegedly caused plaintiff's injuries.

Irving II,

(citing Irving I,

)

(emphasis added). The Court of Appeals set aside the district

court's finding that the rotating shaft of the die-out machine

was guarded by location during the 1975 and 1978 inspections, id.

at 836,vacated the judgment of the district court, and granted

Irving's reguest for a trial de novo before a different district

court judge, committing to the discretion of the new trial judge

whether to proceed solely on the record of the 1985 trial. Id.

at 837.

Consistent with the First Circuit's mandate, and with the

express approval of the parties, this court proceeded on the

trial record, supplemented by counsels' oral argument on November

21, 1995. The court earlier denied the government's motion to

dismiss, rejecting an argument that the misrepresentation

6 exception to the FTCA deprived the court of subject matter

jurisdiction over Irving's cause of action. Irving v. United

States, No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.).

In addition, the court denied Irving's motion to increase her ad

damnum to an amount in excess of the $1,000,000 she sought in her

initial administrative claim in 1980. Irving v. United States,

No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.). With all

motions now disposed of, the court decides the case on the merits

in light of all the evidence introduced at trial3 and the

arguments advanced by the parties, both orally and in their

written submissions.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

As the procedural history of this case indicates, the

parties' legal sparring over the last fifteen years has focused

on two issues. First, the parties dispute whether the

discretionary function exception to the FTCA preserves the

government's sovereign immunity and deprives this court of

subject matter jurisdiction over Irving's cause of action.

3 That evidence, of course, takes the form of trial exhibits and a complete transcript of the trial testimony. Throughout this order, full trial exhibits are referred to as "Ex. ____ " and trial testimony is identified by witness, date, and transcript page.

7 Second, the parties dispute whether the machine on which Irving

was injured was, in fact, guarded by location during the 1975 and

1978 OSHA inspections. Each issue is, by itself, potentially

dispositive of Irving's suit.

Because the discretionary function guestion implicates the

court's subject matter jurisdiction, it would normally be

addressed first. However, as Irving I and Irving II make clear,

an acceptable answer to the discretionary function guestion

depends on several, guite specific, findings of fact. Therefore,

the court will first explain its factual findings related to

Irving's accident and the OSHA inspections, including the

location of the die-out machine during the 1975 and 1978

inspections. Then, based on the facts found, the court will

explain why the discretionary function exception does not apply

here, and, finally, the court will resolve the case on its

merits.

I. FACTUAL BACKGROUND

In October of 1979, Gail Merchant Irving was working at the

Somersworth Shoe Company plant in Somersworth, New Hampshire.

Although Irving had worked in different shoe factories, including

Somersworth Shoe, on and off for about four years (Irving, 2/11/85, p. 4), at the time of the accident she had been steadily

employed at Somersworth Shoe only since mid-September, 1979.

(Irving, 2/11/85, p. 6.)

A. Physical Layout of the Accident Scene in October, 1979

On October 10, 1979, Irving was at work in the stock fitting

room of Somersworth Shoe operating a "marker" machine used to

stamp the inner soles of shoes. The marker was a manually

operated machine attached to a workbench; it did not have an

electric power source. (Irving, 2/11/85, p. 8, 67; Rothwell,

2/12/85, p. 5.) Attached to the east end of the same workbench

was a die-out machine.4 (Ex. 6, Floor Plan; Rothwell, 2/12/85,

p. 4-5; Perron, 2/11/85, p.111.)

Unlike the marker, the die-out machine was powered by a

four- or five-horsepower electric motor. (Irving, 2/11/85,

p. 67; Rothwell, 2/12/85, p. 5-6; Paul, 2/14/85, p. 36.) The

motor was bolted to the concrete floor, directly beneath the west

end of the workbench. It was connected to the die-out machine by

means of a drive shaft which ran underneath the workbench. (Ex.

1, Photo of Bench Assembly; Ex. 14B, Photos 1-5.) The drive

4 Together, the marker machine, die-out machine, and workbench were known as the "bench assembly." (See, e.g., O'Connell, 2/13/85, p. 18.) shaft ran horizontally (west to east), approximately 14 inches

above the floor and was located approximately 16 inches inside

(south of) the rear (north) edge of the workbench.5 When the

motor was running, the horizontal drive shaft rotated at high

speed. (O'Connell, 2/12/85, p. 35.)

The eastern-most edge of the workbench abutted the east wall

of the stock fitting room, (Rothwell, 2/12/85, p. 13; O'Connell,

2/13/85, p. 18; 2/14/85, p. 45), while the western-most edge of

the workbench was on a main aisle. (Ex. 6, Floor Plan; Ex. 14B,

Photo 2; Rothwell, 2/12/85, p. 4-5.) Approximately to 3 feet

behind (north of) the workbench was a die rack. The die rack was

approximately the same length as the workbench and also extended

5 Shortly after Irving's accident, and before any material alterations were made to the bench assembly, three different people measured the location of the drive shaft. The measurements taken by Paul O'Connell, an OSHA safety engineer, indicate that the drive shaft was 12 inches above the floor and 16 inches in from the rear edge of the workbench. (O'Connell, 2/12/85, p. 166.) The measurements taken by Igor Paul, plaintiff's industrial engineering expert, indicate that the shaft was 14 inches above the floor and 16: 4 inches in from the rear edge of the workbench. (Paul, 2/14/85, p. 13.) Ronald W. Perron, a captain with the Somersworth Police Department, measured the drive shaft to be 14" above the floor, and, although he did not measure the space between the edge of the workbench and the shaft, he estimated the distance to be about feet. (Perron, 2/11/85, p. 108, 113.) The evidence, then, most strongly supports the finding that the shaft was located approximately 14 inches above the floor and approximately 16 inches south of the plane created by the rear (north) edge of the workbench.

10 from the east wall of the stock fitting room to the aisle. (Ex.

6, Floor Plan; Ex. 14B, Photos 2, 14, 17; O'Connell, 2/13/85,

p. 34.) Stored in the die rack were patterns, dies, and ink

ribbons for use on the marker and die-out machines. (Irving,

2/11/85, p. 12; O'Connell, 2/13/85, p. 42.)

From time to time, Somersworth Shoe employees working on the

marker were reguired to change the ribbon and/or the pattern on

the machine. (Irving, 2/11/85, p. 8.) In order to retrieve

patterns and ribbons from the die rack, it was necessary for the

marker operator to enter the to 3 foot-wide aisle between the

rear edge of the workbench and the die rack. (Ex. 6, Floor Plan;

Ex. 14B, Photos 16, 17; O'Connell, 2/13/85, p. 42.) Employees

also used this aisle to reach the power switch for the motor that

ran the die-out machine. Because the switch was mounted on the

east wall of the stock fitting room between the bench assembly

and the die rack, the aisle between the workbench and the die

rack provided the only access to the power switch. (Ex. 14B,

Photos 13, 14; O'Connell, 2/13/85, p. 19.)

B. The Accident

On the afternoon of October 10, 1979, Irving needed to

change the pattern and the ink ribbon on the marker machine. She

11 picked up a pair of latex gloves that marker operators used to

avoid getting ink on their hands when changing the ribbon and

walked around the back of the bench assembly to retrieve a new

pattern and ribbon from the die rack. While standing in the

aisle between the workbench and the die rack, Irving

inadvertently dropped one of her gloves. (Irving, 2/11/85,

p. 12.)

When Irving bent over and reached down to retrieve the glove

from the floor, her hair was drawn toward the drive shaft

underneath the bench by the vacuum the shaft created as it

rotated at high speed.6 Irving's hair became entangled in the

shaft, and the force of the shaft's rotation wrenched her entire

body down toward the floor and pulled her head into contact with

the shaft, tearing her scalp from her skull and rendering her

unconscious. (Gosselin, 2/11/85, p. 91; Wayne Irving, 2/11/85,

p. 99-100; Rothwell, 2/12/85, p. 7-8.) As Irving's body lay over

the drive shaft, with her hair still caught, the motor that

6 Professor Igor Paul, plaintiff's industrial engineering expert, testified to the vacuum effect created by any smooth, rapidly rotating shaft. (Paul, 2/14/85, p. 18.) Additional evidence that the rotating drive shaft for the die-out machine did, in fact, create the expected vacuum can be found in Exhibit 14B, photographs 20 through 24, which clearly show the many threads and fibers that had been drawn toward and wrapped around the shaft over the years.

12 powered the die-out machine continued to run. (Rothwell,

2/12/85, p. 7; Gosselin, 2/11/85, p. 90.)

Two of Gail Irving's co-workers, Joan Gosselin and Wayne

Irving, extricated her from the drive shaft by turning off the

motor and cutting her hair free. (Gosselin, 2/11/85, p. 85;

Wayne Irving, 2/11/85, p. 99.) An ambulance crew arrived a short

time later and took Irving to Wentworth-Douglass Hospital. She

was later transferred to Maine Medical Center, where she was

treated for severe neurological damage. (Wayne Irving, 2/11/85,

p. 101-103; Ex. 23, Videotaped Testimony of Dr. McCann.)

C. Post-Accident OSHA Inspection

On October 16, 1979, OSHA conducted a post-accident

inspection of Somersworth Shoe, before any material changes were

made to the bench assembly. (Amirault, 2/12/85, p. 26.) During

the post-accident inspection, senior safety engineer Paul

O'Connell examined the marker/die-out bench assembly on which

Irving was injured, taking measurements and photographs.

(O'Connell, 2/12/85, p. 157; Ex. 14B, Photographs of Bench

Assembly.) O'Connell found the bench assembly to be in violation

of three separate but related OSHA safety standards. (Ex. 10,

Citation and Notification of Penalty at 1.) First, the bench

13 assembly was in violation of an OSHA regulation that states,

"Shafting under bench machines shall be enclosed by a stationary

casing, or by a trough at sides and top or sides and bottom, as

location reguires."

(c)(2)(ii) (1995).7

O'Connell found that the horizontal drive shaft that delivered

power to the die-out machine was not guarded in any fashion. He

then classified the violation as "serious," meaning that there

was a "substantial probability that death or serious physical

harm could result from [the] condition."

(h);

(O'Connell, 2/12/85, p. 159.) Indeed, the violation was so

severe, and the unguarded shaft so dangerous, that O'Connell gave

the violation a "severity value" of eight, the highest severity

value used by OSHA at that time. (O'Connell, 2/12/85, p. 189;

Ex. 10, OSHA Worksheet at 2.)

In addition to the unguarded horizontal shaft, O'Connell

found two other violations of OSHA standards. Specifically, the

pulley and drive belt on the electric motor that supplied power

to the shaft were also unguarded in violation of

(d)(1) and 1910.219(e)(3)(1). These violations, too.

7 The court has referred to the most recent version of the Code of Federal Regulations. However, the applicable regulations have not been materially altered since 1973, long before the earliest date relevant to this case.

14 were deemed "serious" in nature. (Ex. 10, Citation and

Notification of Penalty at 1.) On October 23, 1979, OSHA fined

Somersworth Shoe a total of $1800 for the three violations and

ordered the company to abate the violations by November 10, 1979.

The fine was later reduced to $1440. (Ex. 10, Penalty

Modification at 1.)

D. Pre-Accident OSHA Inspections

OSHA compliance officers had also inspected the Somersworth

Shoe facility on at least two occasions prior to Irving's

accident. Compliance officer William Chase III inspected the

plant on June 26, 1975 (the "1975 inspection"), and compliance

officer John Ritchie inspected the plant on April 6, 1978 (the

"1978 inspection"). In order to fully understand the

significance of the 1975 and 1978 inspections, it is important,

first, to review the regulatory framework within which they were

conducted.

1. OSHA Regulatory Framework

In passing the Occupational Safety and Health Act of 1970,

(the "Act"), Congress sought to improve

workplace safety by authorizing the Secretary of Labor to develop

15 and promulgate mandatory occupational safety and health

standards.

(b)(3) & (b)(9). Employers and

employees are of course duty bound to comply with all safety and

health standards promulgated under the Act.

.

Nonetheless, in order to enforce compliance with those standards,

the Secretary of Labor is authorized to "enter without delay and

at reasonable times any . . . workplace or environment where work

is performed by an employee of an employer" and to "inspect and

investigate during regular working hours and at other reasonable

times . . . any such place of employment and all pertinent

conditions . . . therein."

(a)(1) & (a)(2).

Regulations promulgated pursuant to

give

OSHA Area Directors and compliance officers the authority to

decide when and where workplace inspections will take place.

