Petition — Collins v. United States

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8 0 ‘ 4 2 Ties b. Supreme Court, U. §,

wine SEP 13 1980

SUPREME COURT OF THE UNITED {STATES

MICHAEL RODAK, JR., CLERK

TER}

A. T. COLLINS, ET AL PETITIONERS

UNITED STATES OF AMERICA RESPONDENT

ON WRIT OF

CERTIORARI TO THE

UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

PETITION

CHARLES A. WILLIAMS

Williams, Housman & Sparks

1700 Kentucky Avenue

Paducah, Kentucky 42001

(502) 442-3505

Attorneys for Petitioners

THE QUESTION PRESENTED FOR REVIEW

Whether the Findings of Fact of the

District Court, with respect to proximate

cause and intervening negligence, were in

such conflict with the evidence that they

should be set aside as clearly erroneous

under F.R.C.P. 52(a).

‘*

°%

LIST OF PARTIES

In the proceeding in the United

States Court of Appeals for the Sixth

Circuit, the plaintiffs-appellants were:

A. T. COLLINS; BARBARA BOWLING JACKSON,

Admx. of the Estate of GROVER BOWLING,

JR., Deceased; SUSIE BUSH, Admx. of the

Estate of TEDDY BUSH, Deceased; MILDRED

COLLINS GRAY, Admx. of the Estate of

KENOPLE COLLINS, Deceased; RUBY GHENT

HOSKINS, Admx. of the Estate of CARL

GHENT, Deceased; EMILIE GIBSON, Admx. of

the Estate of ALFORD CIBSON, Deceased;

MARTHA GRIFFIN BOWLING, Admx. of the

Estate of THEO GRIFFIN, Deceased; EDITH

HARRIS, Admx. of the Estate of LESTER

HARRIS, Deceased; ESTILL HENSON, Admx. of

the Estate of DELBERT HENSON, Deceased;

LITHA HENSON WAGERS, Admx. of the Estate

of PRICE HENSON, Deceased; MAE HIBBARD,

Admx. of the Estate of WALTER HIBBARD,

iii

Deceased; ALVIE HOLLAND, Admx. of the

Estate of GEORGE HOLLAND, Deceased;

CHARLENE HOSKINS, Admx. of the Estate of

BEN HOSKINS, Deceased; BRENDA HOSKINS

BOWLING, Admx. of the Estate of FRANK

HOSKINS, Deceased; MARY CATHERINE JONES,

Admx. of the Estate of RUFUS JONES,

Deceased; GERALDINE MINTON, Admx. of the

Estate of JAMES MINTON, Deceased; MOSSIE

MORGAN ARNETT, Admx. of the Estate of

RUSSELL MORGAN, Deceased; BONNIE MAE

ROBERTS, Admx. of the Estate of STANLEY

ROBERTS, Deceased; BOBBIE SIZEMORE, Admx.

of the Estate of ARNOLD SIZEMORE,

Deceased; BETTY FAYE SMITH, Admx. of the

Estate of WILBURN SMITH, Deceased;

BARBARA SPURLOCK, Admx. of the Estate of

JEFFIE SPURLOCK, Deceased; BETTY LEE

WAGERS, Admx. of the Estate of ALBERT

WAGERS, Deceased; ELVIA WAGERS, Admx. of

' €%

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the Estate of ARMOND WAGERS, Deceased;

JUANITA WAGERS NOLAN, Admx. of the Estate

of ARNOLD WAGERS, Deceased: BRENDA WHITE

ARNETT, Admx. of the Estate of ELMER

WHITE, Deceased; LULA WHITEHEAD, Admx. of

the Estate of ANDREW (DECKER) WHITEHEAD,

Deceased. The defendant-appellee was the

United States of America.

All plaintiffs-appellants listed

above are petitioners herein.

TABLE OF CONTENTS

Question Presented for Review

List of Parties

Table of Contents

Table of Cases, Statutes and

Other Authorities Cited

Opinions in Courts Below

Grounds on which Jurisdiction

of this Court is Invoked

Statutes and Regulations

Involved therein

FRCP 52(a)

28 U.S.C. § 1346(b)

30 U.S.C. § 801(a), (g)

(1970)

30 U.S.C. § 813(a)

(1970)

30,U.S.C. § 864

(1970)

Statement of the Case

History of Litigation

Statement of Pertinent Facts

District Court Decision

vii-viil

xi-xix

xii-xiii

xiii-xv

XV-XV1L

#¥%

FX.

Appellate Court Decision

Reasons for Granting the Writ

Conclusion

Certificate

Appendix Index

Appendix

10-11

11-26

26-29

A1-A95

vii

TABLE OF CASES, STATUTES, AND

OTHER AUTHORITIES CITED

Bianchini v. Humble

Pipe Line Co., 480

F.2d 251 (5th Cir.

1973) rehrg. den. 480

F.2d 1402 12

Glapion v. MS Journalist,

487 F.2d 1252 (5th Cir.

1973) 12

Glasgow <a | Company

v. Melcalfe, 482 S.W.2d

750 (Ky. 1972) 0 TT, 29

Johnson v. Kosmos

Portland Cement Co.,

64 F.2d 193 (6th Cir. $7, 19, 26,

1933) 21

T. A. Jones Construction

Co. v. Englert Engineering

Co., 438 F.2d 3 (6th Cir.

1971) 11

Krasnov v. Dinan, 465 F.2d

1298 (3rd Cir. 1972) 11

Spivey v. Sheeler, 514

S.W.2d 667 (Ky. 1974) 10

United States v. Kaplan,

277 F.2d 405 (5th Cir.

1960) 12

United States v.

viii

United

States Gypsum Co., 333

U.S. 364, 395, 92 L.Ed.

746, 766, 68 S.Ct. 525

(1948)

W.R.B. Corp. v.

Geer,

313 F.2d 750 (5th Cir.

1963)

MISCELLANEOUS:

F.R.C.P. 52(a)

28 U.S.C. § 1346(b),

2671 et seq.

30 U.S.C. § 801 et. seq.

(1970)

30 U.S.C. § 801(a) (1970)

30 U.S.C. § 802(g) (1970)

30 U.S.C. § 802(j) (1970)

30 U.S.C. § 813(a) (1970)

30 U.S.C. § 814(a) (1970)

30 U.S.C. §§ 861 et seq.

(1970)

-C. § 864(d)

-C. § 878(1)

(1970)

7 Sa See el ee

ix.

OPINIONS, ORDERS AND JUDGMENTS

IN COURTS BELOW

The May 22, 1980, Opinion of the

United States Court of Appeals for the

Sixth Circuit in this case was reported

at 621 F.2d 832. It is reproduced herein

at page Al.

GOUNDS ON WHICH JURISDICTION OF

THIS COURT IS INVOKED

The Judgment sought to be reviewed and

the Opinion on whith it is based were

filed in the United States Court of

Appeals for the Sixth Circuit on May 22,

1980. Upon plaintiff's Motion for

Rehearing, an Order denying said Motion

was filed in that Court on June 16, 1980.

The Judgment, Opinion and Order are

reproduced in the Appendix hereto, at

pages A93, Al and A95, respectively.

Jurisdiction is conferred upon this

Court by 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS

INVOLVED HEREIN

FRCP 52. Findings by the Court

(a) Effect. In all actions tried upon the

facts without a jury or with an advisory

jury, the court shall find the facts spec-

ially and state separately its conclu-

Sions of law thereon, and judgment shall

be entered pursuant to Rule 58; and in

granting or refusing interlocutory

injunctions the court shall similarly set

forth the findings of fact and conclu-

sions of law which constitute the grounds

of its action. Requests for findings are

not necessary for purposes of review.

Findings of fact shall not be set aside

unless clearly erroneous, and due regard

shall be given to the opportunity of the

trial court to judge of the credibility

of the witnesses. The findings of a

master, to the extent that the court

xii

adopts them shall be considered as the

findings of the court. If an opinion pe

memorandum of decision is filed, it will

be sufficient if the findings of fact and

conclusions of law appear therein.

Findings of fact and conclusions of law

are sseubhadobheniy on decisions of motions

under Rule -12 or 56 or any other motion

except as provided in Rule 41(b).

28 U.S.C. § 1346. United States as

defendant

se #

(b) Subject to the provisions of chapter

171 of this title [28 USC §§ 2671 et

seq.], the district courts, together with

the United States District Court for the

District of the Canal Zone and the

District Court of the Virgin Islands,

shall have exclusive jurisdiction of

civil actions on Claims against the

xiii

United States, for money damages,

accruing on and after January 1, 1945,

for injury or loss of property, or per-

sonal injury or death caused by the

negligent or wrongful act or omission of

any employee of the government while

acting within the scope of his office or

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.

30 uSC § 801. (1970) Congressional find-

ings and declaration of purpose

Congress declares that--

(a) the first priority and concern of all

in the coal mining industry must be the

health and safety of its most precious

resource--the miner;

Xiv

(g) it is the purpose of this Act (1) to

establish interim mandatory health and

safety standards and to direct the

Secretary of Health, Education, and

Welfare and the Secretary of Interior to

develop;and promulgate improved mandatory

health or safety standards to protect the

health and safety of the Nation's coal

miners; (2) to require that each operator

of a coal mine and every miner in such

mine comply with such standards; (3) to

cooperate with, and provide assistance

to, the States in the development and

enforcement of effective State coal mine

health and safety programs; and (4) to

improve and expand, in cooperation with

the States and the coal mining industry,

research and development and training

programs aimed at preventing coal mine

accidents and occupationally caused

diseases in the industry.

30 U.S.C. § 813 (1970)

"(a) Authorized reoresentatives of the

Secretary shetl make frequent inspections

and investigations in coal mines each

aap for the purpose of (1) obtaining,

ueaiicine: and disseminating information

relating to health and safety conditions,

the causes of accidents and the causes of

diseases and physical impairments origin-

ating in such mines, (2) gathering

information with respect to mandatory

health or safety standards, (3) deter-

mining whether an imminent danger exists,

and (4) determining whether or not there

is compliance with the mandatory health

or safety standards or with any notice,

order, or decision issued under this

title. In carrying out the requirements

- '

XVi1

of clauses (3) and (4) of this

subsection, no advance notice of an

inspection shall be provided to any

person. In carrying out the requirements

of clauses (3) and (4) of this subsection

in each underground coal mine, such

“representatives shall make inspections of

the entire mine at least four times a

year.

30 USC § 864. (1970) Combustible

materials and rock dusting

(a) Accumulations; maintenance. Coal

dust, including float coal deposited on

rock-dusted surfaces, loose coal, and

other combustible materials, shall be

cleaned up and not be permitted to accu-

mulate in active workings, or on electric

equipment therein.

(b) Abatement of hazards in active

working areas. Where underground mining

XV1i

operations in active workings create or

raise excessive amounts of dust, water or

water with a wetting agent added to it,

or other no less effective methods

approved by the Secretary or his

authorized representative, shall be used

to abate such dust. In working places,

particularly in distances less than forty

feet from the face, water, with or

without a wetting agent, or other no less

effective methods approved by the

Secretary or his authorized

representative, shall be applied to coal

dust on the ribs, roof, and floor to

reduce dispersibility and to minimize the

éxplosion hazard.

underground mines; exceptions. All

underground areas of a coal mine, except

those areas in which the dust is too wet

XViil

or too high in incombustible content to

propagate an explosion, shall be rock

dusted to within forty feet of all

working faces, unless such areas are

inaccessible or unsafe to enter or unless

the Secretary or his authorized represen-

tative permits an exception ben his

finding that such exception will not pose

a hazard to the miners. All crosscuts

that are less than forty feet from a

working face shall also be rock dusted.

(d) Distribution of rock dust; places;

quantities. Where rock dust is required

to be applied, it shall be distributed

upon the top, floor, and sides of all

underground areas of a coal mine and

maintained in such quantities that the

incombustible content of the combined

coal dust, rock dust, and other dust

shall be not less than 65 per centum, but

the incombustible content in the return

xix’

aircourses shall be no less than 80 per

centum. Where methane is present in any

ventilating current, the per centum of

incombustible content of such combined

dusts shall be increased 1.0 and 0.4 per

centum for each 0.1 per centum of methane

where 65 and BO per centum, respectively,

of incombustibles are required.

