Phyllis J. Pyles, Attorney, with whom Frank W. Hunger, Assistant Attorney General, Paul M. Gagnon, United States Attorney, and Jeffrey Axelrad, Attorney, were on brief for appellant United States of America.

Paul R. Cox and Matthew B. Cox with whom Burns, Bryant, Hinchey, Cox & Rockefeller, P.A. were on brief for appellee Gail Merchant Irving.

April 8, 1998

BOWENS, Senior Circuit Judge. On October 10. 1979, plaintiff-appellee Gail Merchant Irving was grievously injured in a gruesome workplace accident at the Somersworth Shoe Company manufacturing plant in Somersworth, New Hampshire. On October 7, 1981, having exhausted her administrative remedies, see 28 U.S.C. §2675(a), Irving brought suit against the United States in federal district court pursuant to the Federal Tort Claims Act, 28 U.S.C. §s1346(b), 2671-80 ("FTCA"). Subject to certain enumerated exceptions, see 28 U.S.C. §2680, the FTCA waives sovereign immunity and subjects the United States to liability for the tortious conduct of government employees, acting within the scope of their employment, under circumstances in which the United States, in a private person, would be liable to the claimant under the law of the state where the challenged conduct occurred, see 28 U.S.C. §s1346(b), 2674.

Irving's FTCA claim was based upon alleged negligence in the performance of two safety inspections of the Somersworth plant, conducted in 1975 and 1978 by two different compliance officers of the Occupational Safety and Health Administration ("OSHA"). The state-law cause of action underlying Irvings's FTCA claim was based upon the Good Samaritan doctrine, see generally Restatement (Second) of Torts ("Restatement") §s323, 324A, as it has been interpreted and applied under New Hampshire law, see, e.g., Corson v. Liberty Mut. Ins. Co., 265 A.2d 315 (N.H. 1970).

Between 1981 and 1995, the district court thrice ruled in favor of the government, and this court thrice vacated the district court's judgment and remanded the case for further proceedings with instructions.¹ On remand from the third and immediately prior appeal, Irving v. United States, 49 F.3d 830 (1st Cir.1995), Irving prevailed on the merits of her claim in de novo proceedings before a different district judge, and the court awarded her a million dollars in damages. Irving v. United States, 942 F.Supp. 1483 (D.N.H. 1996). Although the district judge found that Irving had proven damages of approximately 1.23 million dollars, he refused to award an amount greater than the one million dollars stated in the ad damnum clause of Irving's 1980 administrative claim, citing 28 U.S.C. §s2674, 2675(b) and Library of Congress v. Shaw, 478 U.S. 310 (1986).

The government now appeals from the district court's entry of judgment for Irving, and Irving cross-appeals from the district court's decision to limit her damages to the amount requested in her administrative claim. We affirm.

On the afternoon of October 10, 1979, Gail Merchant Irving, who was then 21 years old, was severely injured when she bent over to retrieve a glove from the floor in the aisle next to her workbench, and her hair became entangled in the unguarded rotating drive shaft of a nearby machine. At the time of the accident, Irving was working at a workbench assembly, located on a main aisle in the stock fitting room of the Somersworth plant, operating a "marker" machine used to stamp the inner soles of shoes. Although she had worked on an off in different shoe factories, including Somersworth, for the previous four years, Irving had been steadily employed at Somersworth only since mid September of 1979.

A "die-out" machine was attached to the east end of the same workbench to which the marker machine was attached. Unlike the manual marker machine, the die-out machine was powered by an electric motor, which was located beneath the workbench and connected to the die-out machine by means of a horizontal drive shaft running underneath the bench. when the die-out motor was running, the drive shaft rotated at a high rate of speed, creating a vacuum. Although an OSHA regulation required that the rotating drive shaft be guarded, the drive shaft on the die-out machine was unguarded

Behind the workbench was a "die rack," which stored dies, patterns, and ink ribbons for use on the die-our and marker machines. Marker-machine operators were required to change the ink ribbon or the pattern on the marker machine as needed. In order to retrieve these items from the die rack, it was necessary for the operator to enter the 2.5-3-foot-wide aisle between the rear of the workbench and the die rack. This same aisle also provided the only means of reaching the power switch for the motor that ran the die-out machine.