(a); Irving I,

. In addition, OSHA

regulations grant individual compliance officers significant

control over the manner in which particular inspections are

performed. Irving I,

("[FJormal regulations

. . . give the individual compliance officers discretion to

decide how to conduct the inspections."); see also 2 9 C.F.R.

1903.7(b) & (d) (compliance officers may employ any "reasonable

investigative technigues" as long as they do not amount to

16 "unreasonable disruption of the operations of the employer's

establishment").

OSHA routinely conducts inspections in response to workplace

accidents, employee complaints, and as part of its "programmed"

enforcement efforts. (Amirault, 2/12/85, p. 26-27.) After

inspecting a workplace, the compliance officer is reguired to

informally advise the employer of any apparent safety violations

disclosed by the inspection. Irving I,

;

(e). The compliance officer then prepares an

inspection report describing all of the violations he or she

observed. See

(a); (Amirault, 2/12/85,

p. 57.) The compliance officer's superior, the Area Director,

then reviews the inspection report. "If, on the basis of the

report the Area Director believes that the employer has violated

a [health or safety standard] . . . , he shall issue to the

employer either a citation or a notice of de minimis violations

. . . ."

(a) .

There are three levels of OSHA violations, categorized

according to the level of risk they pose to employees. At one

end of the spectrum are "de minimis" violations — violations of

OSHA standards that have "no direct or immediate relationship to

safety or health;" a de minimis violation cannot be the basis of

17 a citation or monetary penalty.

(a);

(a). At the other end of the spectrum are "serious"

violations, which exist "if there is a substantial probability

that death or serious physical harm could result from" the

violative condition.

(h). Any violations deemed

neither de minimis nor serious in nature fall in the middle, and

are designated as "non-serious" violations.

(c);

Hackney, Inc. v. McLaughlin,

, 1299 n.l (10th Cir.

1990). The OSHA Area Director "shall" issue a citation for a

serious or non-serious violation, "shall" assess a civil penalty

of up to $1,000 for each serious violation, and "may" assess a

civil penalty of up to $1000 for each non-serious violation.

(a);

, 666(b) & (c). In addition

to subjecting the employer to citation and possible monetary

penalty, conditions that constitute serious or non-serious

violations of OSHA safety standards must be abated by the

employer within the time period fixed by the Area Director.

(b) .

2. OSHA Policy Governing the 1975 & 1978 Inspections

While the Act and OSHA regulations generally leave many

decisions regarding inspections in the hands of Area Directors

18 and compliance officers, the scope of the Somersworth Shoe

inspections William Chase and John Ritchie performed in 1975 and

1978 was dictated by less formal, but no less binding, OSHA

policy. Francis Richard Amirault, the Area Director for whom

both Chase and Ritchie worked, testified extensively and with

obvious candor as to what was required of the two compliance

officers during their inspections of Somersworth Shoe. In

addition. Chase and Ritchie testified about their own

understandings of their inspection duties.

Chase and Ritchie were both instructed to perform "wall-to-

wall" inspections of the Somersworth Shoe facility. (Amirault,

2/12/85, p. 27;

/12/85, p. 102; Ritchie, 2/12/85,

p. 147.) In conducting wall-to-wall inspections of the plant,

both compliance officers were "charged to look at the entire

plant," (Amirault, 2/12/85, p. 51), and "required" to perform a

"complete inspection of the facility." (

/12/85, p. 133;

see also Amirault, 2/12/85, p. 28; Ritchie, 2/12/85, p. 147.) As

the First Circuit noted, the compliance officers "could not

choose simply to spot check certain areas." Irving I,

.

Indeed, OSHA policy dictated the thoroughness required of

the 1975 and 1978 inspections to an even greater degree.

and Ritchie had to do more than merely walk through each room of

the Somersworth Shoe plant. Rather, OSHA policy required them to

"observe any place where an employee w o r k [ e d ] ( A m i r a u l t ,

2/12/85, p. 30, 55.) Toward that end, compliance officers had to

"look at every operation" in the facility. (Amirault, 2/12/85,

p. 30.) Thus, they had no choice but to inspect every

operational machine and work station in the plant.8

As noted earlier, OSHA regulations required the Area

Director to review the compliance officers' inspection reports

for the purpose of categorizing violations and issuing notices

and citations. In order to make the Area Director's review

meaningful, OSHA policy required Chase and Ritchie to document or

record all of the violations they observed as they conducted

their inspections, whether those violations appeared to them to

8 At oral argument, the government conceded that OSHA policy required Chase and Ritchie to inspect every "operation" in the Somersworth Shoe facility. (See Transcript of 11/21/95 Oral Argument ("Tr.") at 107-109.) The government argues, however, that a duty to inspect every "operation" is somehow different from a duty to inspect every "machine." (Tr. at 108.) But the evidence makes clear, and the government does agree, that the term "operation" as used by Area Director Amirault included every machine that was operational or, phrased differently, every machine or workstation at which an employee normally worked, regardless of whether an employee was actually operating the machine during the inspection itself. (Tr. at 108-09; Amirault, 2/12/85, p. 30, 55 (agreeing that inspection should take place "machine by machine by machine.");

/12/85, p. 129-131.)

20 be de minimis, serious, or non-serious in nature. (Amirault,

2/12/85, p. 55, 57.) As Area Director Amirault stated. Chase and

Ritchie were required to "document any hazardous conditions that

they would see." (Amirault, 2/12/85, p. 28; see also 2/12/85,

p. 25, 57-58.)

OSHA policy did not, however, require Chase and Ritchie to

record nominal violations of applicable requlations if there was

no potential employee exposure to the violative condition. In

order to constitute even a de minimis violation of OSHA safety

standards, a workplace condition must both: (1) fail to satisfy

the terms of an applicable safety requlation promulqated by the

Secretary of Labor; and (2) be located in a position such that

employees could potentially be exposed to it. (Amirault,

2/12/85, p. 58, 94-95.) Because potential exposure is a

necessary component of a violation, the OSHA compliance officers

were not required to report a condition that nominally violated

OSHA requlations but posed no risk of exposure to employees.

OSHA policy, then, required Chase and Ritchie to perform

wall-to-wall inspections of the Somersworth Shoe plant, which

included a requirement that they inspect every operational

machine in the facility. In addition, the compliance officers

were required to document every violation they observed, whether

21 it appeared to be a de minimis, serious, or non-serious violation

of OSHA safety standards.9

3. 1975 Inspection

On June 26, 1975, OSHA compliance officer William Chase III

inspected the Somersworth Shoe facility. Because Chase was not

familiar with the layout of the plant, he relied on a Somersworth

Shoe representative to show him every room in which employees

worked. (

/12/85, p. 124.) Chase was taken into every

room in the plant, including the stock fitting room. (

/12/85, p. 124, 127; Ex. 8, OSHA Compliance Worksheet at 4, item

8 .)

During the course of his inspection. Chase noticed and

documented a total of 39 violations of 9 separate OSHA standards,

including 14 power transmission mechanisms left unguarded in

contravention of

. (

/12/85, p. 126,

140; Ex. 8, OSHA Proposed Penalty Worksheet at col. 2.) Three of

the unguarded power transmission mechanisms were horizontal drive

shafts located in the cutting department. (Ex. 8, OSHA

9 The answer to the Court of Appeals's explicit guestion — "Did OSHA policy leave the thoroughness of the inspections a matter of choice for individual inspectors?" — is, therefore, "No." See Irving II,

.

22 Compliance Worksheet at 3, item 6;

/12/85, p. 126.)

Chase did not, however, notice or document any violative

conditions related to the bench assembly on which Irving was

later injured. (

/12/85, p. 128; Ex. 8, OSHA Compliance

Worksheet.)

Immediately following his inspection. Chase held a closing

conference with Samuel Freedman, then the general manager of

Somersworth Shoe. The two men discussed all of the violations

Chase found and agreed upon an abatement schedule. (Ex. 8, OSHA

Narrative at 5 12.) On July 7, 1975, OSHA issued a citation to

Somersworth Shoe for nine separate groups of non-serious

violations. OSHA did not, however, levy a monetary penalty

against Somersworth Shoe for any of the cited violations. The

bench assembly on which Irving was later injured was not cited.

(Ex. 8, Citation at 1-3.)

4. 1978 Inspection

On April 6, 1978, OSHA compliance officer John Ritchie

inspected Somersworth Shoe. During the course of his inspection,

Ritchie noticed and documented ten separate violations of OSHA

safety standards. (Ex. 9, OSHA Worksheet at 1-10.) Three of

those violations concerned unguarded drive belts. (Ex. 9, OSHA

23 Worksheet at 7-9; Ritchie, 2/12/85, p. 150.) None of the

violations Ritchie documented was located in the stock fitting

room. (Ex. 9, OSHA Worksheet at 1-10.) Ritchie also found that

Somersworth Shoe had an inadequate safety training program and no

health or safety staff. (Ex. 9, OSHA Narrative at 5 15; Ritchie,

2/12/85, p. 150.)

As Chase had done three years earlier, Ritchie held a

closing conference with Samuel Freedman in which the two men

reviewed all of the violations Ritchie found during his

inspection. On April 12, 1978, OSHA cited Somersworth Shoe for

eight separate groups of violations, including three instances of

unguarded drive belts. OSHA did not fine Somersworth Shoe, but

ordered all violations abated by May 8, 1978. The bench assembly

on which Irving was later injured was not cited. (Ex. 9,

Citation and Notification of Penalty at 1-2.)

E. Chase and Ritchie's Failure to Note Violation

It is the failure of Ritchie and Chase to identify and

document the unguarded horizontal drive shaft on the bench

assembly, and OSHA's failure to cite it, that form the basis of

Irving's cause of action. As noted earlier, the decision to cite

an employer for a violation of OSHA safety standards is,

24 according to applicable regulations, made by an OSHA Area

Director after his or her review of a compliance officer's

inspection report. See

(a).10 The inspection

reports of Ritchie and Chase did not in any way reference the

drive shaft in guestion. (See Ex. 8, OSHA Compliance Worksheet,

Narrative, Proposed Penalty Worksheet; Ex. 9, OSHA Worksheet,

Narrative.) Therefore, the court must determine the reason or

reasons why neither compliance officer identified or recorded the

drive shaft as being in violation of OSHA safety standards.

Both parties agree that the drive shaft was not guarded by a

stationary casing or trough as reguired by

(c)(2)(ii) during the 1975 and 1978 inspections. In

fact, the evidence overwhelmingly supports the conclusion that

the shaft was not guarded by a casing or trough at any time prior

to Irving's accident. (Rothwell, 2/12/85, p. 14-15; Couture,

2/12/85, Supp. at 8-9; Brooks, 2/12/85, Supp. at 13-15.) While

10 Under

(e), the Area Director may delegate to a compliance officer his or her responsibility to review inspection reports and issue citations. There is no evidence that Area Director Amirault so delegated his responsibilities in this case. Although compliance officer O'Connell signed the 1978 citation "for F.R. Amirault," the Area Director reviewed the 1975 and 1978 inspection reports for the purpose of categorizing violations and issuing appropriate citations. (See Ex. 8, OSHA Inspection Report at 1, § 36; Ex. 8, Citation at 2, 3, 5 14; Ex. 9, OSHA Inspection Report at 1, 5 38 .)

25 the parties agree that the shaft had no guard, the government and

Irving concur on few other facts related to the 1975 and 1978

inspections.

1. Guarded by Location

In order to hold OSHA liable for her injuries, Irving must

first prove that the drive shaft was in violation of OSHA safety

standards during one or both of the pre-accident inspections.

Although the government concedes that the horizontal drive shaft

was not guarded by a casing or trough, it has argued vigorously

from the outset of this case that the shaft was "guarded by

location" during both the 1975 and 1978 inspections.

As discussed earlier, potential employee exposure is a

necessary component of a documentable violation of OSHA safety

standards. The government argues that during the 1975 and 1978

inspections there existed no potential exposure to the unguarded

horizontal drive shaft because it was guarded by location. That

is, the government contends that in 1975 and 1978 the bench

assembly was located approximately two feet to the rear (north)

of the position it occupied when the accident occurred. With the

bench in that position, the argument continues, access to the

rear of the assembly would have been blocked by the die rack.

26 Without access to the back of the bench, employees would not have

been exposed to the serious danger otherwise posed by the

unguarded rotating drive shaft. Therefore, the government

concludes, in 1975 and 1978 there was no violative condition for

Chase and Ritchie to notice and document.