(e) Limitation of applicability.

Subsections (b) through (d) of this sec-

tion shali not apply to underground

anthracite mines.

STATEMENT OF THE CASE

History of Litigation

On December 30, 1970, an explosion

occurred in two interconnected

underground coal mines near Hyden, Leslie

County, Kentucky. As a result of the

explosion, 38 miners were killed and one

miner was injured. This action was ini-

tiated by the injured miner, A. T.

Collins, and the survivors of 25 miners

who died that day.

The action was brought under the

Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b), 2671 et seq, on the theory

that the government, acting through the

Secretary of the Interior and the Bureau

of Mines, negligently failed to properly

inspect the mines and perform its man-

datory duties to enforce mandatory safety

standards pursuant to the Federal Coal

Mine Health and Safety Act of 1969, 30

U.S.C. §§ 801 et seq.

Trial was held without a jury before

the United States District Court for the

Eastern District of Kentucky, Honorable

H. David Hermansdorfer presiding. The

Court concluded that the government's

failure to properly inspect the mines was

not the proximate cause of the explosion

and injuries, and that, even if a causal

connection were established, there was

intervening and superseding negligence on

the part of the mine operators.

The Judgment of the District Court

was appealed to the United States Court

of Appeals for the Sixth Circuit. That

Court held that the Findings of Fact by

the District Court were not clearly

erroneous, and the decision was affirmed.

A subsequent Motion for Rehearing was

denied.

This Petition followed.

Statement of Pertinent Facts

In the spring of 1970, the Finley

Coal Company opened two new mines, num-

bers 15 and 16, near Hyden, Leslie

County, Kentucky. The mines were soon

thereafter Soknaoted, and they operated

as one mine during the relevant period.

On March 30, 1979, the Federal Mine

Health and Safety Act of 1969 became law.

This law was enacted to protect the

health and safety of the industry's "most

precious resource -- the miner". 30

U.S.C. § 801(a) (1970). The Secretary of

the Interior was required to develop and

promulgate improved mandatory safety

standards for the protection of life and

the prevention of injuries in coal mines,

to compel compliance with these standards

by mine operators, and to develop

research and training programs aimed at

preventing accidents. 30 U.S.C. §

801(g) (1970).

The Secretary was also required to

make "frequent inspections and investiga-

tions in coal mines each year", 30

U.S.C. § 813(a) (1970). Such inspectiofis

were intended to gather information

relating to safety conditions and the

causes of accidents, to determine whether

there was compliance with the mandatory

safety requirements of the Act, and to

determine whether an imminent danger

exists. "Imminent danger" is defined in

the Act as “any condition or practice in

a coal mine which could reasonably be

expected to cause death or serious physi-

cal harm before such condition or prac-

tice can be abated". 30 U.S.C. § 802(j)

(1970). An inspector was required to

order withdrawal of all personnel from

i«

any area of the mine where the inspector

found an “imminent danger" until the

danger was abated. 30 U.S.C. § 814(a)

(1970).

The 1969 Act also establishes

interim mandatory health or safety

standards. The safety standards involve

roof supports, ventilation, combustible

materials, explosives, and similar

matters. 30 U.S.C. §§ 861 et seq. Of

special importance to this case are the

safety standards relating to combustible

materials and "rock dusting", 30 U.S.C.

§ 864(d), among others. Section 864(d)

requires mine operators to "rock dust"

all underground areas of a mine so that

combustible coal dust is combined with

rock dust or other incombustible dusts to

the extent that the incombustible matter

constitutes no less than 65% of all dust

present and no less than 80% in return

air-courses.

During the period prior to the

explosion on December 30, 1979, inspec-

tors from the Bureau performed one

complete and one spot inspection of Mine

16 and six spot inspections of Mine 15.

In reality, of course, no complete

inspection was ever performed, since a

complete inspection would properly have

included the entire interconnected

complex which began separately as Mines

15 and 16. It was the law, 30 U.S.C.

§ 878 (1) and Bureau policy manual

(Plaintiffs' Exhibit 9, p. 77) that the

interconnected mines should have been

treated as a single mine. No explanation

was ever given for this failure. These

inspections covered a period from June

19, 1970 through December 21, 1970. The

District Court found that the Bureau had

failed to comply with its statutory duty

"? >

of making four complete inspections of

the mines per year. In the inspections

of June 19, August 14, and October 19-20

and 22, 1970, citations were written for

rock dusting violations. These viola-

tions were later abated. In the inspec-

tion of June 19, 1970, roek dusting

violations were in part responsible for

the issuance of an imminent danger order.

(Plaintiffs' Exhibit 5, Appendix F)

On October 16, i970, an inspector

issued notices granting the operator

additional time to abate three

violations, cited during the October 19

inspection, pertaining to a ground check

monitor and personnel requirements. The

operator was given until December 28,

1970, to abate these violations. On

October 19, 1970, an inspector made a

spot inspection of Number 15 Mine and

issued five notices of violation,

required to be abated by December 22,

1970. Although it is the policy of the

Bureau to return to a mine on the date

set for abatement of violations, such

follow up checks were not performed by

the inspectors. A spot inspection on

December 21, 1970, was limited to the

issue of filing of a ventilation plan,

and this visit did not include any time

underground by the inspector.

On the morning of December 30, 1970,

the operator was in the process of making

a new loading point or "boom hole" in

the Number 16 Mine. In order to create

the boom hole, a portion of the mine roof

approximately 18 feet long and 28 feet

wide was drilled with over 100 holes.

Each hole was four inches in diameter and

extended into the roof approximately

thirty inches. These holes were filled

with explosives and stemmed by paper

wadding. There was evidence that prima-

cord, a high explosive not permissible

underground, was used as the igniting

agent. The stage for the explosion was

thus set. The shot was detonated by

either a shot firing unit, a power cable,

or the battery connections of a nearby

tractor. All the evidence, including the

report of the Bureau's investigation of

the disaster (Plaintiffs' Exhibit 5), is

that the explosion was propagated through

Mines No. 15 and 16 by combustible coal

dust that had been thrown into suspension

by the biestine of the boom hole, which

dust was then ignited by either the

Primacord or the glowing remains of paper

wadding.

The District Court Decision

The Court agreed with plaintiffs

that the Bureau of Mines had violated its

duties to make four complete inspections

of the mines each year. However, the

Court held that the plaintiffs did not

establish that the failure of the govern-

ment to inspect the mine was a proximate

cause of the injury and deaths. Cited as

cases requiring foreseeability under

Kentucky law were Spivey v. Sheeler, 514

S.W.2d 667 (Ky. 1974), and Glasgow Realty

Company v. Metcalfe, 482 S.W.2d 750 (Ky.

1972). The Court further found that

unforeseeable superseding and intervening

negligent acts of the coal mining opera-

tors would have prevented recovery by the

plaintiffs even if proximate cause had

been established.

The Appellate Court Decision

The U. S. Court of Appeals for the

Sixth Circuit affirmed the decision of

the District Court on the ground that the

Findings of Fact were not clearly

erroneous. |

REASONS FOR GRANTING THE WRIT

The principle of review of fact

finding under F.R.C.P. 52(a) allows facts

found by a District Court to be set aside

only when "clearly erroneous", This has

been interpreted to allow such facts to

be set aside when the reviewing Court "is

left with the definite and firm convic-

tion that a mistake has been committed",

United States v. United States Gypsum

Co., 333 U.S. 364, 395, 92 L.Ed. 746,

766, 68 S.Ct. 525 (1948); J. A. Jones

Construction Co. v. Englert Engineering

Co., 438 F.2d 3 (6th Cir. 1971).

Findings will not be allowed to stand

where they bear no rational relationship

to the supporting evidentiary data.

Krasnov v. Dinan, 465 F.2d 1298 (3rd Cir.

1972). It has also been held that the

"clearly errcneous" standard has been met

when the result does not reflect the

truth and right of the case. United J

States v. Kaplan, 277 F.2d 405 (5th Cir.

1960); W.R.B. Corp. v. Geer, 313 F.2d

750 (5th Cir. 1963); Bianchini v. Humble

Pipe Line Co., 480 F.2d 251 (5th Cir.

1973), rehrg. den. 478 F.2d 1402;

Glapion v. MS Journalist, 487 F.2d 1252

(5th Cir. 1973).

In this case, the Appellate Court

refused to apply such a standard to the

District Court's findings, in contraven-

tion of the standard established by the

Supreme Court and Courts of Appeals deci-

sions cited above, when it affirmed this

case. The Opinion of the Appellate Court

herein merely repeated the findings of

the District Court, without examining the

evidentiary bases for those findings.

Any close scrutiny of the record is

replaced by the cryptic statement that

"the record is clear and stands for

itself".

The plaintiffs contend that the

decision of the District Court is no more

than a grand theory. of the Court's own

d&Sign, its main pillars not supported by

the expert testimony or the reports of

investigations made after the disaster.

The Court first concluded that there

was no evidence to show that the failure

of the defendants to fully inspect the

interconnected Mines No. 15 and 16, as

required by the Act, was a proximate

cause of the explosion and the injuries

and death resulting therefrom. The Court

expresses its doubt that the agency's

failure to inspect resulted in excessive

and uninerted coal dust in the mine imme-

diately before the explosion. It should

be noted that the Bureau's investigation

found excessive and cawteted onel dust

after the explosion. (Plaintiffs'

Exhibit 5, pp. 20-21). There is much

discussion by the Court of the difficulty

of pinning down the meaning of the word

"excessive", which discussion includes a

recitation of irrelevant industry

standards.

The evidence was, as supported by

the testimony of the experts, that the

safety standard for such coal dust is

inertion with incombustible rock dust to

65% incombustible matter, or 80% in

return airways, that if the standard is

met, ignition and propogation will not

occur (T.E., Mitchell, 686-7), and that

the 65% level of inertion is reached, as

a practical matter, when all visible coal

dust is covered with rock dust (T.E.,

Sinha, 248-50).

The Court makes the very curious

observation that, had the agency made

timely inspections of the mine and cited

the operator for dust violations, such

violations simply would be abated by

application of inerting quantities of

rock dust. Assuming this is so, and

assuming that the inspector would not

have found the condition abated until the

rock dusting had covered all visible coal

dust, as was commonly done, then the

expert testimony would lead only to the

conclusion that ignition and propagation

would not have occurred in that properly

dusted mine. This was also the testimony

of James Westfield, Assistant Director,

Coal Mine Health and Safety, Bureau of

Mines in Congressional hearings on March

9, 1971 (Plaintiffs' Requests for

Admissions No. 2, October 12, 1976).

The conclusion of the Court of

course is entirely the opposite. The

Opinion concludes that "the explosion

would have occurred even if the coal dust

present in the mine had been Ridequately’

inerted". Such a finding flies in the

face of evidence from both experts that,

if properly cleaned and dusted, there

would have been no explosion (T. E.,

Mitchell, 565-6; T. E., Sinha, 153).

The Court's second conclusion is

that, ove if a causal connection could

be established between the failure to

inspect and the condition of excessive

and uninerted coal dust in Mines 15 and

16, there was intervening and superseding

negligence on the part of the mine

operators. These included the detonation

of unusually large amounts of explosives

Simultaneously, use of primacord and

paper stemming, and failure to clear the

mines of all non-essential personnel.

The Court found these acts unforeseeable

by the government agency, and concluded

that the later acts broke the chain of

dweetion:

The District Court included an

Appendix to its Opinion, which is also

attached to the Opinion of the Appellate

Court. Such an Appendix was deemed

necessary due to the plaintiff's reliance

on the case of Johnson v. Kosmos Portland

Cement Co., 64 F.2d 193 (6th Cir. 1933).

The plaintiffs had cited that case for

the proposition that an explosion was a

foreseeable result even though the par-

ticular cause of the explosion was not.

The Court considered that proposition

worthy of attention. Such a premise was

further supported by a Kentucky case |

cited by the District Court, Glasgow

Realty Company v. Metcalfe, supra.

