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, 528 F. App'x 282

Vacated and remanded by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. 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 Certification of Questions of Law Act, W. Va.Code § 51-1 A-l 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 Fed.Appx. 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, 230 W.Va. 532, 741 S.E.2d 90, 99-100 (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 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.