On the day of the accident, Irving needed to change the pattern and the ink ribbon on the marker machine. After picking up a pair of the latex gloves worn by operators when changing the ribbon so as to protect their hands from the ink, Irving walked around to the back of the bench assembly to the die rack in order to retrieve a new pattern and ribbon. As she stood in the aisle between the workbench and the die rack, Irving dropped one of the gloves on the floor. When she reached down to retrieve the glove, her hair was drawn into the unguarded drive shaft by the vacuum created by its high-speed rotation, and became entangled in the shaft. As a result, Irving suffered grievous injuries. The exposed drive shaft tore her scalp from her skull, and fractured and dislocated her cervical vertebra. She suffered cardiac and respiratory arrest, and, for a time, she was paralyzed from the neck down and could not speak. Although her condition has improved through years of physical therapy. Irving is left with permanent and severe neurological damage, which is unlikely to abate during her lifetime.

In 1975 and 1978, OSHA compliance officers, acting pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. §s651-678 ("OSH Act"), inspected the Somersworth plant for the purpose of ensuring Somersworth's compliance with OSHA safety standards. Although the compliance officers documented a number of violations of OSHA safety standards (for which citations and abatement order were subsequently issued), and although the unguarded drive shaft was undisputedly a flagrant and serious violation of an OSHA safety regulations, in neither inspection was the drive shaft identified and documented by the officers, or cited by OSHA as violating that regulation.²

Six days after the accident, before any material changes were made to the marker/die-out bench assembly, OSHA Senior Safety Engineer Paul O'Connell conducted a post-accident inspection of the bench assembly, and found it to be in violation of three separate but related OSHA safety regulations. O'Connell found that the die-out motor drive shaft was completely unguarded, in violation of 29 C.F.R. §1910.219 (c)(2)(ii) (1997),³ which provides that "[s]hafting under bench machines shall be enclosed by a stationary casing, or by a trough at sides and top or sides and bottom, as location requires." O'Connell classified this violation as "serious" - - meaning that there was "a substantial probability that death or serious physical harm could result from [the] condition," 29 U.S.C. §66(k) - - and gave the violation a "severity value" of eight, the highest severity value used by OSHA at the time. O'Connell also found two other violations of OSHA safety standards - - the pulley and drive belt on the die-out machine's electric motor were also unguarded, in violation of 29 C.F.R. §s1910.219(d)(1) and (e)(3)(i) - - which he also classified as "serious" violations. On October 23, 1979, OSHA fined Somersworth a total of $1,800 (later reduced to $1,400) for the three violations, and ordered the company to abate the violations by November 10, 1979.

In her complaint, Irving alleged that she was injured by the die-out motor drive shaft as a direct and proximate result of the negligence of the OSHA compliance officers who performed the 1975 and 1978 inspections, in failing to identify and document the unguarded condition of the drive shaft. Irving's theory of liability is that, had the compliance officers documented this condition during either of the two inspections, OSHA would have given notice of the condition to Somersworth, and Somersworth would have abated the condition before the 1979 accident.

Irving brings her suit pursuant to the FTCA, which does not create a cause of action, but rather provides a broad waiver of the government's traditional sovereign immunity from suit, and a grant of federal court jurisdiction over claims against the Untied States for

injury or loss of property, or personal 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.

28 U.S.C. §1346(b). The FTCA further provides that the United States shall be liable in tort "in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. §2674.

In enacting the FTCA, Congress intended to compensate victims of torts committed by government employees, and to eliminate the private bill system which previously provided the sole governmental remedy for such victims.⁴ Congress qualified the FCTA's general waiver of sovereign immunity, however, by exempting from its scope certain governmental activity, such as the assessment and collection of taxes, the transmission of postal matter, and the regulation of the monetary system. See 28 U.S.C. §2680. The "discretionary function exception" precludes suits "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. §2680(a).