There, a plaintiff sued for damages

sustained when window glass fell from a

building owned by the defendant. In

dealing with the question of

foreseeability, the court said, 482

S.W.2d at 758:

", . . Appellant argues that even if

it was guilty of some fault it could

not anticipate or foresee that a

stranger wold come into its building

and apply sufficient force to break

out a glass window, and further that

appellant would not reasonably fore-

see the extent of injury from

falling, shattered glass, or that

plaintiff would sustain a freak

injury by being trampled over by the

stampeding crowd.

"This question was ably discussed

in Miller v. Mills, Ky., 257 S.W.2d

520, 522, wherein the court said:

""We think it is clear that so

far as foreseeability enters

into the question of liability

for negligence, it is not

required that the particular,

precise form of injury be

foreseeable--it is sufficient

if the probability of injury of

some kind to persons within the

natural range of effect of the

_ - '

alleged negligent act could be

foreseen. ...'

"The judgment is affirmed."

In Johnson v. Kosmos Portland Cement

ore Co., supra, a barge was not properly

Cleaned by the defendant cement company,

leaving a residue of gases in the barge.

Later, while the workmen were performing

duties in the barge, a bolt of lightning

ignited the residual gases in the barge,

causing an explosion. Although such an

accident had never before been recorded,

the Court held that the catastrophe was

the natural and probable consequence of

the defendant's negligent act.

Two factual circumstances make the

instant case similar to the Johnson case.

In Johnson, "La]ny one of a number of

expectable circumstances might have

brought about the type of injuries which

resulted; a lighted match, the flame of

ye acetylene torch, a heated rivet, a

spark produced by friction of a tool, or

boot, and so on." As for the mine

explosion, there was testimony that there

were several potential sources of

ignition. These included a lighted match

or cigarette, a short in some of the

electrical equipment, (T.E., Mitchell,

575) as well as primacord or the use of

unstemmed holes or permissible explosive

used in an impermissible manner. There

was also expert testimony that the use of

perfectly permissible explosives, unless

the area were adequately cleaned and

inerted, was a possible source of igni-

tion of the dust cloud resulting from the

blasting of the boom hole. (T.E.,

Mitchell, 564).

Second, in Johnson, the Court noted

that had there been no accumulation of

gases, whatever might have been the

i |

result of the lightning, the explosion

would not have occurred. In the case of

the mine explosion, the uncontradicted

evidence was that had there been no accum-

ulation of uninerted coal dust, whatever

the method of igniting the explosives, no

deaths would have occurred.

The District Court, in its Appendix

to the Opinion, apparently intended to

make factual findings sufficient to

distinguish the above two factual

similarities between Johnson and the

instant case. The Court desired to show

that coal dust, although excessive and

uninerted, could not be ignited by other

means to produce the explosion, and,

second, that the forces generated by the

impermissible blasting methods would have

“caused the explosion here even if the

coal dust conditions, credited with pro-

pagation of the explosion throughout the

mines, had been abated through

inspections, citations, and rock dusting.

In its attempt to prove the first

proposition, the Court notes that this

boom hole could have been shot safely by

permissible means. Though true, as every

second cause itself might have been per-

formed in such a way as not to turn a

dangerous condition into an injurious

incident, it does not show that the con-

dition was not susceptible to several

possible ignition sources. We have

referred to those alternative sources

above. That a second actor might have

acted responsibly and without negligence

does not render that second negligent

act unforeseeable.

The point of prohibiting excessive

dust and inerting that dust which inevi-

tably occurs is to reduce the danger of

ignition and explosion inherent in mining

a combustible substance from the ground.

The constant admixture of coal surfaces

and coal dust with moving heavy

equipment, powered by high-voltage

trailing cables, which work routine is

punctuated by detonations of explosives,

requires that dust control measures be

strictly enforced.

On August 12, 1970, a short in a

trailing cable on a drill in Mine No. 15

caused coal dust on the drill to ignite.

(Plaintiffs' Exhibit 5, App. F) The fire

spread to a rubber container holding

electric detonators or cartridges of

explosives, and the resulting blast

injured two miners. Although the precise

mechanism of the accident might not have

been predicted, the accumulation of com-

bustible coal dust, which an investi-

gating committee recommended be prevented

in the future, set the stage for any of a

number of ignition sources found in

mining to act on the condition and cause

injury. In this minor accident, which

luckily spread no further than the imme-

diate area, as well as in the disastrous

explosion which is the subject of this

case, the language of Glasgow Realty

Company v. Metcalfe, supra, applies: the

probability of injury of some kind to

persons within the natural range of

effect of the alleged negligent act could

be foreseen.

In support of its second point, the

Court assessed the forces associated with

the fall of rock from the boom hole,

excluding explosive forces, and concluded

they were insufficient to have caused the

turbulent dust cloud necessary for this

explosion.

The Court elso assessed the forces

associated with the impermissible firing

which took place at Mines No. 15 and 16,

and concluded that the forces were suf-

ficient to raise the dust particles to

explosive velocities and to ignite them,

thus propagating throughout the mine.

Although this latter conclusion was made

without any expert attempting to actually

calculate the forces generated, that

conclusion is indeed the thrust of the

expert testimony and the report of

investigations.

The scenario that was left out of

the Court's consideration is the case

where the forces of falling rock and per-

missible explosives were combined. The

Court apparently implies that these were

not of the magnitude necessary to raise

the cloud and ignite it. However, the

expert Mitchell said that even with per-

missible explosives, absent cleaning and

inerting, the forces for an explosion

were present and sources of ignition were

available from the permissible

explosives. (T.E., Mitchell, 563-4).

CONCLUSION

In summary, the District Court

Findings of Fact were clearly erroneous

in two major respects. First, in finding

the forces sufficient, in a primacord and

paper stem setting, to cause the

explosion, with or without inertion as

would be required by proper inspection

and citation, the Court ignores the

government's expert Mitchell, who said

that with cleaning and inertion, such an

impermissible shot would not ignite and

not propogate. Although the Court picks

and chooses among the testimony, pointing

out that explosive quantities of dust are

found in every mining operation, that

such quantities are found even after

vacuuming, and that dust may be ignited

even at 93% inertion in extreme cases,

the Court is not permitted to shuffle

together those items, some of which

involve extreme conditions, and which

require expert testimony to describe the

limits of their applicability, and thus

form a conclusion diametrically opposed

to that of the expert presented with a

hypothetical. Secondly, the Court, as we

have shown above, is simply not supported

by the evidence in its conclusion that an

explosion, caused by any one of a number

of means, was not a possible and there-

fore foreseeable result of the accumula-

tion of excessive and uninerted coal

dust. Simply reciting that a boom hole

could have been shot safely is no more

sufficient here than it would be in any

- a

other case of superseding negligence.

When a Court continues to draw

conclusions without evidentiary support,

as the District Court did here throughout

its Opinion, that Court's findings are

clearly erroneous as lacking in any

; | be. |S

substantial factual basis. Any reviewing

Court would be left with a clear and

definite impression that a mistake had

been made.

Plaintiffs, an injured miner and the

representatives of 25 deceased miners,

are entitled to have a District Court's

findings set aside when they are clearly

erroneous, as these are. The Court of

Appeals failed to perceive the manner in

which the District Court's findings

conflicted with the testimony of both

experts who testified and with the

investigative reports conducted after the

accident.

The petitioners request a hearing on ,

the merits in order to demonstrate the

complete failure of the District Court to

make findings supported by the evidence,

and the failure of the Appellate Court to

apply the ‘atandarde developed over the

viiee vi fintareretation of: the phrase

"clearly erroneous",

Respectfully submitted,

WILL S, HOQUSMAN & SPARKS

1700 Kentucky Avenue

Paducah, Kentucky 42001

Attorneys for Petitioners

CERTIFICATION

I hereby certify that three copies

of this Petition have been served upon

all parties required to be served by Rule

28 of this Court by mailing the same,

first class postage prepaid, as follows:

Solicitor General, Department of Justice,

Washington, D. C. This the /3Ot&

day of September,

APPENDIX

May 22, 1980, opinion of the United

States Court of Appeals for the

Sixth Circuit in No. 78-3125,

Reported at 681 F.2d 832.......

November 30, 1977, Memorandum

Opinion of the United States

District Court for the Eastern

District of Kentucky, in

No. THAZ2Q. we ceecceecvvcesveees

May 22, 1980, Judgment of the

United States Court of Appeals

for the Sixth Circuit in

No. TOPS ah 6k 64a oe tee

June 16, 1980, Order Denying

Petition for Rehearing in

No. TOC SEDs cide werbls tee e ena

PAGE

A49

A93

A95

No. 78-3125

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

A. T. COLLINS, ET AL.,

Plaintiff-Appellants, APPEAL from

the United

Vv. States

District

Court for the

Eastern

UNITED STATES OF AMERICA, District of

Defendant-Appellee. Kentucky.

Decided and Filed May 22, 1980

Before CELEBREZZE and BROWN, Circuit

Judges, and PHILLIPS, Senior Circuit

Judge.

PHILLIPS, Senior Circuit Judge. This

action grows out of a tragic explosion in

a coal mine near Hyden, Leslie County,

Kentucky, on December 30, 1970. Suit for

money damages was filed against the

United States by appellant A. T. Collins,

who was injured in the explosion, and by

the personal representatives of 25 coal

miners who were killed in the disaster.

Jurisdiction was asserted under the

Federal Tort Claims Act, 28 U.S.C. §§

1346(d), 2671 et seq. The complaint

charged that the proximate cause of the

injuries and deaths of the miners was the

failure of the United States to inspect

the mine in accordance with the require-

ments of the Federal Coal Mine Health and

Safety Act of 1969, 30 U.S.C. §§ 801 et

seq.

District Judge H. David Hermansdorfer,

sitting without a jury, held that the

plaintiffs did not ‘establish that the

failure of the Government to inspect the

mine was a proximate cause of the injury

and deaths. The district judge further

found that unforeseeable superseding and

intervening negligent acts of the coal

mine operators would have prevented

recovery by the plaintiffs even if proxi-

mate cause had been established. We

affirm on the ground that the findings of

fact of the district judge are not

Clearly erroneous. Fed. R. Civ. P.

52(a).

The Government contended in the

district court and on this appeal that

the United States cannot be held liable ¥

for money damages under the Federal Tort

Claims Act on the basis of allegedly

improper or incomplete mine safety

inspections conducted pursuant to federal

coal mine safety legislation. The

district court held that an action lies

under the Federal Tort Claims Act under

the averments of the complaint in this

case. We expressly reserve a decision on

that question and express no views

thereon in this opinion. The issue of

whether an action lies under the Federal

Tort Claims Act under a similar factual

situation will be presented squarely to

this court in pending case No. 80-3033,

in which the Government has appealed from

the decision of the district court in

Raymer, Administratrix v. United States

and Gill, Administratrix v. United

States, 455 F. Supp. 165 (W.D. Ky. 1978).

' SF.

On March 30, 1970, the Federal Mine

Health & Safety Act of 1969 (the 1969

Act) became law.! In the spring of 1970,

'Tthe 1969 Act was superseded by the

Federal Mine Safety and Health Amendments

Act of 1977. References in this opinion

are to the 1969 Act, which was in effect

at all times relevant to this litigation.

the Finley Coal Company opened two new

mines, Nos. 15 and 16, near Hyden, Leslie

County, Kentucky. Later that year, the

two mines were interconnected and

operated as one mine.

The primary concern of the 1969 Act is

for the health and safety of miners. 30

U.S.C. § 801(a). The Secretary of

Health, Education and Welfare and the

Secretary of the Interior were directed

to develop and promulgate improved man-

datory health and safety standares to

protect coal miners; to compel coal mine

operators' compliance with the standards;

to work with the states for such purpose;

and to develop research and training

programs with the states and the industry

aimed at preventing coal mine accidents

and occupational diseases. 30 U.S.C.

§ 801(g).

30 U.S.C. § 801(e) provides:

[T]he operators of such mines with the

assistance of the miners have the pri-

mary responsibility to prevent the

existence of such conditions and prac-

tices in such mines.