Irving counters that the evidence shows that in 1975 and

1978 the bench assembly was in substantially the same location

and condition it was in at the time of her accident.11

In support of its argument that the bench assembly was

moved, the government relies heavily on the testimony of

compliance officer Chase. Although Chase apparently had no

11 In support of her position, Irving contends that under New Hampshire law "where the location of an object is at issue, evidence of the prior or subseguent location of that same object is considered strongly suggestive of its position at the time of the occurrence in guestion." (Plaintiff's Reguest for Findings of Fact and Conclusions of Law at 12, 5 50.) By this, Irving seems to suggest that evidence of the bench assembly's 1979 location is entitled to some special weight. Under New Hampshire law, evidence of the location of an object is admissible for the purpose of showing that the object occupied the same position at a prior point in time. State v. Harris,

,

(1957), Dube v. Bickford,

,

(1943). However, the evidence of subseguent location does not create a legal presumption to that effect, or carry more legal weight than any other evidence egually probative of prior location. Harris,

,

. The court will, therefore, consider the location of the bench assembly in 1979 as evidence of the location it occupied in 1975 and 1978 but will only credit it commensurate with its probative value in light of all of the evidence introduced at trial.

27 independent recollection of the bench assembly (

/12/85,

p. 118), he testified that the machine must have been guarded by

location during the 1975 inspection. Chase's opinion was based

largely on his belief that he simply would not have failed to

notice a violation as flagrant as the unguarded shaft on which

Irving was injured, had it existed during his inspection.

(

/12/85, p. 110, 119.) He stated:

I wouldn't miss something like that on inspection, not when I already found the unguarded shafts on another piece of eguipment. There's no way I missed it. Something has had to change relative to that piece of eguipment [between my inspection and Irving's accident].

(

/12/85, p. 119.) In fact. Chase felt that the unguarded

rotating shaft on which Irving was injured was such a flagrant

violation of OSHA safety standards that, assuming he inspected

every operation in the Somersworth Shoe plant, he would not have

failed to note the violation even in a "careless moment" or on

his "wors[t] day." (

/12/85, p. 134.)

In essence, then. Chase testified that because he did not

notice or document that the drive shaft was in violation of OSHA

safety standards the machine must have been guarded by location;

and the machine must have been guarded by location because he did

not notice or record the violation. Reciting the argument

28 highlights its circularity. But, to point out the circular

nature of the government's position is not necessarily to

discredit it entirely or deem it hopelessly inconsistent with

what actually happened. The argument's circularity, however,

does render it suspect to the extent it is not corroborated by

extrinsic evidence.

In hopes of bolstering its theory that the machine was

guarded by location during the 1975 and 1978 inspections, the

government points to the testimony of two long-time Somersworth

Shoe employees. Roger Couture worked at Somersworth Shoe from

1944 until 1979. From approximately 1974 until early 1979, he

was foreman of the stock fitting room. (Couture, 2/12/85, Supp.

at 3-4.) Couture testified on direct examination that the bench

assembly "might have been moved, probably the whole thing, one or

two feet, but that was it." (Couture, 2/12/85, Supp. at 5.) On

cross examination he added, "The only thing is it was moved . . .

a little back . . . about maybe a foot." (Couture, 2/12/85,

Supp. at 9.) Similarly, Bruce Brooks, who worked in the stock

fitting room from 1950 until early 1984 and regularly operated

the die-out machine in guestion, noted that Somersworth Shoe "had

moved a bench and they had moved a motor machine in that area at

29 one time. Just when that was, I couldn't tell you." (Brooks,

2/12/85, Supp. at 18.)

The government relies heavily on these inconclusive

statements, but ignores a larger body of evidence that

overwhelmingly supports the notion that the rotating shaft was

neither guarded by location nor otherwise inaccessible at any

time prior to Irving's accident. In fact, the testimony of

Couture and Brooks, viewed in its entirety, also supports the

notion that the bench assembly had not been altered or moved in

any material fashion in the five years before the accident.

Couture stated that the machine had been in the same place and in

the same condition throughout his tenure as foreman, that is,

from 1974 until early 1979. (Couture, 2/12/85, Supp. at 4-5.)

He further testified that in 1979 the condition of the machine

was exactly the same as it had been in 1975 and 1978. (Couture,

2/12/85, Supp. at 8.)

The bulk of Brooks' testimony also strongly supports the

proposition that the machine had been at or near its present

position "years before Gail was on it." (Brooks, 2/12/85, Supp.

at 17; see also, 2/12/85, Supp. at 15-17.) Significantly, Brooks

testified that throughout his tenure at Somersworth Shoe

employees had access to the unguarded rotating shaft from both

30 the front and rear of the bench assembly. (Brooks, 2/12/85,

Supp. at 15 .)

In addition to the testimony of those personally familiar

with the bench assembly's condition and location during the 1975

and 1978 inspections, Irving points to physical and testimonial

evidence establishing the permanence of the position the bench

and motor occupied during the 1975 and 1978 inspections and

through the time of the accident. The most convincing evidence

came in the form of photographs taken by Paul O'Connell during

his post-accident inspection. The photos were introduced at

trial as plaintiff's Exhibit 14B (O'Connell, 2/12/85, p. 157),

and clearly show that the workbench, the electric motor that

drove the die-out machine, and the supports for the drive shaft

were all securely bolted to the concrete floor of the stock

fitting room. (Ex. 14B, Photos 1, 2, 4, 5, 15, 20, 21, 22, 23.)

Igor Paul, plaintiff's expert witness, also examined the bench

assembly after the accident and concluded that it could only be

repositioned by removing all of the bolts from the concrete floor

and, presumably, reinserting them into the floor at a different

location. (Paul, 2/14/85, p. 14, 30.)

The photographs do not support the hypothesis that the bench

had been moved between the OSHA inspections and the accident. In

31 fact, O'Connell's photos are convincing evidence that the bench

assembly never occupied a position in the Somersworth Shoe plant

other than the position it occupied in 1979. The concrete floor

around the bench assembly contains no empty bolt holes or other

blemishes that one would expect to find if the bench assembly had

been unbolted, relocated, and rebolted to the floor, especially

if it had been moved only a few feet. (Ex. 14B, Photos 1-5, 14-

16, 20-24.) In addition, the wear marks beneath the foot pedal

of the marker machine indicate that the bench assembly had, in

1979, occupied the same position for quite some time. (Ex. 14B,

Photos 1, 2, 4, 5.)

Finally, the position of the bench assembly vis-a-vis the

die rack and the power switch renders it highly unlikely that the

drive shaft was guarded by location as a result of its proximity

to the rack or to any other workplace condition. Neither party

contends, and the evidence does not show, that the die rack was

moved or materially altered at any time between 1975 and 1979.12

The die rack had shelves extending down to the floor behind the

12 Indeed, the die rack was considered so permanent a fixture that O'Connell treated it as if it were a partition or wall within the stock fitting room. (O'Connell, 2/13/85, p. 18.) Rothwell testified that the rack could only be repositioned through disassembly and was, in effect, immovable. (Rothwell, 2/12/85, p. 13-14.)

32 bench assembly, and Somersworth Shoe employees required regular

access to the dies and patterns kept on those shelves. (Ex. 14B,

Photos 1-3, 16, 17; Irving, 2/11/85, p. 8; O'Connell, 2/13/85,

p. 42.) In addition, the aisle between the bench assembly and

the die rack provided the only access to the power switch for the

die-out machine. (Ex. 14B, Photos 13, 14.)13 Because employees

needed access to the dies, patterns, and power switch, and

because the narrow aisle between the rack and the bench assembly

provided the only access to these items, the aisle could not be

eliminated without rendering both the die-out and marker machines

useless.

Yet, in order for the drive shaft to have been effectively

guarded by location, the aisle between the bench assembly and the

die rack would have to have been eliminated entirely. At trial,

O'Connell implied that if the bench assembly had been positioned

one or two feet to the rear of the position it occupied in 1979

13 The court recognizes, as did Paul O'Connell, that the power switch was theoretically moveable. (See O'Connell, 2/13/85, p. 37.) However, the photographs of the switch indicate that it was attached to the east wall of the stock fitting room in a secure and relatively permanent manner and reveal no signs that it was recently moved. (Ex. 14B, Photos 13, 14.) In addition. Couture and Rothwell confirmed that there had been no changes made to the set-up of the die-out machine from 1974 through 1979. (Couture, 2/12/85, p. 9; Rothwell, 2/12/85, p. 4- 6 .)

33 the shaft would have been guarded by location yet employees still

would have been able to use the aisle to reach patterns, dies,

and the power switch. (O'Connell, 2/13/85, p. 34-42.) The

implication is not persuasive. The drive shaft could not have

been effectively guarded by location if a functional aisle

existed between the bench assembly and the die rack. In fact, if

the width of the aisle had been reduced even further, but the

aisle had not been eliminated, employees' exposure to the

rotating shaft would have been more, not less dangerous, because

they would have had less room to maneuver between the shaft and

the rack, especially if they bent over to pick up a dropped item

or to retrieve a pattern from the bottom shelf. Therefore, even

if the government were correct in postulating that during the

1975 and 1978 inspections the bench assembly was located one or

two feet to the rear of its 1979 position, the shaft still would

not have been effectively guarded by location.

The court finds that Irving has demonstrated, by a decided

preponderance of the evidence, that during the 1975 and 1978

inspections the bench assembly was in the same position it

occupied at the time of her injury. It was not guarded by

location. Operation of the die-out machine while the drive shaft

remained unguarded was in flagrant violation of OSHA safety

34 standards. The die-out machine was in operation during both

inspections .14

2. Failure to Inspect Every Machine

Despite the flagrant nature of the OSHA violation. Chase and

Ritchie did not notice or document the dangerous condition during

the 1975 and 1978 inspections. The government argues, however,

that those failures cannot, even if they amounted to actionable

negligence under New Hampshire law, support the imposition of

liability under the FTCA because OSHA inspections are

discretionary functions, for which Congress has preserved the

government's immunity from suit. In order to determine whether

the discretionary function exception to the FTCA's immunity

waiver applies to this suit, it is first necessary to determine

why the inspectors failed to notice and document the unguarded

drive shaft.

14 Necessary to this conclusion is a finding that the die- out machine was not taken out of operation, thereby eliminating worker exposure to the rotating shaft, for any significant period of time. The evidence establishes that the die-out machine was in near-continuous operation during the relevant time frame. Both its position and condition remained virtually unchanged. (Rothwell, 2/12/85, p. 4-5; Couture, 2/12/85, Supp. at 8; Brooks, 2/12/85, Supp. at 17;

/12/85, p. 131.)

35 The existence of the safety violation in 1975 and 1978

having been established, the evidence is arguably consistent with

two plausible explanations for the compliance officers'

oversight. First, Chase and Ritchie could have inspected the

bench assembly but failed to notice the unguarded drive shaft.

Second, both compliance officers could have neglected to inspect

this particular bench assembly and, as a result, failed to notice

the obvious unguarded drive shaft.15 It is, of course, very

difficult to determine precisely what happened during two

separate inspections approximately two decades ago. But, upon

careful examination of the record, the preponderance of the

evidence introduced at trial supports the conclusion that both

Chase and Ritchie failed to inspect the bench assembly on which

Irving was subseguently injured, and the court so finds.

15 The government suggests a third possibility: Both compliance officers noticed the unguarded drive shaft and, despite the obvious nature of the violation, made a judgment call that there was not sufficient potential employee exposure to justify documenting the condition as a violation of OSHA safety standards. The record does not support this suggestion and the court rejects it as a factual matter; neither compliance officer testified that he noticed the unguarded drive shaft, much less engaged in the judgment analysis the government seeks to ascribe to him. To the contrary. Chase testified that he never noticed the unguarded drive shaft and, if he had, he would have recognized it as a blatant and unmistakable violation of OSHA safety standards.

36 Both Chase and Ritchie were required to examine every

operation in the Somersworth Shoe plant during their respective

wall-to-wall inspections and did not possess the discretion to do

otherwise. Chase testified that he walked down every aisle of

every floor that management indicated employees worked on.

(

/12/85, p. 134.) In addition. Chase's inspection report

shows that he inspected many machines in the stock fitting room

and elsewhere in the plant. (Ex. 8, OSHA Compliance Worksheet at

1-4.) The bench assembly was located directly on a main aisle in

the stock fitting room. (Ex. 6, Floor Plan.) Chase did not

testify, however, that he inspected every operation in the

facility. Ritchie did not testify at all regarding the

thoroughness of his inspection in 1978, but his inspection report

indicates that he, too, inspected many machines in the plant.

