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536 F.2d 758

Docket No. 75-1691.

Davis v. United States

Eighth Circuit Court of Appeals

Submitted March 11, 1976.

Decided June 2, 1976.

Eighth Circuit Court of Appeals · decided 1976-06-02

2 counsel of record

Key passage — most relied on by later courts

“[T]he district court * * * shall have exclusive jurisdiction of civil actions on claims against 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.”

quoted by 2 later decisions, including Butts Feed Lots, Inc. v. United States, 467 F. Supp. 487 - Zeller v. United States

““[p]laintiff alleged that the decedent’s death was proximately caused by the negligence of an employee of the Occupational Safety and Health Administration (OSHA), who, on June 9, 1972, had inspected the construction site, had issued a ‘Citation for Serious Violation’ to the contractor ordering correction of dangerous conditions of the trench, and who had negligently failed to arrange for or make a follow-up inspection to determine whether corrective measures had been taken or to take appropriate action to close down the trench.” (at p. 759).”

quoted by 1 later decision, including 423 F. Supp. 1373 - Mudlo v. United States

Applies 28 U.S.C. § 1346 (Federal Tort Claims Act) · 28 U.S.C. § 2680

Relies on Dalehite v. United States · United States v. Smith

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1976-06-02

How this case has been cited

Cited by 26 later decisions — most recently July 2003 · most notably Zabala Clemente v. United States (1977), United Scottish Insurance v. United States (1979)

11 federal appellate · 6 district ·

1501976198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Kenneth Cobb, Nelson, Harding, Marchetti, Leonard & Tate, Lincoln, Neb., made argument and filed brief for appellant.

¶2Neil H. Koslowe, Atty., Dept, of Justice, App. Section, Civ. Div., Washington, D. C. (argued), William Kanter and Michael H. Stein, Attys., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., for appellees; Rex E. Lee, Asst. Atty. Gen., and Daniel E. Wherry, U. S. Atty., Omaha, Neb., on brief.

¶3Before WEBSTER and HENLEY, Circuit Judges, and TALBOT SMITH, Senior District Judge.*

¶5PER CURIAM.

¶6Appellant herein and plaintiff below, Paul Davis, Jr., Administrator of the Estate of Richard Davis, Deceased, appeals from the dismissal of his suit brought in the *759District of Nebraska against the United States under the Tort Claims Act, 28 U.S.C. § 1346, for the decedent’s wrongful death. Decedent was killed on June 28, 1972 at a construction site when the sides of a trench in which he was working caved in. Plaintiff alleged that decedent’s death was proximately caused by the negligence of an employee of the Occupational Safety and Health Administration (OSHA), who, on June 9,1972, had inspected the construction site, had issued a “Citation for Serious Violation” to the contractor ordering correction of dangerous conditions of the trench, and who had negligently failed to arrange for or make a follow-up inspection to determine whether corrective measures had been taken or to take appropriate action to close down the trench.

¶7Considering sua sponte whether the complaint stated a cause of action for which a private person would be liable under Nebraska law,1 the district court2 dismissed the complaint for want of jurisdiction on grounds that the duties required of OSHA officers are federally imposed and have no counterparts cognizable under Nebraska law. This holding is consistent with authority interpreting the scope of the Act to be limited to “ordinary common-law tort” claims. United States v. Smith, 324 F.2d 622, 625 (5th Cir. 1963), citing Dalehite v. United States, 346 U.S. 15, 28, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). We affirm on the basis of the well-reasoned opinion of the district court.

¶8The government urges as an independent basis for affirmance the “discretionary function” exception to claims filed pursuant to the Act, 28 U.S.C. § 2680(a), but in view of our disposition of the case on other jurisdictional grounds, it is unnecessary to reach this issue.

¶9As stated, the dismissal of plaintiff’s complaint is affirmed.

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