Representatives of the Government are

required to inspect and investigate coal

mines each year for the purpose of

acquiring and disseminating information

reiating to health and safety conditions,

and the causes of accidents, diseases and

physical impairments originating in the

mines; gathering information with respect

to mandatory health and safety standards;

determining whether there is compliance

with the mandatory health or safety

requirements. The Government represen-

tatives are required to inspect each

underground coal mine, in its entirety,

"at least four times a year." 30 U.S.C.

§ 813(a).

The 1969 Act also establishes certain

interim mandatory health or safety

2 SOC

DIK Ps Aas Roe

die hea

standards. The health standards, in

part, involve dust control, respiratory

equipment, and medical examinations. 30

U.S.C. §§ 841 et seq. The safety stand-

ards involve roof supports, ventilation,

combustible materials, explosives and

similar matters. 30 U.S.C. §§ 861 et

seq.

Particularly important to this litiga-

tion are the safety standards relating to

compustible (sic) materials and "rock

dusting", 30 U.S.C. § 864(d), and

"permissible explosives" and "shot firing

units", 30 U.S.C. § 873(c). Section

864(d) requires mine operators to “rock

dust" all underground areas of a mine so

that combustible coal dust is diluted

with inert dust so that the amount of

incompustible (sic) dust constitutes no

less than 65 per cent of all dust present

—%

and no less than 80 per cent in return

air-courses. Section 873(c) calls for

the use of permissible explosives, deto-

haters and blasting devices. It requires

that explosives be fired only with per-

missible shot firing units and that

incombustible materials be used for

stemming boreholes.

During the period from June 19, 1970,

through December 21, 1970, inspectors

from the Mine Enforcement and Safety

Administration (MESA), Bureau of the

Mines, Department of the Interior,

visited and inspected mines 15 and 16.

The district court found that MESA failed

to comply with its statutory duty of

making four complete inspections of the

mines per year and that there had been

one complete and one spot inspection of

mine 16 and six spot inspections of mine

15. Those inspections had uncovered

various violations of mine safety which

were ordered abated and subsequently

corrected. 7

At 12:20 p.m. on Wednesday, December

30, 1970, unusually large aggregate

amounts of explosives were detonated in

mine 16 where a new boom hole was being

created. The shock wave of displaced air

lifted combustible coal dust into

suspension. The coal dust ignited and

the ensuing explosion propagated into

mine 15. All of the 39 men underground

were killed instantly except for

appellant Collins, who was injured while

in the entry of mine 15.

The plaintiffs, having been denied

their administrative claims, filed suit

Wie asthe United States attributing the

explosion to negligent inspection and

NS MERE Th

Oe OO ee hUll)l lL

Al10

enforcement of the 1969 Act and sought

damages under the Federal Tort Claims

Act.

In his memorandum opinion filed

November 30, 1977, District Judge

Hermansdorfer set forth the following

summary of his findings concerning the

explosion.

"On the morning of December 30, 1970

work was begun to establish, by

blasting, a loading or transfer point

in Finley Mine 16 at entry 6, 1 left.

A roof bolting machine was used to

drill about one hundred and twenty

(120) 'shot' holes, each having a

diameter of four (4") inches and

extending into the roof material about

thirty (30") inches. The area so

drilled was eighteen (18') feet long

by twenty-eight (28') feet wide.

Permissible explosives were inserted

All

into the holes and stemmed by paper.

The aggregate amount of dynamite used

was unusually large. Primacord, a

high explosive not permissible

underground, was used as the igniter

and it was detonated by ‘either a shot

firing unit, power cable, or to the

battery connections of a nearby

battery-powered tractor' [Plaintiffs'

Exhibit 5, p. 16]. The resulting

shock wave of displaced air lifted

coal dust into suspension in an explo-

sive concentration, and the explosion

occurred when the coal dust was

ignited.

"To state a claim for actionable

negligence under Kentucky common law,

plaintiffs must show, by a prepon-

derance of the evidence, that the

United States owed a duty to persons

Al2

including the plaintiffs, that such

duty was breached under circumstances

where it was reasonably foreseeable

that such breach, in this case by

ommission, could pose a risk of injury

or death to plaintiffs, and that such

foreseeable consequences did result as

a natural and probable consequence of

such negligence. See Spivey v.

Sheeler, Ky., 514 S.W.2d 667 (1974);

Glasgow Realty Company v. Metcalfe,

Ky., 482 S.W.2d 750 (1972).

"Plaintiffs' theory of liability,

as asserted in post-trial brief,

argues that MESA's failure to properly

discharge its duties of inspection

permitted the accumulation of inade-

quately inerted coal dust and that

such dust propagated the explosion

throughout Mines 15 and 16 where, if

such coal dust has been properly

Al3

inerted, the explosion would have been

a localized occurrence. However,

under the Act the operator of the mine

is charged with the ‘primary affirm-

ative responsibility to prevent the

existence of such [unsafe] conditions

and practices ...', 30 U.S.C. §

801(e). It necessarily follows that

to be liable under Kentucky law, MESA

would have to have known or be charged

with knowledge that the operator would

not obey the duties imposed upon him

under the Act, as measured by what an

ordinarily prudent person in the same

or similar situation would have known ,

or be charged with knowing. Bowlin v.

General Tire & Rubber Co., Ky., 445

S.W.2d 693, 695 (1969).

"Plaintiffs have established that

MESA failed to comply with its statu-

Al4

tory duty of making four (4) complete

inspections of the Finley mine per

year. Mines 15 and 16 were opened,

respectively, in March and June of

1970 (Plaintiffs' Exhibit 5, p. 3].

During this period, MESA made only one

complete inspection of Mine 16 on

October 19, 20-22, 1970, and one spot

inspection of the same mine on October

26, 1970. Mine 15 was never complete-

ly inspected, but during the nine

(9) month period between its opening

and the December 30 explosion, MESA

conducted six (6) spot inspections.

Nevertheless, these inspections may

not stand for substantial compliance

with the requirement of complete

inspections. From these inspections,

a total of forty-three (43) notices or

citations for violations of the Act's

health and safety standards were

Al15

issued to the operator by MESA inspec-

tors {Plaintiffs' Exhibit 5, App. F].

From those citations pertaining to

coal dust, plaintiffs argue that MESA

was put on notice that the mine con-

tained such ‘'excessive' quantities of

coal dust that the conditions in the

Finley mines constituted ‘an explosion

waiting to happen’.

"In Kentucky one may infer, without

an evidentiary basis, that MESA knew

or should have known that inadequately

inerted coal dust would be present in

the Finley mines at any given time.©

n2Bowlin, supra, at 695.

Plaintiffs have the burden of pre-

senting such evidence.

Plaintiffs presented evidence showing

that on November 19, 1970, the last

spot inspection of Mine 15 before the

Al6é

explosion, rock dusting was found to

be adequate [Plaintiffs' Exhibit 5, p.

9]; ‘in accordance with Bureau

procedures, the adequacy of rock dust

applications was determined visually'

(Id.]. A portable rock dusting

machine was present in the mines, and

when inoperable, rock dusting was per-

formed by hand by a nine (9) man main-

tenance crew [Id. at 9, 10]. In the

inspections of August 14 and October

19-20 and 22, 1970, inadequate rock

dusting violations were cited [Act,

§ 304(b), 30 U.S.C. § 864(b)], but all

violations were timely abated

[Plaintiffs' Exhibit 5, App. F].

"There is evidence that on the day

of the explosion, the men working

underground were engaged in the mining

of coal. From this fact, it may be

Al7

inferred that coal dust was produced

as a by-product of the mining

Operation. However, it requires

further circumstantial evidence to

infer that the amount of coal dust was

excessive or that it was inadequately

inerted.

"Plaintiffs' evidence reveals that

the normal business at the Finley

mines was conducted by two mining

shifts and .ne maintenance shift. The

average daily production was fifteen

hundred (1500) tons of coal

[Plaintiffs' Exhibit 5, p. 2]. Rock

dusting operations were performed by

the maintenance crew on the last shift

of each day. Each morning then began

with a production shift [Id., App. F].

Thus, one may infer from such past

practice that it is more probable than

not that the mine was rock dusted on

Al18

the morning of December 30, 1970. The

Fire Boss' book was not introduced

into evidence, although it is the

record diary of a coal operator as to

what was actually done, by shift,

underground. KRS 352.380 and 352.290.

See also 30 C.F.R. § 75.1800 et seq.

"The foreseeability test employed

in Kentucky, in terms of a negligently

created condition, fixes liability for

those consequences which ‘might. and

ought to be foreseen by the wrongdoer

as likely to flow from his act’.

Spivey v. Sheeler, supra. From the

foregoing evidence, I find no basis on

which to conclude that MESA's failure

to perform the required number of

inspections of the Finley mines

resulted in the existence of excessive

coal dust on the date of the

e¢

Al19

explosion, nor does the evidence per-

mit the inference that MESA should

have foreseen the existence of alleg-

edly excessive and inadequately

inerted coal dust in the mine on

December 30, 1970.

"Tt appears to be plaintiffs’ argu-

ment that the desired conclusion of

excessive coal dust is justified by

the fact of the explosion per se,

under the rationale that if there had

not been excessive coal dust in the

mine, the explosion would not have

occurred or would not have been

localized. The evidence does not per-

mit such a simple answer to the

problem. The concept of ‘excessive

amounts of dust' was defined by regu-

lation [30 C.F.R. 75-400-1]3 as 'coal

"3This regulation has been held

A |

A20

invalid, United States v. Finley Coal

Co., 493 F.2d 285, 297 (6th Cir.

1974), cert denied 419 U.S. 1089

(1974).

and float dust in the air in such

amounts as to create the potential of

an explosion hazard' [emphasis added].

The Coal Mine Inspector's Manual, edi-

tion of August 1969 [Plaintiffs'

Exhibit 9] does not address the

question of excessive coal dust

directly but rather the adequacy of

inerted coal dust in terms of

‘observable inadequately inerted coal

dust' [Id. at p. 51]. The manual goes

no further. By evidence it is shown

that the industry standard as to

excessive coal dust at the time was in

terms of that amount of coal dust in

the air which would prevent one from

seeing the light from a cap lamp eight

(8) feet away [Tr.E., Vol. * * * , at

A21

573]. The issues with respect to coal

dust bottom out on two basic

considerations: (1) the amount of coal

dust in the air in such quantity as to

be deemed excessive, and (2) the ade-

quacy of inerting coal dust on all

surfaces of the underground mine which

is measured by observation, or, by

turning such surfaces white by appli-

cation of rock dust.

"The evidence establishes without

contradiction that 5/100 of an ounce

of coal dust per cubic foot of air

will support combustion [Tr. E., Vol.

III, at 555]. This comports with the

regulation standard, supra, but makes

use of the word ‘excessive’ somewhat

difficult to understand. The word

‘excessive’ by custom and practice of

the industry relates to a cloud of

A22

dust so dense that it obscures light

from a cap lamp at eight (8') feet.

This standard simply does not relate

to explosion potential. Going

further, the evidence shows that the

government's expert witness, Donald W.

Mitchell, actually used a vacuum

cleaner on a portion of a different

mine and after it was cleaned found

sufficient quantities of residual coal

dust to propagate an explosion [Tr.

E., Vol. III, at 559). In terms of

applying labels, one would have to

conclude that the vacuumed mine con-

tained ‘excessive’ amount of coal dust

where ‘excessive' describes that quan-

tity of coal dust creating the poten-

tial of explosion. By parity of

' reasoning, every coal mine in which —

coal has been mined would contain an

excessive amount of coal dust as a.

¢%

A23

matter of probability. Thus,

plaintiff's unquantified, standard,

‘excessive', has no substantial

meaning under the evidence beuantnd

in this case.

"The invalidated federal standard

for inerting coal dust required that

at least sixty-five (65%) percent

inert material, typically lime-stone

rock dust, be applied. 30 C.F.R.

§ 75.403. However, as noted

previously, MESA inspectors determine

the adequacy of rock dusting by visual

examination [Plaintiffs' Exhibit 9, p.

52]. Had MESA made timely inspections

of the Finley mines and cited the

operator for dust violations, such

violations simply would be abated by

the application of adequately inerting

quantities of rock dust. 30 U.S.C.