(Ex. 9, OSHA Worksheet at 1-10.) Unfortunately, none of these

facts, taken alone or together, is direct, probative evidence of

whether or not the compliance officers actually inspected the

particular bench assembly in question.

There is, however, considerable circumstantial evidence

regarding the scope of the inspections actually performed. Every

trained person who laid eyes on the bench assembly, or saw a

photograph of it after the accident, recognized the unguarded

37 drive shaft as a blatant and very serious violation of OSHA

safety standards. Chase testified that if he had, in fact,

inspected the bench assembly, he could not have failed to

recognize that the drive shaft was a serious violation. (

/12/85, p. 134.) While he acknowledged that inspectors do, on

occasion, fail to notice violations, he "wouldn't miss something

like that; it's too obvious, positively." (

/12/85,

p. 113.)

Area Director Amirault concurred, stating that if a prudent

inspector saw the bench assembly depicted in O'Connell's post­

accident pictures, he should have noticed the unguarded drive

shaft and recognized it as a violation of OSHA safety standards.

(Amirault, 2/12/85, p. 66-67.) O'Connell, too, confirmed the

obvious nature of the violation, classifying it as "serious" and

assigning it a severity value of eight. (O'Connell, 2/12/85,

p. 159.)

In light of that evidence, a finding that Chase and Ritchie

inspected the bench assembly but failed to notice the unguarded

drive shaft or recognize it as a violation of OSHA safety

standards would be tantamount to a finding that both compliance

officers were not merely negligent, but utterly incompetent. As

Chase stated, any compliance officer looking at the bench

38 assembly would have recognized the unguarded drive shaft as a

serious violation on his or her worst day.

Of course, the record would not support a finding that Chase

and Ritchie were utterly incompetent. The evidence establishes

that both men were guite skilled and thorough in identifying and

documenting violative conditions. Both were experienced

workplace inspectors who obviously took their responsibilities

seriously. (

/12/85, p. 100-01; Ritchie, 2/12/85, 145-

46.) Chase had performed approximately 180 workplace inspections

prior to inspecting the Somersworth Shoe plant. (

/12/85,

p. 100-01.) During the 1975 inspection. Chase noticed and

documented 39 violations of OSHA safety standards, including 14

power transmission mechanisms left unguarded in violation of 29

C.F.R. 1910.219, the same general regulation under which Irving's

bench assembly was later cited. Similarly, Ritchie noticed and

recorded 10 separate violations during his inspection of

Somersworth Shoe, including three unguarded drive belts. The

preponderance of the evidence, therefore, decidedly supports the

conclusion that both Chase and Ritchie would have recognized that

the bench assembly violated OSHA safety standards reguiring the

guarding of power transmissions if they had, in fact, inspected

it.

39 Given these findings,16 there is but one probable, realistic

explanation for Chase and Ritchie's failure to notice and

document the unguarded drive shaft: Neither compliance officer

actually inspected the bench assembly during his tour of the

Somersworth Shoe plant. Chase and Ritchie were not incompetent;

they simply were not as comprehensive in their inspections as

OSHA policy reguired them to be. Rather than inspect every

operation in the plant, they inspected most of them, in effect

spot-checking (albeit thoroughly) the facility for violations of

OSHA safety standards. It is the inspectors' failure to inspect

every operation, as was reguired of them, that properly forms the

basis of Irving's cause of action under New Hampshire's Good

Samaritan doctrine and the FTCA.

II. DISCRETIONARY FUNCTION EXCEPTION

16 The relevant findings include: (1) The drive shaft was not guarded by a casing or trough during the 1975 or 1978 inspections; (2) the drive shaft was not guarded by location or otherwise rendered inaccessible to employees or inoperative during the 1975 or 1978 inspections; (3) Chase and Ritchie did not observe the unguarded shaft and make a judgment call that it was not a violation of OSHA safety standards; and (4) had Chase and Ritchie inspected the bench assembly they would have noticed and documented the unguarded drive shaft as a serious violation of OSHA safety standards.

40 Irving necessarily brings her Good Samaritan action against

the government under the FTCA,

(b), 2671-2680.

The FTCA operates as a broad waiver of sovereign immunity, giving

district courts jurisdiction to hear tort suits against the

United States for damages caused by federal employees acting

within the scope of their duties, where the United States, if a

private person, would be liable under the law of the place where

the tort occurred.

(b), 2674; see also Irving

I,

(1st Cir. 1990). This broad waiver of

sovereign immunity is, however, subject to several statutory

exceptions, including the so-called "discretionary function

exception," which exempts:

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 agency or an employee of the Government, whether or not the discretion involved be abused.

(a). Section 2680 "marks the boundary between

Congress' willingness to impose tort liability upon the United

States and its desire to protect certain governmental activities

from exposure to suit by private individuals." United States v.

Varig Airlines,

(1984); see also Irving I, 90 9

41 F.2d at 600. "Because § 2680(a) is a limitation on the waiver of

sovereign immunity, cases which fall within the discretionary

function exception are dismissed for lack of subject matter

jurisdiction." Irving I,

.

"The determination of whether the discretionary function

exception bars a suit against the Government is guided by several

established principles." Berkovitz v. United States,

(1988). First, "it is the nature of the conduct, rather

than the status of the actor, that governs whether the

discretionary function exception applies in a given case."

(guoting Varig Airlines,

). The inguiry, then,

focuses on the "permissible range of action available to the

government employee allegedly at fault." Irving I,

. Specifically, "[i]n examining the nature of the challenged

conduct, a court must first consider whether the action is a

matter of choice for the acting employee. This inguiry is

mandated by the language of the exception; conduct cannot be

discretionary unless it involves an element of judgment or

choice." Berkovitz,

; Irving I,

.

"[T]he reguirement of judgment or choice is not satisfied if a

'federal statute, regulation, or policy specifically prescribes a

course of action for an employee to follow,1 because 'the

42 employee has no rightful option but to adhere to the directive.'"

Irving II,

(1st Cir. 1995) (quoting United

States v. Gaubert,

(1991)) (internal quotations

omitted, emphasis supplied in Irving II).

Even if the challenged conduct is the product of an

employee's permissible exercise of judgment, suit is barred only

if that judgment "is of the kind that the discretionary function

exception was designed to shield. The basis for the

discretionary function exception was Congress' desire to 'prevent

judicial "second-guessing" of legislative and administrative

decisions grounded in social, economic, and political policy

through the medium of an action in tort.1" Berkovitz,

-37 (quoting Varig Airlines,

). "The

exception, properly construed, therefore protects only

governmental actions and decisions based on considerations of

public policy." Id. at 537. "In sum, the discretionary function

exception insulates the Government from liability if the action

challenged in the case involves the permissible exercise of

policy judgment." Id. (emphasis added).

The first step in deciding the discretionary function

exception question presented here, then, is determining exactly

what constitutes the "challenged conduct." See, e.g., Gaubert,

43

; Berkovitz,

; Varig

Airlines,

. Irving's complaint alleges

that "[t]he [1975 and 1978] inspections of said Somersworth Shoe

Company were performed in a negligent . . . manner in that the

defendant failed to issue citations for violations of the said

Occupational Safety and Health Act." (Irving's Complaint at 3,

5 9.) It adds that the government "breached its duty to the

employees of said Somersworth Shoe Company, including the

plaintiff, by negligently performing the said inspections of said

shoe shop." Id. at 3, 5 10. Irving's complaint, therefore,

challenges the manner in which Chase and Ritchie conducted the

1975 and 1978 inspections and is phrased broadly enough to

encompass all of the discrete actions the compliance officers

took, or failed to take, during those inspections.17

17 Reading Irving's complaint to allege negligence on the part of the compliance officers in their performance of the several specific actions that constituted the 1975 and 1978 inspections is consistent with a liberal reading of the complaint and is in harmony with the Supreme Court's assessment of the complaints in both Berkovitz and Varig. In Berkovitz the Court read plaintiffs' broad averment of negligent licensing and release of a polio vaccine as alleging negligence at each relevant step of the multi-stage licensing and release procedures. Berkovitz,

. Similarly, in Varig Airlines the Court read plaintiff's allegation that the FAA was negligent in failing to inspect certain elements of aircraft design as "necessarily challeng[ing] two aspects of the certification procedure: the FAA's decision to implement the 'spot-check' system of compliance review, and the application of

44 At trial, Irving's proof established that the inspectors

were negligent, if at all, in failing to inspect the marker/die-

out bench assembly. As the court has found, the evidence would

not support a finding that the actions of the compliance officers

or any other Department of Labor employee were deficient, much

less negligent, at any other stage of the 1975 and 1978

inspections or subseguent citation processes. Therefore, it is

Chase's and Ritchie's failure to inspect the bench assembly

during the 1975 and 1978 inspections that forms the basis of

Irving's cause of action and constitutes the "challenged conduct"

for the purposes of applying the discretionary function

exception.18

With the facts surrounding the 1975 and 1978 inspections

found, and the challenged conduct defined, resolution of the

that 'spot-check' system to the particular aircraft involved." Varig Airlines,

.

18 Because the court has already found that the OSHA compliance officers failed to inspect every operational machine, as reguired by OSHA policy, this order does not delve into whether each stage of the multi-step inspection and citation process involved a discretionary or mandatory function. Rather, it addresses in depth the only step relevant in light of the evidence presented at trial — the failure to inspect every operational machine. As explained more fully below, whether or not the compliance officers performed other discretionary functions is irrelevant because Irving has not proven that they acted improperly or breached a duty owed Irving at any other point during the inspection and citation process.

45 discretionary function issue becomes relatively straightforward

in light of Berkovitz: the discretionary function exception does

not deprive this court of subject matter jurisdiction over

Irving's suit because OSHA policy governing the 1975 and 1978

inspections did not give inspecting compliance officers any

discretion to not inspect particular operational machines within

the Somersworth Shoe facility. Rather, OSHA policy prescribed a

definite and mandatory course of action for the compliance

officers to follow. They were reguired to inspect every

operational machine in the plant and could not do less; anything

less would amount to an unauthorized spot-check of the facility.

Having alleged and proven the existence of that mandatory duty,

Irving may maintain her suit to the extent it focuses on Chase's

and Ritchie's failure to comply with it.19

Indeed, this case is strikingly similar to Berkovitz, in

which the plaintiff sued the government alleging that the

National Institute of Health's Division of Biologic Standards

("DBS") licensed a polio vaccine without first receiving test

19 At oral argument, the government agreed that such a failure on the part of OSHA inspectors implicates a mandatory duty. Attorney Pyles stated, "If there's a reguirement to look at every machine and he does not look at every machine, then I would agree that that's a violation of a mandatory regulation." (Tr. at 111.)

46 data on the safety of the vaccine. Applicable statutes and

regulations required, as a precondition to licensing, that the

DBS receive safety test data on the vaccine from the

manufacturer. Because the DBS had no discretion to issue the

license without first receiving the test data, the discretionary

function exception did not bar the plaintiff's suit. Berkovitz,

. Here, Irving has likewise proven that OSHA

compliance officers had a duty to inspect every operational

machine before they compiled the inspection reports upon which

citation decisions were based. She has also proven that the

compliance officers did not inspect the bench assembly before

preparing their inspection reports. She may, therefore, maintain

her suit challenging the compliance officers' failure to inspect

the bench assembly.

In contrast, this case is readily distinguished from Varig

Airlines, in which the discretionary function exception did bar

suit because FAA inspectors were "specifically empowered" to

spot-check aircraft under construction for compliance with FAA

regulations. Varig Airlines,

. Here, "the

compliance officers were required by OSHA to inspect the entire

Somersworth Shoe plant; they could not choose simply to spot

check certain areas." Irving I,

.

47 Although the government concedes that the compliance

officers were under a mandatory duty to inspect every operation

(Tr. at 107), it points to a number of discretionary functions

performed by Chase and Ritchie during the course of the 1975 and

1978 inspections in support of its argument that the

discretionary function exception bars Irving's suit entirely. It

is undoubtedly true that both Chase and Ritchie did exercise

policy-level discretion in performing certain of their assigned

duties. For instance, the compliance officers could and did

exercise discretion, informed by public policy concerns, when

they made determinations regarding whether or not particular

workplace conditions presented sufficient risks of employee

exposure to justify documenting them as potential violations of

OSHA safety standards. Similarly, the Area Director, when

classifying violations as de minimis, non-serious, or serious,

exercised policy-level discretion.

