UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11–1342

DELORICE BRAGG, as Administratrix of the Estate of; DON 

ISRAEL BRAGG; FREDA HATFIELD, as Administratrix of the 

Estate of; ELLERY HATFIELD, 

Plaintiffs - Appellants,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. John T. Copenhaver, 

Jr., District Judge. (2:10–cv–00683)

Argued: May 17, 2012 Decided: June 11, 2013

Before AGEE, DAVIS, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. 

ARGUED: Bruce E. Stanley, REED SMITH, LLP, Pittsburgh, 

Pennsylvania, for Appellants. Benjamin Seth Kingsley, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

ON BRIEF: Colin E. Wrabley, Alicia M. Schmitt, Lucas Liben, REED 

SMITH, LLP, Pittsburgh, Pennsylvania, for Appellants. Tony 

West, Assistant Attorney General, Mark B. Stern, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C.; R. Booth Goodwin II, 

United States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

As representatives of the estates of two deceased coal 

miners, Appellants brought this negligence and wrongful death 

action against the United States of America under the Federal 

Tort Claims Act (“FTCA”). Appellants alleged that the 

negligence of the Mine Safety and Health Administration in its 

safety inspections of the Aracoma Coal Company’s Alma Mine 

contributed to a fire that resulted in the death of the miners.

The FTCA waives the United States’ sovereign immunity for 

torts committed by federal employees acting within the scope of 

their employment “under circumstances where the United States, 

if a private person, would be liable to the claimant in 

accordance with the law of the place where the act or omission 

occurred.” 28 U.S.C. § 1346(b)(1). 

The district court dismissed Appellants’ action because, in 

its view, under West Virginia law, a private person under like 

circumstances to those alleged against the United States would 

not be liable in a negligence action for the wrongful death of 

the miners. 

This Court, recognizing that Appellants’ challenge of the 

district court’s decision turned on a question of West Virginia 

state law, certified the following question to the Supreme Court 

of Appeals of West Virginia pursuant to the Uniform 
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Certification of Questions of Law Act, W. Va. Code § 51–1A-1 et 

seq.:

Whether a private party conducting inspections of a 

mine and mine operator for compliance with mine safety 

regulations is liable for the wrongful death of a 

miner resulting from the private party’s negligent 

inspection?

Bragg v. United States, 488 F. App’x 672, 673 (4th Cir. 2012).

The Supreme Court of Appeals of West Virginia unambiguously

answered our question in the affirmative. That court stated

that factors including “the likelihood of injury, the magnitude 

of the burden of guarding against it, and the consequences of 

placing that burden” on a defendant “weigh in favor of finding 

that a safety inspector owes a duty of care to the employees 

whose safety the inspection is intended to secure.” Bragg v. 

United States, __ S.E.2d __, 2013 WL 490776, at *10 (W. Va. Feb. 

5, 2013) (quotation marks omitted). The court plainly “h[e]ld 

that a private inspector who inspects a work premises for the 

purpose of furthering the safety of employees who work on said 

premises owes a duty of care to those employees to conduct 

inspections with ordinary skill, care, and diligence 

commensurate with that rendered by members of his or her 

profession.” Id.

In light of this helpful state law guidance, it is now 

clear that the district court’s dismissal of the Appellants’ 

suit on the basis that a private person under circumstances 
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analogous to those alleged against the United States would not 

be liable under state law was erroneous. For this reason, we 

vacate the district court’s dismissal of Appellants’ complaint 

and remand the matter for further proceedings.

VACATED AND REMANDED