A24

§ 864; 30 C.F.R. § 75.403.

"Notwithstanding the above

standards, the experts in this action

agree that conditions in an

underground mine are dynamic [Dr.

Sinks, Tr. &., Vel. II, at 2164. Wr.

Mitchell, Tr. E., Vol. IV, at 597].

The amount of coal production appears

to be related to the generation of

coal dust (Mitchell, Tr. E., Vol. IV,

at 598-599]. The dust at one point in

time does not preclude an unsafe con-

dition arising shortly thereafter from

subsequently generated coal dust. The

evidence does not suggest when MESA

should have inspected the mines if it

had complied with the requirements of

Section 813(a) of the Act; such

inspections under the evidence of this

case are material to underground mine

conditions only at the time they are

ee.

A25

made and quickly lose any safety

Significance because of the dynamic

conditions of underground mining.

Thus, at the outer limit MESA person-

nel could be chargeable only with

foreseeing those circumstances arising

within a reasonable time after such

inspection. For the reasons which

follow, I find that MESA inspectors

cannot be held to have reasonably

anticipated the actions of the opera-

tor of the Finley mine which precipi-

tated the explosion of December 30,

1970, or the equally unreasonable act

of the operator in permitting men

underground at a time when an imper-

missible ignition of high explosive

was initiated [see Plaintiffs' Exhibit

5. oe. 26);

"The shooting of a boom hole in an

Seiad

A26

underground mine is an ordinary and

recurring aspect of coal mining.

However, there is no evidence tending

to show that the boom hole blasting

activities of December 30, 1970 could

be described as ordinary or typical.

The abnormal aspects of the procedures

include the excessive quantity of per-

missible explosives employed, the

impermissible use of paper stemming,

the failure to have sequential firing

where a substantial amount of powder

is involved and the use of an imper-

missible high explosive as the igniter

of the permissible explosives. I find

no evidence that any of these aspects

of the explosion sequence were fore-

seeable by MESA; they are clearly

beyond the ambit of dynamic occurren-

ces inherent in the Finley mines.

Accordingly, I am convinced by the

- #4

A27

evidence and all of the circumstances

of this case that but for the use of

primacord in conjunction with

excessive amounts of dynamite, the

explosion complained of would not have

occurred. I find no evidence tending

to support the proposition that such

an explosion would have occurred had

approved procedures and proper explo-

sives been used to shoot the boom

hole.

"Although it is not known how much

coal dust was present before the

explosion (and I find no basis to sup-

port any inference other than one

finding that at least the minimum

explosive concentration of 5/100 of an

ounce of coal dust per cubic foot of

air was present), there is simply no

evidence that such coal dust was pre-

A28

sent in excessive amounts as that term

is used within the mining industry.

It is not known nor can one infer ‘from

the evidence that the coal dust was in

fact adequately rock dusted at the

beginning of the morning production

shift on December 30, 1970 but MESA's

post-accident investigation revealed

that some rock dust had been applied

in the area where the explosion

originated [Plaintiffs' Exhibit 5, pp.

20, 21]. Nevertheless, under the evi-

dence I find that the explosion would

have occurred even if the coal dust

present in the mine had been ade-

quately inerted. The reasons for this

conclusion are more fully discussed in

the Appendix, but it may be stated

here that the high velocity of air

displaced by detonation of the par-

ticular explosive materials employed

¢ *

A29

would necessarily have created a shock

wave of sufficient speed and force to

have brought adequately inerted coal

dust into airborne suspension at a

particle velocity sufficient to

sustain combustion, and the resulting

high temperatures, measured in several

thousand degrees Kelvin4, were suf-

wikelvin refers to an absolute tem-

perature scale in which zero Kelvin is

equivalent to -372° (sic) C; the

freezing point of water is 273° K and

the boiling point of water is 373° K.

ficient to ignite such airborne coal

dust. This clearly would not have

been the circumstance attending the

weaker ignition sources normally used

in shooting boom holes in a permissible

manner in an underground coal mine.

"I can find no basis upon which to

conclude that MESA inspectors knew or

A30

should have Known of the wholly irreg-

ular practices employed underground

at the Finley mines on December 30,

1970.9 The presence of primacord

"OThe parties have stipulated, Tr.

E., Vol. IV., at 678, that MESA

inspectors never found any primacord

underground prior to the explosion."

above ground will not support an

inference that it was being used

underground [Tr. E., Vol. III, at

545]. All witnesses agree that prima-

cord should not be used in an

underground coal mine [Tr. E., Vol.

II, at 140; Vol. III, at 544-546).

Even if one should conclude, arguendo,

that MESA's failure to inspect was

somehow causally connected with the

explosion, the abnormal and imper-

missible practices of the operator

A31

were such as to constitute unfore-

seeable acts of intervening negligence

which superseded any negligence of the

MESA inspectors. Hall v. Midwest

Bottled Gas Distributors, Inc., Ky.,

532 S.W.2d 449 (1975); Lexington

Country Club v. Stevenson, Ky., 390

S.W2d 137, 141 (1965); see also House

v. Kellerman, Ky., 519 S.W.2d 390

(1965).

Judge Hermansdorfer attached to his

memorandum opinion an appendix setting

forth his findings of fact in greater

detail. The appendix to the memorandum

of the district court is made an appendix

to this opinion.

We have reviewed the record in this

cause in its entirety and with great

care, due to the technical nature of the

problems and the significant effect our

decision will have on the principals

A32

involved in this mine disaster. The

record is clear and speaks for itself.

The factual determinations of the

district court are not clearly erroneous.

Assuming arguendo that the inspectors

from MESA were culpably negligent in

their failure to inspect mines 15 and 16,

the findings of the district court are

clearly correct that the procedures

employed by the coal mine operator on the

day of the accident constituted such

unforeseeable superseding and intervening

acts of negligence as to remove any

causal connection between the failure to

inspect and the injury and deaths of the

miners. |

The decision of the district court is

affirmed on the basis of the findings of

fact of the district judge. As hereto-

fore stated, this court in this opinion

¢%

A33

expresses no views with respect to the

contention of the Government that there

is no cause of action under the Federal

Tort Claims Act. No costs are taxed.

The parties will bear their own costs on

this appeal.

A34

APPENDIX

This appendix is a further statement

and analysis of the fact finding respon-

sibility of the Court and is limited to

the more technical aspects of the

evidence. All of the evidence has been

carefully reviewed and the data discussed

below are derived principally from the

Official Report of Major Mine Explosion

Disaster [Plaintiffs' Exhibit 5]; the

testimony of Donald William Mitchell,

Chief of MESA's Approval and

Certification Center and the testimony of

Dr. Atmesh Kumar Sinha, Associate

Professor, Mining Engineering, Southern

Illinois University. My primary areas of

concern are to determine the sequential

step mechanics of the explosion in terms

of the differences between what would

have occurred if excessive permissible

explosives and primacord had not been

A35

used and what did occur employing these

explosives. Such detailed anaylsis (sic)

is deemed appropriate in terms of what I

understand plaintiffs' argument under

Johnson v. Kosmos Portland Cement Co., 64

F.2d 193 (6th Cir. 1933), to be, namely,

that an explosion was a foreseeable

result even though the cause of the

explosion was not. Although Johnson is

Clearly distinguishable on its facts, the

proposition is worthy of attention.

There is no dispute among the expert

witnesses that circumstances in an

underground coal mine should be described

as dynamic. This imports conditions sub-

ject to change, sometimes in small time

frames. The value of any underground

coal mine inspection is, therefore,

limited to the conditions which exist at

or about the time of the inspection. It

A36

appears to be the thrust of the mandatory

safety standards promulgated under the

requirements of the Coal Mine Health and

Safety Act of 1969, 30 U.S.C. § 801 et

seq. to circumscribe known impairments to

safety by federal law, or, in other

words, to control aspects of such dynamic

conditions. Other limitations on the

dynamic conditions of an underground mine

may be derived from knowledge of the mine

itself. In the case of Finley Coal

Company Mines 15 and 16, it is known that

they were classified as "non-gassy" which

eliminates methane gas as a significant

factor in the mining operation, although

methane had been detected [Plaintiffs'

Exhibit 5, p. 2, 20]. Another factor

material to the dynamic conditions of the

Finley mines is the volatile ratio of the

coal being mined. "Numerous tests by

the Bureau of Mines have shown that coal

A37

dust having a volatile ratio of 0.12 and

higher is explosive. The volatile ratio

of the coal in these mines is 0.42, indi-

cating that the coal dust is highly

explosive" [Id. at p. 3]. However, the

volatile ratio of Finley coal, standing.

alone, is not of much asistance in

understanding the mechanics of the explo-

sion of December 30, 1970. The volatile

ratio does not, for instance, signifi-

cantly affect the minimum explosive con-

centration in terms of particle size.

Minimum explosive concentration of

particles, by size, does not alter the

requirement of an air velocity of one

hundred and fifty (150') feet per second

among the particles for explosive con-

centration [Mitchell, Tr. E., Vol. III,

at 510-511, 563]. However, given the

minimal physical conditions necessary for

A38

ignition, the volatile ratio does relate

to increased probabilities for an explo-

sion as opposed to burning of such coal

dust. In short, the volatile ratio be-

comes significant when an explosive con-

centration of coal dust is raised into

airborne suspension at the requisite par-

ticle velocity to support combustion.

The greater the volatile ratio, the more

combustible the coal dust and, hence, a

greater amount of rock dusting material

is required to adequately inert the coal

dust present in the Finley mines, in

terms of foreseeable permissible ignition

sources.

The experts agree that the quantity of

air displaced by falling rock from a boom

hole the size of the one shot on December

30, 1970 in Mine 16, entry 6, 1 left,

would have been, excluding the forces of

any explosives used, one thousand two

#¢

c- |

A39

hundred and sixty (1260) cubic feet

(Mitchell, Vol. III, at 516; Sinha, Vol.

I, at 182]. The speed and force of such

displaced air, without consideration of

explosive forces, would have been on the

order of a velocity of five (5') feet per

second with a force of 1/100 of a pound

per square inch [psi], assuming a one

hundred and eighty degree (180°) plane or

direction as opposed to a lesser force

dissipating on a three hundred and sixty

degree (360°) plane. Since a coal mine

does not present an unrestricted area for

the dissipation of energy involved in

displaced air, the value of 1/100 psi is

reasonable (Tr. E., Vol. III, at 518,

520]. Forces of this magnitude have the

capability of raising into suspension

small amounts of dust within three (3')

to ten (10') feet of the falling rock,

¢%

A40

but would not be capable of maintaining

dust in suspension [Id. at 521]. This

dust, of course, could come from the

roof, sides or floor of the mine.

Adequately inerted coal dust would be

covered by a superficial layer of inert

material. The feeble forces associated

with falling rock from a boom hole

possibly could disturb the outer layer of

rock dust or, if uninerted, coal dust,

but could not keep it in suspension [Id.

at 522]. Given the factors of a wave

front with a velocity of five (5') feet

per second and a force of 1/100 psi, the

necessary forces to raise an explosive

concentration of coal dust with the

necessary particle velocity are not

Shown. Further, the exposure to ignition

would be about 3/10's of one millisecond

from permissible explosives simultan-

eously detonated [Id. at 564]. There is

“Go

A4l

psacth no evidence that forces involved

in the displacement of one thousand two

hundred and sixty (1260) cubic feet of

air and the predictable ignition source

from permissible explosives could have

ignited uninerted coal dust regardless of

its volatile ratio. There is a total

absence of any basis from which to infer

that the explosion would have occurred

under normal mining practices.

I conclude that the circumstances in

the Finley mines on the morning of

December 30, 1970 did not amount, in

plaintiffs’ terms, to "an explosion

waiting to happen". A boom hole could

have been shot permissively without the

occurrence of an explosion [Id. at 566].

Of course, good mining practice would

require that no one be underground during

detonation except a certified shot firer

A42

[Id. at 538-539]. 30 C.F.R. § 15.24(b),

number 14, In the history of the Finley

mine, blasting was normally done during

the thirty (30) minute interval between

shifts when there were no men working

underground [(Plaintiffs' Exhibit 5, p.