But while the government's premise is sound — Chase and

Ritchie did perform discretionary functions during the 1975 and

1978 inspections — its conclusion that the discretionary function

exception bars Irving's suit does not follow. Irving's suit is

barred only to the extent it alleges that OSHA employees were

negligent in performing any of those discretionary functions.

48 Irving could not, for example, sue the government if OSHA had

decided not to inspect the Somersworth Shoe plant at all. Varig

Airlines,

("When an agency determines the

extent to which it will supervise safety procedures of private

individuals, it is exercising discretionary regulatory authority

of the most basic kind."). She also could not bring an action

under the FTCA if OSHA formulated and followed a policy of spot-

checking machines and, as a result, failed to find the violative

condition leading to her injury.

; Berkovitz,

. She likewise could not sue if OSHA left it up to the

assigned inspectors to determine how thorough an inspection to

conduct. Nor could she sue the government if the compliance

officers inspected the bench assembly but wrongly concluded that

there was insufficient employee exposure to justify a citation,

however gross an abuse of discretion that judgment might have

been. Berkovitz,

. And she could not sue if

OSHA mistakenly categorized a serious violation as de minimis.

Each of those situations would involve, at most, an abuse of

discretion, but the exercise of discretion nonetheless, and the

exercise of discretion is generally immune from scrutiny under

the FTCA.

49 But while the discretionary function exception would bar

many, if not most, suits arising from negligent OSHA inspections,

it does not bar Irving's suit. This is so because none of the

scenarios advanced by the government actually occurred in this

case. Instead, Chase and Ritchie failed to inspect the bench

assembly at issue despite a mandatory duty to inspect it. Under

Berkovitz, Irving may sue the government for that failure.20

In light of the court's finding that Chase and Ritchie

failed to inspect the bench assembly despite a mandatory duty to

do so, the government is limited to arguing, in effect, that the

fact that the compliance officers performed several other

discretionary functions shields their challenged conduct from

suit, even though the challenged conduct implicates a mandatory

duty. This argument ignores the clear lesson of both Varig

20 This is not to imply that this is the only conceivable failure on the part of OSHA that could give rise to a cause of action under the FTCA. For instance, if Irving had proved that Chase and Ritchie inspected the bench assembly, noticed the unguarded rotating drive shaft, determined that sufficient employee exposure to the hazard existed, but failed to document the violative condition, Irving could likely maintain a suit against the government for that failure consistent with the discretionary function exception. Similarly, if Irving demonstrated that OSHA actually decided there existed a substantial probability that death or serious physical harm could result from a violative condition, yet refused to issue a citation for that condition, Irving could maintain a suit challenging that failure. Some actions become mandatory once discretion has actually been exercised.

50 Airlines and Berkovitz that the proper inquiry is whether the

"challenged conduct . . . is a matter of choice for the acting

employee." Berkovitz,

(emphasis added); see also

Variq Airlines,

. While Irving cannot maintain a

suit based on the government's failure to properly perform a

discretionary function, she may indeed sue for breach of

mandatory duties that did, in fact, occur.21

Finally, to avoid a decision on the merits of Irving's suit,

the government advances another version of the same argument

rejected above. The government argues that Irving has not

identified any statute, regulation, or policy requiring OSHA

compliance officers to "notice" or "find" every safety violation

that existed within the four walls of the Somersworth Shoe plant.

21 Of course, in order to succeed on the merits of her Good Samaritan claim, Irving must prove that the compliance officers' failure to inspect the bench assembly breached a duty recognized under state law and was causally related to her injury. The causal chain may include proof that OSHA employees would more likely than not have performed certain actions that are discretionary in character (i.e. classifying the unguarded drive shaft as a violation and citing Somersworth Shoe for that violation). The causal chain may include functions that are discretionary without barring suit over the violation of mandatory duties. This notion is implicit in Berkovitz,

, where the Supreme Court allowed a suit in which it was alleged that the DBS licensed a polio vaccine without receiving the required test data; DBS employees would have exercised discretion in making the licensing determination once they received the required test data.

51 and, as a result, the discretionary function exception bars any

suit alleging that the injury occurred as a result of OSHA's

failure to find or cite a violative condition.22

Once again, the government's premise is correct: Irving has

not proven the existence of a policy reguiring Chase and Ritchie

to find or notice every safety violation in the facility. The

Court of Appeals said in Irving I,

, that there

is some evidence in the record suggesting the existence of such a

duty and perhaps it's a plausible suggestion. For instance, in

response to a guestion by plaintiff's counsel regarding the scope

of the 1975 and 1978 inspections. Area Director Amirault stated,

" [Y]ou would have to ask the compliance officer exactly how he

proceeded, but he should be observing and documenting any

violative condition . . . ." (Amirault, 2/12/85, p. 29-30

(emphasis added).) But, while this and similar statements by

22 The court addresses this argument separately because both parties have hotly disputed its validity and the First Circuit has twice directed the district court to determine whether there existed a mandatory "duty to find," Irving I,

, or "reguir[ement] . . . to notice," Irving II,

, all safety violations within the four walls of the Somersworth Shoe plant. As phrased, the answer to the Court of Appeals's specific guestion, did "the inspectors [have] policy-level discretion to fail to note and tell the employer about the violation"? Irving II, 49. F.3d at 834, is: The inspecting officers were not mandated or reguired to find or notice every violation, but were reguired to report all de minimus, non-serious, and serious violations that they did find.

52 Amirault could conceivably be interpreted as meaning that OSHA

policy required Chase and Ritchie to notice every violation

within the plant (a stretch this court is unwilling to make ) , the

vast majority of the evidence presented at trial, including the

bulk of Amirault's testimony, establishes that OSHA policy

imposed upon the compliance officers only the more realistic duty

to document all violations that they did, in fact, notice during

their inspections. OSHA policy did not (and as a practical

matter could not reasonably) require them to find every single

violation that existed in the facility, perfection being more

aspirational than achievable. Amirault repeatedly stated that

the inspectors' job was to inspect every operation in the plant

and "document any hazardous conditions that they would see."

(Amirault, 2/12/85, p. 28 (emphasis added); see also 2/12/85, p.

25, 57, 58, 88-89.) In fact, Amirault nearly always qualified

his answers in an attempt to distinguish between the duty to

record recognized violations and the duty to notice all

violations that existed. (See, e.g., Amirault, 2/12/85, p. 55.)

Irving could not, therefore, sue the government under the FTCA

for OSHA's mere failure to conduct perfect safety inspections.

For the reasons discussed above, however, the fact that

Chase and Ritchie were under no mandatory duty to find every

53 violative condition is neither here nor there. What is important

is that they were under a mandatory duty to inspect every

operational machine and failed to do so. In fact, it was by

inspecting every operational machine that OSHA expected to meet

its goal of identifying and eliminating all workplace safety

hazards to the extent humanly possible. It makes sense, then,

that Irving can maintain her suit for negligent failure to

inspect every operational machine, even though she could not

bring a cause of action based on Chase's or Ritchie's failure to

carry out their inspection of each machine perfectly, had they

actually looked at every machine.

Because Irving has proven the existence of a mandatory duty

on the part of Chase and Ritchie, and because her suit is based

on their failure to carry out that duty, the discretionary

function exception to the FTCA does not deprive this court of

subject matter jurisdiction over Irving's sole cause of action.

With the jurisdictional guestion resolved, the court now proceeds

to consider the merits of Irving's claim under New Hampshire's

Good Samaritan doctrine.

III. GOOD SAMARITAN DOCTRINE

54 Under the FTCA, the United States is liable in tort "in the

same manner and to the same extent as a private individual under

like circumstances,"

, "in accordance with the

law of the place where the act or omission occurred."

(b). The FTCA, then, does not create new causes of action,

but, instead, waives sovereign immunity for certain causes of

action founded on state law. In fact, "even where specific

behavior of federal employees is required by federal 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." Zabala Clemente v. United States,

(1st Cir. 1977), cert, denied,

(1978). [T]he test established by the Tort Claims Act for

determining the United States1 liability is whether a private

person would be responsible for similar negligence under the laws

of the State where the acts occurred.1" Dorking Genetics v.

United States,

(2d Cir. 1996) (quoting

Ravonier, Inc. v. United States,

(1957))

(alteration in Dorking Genetics) .

The court must, therefore, first look to the law of New

Hampshire to determine whether the United States could be liable

for Irving's injuries. Under New Hampshire law, a plaintiff

55 claiming negligence on the part of a defendant must show that:

(1) the defendant owed the plaintiff a duty; (2) the defendant

breached that duty; (3) the plaintiff suffered an injury; and (4)

the defendant's breach of duty was the proximate cause of

plaintiff's injury. Ronavne v. State,

,

(1993) .

A. Duty

The threshold inguiry in any negligence action is whether

the defendant had a legal duty to defend the plaintiff against

injury. Here, Irving relies on the so-called "Good Samaritan"

doctrine, as described in the Restatement (Second) of Torts

§ 324A and recognized by New Hampshire law, as the basis for the

government's duty. See Williams v. O'Brien,

,

(1995); Walls v. Oxford Management Co.,

,

(1993); Corson v. Liberty Mut. Ins. Co.,

,

(1970); Kirk v. United

States,

(D.N.H. 1985). Section 324A

provides:

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

56 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.

Restatement (Second) of Torts § 324A (1965).

In order to establish that the United States owed her a duty

of care, therefore, Irving must establish that OSHA undertook to

render services to Somersworth Shoe necessary for the protection

of Somersworth Shoe's employees, including Irving. Irving must

also prove that: (1) OSHA's failure to exercise due care in

rendering services increased the risk of harm to her; c>r (2) OSHA

undertook a duty owed by Somersworth Shoe to her; .or (3) she

suffered harm because of her reliance, or the reliance of

Somersworth Shoe, upon OSHA's undertaking.23

23 Courts differ as to whether the three disjunctive prongs of the Good Samaritan doctrine are most appropriately viewed as creating defendant's duty to plaintiff or in establishing the reguirements of proximate cause. See Blessing v. United States,

, 1193 n.51 (E.D. Pa. 1978) (noting the disagreement and stating that Pennsylvania courts construe the three disjunctive reguirements of section 324A to state the reguirements of proximate cause). This difference in approach is at once understandable and immaterial to the outcome, as the definitions of both duty and proximate cause reguire the foreseeability that these three prongs guarantee. See Corso v. Merrill,

,

(1979). Both the New Hampshire Supreme Court and the Court of Appeals for the

57 " [A]pplication of the 'Good Samaritan1 doctrine is at bottom

a question of state law . . . Variq Airlines,

n.12. In this case, the task of determining whether the

government owed Irving a duty enforceable under the FTCA is

simplified greatly by the fact that New Hampshire has already

imposed the Good Samaritan duty upon workplace inspectors in a

situation that is the precise private analogue to that presented

here. In Corson v. Liberty Mutual Ins. Co.,

,

(1970), the New Hampshire Supreme Court considered

"whether a company which undertakes to assist accident prevention

by additional inspections and advice rendered to the company

primarily charged with the duty can be liable for negligent

inspection to an injured employee."

. The court

answered the question in the affirmative, finding that the

relationship between the inspecting and inspected companies could

give rise to a duty on the part of the inspecting company to use

due care in conducting the inspection.

Further, the court

considered it "beyond debate that if a duty on the part of the

[inspector] were found to have existed, that duty extended to

First Circuit have treated these three requirements as prerequisites to establishing that the defendant's duty extends to the plaintiff. See Corson,

,

; Walls v. Oxford,

,

; Zabala Clemente,

.

58 [the injured employee of the inspected company] who was clearly

within the orbit of risk which would be created by negligent

performance of the duty."24 Id. at 213.

The reasoning of Corson applies with egual force here, and,

under the New Hampshire Supreme Court's interpretation of the

Good Samaritan doctrine, the government owed Irving a duty to

exercise due care in carrying out its inspection of the

Somersworth Shoe plant. First, OSHA undertook to provide

precisely the same service considered in Corson and contemplated

by section 324A of the Restatement — "to assist accident

prevention by additional inspections and advice rendered to the

company primarily charged with the duty" to ensure workplace

24 The Restatement and Corson present slightly different formulations of the Good Samaritan doctrine. For instance, the "orbit of risk" reguired by the Corson formulation appears to serve the same function as do the three disjunctive reguirements of section 324A of the Restatement — all ensure that the injured third person is a reasonably foreseeable plaintiff, an essential element of establishing the existence of a duty under New Hampshire law. "'The risk reasonably to be perceived defines the duty to be obeyed.1" Corso v. Merrill,

,

, 303 (1979) (guoting Palsqraf v. Long Island R.R.,

(N.Y. 1928)); see also White v. Schnoebelen,

,

(1941). In this decision, the court will attempt to address the issue of duty in a manner that references both formulations. Of course, to the extent the Corson Good Samaritan doctrine differs substantively from the language of the Restatement, the New Hampshire Supreme Court's interpretation of the doctrine controls.