Irving's FTCA claim is premised upon the theory that New Hampshire law imposes liability upon a person who undertakes to conduct a workplace safety inspection and is negligent in failing to notify the employer of a dangerous condition. This theory is based upon New Hampshire's interpretation and application of the well-established common-law doctrine imposing a duty of due care upon those who undertake to act voluntarily, to those who come within the orbit of risk created by the actor's negligence. See Corson, 265 A.2d 315; Smith v. American Employers' Inc. Co., 163 A.2d 564 (N.H. 1960); Brunelle v. Nashua Bldg. & Loan Ass'n, 64 A.2d 315 (N.H. 1949) (and cases cited therein); Restatement §§323, 324A.⁵ Irving relies in particular upon Corson, in which an insurance company that conducted periodic safety inspections of the workplace of the insured was held liable to an injured employee for negligence in the conduct of an inspection, specifically, for the failure to call to the attention of the employer the existence of the safety hazard that subsequently injured the plaintiff.

The government moved to dismiss Irving's complaint on two grounds: first, for lack of subject matter jurisdiction, because the conduct of the OSHA inspectors was immunized by the discretionary function exception;⁶ second, for failure to state a claim upon which relief may be granted, because the United States, if a private person, would not be liable to Irving under New Hampshire law. Rejecting both arguments, the court denied the government's motion on February 22, 1982. Irving v. United States, 532 F.Supp. 840 (D.N.H. 1982) (Devine, J.).

After the Supreme Court's decision in United States v. S.A. Empresa de Viacao Aerea Rio Grandense ("Varig Airlines"), 467 U.S. 797 (1984), the government renewed its motion to dismiss, arguing that, under Varig Airlines, Irving's claim was barred by the discretionary function exception. The district court denied the renewed motion on August 8, 1984.

Thereafter, the district court conducted a bench trial from February 11 to February 14, 1985. On January 27, 1988, nearly three years after having taken the matter under advisement, the district court, citing intervening decisions of this court,⁷ reversed its earlier contrary rulings and dismissed Irving's suit without reaching the merits, on the ground that it was barred by the discretionary function exception. Irving appealed, and we vacated and remanded the case for further consideration in light of the Supreme Court's then-recent decision in Berkovitz v. United States, 486 U.S. 531 (1988), which clarified and revised the test to be applied in determining when the discretionary function exception immunizes the challenged conduct. Irving v. United States, 867 F.2d 606 (1st Cir. 1988) (unpublished order).

On remand, the district judge dismissed the suit - - without analyzing the evidence - - on the basis of Galvin v. OSHA, 860 F.2d 181 (5th Cir. 1988), a post-Berkovitz decision which held that, because OSHA had not violated a mandatory statute or regulation in the course of an inspection, the claim was barred by the discretionary function exception. Irving again appealed, and on July 25, 1990, we issued an opinion vacating and remanding the case for a second time. After careful analysis, we concluded that, although it seemed to be undisputed that the compliance officers were required by OSHA to inspect the entire Somersworth plant, and could not choose simply to spot check certain areas, the question whether the discretionary function exception applied to the challenged conduct could not be resolved without further fact finding. Irving v. United States, 909 F.2d 598, 604-05 (1st Cir. 1990). In remanding the case for further proceedings, we directed the district court to make the factual findings required to resolve the issue, as should have been done pursuant to our instructions in the prior appeal. Id.