7), although there was no testimony

before MESA of on-shift detonations

[Plaintiffs' Exhibit 4, pp. 44, 48, 49,

50, 53]. Since boom holes are necessary

to the business of underground mining and

act as transfer or loading points for

coal from the mine face for transpor-

tation to the surface [Tr. E., Vol. IV,

at 623], the boom hole shot on December

30, 1970 was not the first boom hole in

the Finley mines [Plaintiffs' Exhibit 5,

p. 15]. There is evidence of coal being

shot on shift in a proper manner [Id. at

App. FJ. Considering the evidence of

other detonations of explosives

e*%

-— -* |

A43

underground at the Finley mines without

uncontrolled propagation by ignition of

coal dust, it is apparent that the vola-

tile ratio factor standing alone has

limited relevance to the cause of the

explosion. Subsequent experimentation

with Finley coal dust confirms this

finding. Coal dust from the Finley mines

was predispersed in a controlled

atmosphere in precise amounts [0.3 oz/cu

ft], a quantity about six (6) times the

minimum concentration established by

testing to be explosive. Two detonations

of three (3) sticks of dynamite each were

made, stemmed and unstemmed, in a cannon

with the result that no ignitions of the

coal dust occurred. These tests simulated

shot hole detonations. One (1) stick of

dynamite openly detonated in this explo-

sive concentration atmosphere did ignite

en ee

A44

the coal dust [Id. App. H].

The evidence which does explain the

explosion is clear and convincing. It

first appears that an excessive amount of

permissible explosives were positioned

for detonation without regard for

approved practices [Tr. E., Vol. III, at

531, 537-541]. I find that at least one

hundred and twenty (120) pounds of dyna-

mite were involved in shooting the boom

hole in December 30, 1970 [Id. at 530].

These explosives were stemmed with paper,

a separate impermissible practice [Id. at

564], which presents the hazard of a

longer lived source of open flame upon

ignition [Id. at 565]. These explosives

were "fused" with primacord to detonate

simultaneousy [Tr. E., Vol. III, at

552-553]. Primacord is the trade name of

a particular brand of high explosive

which by common usage has evolved into a

e*,

A45

generic term for all high explosives of

the class appearing in physical form as a

cord like substance. Primacord detonates

rather than deflagrates -- it explodes

rather than burns. Upon ignition the

detonating velocity of primacord is about

twenty thousand (20,000') feet per

second, and the resulting forces are not

subject to reasonable control. [Id. at

543-545).

Returning to the uncontroverted evi-

dence of the physical requirement of par-

ticle velocity as a requisite for any

coal dust explosion, the energy source

capable of initiating an air velocity of

one hunderd (sic) and fifty (150') feet

per second among particles needs to be

identified. Although no witness

attempted to calculate precisely the com-

bined forces resulting from the simultan-

A46

eous detonations of primacord and one

hundred and twenty (120) pounds of

explosives, I find that such forces were

sufficient to bring the coal dust into

suspension, whether inerted or not, and

to propel the dust particles past the

threshold of requisite explosive particle

velocity. At this juncture, the volatile

ratio of the coal dust negated the proba-

bility of burning and insured to an

almost certainty an explosion upon

ignition. The igniting source I find to

be the very hot gases associated with the

detonation of primacord which have been

measured in several thousand degrees

Kelvin. In confrontation with such

forces normal rock dusting would be

totally ineffective. The forces

attending the explosion were strong

enough to blow out concrete stoppings

(Plaintiffs' Exhibit 5, at 22] and the

A47

ignition source was at least ten (10)

times greater than that required for pre-

dictable ignition in terms of

temperatures. By testing MESA has deter-

mined that in extreme circumstances coal

dust inerted to ninety-three (93%) per-

cent was inefficient in arresting the

propagation of flame [Tr. E., Vol. III,

at 560).

The technical evidence convinces me

that those practices employed by the

operators of the Finley mines on December

30, 1970 were totally inconsistent with

any reasonable standards applicable to

the use of explosives in an underground

coal mine. I find no evidence upon which

to find or infer that MESA could or

should have known that by its failure to

complete the four (4) mandatory inspec-

tions required by the Act, the mine

A48

operators would have abandoned good

mining practices and employed the inex-

cusable practices described in the

evidence.

A49

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

PIKEVILLE

CIVIL ACTION NO. 74-326

Re Ti SOLLING, BF A, PLAINTIFFS,

VS: MEMORANDUM OPINION

UNITED STATES OF AMERICA, DEFENDANT.

Filed November 30, 1977

Thirty-eight (38) of the thirty-nine

(39) men working underground at the

Finley Coal Mines 15 and 16 died as a

result of an explosion on December 30,

1970 at about 12:20 P.M. The Finley

mining operation was Situated on Hurrican

Creek, near Hyden, in Leslie County,

Kentucky. This action is brought by the

lone survivor and the personal represen-

tatives of the estates of twenty-five

(25) of the deceased coal miners seeking

money damages from the defendant, the

United States of America, for the alleg-

~F%

A50

edly negligent acts of its employees

relating to the accident.

Jurisdiction is predicated upon the

Federal Tort Claims Act, 28 U.S.C.

§§1346(b), 2671 et seq. Trial was held

without the intervention of a jury. 28

U.S.C. §1346(b).

Plaintiffs' theory of liability

appears to rest upon the basic allegation

that inspectors employed by the Mine

Enforcement and Safety Administration

(vice Bureau of Mines)!+ of the United

1. The Bureau of Mines was the agency

initially involved but "MESA", for

convenience, is used throughout the

opinion.

States Department of the Interior negli-

gently discharged their mandatory duty to

inspect the Finley mines as required by

§813 of the Federal Coal Mine Health and

Safety Act of 1969 [Act], 30 U.S.C. §801

A5l

et seq. The discussion of the

plaintiffs' theory in terms of the evi-

dence will be deferred until a jurisdic-

tional issue raised by the United States

has been considered.

I. JURISDICTION

The United States rel‘es upon cases

typified by Davis v. United States, 395

F.Supp. 793 (D. Neb.), aff'd per curiam

536 F.2d 758 (8th Cir. 1960). This case

holds, under the common law of Nebraska,

that a private citizen could not have

duties arising under a federal statute

and, therefore, an action arising under a

claim based upon an alleged breach of a

federal duty was not within the ambit of

the Federal Tort Claims Act. The

plaintiff's claim was based upon the

allegation that a compliance officer oe

employed by the Occupational Safety and

Health Administration failed to follow

“ €%

A52

up on a safety violation noted during an

inspection of an Omaha, Nebraska sewer

construction project, which violation

allegedly was a contributing factor in

the death of plaintiff's decedent. The

Opinion notes that the government was

"not in control or possession of the work

site and no relationship by contract or

otherwise between the project and the

federal government existed which would

place the government in the position of

one responsible for the project under

Nebraska law". Id. at 797.

As I understand the Davis holding,

it asserts that as a matter of jurisdic-

tion no action may be brought under the

Federal Tort Claims Act except where the

putative tortfeasor employee of the

United States allegedly violated a duty

common to private persons under local

A53

law. Under this view no claim arising

from federally engendered duties could be

brought under the Act. The issue has not

been addressed directly by the Sixth

Circuit as far as I am able to determine.

Another line of cases reaches a

contrary result; and, for the reasons

which follow, I am convinced the reason-

ing used in these cases more persuasively

disposes of the issue. In Gill v. United

States, 429 F.2d 1072 (5th Cir. 1970),

the fact situation involved allegations

of negligence on the part of a federal

air traffic controller in providing

information to the pilot of a private

aircraft which, allegedly, contributed to

the crash of that plane and ensuing death

of the pilot. The Court noted that

"while principles of Texas law control,

federal regulations may impose duties and

standards of conduct upon the actors",

A54

and, "the United States may be liable

. under the Federal Tort Claims Act for

negligent provision of services upon

which the public has come to rely". Id.

at 1075. See also Betesh v. United

States, 400 F.Supp. 238, 243 (D. D.C.

1974).

The Federal Tort Claims Act is a

limited waiver of sovereign immunity,

making the federal government liable to

the same extent as a private party sor

certain torts of federal employees acting

within the scope of their employment.

United States v. Orleans, 425 U.S. 807,

813 (1976). Since the United States can

only be sued to the extent that it has

waived its immunity, Id. at 814, the

asserted claim must fall within the

limited scope of the Act. The government

may not be held liable for acts or

A55

omissions without fault, Laird v. Nelms,

406 U.S. 797, 799 (1972), nor does the

Act encompass doctrines of negligence per

se or strict liability, regardless of the

fact that state law would allow such

rights of action. Id. Additional

liability may not attach to the United

States absent a showing that the

government's negligent act was the proxi-

mate cause of the plaintiff's injury.

Michael v. United States, 338 F.2d 219,

110 (6th Cir. 1964). Within these

general limits, the government consents,

per 28 U.S.C. §1346(b), to be sued for

injuries or death

"caused by the negligent or wrongful

act or omission of any employee of

the Government while acting within

the scope of his office or

employment, under circumstances

where the United States, if a pri-

vate person, would be liable to the

claimant in accordance with the law

of the place where the act or

omission occurred."

A56

In the case at bar, Section 103 of

the Coal Mine Health and Safety Act

charges MESA personnel with the affirm-

ative obligation to perform per year at

least four (4) complete inspections of

every underground coal mine. 28 U.S.C.

§813(a). Defendants must discharge that

duty in accordance with Kentucky common

law. Gill, supra. In Kentucky, a real

or legal person owes a further duty "to

every person to exercise ordinary care in

[its] activities to prevent any fore-

seeable injury from occurring to such

other person". M & T Chemicals, Inc. v.

Westrick, Ky., 525 S.W.2d 740, 741

(1975). By statute, Kentucky courts may

take judicial notice of foreign law, KRS

422.010, and thus bring a federal stand-

ard before the courts. In Grogan v.

United States, 341 F.2d 39 (6th Cir.

1965), a Federal Tort Claims Act case

A57

arising from Kentucky, wherein the

government was alleged to be liable for

injuries resulting from a defective

scaffold, it was held that the

government's reservation of a right to

inspect the scaffold did not thereby

create a duty to inspect, Id. at 43.

However, the Court did not question, as a

jurisdictional matter, plaintiff's right

to assert such putative duty.

Accordingly, I find that jurisdic-

tion lies under 28 U.S.C. §1346(b).

II. ANALYSIS

The findings which detail the

mechanics nics of the explosion are con-

tained in an Appendix to this Memorandum

Opinion. These findings may be sum-

marized as follows. On the morning of

December 30, 1970 work was begun to

establish, by blasting, a loading or

°%

A58

transfer point in Finley Mine 16 at entry

6, 1 left. A roof bolting machine was

used to drill about one hundred and

twenty (120) 'shot' holes, each having a

diameter of four (4") inches and

extending into the roof material about

thirty (30") inches. The area so drilled

was eighteen (18') feet long by twenty-

eight (28') feet wide. Permissible

explosives were inserted into the holes

and stemmed by paper. The aggregate

amount of dynamite used was unusually

large. Primacord, a high explosive not

permissible underground, was used as the

igniter and it was detonated by "either a

shot firing unit, power cable, or to the

battery connections of a nearby battery-

powered tractor" [Plaintiffs' Exhibit 5, ™

p. 16]. The resulting shock wave of

displaced air lifted coal dust into

Suspension in an explosive concentration,

A59

and the explosion occurred when the coal

dust was ignited.