59 safety.25 Id. at 212. Area Director Amirault stated that the

inspections "provided a lot of assistance to employers" as they

strove to meet their obligation to prevent workplace accidents.26

25 The obvious similarity between the inspection considered in Corson, which was performed by an insurer, and the inspections performed by OSHA, is underscored by the testimony of Bruce Brooks who stated that he, as an employee of Somersworth Shoe, never distinguished between the private inspectors and OSHA compliance officers who periodically inspected the plant. (Brooks, 2/12/85, Supp. at 15-16.) From his point of view, both types of inspections served the single purpose of identifying and correcting unsafe working conditions.

26 The government contends that the "punitive" nature of the inspection process reguires a finding that the 1975 and 1978 inspections were not "services" within the meaning of New Hampshire's Good Samaritan doctrine. The argument fails on several grounds. First, it ignores the weight of the evidence. Area Director Amirault testified with apparent candor that the inspection process served both to enforce OSHA health and safety standards (an arguably punitive purpose) and to assist employers in improving workplace safety (a decidedly non-punitive end). Second, and more fundamentally, under the Good Samaritan doctrine as applied to the government via the FTCA, "[t]he reason for undertaking the inspection is not important. While the existence of a federal statutory duty as the reason for undertaking the action will not automatically create liability, neither will such a duty preclude liability." United Scottish Ins. Co. v. United States,

(9th Cir. 1979), aff'd in relevant part sub nom. United States v. Variq Airlines,

(1984). Finally, and on a closely related note, the government's argument is tantamount to a suggestion that the government may avoid liability under the FTCA for "uniguely governmental functions" such as enforcement activities in general or regulatory enforcement in particular. The Supreme Court rejected these contentions in Indian Towing Co. v. United States,

(1955), and Berkovitz,

, respectively.

60 (Amirault, 2/12/85, p. 47; see also 2/12/85, p. 45-48.)

The government's duty to use due care in rendering services

extends to Irving for the same reason it extended to the

plaintiff in Corson: an inspector's failure to act with due care

in carrying out a safety inspection can fairly be said to

increase the risk of harm by "'cloak[ing] the defect, dull[ing]

the call to vigilance, and so aggravat[ing] the danger.1"

Corson,

,

(guoting Marks v. Nambil

Realty C o .,

,

(1927) (Cardozo,

C.J.)). Here, Somersworth Shoe employees and employees of Wood

Heel, another shoe company housed in the same building, were

aware of the existence, purpose, and scope of the OSHA

inspections, as well as the fact that their employers were

reguired to abate any cited violations. (Irving, 2/11/85, p. 37;

Gosselin, 2/11/85, p. 87-94; Brooks, 2/12/85, Supp. at 15.) As a

result, the inference that negligence on the part of OSHA in

performing its inspections increased the risk of harm to

Somersworth Shoe employees by dulling their vigilance regarding

workplace hazards is a valid one. The compliance officers'

oversight did, in fact, "negligently mak[e] matters worse."

Rodrigue v. United States,

(1st Cir. 1992).

Irving is, therefore, a foreseeable plaintiff to whom OSHA owed a

61 duty of reasonable care. See Restatement (Second) of Torts

§ 324A(a).

OSHA's duty extends to Irving for a second reason not

addressed in Corson, but contemplated by section 324A(c) of the

Restatement: Somersworth Shoe reasonably relied on OSHA to

perform its inspections in a non-negligent manner. See

Restatement (Second) of Torts § 324A(c), cmt. e. Roger Couture,

foreman of the stock fitting room, gave unrebutted testimony that

Somersworth Shoe "actually depend[ed]" on the OSHA inspections to

find safety problems that the company had overlooked.27

(Couture, 2/12/85, Supp. at 7.) Therefore, under the Good

27 The government argues that even if Somersworth Shoe did rely on the OSHA inspections, such reliance was not reasonable because the primary duty to comply with OSHA safety standards remained at all times with Somersworth Shoe and its employees. See 2

. Once again, the government draws a faulty conclusion from a perfectly valid premise. Somersworth Shoe of course retained its own duty to comply with OSHA safety standards. And for this reason, the court finds that OSHA did not "undertake[] to perform a duty owed by [Somersworth Shoe] to [Irving]," as contemplated by section 324A(b) of the Restatement. But the fact that Somersworth Shoe retained its own duty does not mean that it could not reasonably expect OSHA compliance officers to use due care when they acted to assist it in meeting its obligations under the Act. In Corson, the inspecting company owed the inspected company a duty to use due care despite the fact that the inspected company retained primary responsibility for preventing workplace accidents. Corson,

,

.

62 Samaritan doctrine, the government owed Irving a duty to exercise

due care in conducting its wall-to-wall inspections.

B. Breach

Under the Good Samaritan doctrine, the defendant's duty is

created by the "relation between the parties which the service

makes." Corson,

,

(internal

guotation marks omitted). The scope of the duty, then, is

measured by the extent of the service undertaken by the

defendant. See Blessing v. United States,

(E.D. Pa. 1978). Here, the government undertook to perform

wall-to-wall inspections of the Somersworth Shoe plant,

inspecting every operational machine in the facility. Therefore,

Chase and Ritchie had a duty to exercise due care in carrying out

the wall-to-wall inspections. "The test of due care is what

reasonable prudence would reguire under similar circumstances."

Weldv v. Town of Kingston,

,

(1986) .

Under the circumstances presented here, a reasonably prudent

inspector would have inspected the bench assembly at issue during

the 1975 and 1978 OSHA inspections. Both compliance officers

were charged with the mandatory duty to inspect every operational

63 machine in the Somersworth Shoe plant. Both officers were taken

through the entire plant, including the stock fitting room, by

Somersworth Shoe personnel. The marker/die-out bench assembly

was located on a main traffic aisle in the stock fitting room and

was not blocked or otherwise obscured from view during either

inspection. Further, the bench assembly was the type of machine

on which both compliance officers had found drive-train

violations elsewhere in the plant. The record reveals no basis

upon which the court could conclude that a reasonable OSHA

inspector charged with the duty to look at every machine could

reasonably fail to look at this machine. In light of these

facts. Chase's and Ritchie's failure to inspect the bench

assembly can only be explained by their failure to exercise due

care in carrying out their mandatory duties to conduct wall-to-

wall inspections of the Somersworth Shoe facility. The

government, therefore, breached the duty of care it owed

Irving.28

28 Although neither party raised the issue, an argument could be made that OSHA's mandatory policy of inspecting every operational machine itself created the standard of care applicable to Irving's Good Samaritan claim, the violation of which would constitute negligence per se. See Johnson v. Sawyer,

(5th Cir. 1993). Because the court finds that Chase and Ritchie breached the ordinary standard of care applicable to normal negligence actions, it need not consider whether the compliance officers' actions also constituted

64 C. Harm

Irving has proven beyond any doubt that she suffered

grievous harm when she became entangled with the unguarded

rotating shaft. The government only contests the economic impact

of Irving's injuries, not their existence. Irving's injuries are

detailed here and the economic effects of those injuries are

discussed below in the context of damages.

Prior to the accident, Irving was a healthy 21-year-old

woman. The exposed drive shaft avulsed her scalp, fractured and

dislocated her second cervical vertebra, and left her with

permanent neurological damage.29 Immediately after she became

entangled in the drive shaft, Irving suffered cardiac and

respiratory arrest. When she arrived at Maine Medical Center by

ambulance, she was experiencing guadriplegia as a result of her

negligence per se. Because Irving has proven that the government owed and breached a duty under New Hampshire's Good Samaritan doctrine, the government's renewed argument that the misrepresentation exception to the FTCA,

(h), bars Irving's suit fails. See United States v. Block,

(1983); Irving v. United States, No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.).

29 Unless otherwise attributed, the findings of fact relating to Irving's injuries are based on Exhibit 23, the videotaped testimony of Eithne C. McCann, M.D. Dr. McCann practices rehabilitative medicine and oversaw Irving's medical treatment following the accident.

65 fractured and dislocated vertebra. Following surgery to repair

her scalp avulsion, Irving was moved to the intensive care unit

("ICU"), where she was placed in traction to allow her spine to

heal without further damaging her spinal cord. (Irving, 2/11/85,

p. 17-19.) For a time, Irving was paralyzed from the neck down

and could not speak. She had to be fed, bathed, dressed, and

groomed by others.

Approximately one month after the accident, Irving was moved

from the ICU to in-patient rehabilitative medicine. Once in

rehabilitation, Irving was taken out of traction and placed in a

"halo," a metal support screwed into her skull for the purpose of

immobilizing her head and torso. For over two months, Irving

remained in the hospital, slowly relearning how to perform simple

tasks such as eating, dressing, walking, and writing. Through

remarkable perseverance and courage she steadily regained

significant control over many of her motor functions.

When Irving was discharged from the hospital on January 17,

1980, she could move about without the help of others, but

reguired the aid of a wheelchair or crutches. (Ex. 22, Tri-Area

Visiting Nurses Report.) She could feed herself, but needed help

with bathing and personal grooming. (Ex. 22, Occupational

66 Therapy Report of Nancy Eastman.) She also needed assistance

with most cooking and homemaking tasks. (Id.)

Although Irving's condition improved steadily through years

of physical therapy, she was left with permanent and severe

neurological damage. Specifically, Dr. McCann diagnosed her as

having incomplete Brown Seguard Syndrome and other physical

disabilities directly resulting from the injuries she suffered in

the accident. None of the disabilities Irving exhibited at the

time of trial is likely to abate during her lifetime.

Incomplete Brown Seguard syndrome has left Irving with

impaired reflexes and sensation throughout her body, but

especially in her toes and hands. Her senses of balance and

space are also impaired, causing her to fall occasionally. She

is easily fatigued.

Irving also suffers from spasticity that causes her gait to

be slow and stiff and also prevents her from moving any part of

her body guickly. The spasticity also adversely affects her fine

motor functions and causes her hands and arms to spasm from time

to time. Dr. McCann estimated that Irving must perform all motor

functions at 50% the normal rate of speed. Given these symptoms,

Irving has also suffered depression. (Ex. 22, Tri-Area Visiting

67 Nurses Report; Wayne Irving, 2/11/85, p. 115; Irving, 2/11/85, p.

28 .)

Dr. McCann estimated that the cumulative effect of these

symptoms renders Irving 30% permanently physically disabled.

Irving cannot run or jump, has trouble negotiating tight corners

and hills on foot, and will never be able to perform any physical

task guickly. On the positive side, she can bathe, dress, and

groom herself, and perform most activities of daily living,

albeit at a slow pace.

D. Proximate Cause

As the final element of her claim, Irving must show that the

government's negligence was a proximate cause of her injuries.

Chase's and Ritchie's breach of duty proximately caused Irving's

injuries if their breach was "a substantial factor in bringing

about the harm." Weldv,

,

(guoting Maxfield v. Maxfield,

,

(1959)). "When determining whether a negligent act was a

substantial factor in bringing about an injury, a court must

determine both whether the negligence bn fact caused the injury

and whether the injury was reasonably foreseeable." Clement v.

United States,

(1st Cir. 1992) (interpreting Maine tort law); see also Weldv,

,

(incorporating both cause-in-fact and foreseeable result

inquiries into the substantial factor test); Maxfield,

,

(same).

1. Cause-in-Fact

"Causation-in-fact is, by definition, a factual inquiry

which requires a court to determine if an injury would not have

occurred but for a defendant's negligence." Clement,

. As the New Hampshire Supreme Court has put it, "It is like a

connecting bridge between the negligence and the harm that gives

rise to the cause of action." White v. Schnoebelen,

,

(1941). Considering a case in which the alleged

causal connection was somewhat attenuated, the court expanded

upon the same metaphor:

Usually the bridge is so short as to be crossed in a matter of . . . moments. . . . A long lapse of time may make difficult or even impossible proof that the bridge of causation is unbroken, but if it appear on the balance of probabilities to be intact, it will bear the necessary weight of conveying negligence to harm, so that the two may merge into a cause of action.

