increased risk, preexisting duty or reliance suffice to trigger section 324A
How later courts described this case
- increased risk, preexisting duty or reliance suffice to trigger section 324A
Written by the judges who cited it.
The opinion
BAUER, Circuit Judge,
dissenting.
I do not agree that plaintiff’s second theory of liability, that by their enforcement of mandatory safety standards requiring handrails the federal mine inspectors negligently enhanced the risk of injury from the defective junction box, states a cause of action under Illinois law. Therefore, I respectfully dissent.
The instrumentality of harm in this case, both before and after the handrails were installed, was the defective junction box. Thus, plaintiff’s first theory of liability was premised on the federal inspectors’ negligent failure to observe the hazard created by the junction box and to order the hazard abated. The district court denied recovery under this theory on the basis that the inspectors’ failure to inspect and cite the defective junction box, even if negligent, was not the proximate cause of Hylin’s death.
The majority concedes that plaintiff’s theory of mere negligent failure to inspect the junction box and order correction is troublesome. Nonetheless, the majority imposes liability on the basis that the inspectors negligently enhanced the risk of injury from the defective junction box. I am not satisfied, however, that plaintiff’s two theories are sufficiently different to allow this distinction.
The risk, if any, that arose from the inspectors’ order that handrails be installed was not inherent in the handrails. Rather, the risk was that by reducing the free access past the junction box by four inches there was an increased probability that a worker would make physical contact with the defective junction box. And this risk, the risk of physical contact with the junction box, could only have been avoided by inspection and correction of the junction box itself.
Unlike the majority, I am unable to draw a bright line between “mere negligent failure to inspect the junction box and order correction,” ante at 1210, and what I consider to be mere negligent failure to inspect the junction box in conjunction with its environs and order correction. Thus, under the circumstances of this case, I would find that plaintiff has failed to state a cause of action under Illinois law. Accordingly, I would hold that plaintiff’s cause of action under the FTCA must likewise fail.