To state a claim for actionable

negligence under Kentucky common law,

plaintiffs must show, by a preponderance

of the evidence, that the United States

owed a duty to persons including the

plaintiffs, that such duty was breached

under circumstances where it was reason-

ably foreseeable that such breach, in

this case by ommission, could pose a risk

of injury or death to plaintiffs, and

that such foreseeable consequences did

result as a natural and probable con-

sequence of, such negligence. See Spivey

v. Sheeler, Ky., 514 S.W.2d 667 (1974);

Glasgow Realty Company v. Metcalfe, Ky.,

482 S.W.2d 750 (1972).

Plaintiffs' theory of liabiity, as

asserted in post-trial brief, argues that

A60

MESA's failure to properly discharge its

duties of inspection permitted the accu-

mulation of inadequately inerted coal

dust and that such dust propagated the

explosion th 1ghout Mines 15 and 16

where, if such coal dust has been pro-

perly inerted, the explosion would have

been a localized occurrence. However,

under the Act the operator of the mine is

charged with the "primary affirmative

responsibility to prevent the existence

of such [unsafe] conditions and practices

s 0 0M, 30. 8.8.C. §$ Wile). It

necessarily follows that to be liable

under Kentucky law, MESA would have to

have known or be charged with knowledge

that the operator would not obey the

duties imposed upon him under the Act, as

measured by what an ordinarily prudent

person in the same or similar situation

would have known or be charged with

Aél

knowing. Bowlin v. General Tire &

Rubber Co., Ky., 445 S.W.2d 693, 695

(1969).

Plaintiffs have established that

MESA failed to comply with its statutory

duty of making four (4) complete inspec-

tions of the Finley mine per year. Mines

15 and 16 were opened, respectively, in

March and June of 1970 [Plaintiffs'

Exhibit 5, p. 3]. During this period,

MESA made only one complete inspection of

Mine 16 on October 19, 20-22, 1970, and

one spot inspection of the same mine on

October 26, 1970. Mine 15 was never

completely inspected, but during the nine

(9) month period between its opening and

the December 30 explosion, MESA conducted

six (6) spot inspections. Nevertheless,

these inspections may not stand for

substantial compliance with the require-

‘X

A62

ment of complete inspections. From these

inspections, a total of forty-three (43)

notices or citations for violations of

the Act's health and safety standards

were issued to the operator by MESA

inspectors [Plaintiffs' Exhibit 5, App.

FJ]. From those citations pertaining to

coal dust, plaintiffs argue that MESA was

put on notice that the mine contained

such "excessive" quantities of coal dust

that the conditions in the Finley mines

constituted "an explosion waiting to

happen". me

In Kentucky one may infer, without

an evidentiary basis, that MESA knew or

should have known that inadequately

‘inerted coal dust would be present in the

Finley mines at any given time.¢

2° Bowlin, supra, at 695. Plaintiffs

have the burden of presenting such

evidence.

*y.

A63

Plaintiffs presented evidence showing

that on November 19, 1970, the last spot

inspection of Mine 15 before the

explosion, rock dusting was found to be

adequate [Plaint.iffs' Exhibit 5, p. 9];

"in accordance with Bureau procedures,

the adequacy of rock dust applications

was determined visually" [Id.]. A por-

table rock dusting machine was present in

the mines, and when inoperable, rock

dusting was performed by hand by a nine

(9) man maintenance crew [Id. at 9, 10].

In the inspections of August 14 and

October 19-20 and 22, 1970, inadequate

rock dusting violations were cited [Act,

§ 304(b), 30 U.S.C. § 864(b)], but all

violations were timely abated

[Plaintiffs' Exhibit 5, App. F].

There is evidence that on the day of

the explosion, the men working

A64

underground were engaged in the mining of

coal. From this fact, it may be inferred

that coal dust was produced as a by-

product of the mining operation.

However, it requires further circumstan-

tial evidence to-infer wae the amount of

coal dust was excessive or that it was

inadequately inerted.

Plaintiffs' evidence reveals that

the normal business at the Finley mines

was conducted by two mining shifts and

One maintenance shift. The average daily

production was fifteen hundred (1500)

tons of coal [Plaintiffs' Exhibit 5, p.

2]. Rock dusting operations were per-

formed by the maintenance crew on the

last shift of each day. Each morning

then began with a production shift [Id.,

App. F]. Thus, one may infer from such

past practice that it is more probable

A65

than not that the mine was rock dusted on

the morning of December 30, 1970. The

Fire Boss' book was not introduced into

evidence, although it is the record diary

of a coal operator as to what was

actually done, by shift, underground.

KRS 352.380 and 352.290. See also 30

C.F.R. § 75.1800 et seq.

The foreseeability test employed in

Kentucky, in terms of a negligently

created condition, fixes liability for

those consequences which "might and ought

to be foreseen by the wrongdoer as likely

to flow from his act". Spivey v.

Sheeler, supra. From the foregoing

evidence, I find no basis on which to

conclude that MESA's failure to perform

the required number of inspections of the

Finley mines resulted in the existence of

excessive coal dust on the date of the

explosion, nor does the evidence permit

OREO 1

- |

A66

the inference that MESA should have fore-

seen the existence of allegedly excessive

and inadequately inerted coal dust in the

mine on December 30, 1970,

It appears to be plaintiffs' argu-

ment that the desired conclusion of

excessive coal dust is justified by the

fact of the explosion per se, under the

rationale that if there had not been

excessive coal dust in the mine, the

explosion would not have occurred or

would not have been localized. The evi-

dence does not permit such a simple

answer to the problem. The concept of

"excessive amounts of dust" was defined

by regulation [30 C.F.R. 75-400-1]3° as

3. This regulation has been held

invalid, United States v. Finle

Coal Co., 493 F.2d 285, 291 th

Cir. 1974), cert. denied 419 U.S.

1089 (1974).

"coal and float dust in the air in such

A67

amounts as to create the potential of an

explosion hazard" [emphasis added]. The

Coal Mine Inspector's Manual, edition of

August 1969 [Plaintiffs' Exhibit 9] does

not address the question of excessive

coal dust directly but rather the ade-

quacy of inerted coal dust in terms of

“observable inadequately inerted coal

dust" [Id. at p. 51]. The manual goes no

further. By evidence it is shown that

the industry standard as to excessive

coal dust at the time was in terms of

that amount of coal dust in the air which

would prevent one from seeing the light

from a cap lamp eight (8) feet away

(Tr.E., Vol. * * * , at 573]. The issues

with respect to coal dust bottom out on

two basic considerations: (1) the amount

of coal dust in the air in such quantity

as to be deemed excessive, and (?) the

“Nyt r

A68

adequacy of inerting coal dust on all

surfaces of the underground mine which is

measured by observation, or, by turning

such surfaces white by application of

rock dust.

The evidence establishes without

contradiction that 5/100 of an ounce of

coal dust per cubic foot of air will sup-

port combustion [Tr. E., Vol. III, at

555]. This comports with the regulation

standard, supra, but makes use of the

word ‘excessive’ somewhat difficult to

understand. The word "excessive" by

custom and practice of the industr# re-

lates to a cloud of dust so dense that it

obscures light from a cap lamp at eight

(8') feet. This standard simply does not

relate to explosion potential. Going

further, the evidence shows that the

government's expert witness, Donald W.

A69

Mitchell, actually used a vacuum cleaner

on a portion of a different mine and

after it was cleaned found sufficient

quantities of residual coal dust to pro-

pagate an explosion [Tr. &., Vol. III, at

559]. In terms of applying labels, one

would have to conclude that the vacuumed

mine contained "excessive" amount of coal

dust where "excessive" describes that

quantity of coal dust creating the poten-

tial of explosion. By parity of

reasoning, every coal mine in which coal

has been mined would contain an excessive

amount of coal dust as a matter of

probability. Thus, plaintiff's

unquantified, standard, "excessive", has

no substantial meaning under the evidence

presented in this case.

The invalidated federal standard for

inerting coal dust required that at least

sixty-five (65%) percent inert material,

A70

typically lime-stone rock dust, be

applied. 30 C.F.R. § 75.403. However,

as noted previously, MESA inspectors

determine the adequacy of rock dusting by

visual examination [Plaintiffs' Exhibit

9, p. 52]. Had MESA made timely inspec-

beens ul the Finley mines and cited the

operator for dust violations, such viola-

tions simply would be abated by the

application of adequately inerting quan-

tities of rock dust. 30 U.S.C. § 864;

30 C.F.R. § 75.403.

Notwithstanding the above standards,

the experts in this action agree that

conditions in an underground mine are

dynamic [Dr. Sinha, Tr. E., Vol. II, at

216; Mr. Mitchell, Tr. E., Vol. IV, at

597]. The amount of coal production

appears to be related to the generation

of coal dust [Mitchell, Tr. E., Vol. IV,

A71

at 598-599]. The dust at one point in

time does not preclude an unsafe con-

dition arising shortly thereafter from

subsequently generated coal dust. The

evidence does not aisbeet when MESA

should have inspected the mines if it had

complied with the requirements of Section

813(a) of the Act; such inspections under

the evidence of this case are material to

underground mine conditions only at the

time they are made and quickly lose any

safety significance because of the dyna-

mic conditions of underground mining.

Thus, at the outer limit MESA personnel

could be chargeable only with foreseeing

those circumstances arising within a

reasonable time after such inspection.

For the reasons which follow, I find that

MESA inspectors cannot be held to have

reasonably anticipated the actions of the

operator of the Finley mine which precip-

°%

A72

itated the explosion of December 30,

1970, or the equally unreasonable act of

the operator in permitting men :

underground at a time when an imper-

missible ignition of high explosive was

initiated [see Plaintiffs' Exhibit 5, p.

25].

The shooting of a boom hole in an

underground mine is an ordinary and

recurring aspect of coal mining.

However, there is no evidence tending to

show that the boom hole blasting activi-

ties of December 30, 1970 cculd he

described as ordinary or typical. The

abnormal aspects of the procedures

include the excessive quantity of per-

missible explosives employed, the imper-

missible use of paper stemming, the

failure to have sequential firing where a

Substantial amount of powder is involved

A73

and the use of an impermissible high

explosive as the igniter of the per-

missible explosives. I find no evidence

that any of these aspects of the explo-

sion sequence were foreseeable by MESA;

they are clearly beyond the ambit of

dynamic occurrences inherent in the

Finley mines. Accordingly, I am con-

vinced by the evidence and all of the

circumstances of this case that but for

the use of primacord in conjunction with

excessive amounts of dynamite, the explo-

sion complained of would not have

occurred. I find no evidence tending to

support the proposition that such an

explosion would have occurred had

approved procedures and proper explosives

been used to shoot the boom hole.

Although it is not known how much

coal dust was present before the explo-

sion (and I find no basis to support any

A74

inference other than one finding that at

least the minimum explosive concentration

of 5/100 of an ounce of coal dust per

cubic foot of air was present), there is

simply no evidence that such coal dust

was present in excessive amounts as that

term is used within the mining industry.

It is not known nor can one infer from

the evidence that the coal dust was in

fact adequately rock dusted at the

beginning of the morning production shift

on December 30, 1970 but MESA's post-

accident investigation revealed that some

rock dust had been applied in the area

where the explosion originated

[Plaintiffs' Exhibit 5, pp. 20, 21].

Nevertheless, under the evidence I find

that the explosion would have occurred

even if the coal dust present in the mine

had been adequately inerted. The reasons

A75

for this conclusion are more fully

discussed in the Appendix, but it may be

stated here that the high velocity of air

displaced by detonation of the particular

explosive materials employed would

necessarily have created a shock wave of

sufficient speed and force to have

brought adequately inerted coal dust into

airborne suspension at a particle velo-

city sufficient to sustain combustion,

and the resulting high temperatures,

measured in several thousand degrees

Kelvint:, were sufficient to ignite such

4* Kelvin refers to an absolute tem-

perature scale in which zero Kelvin

is equivalent to -372° (sic) C; the

freezing point of water is 273° K

and the boiling point of water is

373° K.

airborne coal dust. This clearly would

not have been the circumstance attending

the weaker ignition sources normally used

in shooting boom holes in a permissible

A76

manner in an underground coal mine.

I can find no basis upon which to

conclude thet MESA inspectors nani or

should have known of the wholly irregular

practices employed underground at the

Finley mines on December 30, 1970.9° The

5* The parties have stipulated, Tr. E.,

Vol. IV., at 678, that MESA inspec-

tors never found any primacord

underground prior to the explosion.

presence of primacord above ground will

not support an inference that it was

being used underground (Tr. E., Vol. III,

at 545]. All witnesses agree that prima-

cord should not be used in an underground

coal mine [Tr. E., Vol. II, at 140; Vol.