(discussing cause-in-fact in the context of statute of

limitations) (emphasis added). Here, too, the causal bridge is

69 long and (remaining faithful to the metaphor) is composed of many

separate sections. But Irving has overcome the difficulties

inherent in proving the reguisite causal connection and has

demonstrated by a preponderance of the evidence that but for the

negligence of Chase and Ritchie, she would not have suffered the

injuries that she did.

Irving has proved by a preponderance of the evidence each

critical event in the causal connection between Chase's and

Ritchie's negligence and her injury. If Chase or Ritchie had

inspected the bench assembly as they were reguired to do, they

would certainly have noticed the unguarded rotating shaft. It

would have been blatantly obvious to any trained OSHA inspector.

(

/12/85, p. 110, 112, 119, 128, 134; Amirault, 2/12/85,

p . 66 .)

Had either compliance officer observed the exposed shaft

during his inspection, he would certainly have documented it as a

violation of the OSHA safety standards that reguire drive

mechanisms to be guarded. This finding is supported by several

pieces of evidence. First, both Chase and Ritchie documented

several similar workplace conditions as OSHA safety violations

during the 1975 and 1978 inspections. (Ex. 8, OSHA Compliance

Worksheet at 3; Ex. 9, OSHA Worksheet at 7-9.) Second,

himself all but admitted that, had he seen the unguarded rotating

drive shaft on the bench assembly, he would have recognized and

documented it as a violation. (

/12/85, p. 110, 112, 119,

128, 134.) Third, Area Director Amirault stated that an ordinary

safety inspector observing the unguarded shaft would have

determined it to be a safety violation. (Amirault, 2/12/85, p.

67.) Finally, O'Connell readily determined that the unguarded

shaft was a blatant violation of OSHA safety standards when he

observed it during his post-accident inspection. (O'Connell,

2/12/85, p. 158-59.)

If either Chase or Ritchie had documented the shaft as a

violation, Somersworth Shoe would have been informed of the

violation in two separate ways. First, both compliance officers

held closing conferences with Somersworth Shoe representatives in

which they discussed all potential violations identified during

their respective inspections. (Ex. 8, OSHA Narrative at 5 12;

Ex. 9, OSHA Narrative at 5 8, 20.) Second, Area Director

Amirault would have cited the bench assembly as a serious (or at

least a non-serious) violation of

(c) (2) (11)

and issued that citation to Somersworth Shoe. The most direct

evidence of this is that OSHA did, in fact, cite the shaft as a

serious violation of OSHA safety standards following the post­

71 accident inspection. (Ex. 10, Citation and Notification of

Penalty at 1.) In addition, given the fact that the 1975 and

1978 inspections both led to the issuance of non-serious

citations for similarly unguarded drive mechanisms (Ex. 8,

Citation at 2; Ex. 9, Citation and Notification of Penalty at 1-

2), it is more likely than not that Somersworth Shoe would have

been issued a citation for the unguarded rotating drive shaft on

the bench assembly in 1975 and in 1978 had the inspectors looked

at the machine.

Had Somersworth Shoe been notified that the drive shaft was

in violation of OSHA safety standards, the company would almost

certainly have abated the violation in a timely manner. In their

respective closing conferences in 1975 and 1978, the compliance

officers discussed abatement with Somersworth Shoe

representatives. (Ex. 8, OSHA Narrative at 5 12.) In addition,

formal citation would have triggered a mandatory abatement

process. (Amirault, 2/12/85, p. 34.) Somersworth Shoe's policy

was to abate all cited violations within the period set by

OSHA.30 (Couture, 2/12/85, Supp. at 6, 11.) And all pertinent

30 On the other hand, but egually compelling, the evidence also indicates that, absent a finding by an OSHA compliance officer that a machine was in violation of safety standards, Somersworth Shoe was reluctant to abate apparent hazards. For instance, before Irving's accident, Rothwell told the company

72 evidence introduced at trial shows that the company did, in fact,

timely abate all violations cited during the 1975 and 1978

inspections.31 (

/12/85, p. 140; Ritchie, 2/12/85,

p. 152; O'Connell, 2/12/85, p. 162; 2/13/85, p. 9; Amirault,

2/12/85, p. 84.) The consistency and promptness with which

Somersworth Shoe abated all other OSHA violations for which it

was cited leads the court to conclude that the company would have

guarded the drive shaft on the bench assembly if the shaft had

been found by OSHA to be in violation of safety standards.

Finally, had Somersworth Shoe installed a stationary casing

or trough on all four sides of the drive shaft as reguired by

(c) (2) (11), Irving would likely not have been

entangled in the shaft and seriously injured. (See O'Connell,

2/12/85, p. 160 (stating that the regulation reguired the drive

that the drive shaft on the die-out machine was unguarded. Yet, Somersworth Shoe declined to remedy the situation until OSHA cited the shaft. (Rothwell, 2/12/85, p. 14-17.) This underscores the extent to which (being perhaps overly charitable) Somersworth Shoe relied on the specialized knowledge of OSHA compliance officers, but in any event it shows how directly employee safety was related to OSHA inspections.

31 Shortly after Irving's accident, Gino Ruscitti, the plant manager, displayed to O'Connell a very uncooperative attitude regarding abatement of the unguarded drive shaft. (O'Connell, 2/13/85, p. 10, 32.) But, in spite of its initial defensive attitude, Somersworth Shoe did proceed to guard the shaft within the abatement period set by OSHA.

73 shaft to be guarded on all four sides).) Professor Igor Paul

gave unrebutted testimony that Irving's accident could not have

occurred if the shaft had been guarded as reguired, and the court

so finds. (Paul, 2/14/85, p. 23-24.) The relevant physics

confirms Dr. Paul's opinion. Had a guard been in place, the

vacuum effect created by the high velocity would likely not have

drawn Irving's hair toward the spinning shaft. And, even if her

hair had come near the shaft, the guard would have prevented it

from becoming entangled.

The causal connection in this case is indeed long, both

temporally and in the number of steps it incorporates, but at

each critical step Irving has carried her burden of proof. The

court finds therefore, that but for the negligence of Chase

and/or Ritchie,32 Irving would not have suffered the injuries of

which she complains.

2. Foreseeable Result

32 Because both Chase and Ritchie were employees of the defendant, the court need not determine which of the compliance officers was primarily responsible for Irving's injuries. Nor need the court determine whether Ritchie's negligence in the 197 8 inspection breaks the bridge of causation from the 1975 inspection to the injury.

74 As a final prerequisite to proving proximate cause, Irving

must demonstrate that her injury was the reasonably foreseeable

result of the government's negligence. "An injury is reasonably

foreseeable when a defendant's negligent conduct 'creates a

risk that might reasonably be expected to result in such injury

or damage, even though the exact nature of the injury or damage

need not, itself, be foreseeable.1" Clement,

(quoting Fowler v. Boise Cascade Corp.,

(1st Cir.

19 91)); see also LeFavor v. Ford,

,

(1992); Weldv,

,

;

Maxfield,

,

.

Here, the risk of employee injury was clearly a foreseeable

result of the compliance officers' negligence. The declared

purpose of the Act is to "assure so far as possible every working

man and woman in the Nation safe and healthful working

conditions."

. Congress sought to effect this

purpose by, among other things, "providing for the development

and promulgation of occupational safety and health standards,"

(b)(9), and "by providing an effective enforcement

program which shall include a prohibition against giving advance

notice of any inspection."

(b)(10). The ultimate

75 purpose of Chase's and Ritchie's inspections was, therefore, to

prevent workplace injuries like those Irving suffered.

The fact that both Somersworth Shoe and its employees also

had a duty to comply with OSHA safety standards does not render

Irving's injuries unforeseeable to a reasonable compliance

officer. This is particularly true in light of the fact that

Somersworth Shoe had no full-time safety staff or safety training

program, a fact of which Ritchie, at least, was aware. (Ritchie,

2/12/85, p. 151.) And both compliance officers knew that the

Somersworth Shoe plant contained numerous safety violations

despite the employer's independent duty to eliminate them. It

was reasonably foreseeable that Somersworth Shoe would not guard

the drive shaft absent OSHA intervention.33 While Somersworth

Shoe's failure to guard the drive shaft may indicate that it,

too, could be liable for Irving's injuries, it does not render

the government, the sole defendant in this action, less liable in

tort for the foreseeable results of its own negligent acts.

33 Although the government does not explicitly argue that Somersworth Shoe's failure to guard the shaft on its own initiative was a superseding, intervening cause, the court here rejects such an argument by holding that both the company's failure to guard the shaft absent citation and Irving's injuries were reasonably foreseeable.

76 E. Comparative Fault

Unable to effectively place sole responsibility for Irving's

injuries on Somersworth Shoe, the government argues that its

liability to Irving is eliminated or substantially discounted by

her own comparative fault. New Hampshire's current comparative

fault statute, N.H. Rev. Stat. Ann. ("RSA") § 507:7-d (Supp.

1994), does not apply to this case because the cause of action

arose before July 1, 1986, the effective date of the statute.

Rather, Irving's case is governed by RSA 507:7-a, New Hampshire's

original comparative fault statute, repealed in 1986 but

applicable to claims arising between 1970 and 1986. See Hewes v.

Roby,

,

(1992).

Section 507:7-a stated:

Contributory negligence shall not bar recovery in an action by any plaintiff, or his legal representative, to recover damages for negligence resulting in death, personal injury, or property damage, if such negligence was not greater than the causal negligence of the defendant, but the damages awarded shall be diminished, by general verdict, in proportion to the amount of negligence attributed to the plaintiff . . . The burden of proof as to the existence or amount of causal negligence alleged to be attributable to a party shall rest upon the party making such allegation.

-a (repealed 1986) (emphasis added).

The government contends that it has met its burden of proving by

77 a preponderance of the evidence that in reaching down to retrieve

her glove Irving failed to conduct herself as an ordinary prudent

person would under similar circumstances.

At the heart of the government's comparative negligence

claim is the argument that Irving crawled underneath the bench

assembly in order to retrieve her glove even though she knew or

should have known of the obvious danger posed by the drive

mechanism located there. The court has already, implicitly at

least, rejected the notion that Irving actually crawled

underneath the bench to pick up her glove. To the contrary, when

Irving bent over in the narrow aisle between the bench assembly

and the die rack, the vacuum created by the rotating shaft drew

her hair into contact with it. In light of the testimony by

Irving and Dr. Paul regarding the chain of events immediately

preceding the accident (Irving, 2/11/85, p. 12; Paul, 2/14/85,

p. 29), the mere fact that the shaft was located approximately 16

inches in from the rear edge of the bench is not sufficient to

support a finding that Irving actually crawled underneath the

bench.

Similarly, Irving cannot be charged with either actual or

constructive knowledge of the dangerous condition that the

unguarded shaft created. The government acknowledges, as it

78 must, that Irving was not actually aware of the existence of the

shaft. (See Irving, 2/11/85, p. 39.) While she was aware that

the die-out machine located next to the manually powered marker

machine on which she worked was powered by an electric motor,

Irving cannot fairly be charged with knowledge that the drive

mechanism for the die-out machine consisted of a long shaft

running along the length of the back of the bench assembly and

rotating with sufficient velocity to create a vacuum capable of

drawing hair or clothing to it. She was a factory worker, not a

mechanical engineer or a trained safety professional. She cannot

fairly be charged with the knowledge that the unguarded shaft

posed a significant danger to her if she bent down in an aisle in

which workers were expected to be to pick up a glove.

Irving's stooping to retrieve her glove does not constitute

failure to exercise due care under these circumstances.34

34 The government does not argue that Irving was comparatively negligent because she wore her hair long and failed to wear some type of hat. However, this argument, too, would likely fail. At the time of the accident, Irving was working on a manually powered machine; Somersworth Shoe policy did not, therefore, impose clothing or hair restrictions upon her. (Gosselin, 2/11/85, p. 94; Rothwell, 2/12/85, p. 12.) Nor did the government present any evidence that, had Irving worn her hair in a different manner, the accident would not have occurred. The government, therefore, has not met its burden of proving causal comparative negligence on Irving's part, as reguired by RSA 507:7-a.

79 Accordingly, the government is legally responsible for the

injuries Irving suffered and is liable for the full amount of

damages she incurred as a result of those injuries.

F. Damages35

"The usual rule of compensatory damages in tort cases

reguires that the person wronged receive a sum of money that will

restore [her] as nearly as possible to the position [s]he would

have been in if the wrong had not been committed." Smith v.

Cote,

,

(1986). In awarding

damages, the court may consider: (1) the reasonable value of

medical care incurred and likely to be incurred in the future;

(2) lost wages — past, present, and future — including the lost

value of services provided in the home; and (3) reasonable

compensation for pain, discomfort, and distress suffered,

including the loss of capacity to enjoy life. See New Hampshire

Civil Jury Instructions § 9.2 (1989) (citing Restatement (Second)

of Torts § 924 (1965) ) .

35 In assessing damages, the court has before it only the evidence presented at the original trial on February 14, 1985. It is that date, therefore, that separates past from future damages.

80 At trial Irving presented unrebutted evidence that her past

medical and other treatment-related expenses totalled $84,469.88.

(Ex. 13, Summary of Medical Expenses; Ex. 12, Medical Bills.)

Those expenses were necessarily incurred in the course of

treating her injuries. She also presented an unchallenged

estimate of $22,399.80 in future medical expenses likely to be

incurred. (Ex. 13, Summary of Medical Expenses.) The court

finds Irving's estimate of future expenses to be well within

reason. If anything, it is conservative, taking into account

only future medications. Therefore, the court finds the

reasonable cost of medical care incurred and likely to be

incurred to be $106,869.68.

In support of her claim for lost wages, Irving offered the

expert testimony of Charles C. McGoldrick, Jr. McGoldrick had

considerable experience in vocational rehabilitation, vocational

evaluation, and vocational placement of industrially-injured

workers. (McGoldrick, 2/13/85, p. 3-7.) He also had graduate-

level training in statistics and research design technigues.

(Id.) However, McGoldrick was not an economist. The court has

taken into account McGoldrick's relative experience in these

several fields of study in drawing conclusions from his

testimony.

81 Because Irving has been continuously employed only since

February 1984, her claimed lost wages fall into two convenient

temporal categories. The first runs from October 1979 until

February 1984; the second runs from February 1984 through the end

of her expected working life. For nearly the entire period from

October 1979 until February 1984, Irving was unable to find work

as the direct result of neurological damage she suffered in the

accident.36 (Irving, 2/11/85, p. 49; Ex. 15, Vocational Report

at 3-4; Ex. 23, Videotaped Testimony of Dr. McCann; McGoldrick,

2/13/85, p. 17.) Irving remained unemployed throughout this

period despite repeated, good-faith attempts to find work through

a number of specialized placement agencies and firms, including

the New Hampshire Division of Vocational Rehabilitation,

Comprehensive Rehabilitation Associates, and the Job Placement

Office of Macintosh College. (Ex. 15, Vocational Report at 15.)

At the time of the accident, Irving was a high-school

graduate with some vocational training who was earning just above

the minimum wage for her work at Somersworth Shoe. (McGoldrick,

36 The single, short exception occurred in the summer of 1983 when Irving held a job at a telephone answering service for less than two months. However, her inability to write at the fast pace reguired by the job prevented her from performing satisfactorily, and she was forced to look for work more suited to her physical limitations.

82 2/13/85, p. 19.) Assuming that Irving had remained employed at

the minimum wage from October 1979 until February 1984,

McGoldrick estimated her lost wages during that period to be

$27 ,974 .37 (Ex. 15, Vocational Report at 4; McGoldrick, 2/13/85,

p. 18.) McGoldrick also provided an alternate estimate based on

the assumption that Irving, an experienced shoe-factory worker,

would have earned $6.00 per hour, rather than the minimum wage,

during the period between October 1979 and February 1984.

Irving's estimated lost wages for that period under that assumed

wage total $51,886.

Although there is some evidence in the record to indicate

that but for the accident Irving was capable of earning

considerably more that the minimum wage between October 197 9 and

February 1984 (see McGoldrick, 2/13/85, p. 19, 32), there is

insufficient evidence to support the conclusion that she would

have regularly earned $6.00 per hour throughout that period.

Irving would, more likely than not, have earned more than the

minimum wage. In fact, she was earning slightly above the

37 This estimate is adjusted to take into account the wages Irving actually earned during her two months at the answering service. In estimating all lost wages, McGoldrick utilized the "total offset" method, that is, he assumed wage growth and inflation would perfectly offset one another. He did not, therefore, utilize the discount method of calculating present value.

83 minimum wage at the time of the accident. But it is also likely

that, given the cyclical and unpredictable nature of the shoe

manufacturing business and Irving's past work experience, she

would have been unemployed for portions of the period between

October 1979 and February 1984. (See McGoldrick, 2/13/85,

p. 33.) Taking all of these factors into account, the court

finds Irving's lost wages for the period from October 1979 until

February 1984 to be $28,000.

As of the trial on the merits in February 1985, Irving had

been employed for one year as a secretary and receptionist by the

Internal Revenue Service ("IRS") through a federal program that

gives hiring preference to individuals with physical

disabilities. (Ex. 15, Vocational Report; McGoldrick, 2/13/85,

p. 21; Irving, 2/11/85, p. 50.) As a result of her physical

disabilities, Irving works at approximately 60% of normal

capacity in that job. (McGoldrick, 2/13/85, p. 15-16.) Although

she will likely continue to be employed at the IRS throughout her

working life, Irving's disabilities render it unlikely that she

will be promoted beyond her current position. (McGoldrick,

2/13/85, p. 16.) Irving's limitations also prevent her from

successfully competing in the wider labor market without the aid

84 of preferential treatment. (McGoldrick, 2/13/85, p. 17.) Irving

earns $5.50 per hour at the IRS.

Assuming that but for the accident Irving would have earned

an average of $6.00 per hour throughout her working life,

McGoldrick estimated Irving's past and future lost wages

beginning in February 1984 to be $43,293. Although it was

unrealistic to expect Irving to earn as much as $6.00 per hour by

1984, it is guite reasonable, probably conservative, to conclude

that Irving would have earned an average of $6.00 per hour during

her expected working life. Taking all of the relevant factors

into account, including the probability that Irving would likely

have experienced periods of unemployment during her working life,

McGoldrick's estimate of $43,293 is reasonable and supported by

the evidence. On the other hand, his alternate estimate of

$203,840 in lost wages after February 1984, based on an average

lost wage of $8.00 per hour, is not persuasive and not supported

by the evidence. The court finds the total reasonable value of

Irving's lost wages — past, present, and future — to be $71,293.

The court must also take into account the value of services

Irving cannot perform in the home as the result of the accident.

Based on testimony that went essentially unchallenged by the

government, McGoldrick estimated that Irving would have performed

85 work in the home valued at $322,187 from October 1979 until the

expected end of her life if the accident had not occurred. He

then estimated that as a result of the accident Irving is only

able to perform 20% of that work. Based on these estimates, he

calculated the value of lost work around the home to be $257,750.

(McGoldrick, 2/13/85, p. 27; Ex. 15, Vocational Report.)

The court finds McGoldrick's estimate of Irving's capacity

to perform work around the home to be overly pessimistic. The

medical evidence established that Irving is able to perform most

tasks, but at half normal speed, and she is the type of person

likely to persevere despite the obstacles in her path. Assessing

Irving a more appropriate 50% disability regarding tasks

performed around the home, the work lost in the home is

reasonably valued at $161,000.

Finally, the court must tackle the always difficult task of

assigning a dollar value to Irving's pain, suffering, and

diminished capacity to enjoy life. " [C]onverting feelings such

as pain, suffering, and mental anguish into dollars is not an

exact science," Correa v. Hospital San Francisco,

(1st Cir. 1995), cert, denied,

(1996), and it

"is particularly difficult to estimate upon a mere examination of

the record." Anthony v. G.M.D. Airline Servs., Inc.,

490, 495 (1st Cir. 1994). Nonetheless, the court must award

appropriate, full and fair money damages in an effort to make the

plaintiff whole, to the limited extent money can compensate for

such losses.

Irving's experience was undeniably traumatic. Describing

the accident, Irving stated, "I remember getting pulled in and a

feeling of choking. And then it was — went all black and my ears

like started buzzing and I remember thinking this is what it's

like to die. I thought I was dead." (Irving, 2/11/85, p. 14.)

After the accident, Irving endured painful treatment, including

surgery to repair her torn scalp, full-body traction, and a metal

halo screwed into her skull. Even after surgery and

rehabilitation, she was left with the daily discomfort of

increased muscle spasticity and occasional muscle spasms. While

no amount of money can ever assuage the suffering she has endured

and will endure, fair and full compensation as best as it can be

approximated must be awarded. Fair compensation for the pain and

suffering Irving endured and will endure as a direct result of

the accident is $400,000.

By far the most serious single deprivation Irving has

suffered is a diminished capacity to enjoy life. Prior to the

accident, Irving was a healthy, active person who enjoyed

87 physical activities of all sorts. (Loubier, 2/11/85, p. 72.)

Today, Irving can engage in few of the physical activities that

once gave her pleasure. She cannot perform tasks that reguire

much manual dexterity. Simple activities like running and

jumping are impossible for her. Even walking in a normal fashion

takes considerable effort. She must perform at half-speed those

physical activities in which she can engage, and her condition

decreases the amount of energy she can expend in any single day.

All of these effects of the accident substantially diminish

Irving's capacity to enjoy life and none of them is likely to

abate. Taking all of these factors into account, fair

compensation for Irving's lost capacity to enjoy life is

$500,000.

In her original administrative claim, filed with the

Department of Labor on November 25, 1980, Irving reguested money

damages in the amount of $1,000,000. The FTCA provides that,

with limited exceptions, "[a]ction under this section shall not

be instituted for any sum in excess of the amount of the claim

presented to the federal agency."

(b).

Consistent with that statute, the ad damnum clause of Irving's

complaint reguested money damages of $1,000,000. Nearly fifteen

years after filing her complaint, Irving moved this court to increase her ad damnum to an amount in excess of the amount she

sought in her administrative complaint arguing, inter alia, that

the extraordinary delay in resolving this litigation, and

attendant economic inflation, justified increasing the reguested

award. This court previously acknowledged that economic

inflation has reduced the real value of the award Irving

reguested in her original complaint. Nonetheless, the court was

constrained to deny Irving's motion to increase her ad damnum,

Irving v. United States, No. C81-501-M, slip op. (D.N.H. March

13, 1996) (McAuliffe, J.), because such a reguest is, in fact if

not in name, a reguest for pre-judgment interest in light of the

Supreme Court's decision in Library of Congress v. Shaw,

(1986). The FTCA,

, specifically

preserves the government's sovereign immunity from awards of pre­

judgment interest. So, although Irving has proved damages in

excess of $1,000,000, the court's ability to award damages is

limited by the ad damnum clause of her complaint.38 Accordingly,

38 The court recognizes that Irving has been materially prejudiced by several unusually long delays, all of which were entirely attributable to the court and its workload and none of which were attributable to the litigants. The prejudice arises from the fact that the court's findings regarding the amount of damages proven are necessarily expressed in 1996 dollars, while the administrative claim cap on the damages award is of course expressed in more valuable 1979 dollars, and cannot be converted to 1996 dollars to take into account inflationary effects. See judgment shall be entered in favor of Irving in the amount of

$1 ,000,0 0 0 .

Library of Congress,

. (It follows that if the court's findings as to damages were expressed in 1979 dollars, the amount of damages proven would of course fall below the one million dollar amount demanded in the administrative claim.) If it were to have any practical remedial effect, the court, following the maxim "actus curiae neminem gravabit," would exercise its eguitable power to enter judgment nunc pro tunc as of February 14, 1987 — a date that would account for a reasonable time under the conditions then prevailing for decision after the case was submitted to the court on February 14, 1985. See Mitchell v. Overman,

(1881) (stating that it is the court's "duty" to enter judgment nunc pro tunc when a party is prejudiced by unreasonable delay attributable to "the multiplicity or press of business" before the court). However, the government has waived its sovereign immunity from awards of post-judgment interest "only when the judgment becomes final after review on appeal or petition by the United States Government, and then only from the date of filing of the transcript of the judgment with the Comptroller General through the day before the date of the mandate of affirmance."

(b)(1)(A); see also Andrulonis v. United States,

(2d Cir. 1994). As a result, giving retroactive effect to the court's judgment alone would not result in recovery of post-judgment interest from the effective date of the judgment and would not, therefore, benefit Irving in any tangible respect. Perhaps plaintiff may yet obtain complete eguitable relief from the Executive and/or Legislative Branches of government. SO ORDERED.

Steven J. McAuliffe United States District Judge

August 29, 1996

cc: Phyllis Jackson Pyles, Esq. Gretchen Leah Witt, Esq. Paul R. Cox, Esq.

91