IIIT, at 544-546]. Even if one should

conclude, arguendo, that MESA's failure

to inspect was somehow causally connected

with the explosion, the abnormal and

impermissible practices of the operator

A77

were such as to constitute unforeseeable

acts of intervening negligence which

Superseded any negligence of the MESA

inspectors. Hall v. Midwest Bottled Gas

Distributors, Inc., Ky., 532 S.W.2d 449

(1975); Lexington Country Club v.

Stevenson, Ky., 390 S.W.2d 137, 141

(1965); see also House v. Kellerman, Ky.,

519 S.W.2d 390 (1965).

Accordingly, judgment shall be for

the defendant and entered by separate

order.

This the 30 day of November, 1977.

/s/ H. DAVID HERMANSDORFER, JUDGE

_- |

A78

APPENDIX

This appendix is a further statement

and analysis of the fact finding respon-

sibility of the Court ene te Limit¢d to

the more technical aspects of the i

evidence. All of the evidence has been

carefully reviewed and the data discussed

below are derived principally from the

Official Report of Major Mine Explosion

Disaster [Plaintiffs' Exhibit 5]; the

testimony of Donald William Mitchell,

Chief of MESA's Approval and

Certification Center and the testimony of

Dr. Atmesh Kumar Sinha, Associate

Professor, Mining Engineering, Southern

Illinois University. My primary areas of

concern are to determine the sequential

step mechanics of the explosion in terms

of the differences between what would

have occurred if excessive permissible

explosives and primacord had not been

A79

used and what did occur employing these

explosives. Such detailed anaylsis (sic)

is deemed appropriate in terms of what I

understand plaintiffs' argument under

Johnson v. Kosmos Portland Cement Co., 64

F.2d 193 (6th Cir. 1933), to be, namely,

that an explosion was a foreseeable

result even though the cause of the

explosion was not. Although Johnson is

clearly distinguishable on its facts, the

proposition is worthy of attention.

There is no dispute among the expert

witnesses that circumstances in an

underground coal mine should be described

as dynamic. This imports conditions sub-

ject to change, sometimes in small time

frames. The value of any underground

coal mine inspection is, therefore.

limited tc the conditions which exist at

or about the time of the inspection. It

ey.

- |

A80

appears to be the thrust of the mandatory

safety standards promulgated under the

requirements of the Coal Mine Health and

Safety Act of 1969, 30 U.S.C. § 801 et

seg. to circumscribe known impairments to

safety by federal law, or, in other

words, to control aspects of such dynamic

conditions. Other limitations on the

dynamic conditions of an underground mine

may be derived from knowledge of the mine

itself. In the case of Finley Coal

Company Mines 15 and 16, it is known that

they were classified as “non-gassy" which

eliminates methane gas as a significant

factor in the mining operation, although

methane had been detected [Plaintiffs'

Exhibit 5, p. 2, 20]. Another factor

material to the dynamic conditions of the

Finley mines is the volatile ratio of the

coal being mined. "Numerous tests by

the Bureau of Mines have shown that coal

A8l

dust having a volatile ratio of 0.12 and

higher is explosive. The volatile ratio

of the coal in these mines is 0.42, indi-

cating that the coal dust is highly

explosive" [Id. at p. 3]. However, the

volatile ratio of Finley coal, standing

alone, is not of much asistance in

understanding the mechanics of the explo-

sion of December 30, 1970. The volatile

ratio does not, for instance, signifi-

cantly affect the minimum explosive con-

centration in terms of particle size.

Minimum explosive concentration of

particles, by size, does not alter the

requirement of an air velocity of one

hundred and fifty (150') feet per second

among the particles for explosive con-

centration [Mitchell, Tr. E., Vol. III,

at 510-511, 563]. However. given the

minimal physical conditions necessary for

A82

ignition, the volatile ratio does relate

to increased probabilities for an explo-

sion as opposed to burning of such coal

dust. In short, the volatile ratio be-

comes significant when an explosive con-

centration of coal dust is raised into

airborne suspension at the requisite par-

ticle velocity to support combustion.

The greater the volatile ratio, the more

combustible the coal dust and, hence, a

greater amount of rock dusting material

is required to adequately inert the coal~

dust present in the Finley mines, in

terms of foreseeable permissible ignition

sources.

The experts agree that the quantity of

air displaced by falling rock from a boom

hole the size of the one shot on December

30, 1970 in Mine 16, entry 6, 1 left,

would have been, excluding the forces of

any explosives used, one thousand two

A83

hundred and sixty (1260) cubic feet

(Mitchell, Vol. III, at 516; Sinha, Vol.

Zot: 4627. The speed and force of such

displaced air, without consideration of

explosive forces, would have been on the

order of a velocity of five (5') feet per

second with a force of 1/100 of a pound

per square inch [psi], assuming a one

hundred and eighty degree (180°) plane or

direction as opposed to a lesser force

dissipating on a three hundred and sixty

degree (360°) plane. Since a coal mine

does not present an unrestricted area for

the dissipation of energy involved in

displaced air, the value of 1/100 psi is

reasonable [Tr. E., Vol. III, at 518,

520]. Forces of this magnitude have the

capability of raising into suspension

small amounts of dust within three (3')

to ten (10') feet of the falling rock,

A84

but would not be capable of maintaining

dust in suspension [Id. at 521]. This

dust, of course, could come from the

roof, sides or floor of the mine.

Adequately inerted coal dust would be

covered by a superficial layer of inert

material. The feeble forces associated

with falling rock from a boom hole

possibly could disturb the outer layer of

rock dust or, if uninerted, coal dust,

but could not keep it in suspension [Id.

at 522]. Given the factors of a wave

front with a velocity of five (5') feet

per second and a force of 1/100 psi, the

necessary forces to raise an explosive

concentration of coal dust with the

necessary particle velocity are not

shown. Further, the exposure to ignition

would be about 3/10's of one millisecond

from permissible explosives simultan-

eously detonated [Id. at 564]. There is

A85

simply no evidence that forces involved

in the displacement of one thousand two

hundred and sixty (1260) cubic feet of

air and the predictable ignition source

from permissible explosives could have

ignited uninerted coal dust regardless of

its volatile ratio. There is a total

absence of any basis from which to infer

that the explosion would have occurred

under normal mining practices.

I conclude that the circumstances in

the Finley mines on the morning of

December 30, 1970 did not amount, in

plaintiffs' terms, to "an explosion

waiting to happen". A boom hole could

have been shot permissively without the

occurrence of an explosion [Id. at 566).

Of course, good mining practice would

require that no one be underground during

detonation except a certified shot firer

**%

°%

A86

(Id. at 538-539]. 30 C.F.R. § 15.24(b),

number 14. In the history of the Finley

mine, blasting was normally done during

othe thirty (30) minute interval between

shifts when there wars no men working

underground [Plaintiffs' Exhibit 5, p.

7], although there was no testimony

before MESA of on-shift detonations

(Plaintiffs' Exhibit 4, pp. 44, 48, 49,

50, 53]. Since boom holes are necessary

to the business of underground mining and

act as transfer or loading points for

coal from the mine face for transpor-

tation to the surface [Tr. E., Vol. IV,

at 623], the boom hole shot on December

30, 1970 was not the first boom hole in

the Finley mines [Plaintiffs' Exhibit 5,

p. 15]. There is evidence of coal being

shot on shift in a proper manner [Id. at

App. F]. Considering the evidence of

other detonations of explosives

A87

underground at the Finley mines without

uncontrolled propagation by ignition of

coal dust, it is apparent that the vola-

tile ratio factor standing alone has

limited relevance to the cause of the

explosion. Subsequent experimentation

with Finley coal dust confirms this

finding. Coal dust from the Finley mines

was predispersed in a controlled

atmosphere in precise amounts [0.3 oz/cu

ft], a quantity about six (6) times the

minimum concentration established by

testing to be explosive. Two detonations

of three (3) sticks of dynamite each were

made, stemmed and unstemmed, in a cannon

with the result that no ignitions of the

coal dust occurred. These tests simulated

shot hole detonations. One (1) stick of

dynamite openly detonated in this explo-

sive concentration atmosphere did ignite

A88

the coal dust [Id. App. H].

The evidence which does explain the

explosion is clear and convincing. It

first appears that an excessive amount of

permissible explosives were positioned

for detonation without regard for

approved practices [Tr. E., Vol. III, at

531, 537-541]. I find that at least one

hundred and twenty (120) pounds of dyna-

mite were involved in shooting the boom

hole in December 30, 1970 [Id. at 530].

These explosives were stemmed with paper,

a separate impermissible practice [Id. at

564], which presents the hazard of a

longer lived source of open flame upon

ignition [Id. at 565]. These explosives

were "fused" with primacord to detonate

Simultaneously [Tr. E., Vol. III, at

552-553]. Primacord is the trade name of

a particular brand of high explosive

~which by common usage has evolved into a

fee oars

’%

A89

generic term for all high explosives of

the class appearing in physical form as a

cord like substance. Primacord detonates

rather than deflagrates -- it explodes

rather than burns. Upon ignition the

detonating velocity of primacord is about

twenty thousand (20,000') feet per

second, and the resulting forces are not

subject to reasonable control. [Id. at

5432-545],

Returning to the uncontroverted evi-

dence of the physical requirement of par-

ticle velocity as a requisite for any

coal dust explosion, the energy source

capable of initiating an air velocity of

one hunderd (sic) and fifty (150') feet

per second among particles needs to be

identified. Although no witness

attempted to calculate precisely the com-

bined forces resulting from the simultan-

A90

eous detonat ons of primacord and one

hundred and twenty (120) pounds of

explosives, I find that such forces were

sufficient to bring the coal dust into

suspension, whether inerted or not, and

to propel the dust particles past the

threshold of requisite explosive particle

velocity. At this juncture, the volatile

ratio of the coal dust negated the proba-

bility of burning and insured to an

almost certainty an explosion upon

ignition. The igniting source I find to

be the very hot gases associated with the

detonation of primacord which have been

measured in several thousand degrees

Kelvin. In confrontation with such

forces normal rock dusting would be

totally ineffective. The forces

attending the explosion were strong

enough to blow out concrete stoppings

(Plaintiffs' Exhibit 5, at 22] and the

-*,

A91

ignition source was at least ten (10)

times greater than that required for pre-

dictable ignition in terms of

temperatures. By testing MESA rain deter-

mined that in extreme circumstances coal

dust inerted to ninety-three (93%) per-

cent was inefficient in arresting the

propagation of flame [Tr. E., Vol. III,

at 560].

The technical evidence convinces me

that those practices employed by the

operators of the das ted mines on December

30, 1970 were totally inconsistent with

any reasonable standards applicable to

the use of explosives in an underground

coal mine. I find no evidence upon which

to find or infer that MESA could or

should have Known that by its failure to

complete the four (4) mandatory inspec-

tions required by the Act, the mine

A92

operators would have abandoned good

mining practices and employed the inex-

cusable practices described in the

evidence.

A93

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

A. T. COLLINS, ET AL.,

Plaintiffs-Appellants,

UNITED STATES OF AMERICA,

Defendant-Appellee.

Before: CELEBREZZE and BROWN, Circuit

Judges, and PHILLIPS, Senior

Circuit Judge.

Filed May 22, 1980

JUDGMENT

APPEAL from the United States

District Court for the Eastern District

of Kentucky.

THIS CAUSE came on to be heard on

the record from the United States

District Court for the Eastern District

of Kentucky and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

A94

that the judgment of the said District

Court in this cause be and the same is

hereby affirmed.

No costs taxed. The parties will

bear their own costs on this appeal.

ENTERED BY ORDER OF THE COURT.

/s/ John P. Helman, Clerk

=”

A95

No. 78-3125

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

A. T. COLLINS, ET AL.,

Plaintiffs-Appellants,

ORDER

Ve DENYING

PETITION

UNITED STATES OF AMERICA, FOR

REHEARING

Ss SS SS SS SS ee SY es SS”

Defendant-Appellee.

Filed June 16, 1980

Before CELEBREZZE and BROWN, Circuit

Judges, and PHILLIPS, Senior Circuit

Judge.

Upon consideration, it is ORDERED

that the petition for rehearing be and

hereby is denied.

Entered by order of the court.

/s/ John. P. Helman, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.