On June 27, 1994, nearly four years later, the district judge issued a memorandum decision in which he addressed the merits of Irving's claim. After reviewing his trial notes and a partial transcript of the 1985 trial, the district judge found that, at the [time of the 1975 and 1978 inspections, the die-out machine was "some two feet closer to the wall to its rear" than it was on the day of the accident. According to the court, the die-out machine "was then in such location that employees working near it would not be exposed to injury" because the "nearness [of the machine] to the [wall to its rear would prevent access and probable injury." Based upon this finding, the court concluded that the position of the die-out machine "barred the probability of access to it by any employee working in that area," and that the machine's rotating drive shaft was therefore "guarded location" at the time of the 1975 and 1978 inspections. Based upon its guarded-by-location finding, the court held that no negligent act or omission on the part of any OSHA employee had occurred during either inspection, and, therefore, there was no violation of New Hampshire's Good Samaritan doctrine. The district court again entered judgment for the United States, and Irving appealed for the third time.

In the third appeal, we responded to the government's renewed argument that the suit was barred by the discretionary function exception and to its contention that this issue could be decided in its favor without further fact finding, by holding that the prior panel's ruling (that the issue could not be decided without further fact finding) was the law of the case, binding on all newly constituted panels in this circuit. Irving v. United States, 49 F.3d 830, 833-35 (1st Cir. 1995). Next, we ruled that the district court's guarded-by-location finding was clearly erroneous. We then vacated the judgment, concluding that this finding was necessary to the district court's entry of judgment in favor of the government, and that, for this reason alone, the judgment could not stand. Id. at 835-37. Finally, we granted Irving's request for a trial de novo before a different district judge, with the following instructions: (i) no finding from the previous trial should be given preclusive effect in the new trial; (ii) the government was free to renew its arguments that the discretionary function exception protected the OSHA inspectors' conduct, and that the die-out machine was guarded by location at the time of the inspections; and (iii) the new district judge had the discretion to decide whether to proceed solely on the record thus far developed. Id. at 837.

On remand, Judge McAuliffe, the new district judge, proceeded with the consent of the parties on the basis of the previous bench trial record and transcript, supplemented by dispositive motions and memoranda, but not by new evidence. The court entered judgment for Irving, holding that the discretionary function exception did not bar Irving's FTCA claim; that the United States was liable to Irving under New Hampshire law; and that Irving was not contributorily negligent.

In this appeal, the government challenges the judgment of the district court on two grounds: first, that Irving's claim is not actionable under the FTCA because it is based upon duties that arise under federal, rather than state, law; second, that the claim is not actionable for failure to satisfy the FTCA's "analogous private liability" condition because Irving has not established the elements required for the imposition of liability under New Hampshire's Good Samaritan doctrine.

Although the government has argued throughout the sixteen-year course of this litigation that Irving's claim is barred by the discretionary function exception, it does not renew this argument in the instant appeal. Nevertheless, where they apply, the exceptions enumerated in 28 U.S.C. §2680 effectively preserve the sovereign immunity of the United States, thereby depriving federal courts of subject matter jurisdiction. See, eg., United States v. Mitchell, 463 U.S. 206, 212 (1983); Kelly v. United States, 924 F.2d 355, (1st Cir. 1991).⁸ For this reason, and because "[p]arties cannot confer subject matter jurisdiction on either a trail or an appellate court by indolence, oversight, acquiescence, or consent," United States v. Horn, 29 F.3d 754, 768 (1st Cir. 1994), we must determine whether the district court erred in ruling that the discretionary function exception does not bar this suit, see Cumberland Farms, Inc. v. Tax Assessor, 116 F.3d 943, 945 (1st Cir. 1997).⁹

As always, we review de novo the district court's rulings of law, and scrutinize the court's findings of fact and apportionment of liability for clear error. See, e.g, Soto v. United States, 11 F.3d 15, 17 (1st Cir. 1993).

In order to determine whether or not the discretionary function exception applies to the challenged conduct, we must consider the OSH Act and the legal framework pertaining to the conduct of workplace safety inspections.

In enacting the OSH Act, Congress sought "to assure so far as possible every working conditions and to preserve our human resources." 29 U.S.C. §651(b). To accomplish this goal, the OSH Act created OSHA and gave it expansive authority to set mandatory safety and health standards, 29 U.S.C. §§651(b)(3), (b)(9); to inspect workplaces to ensure compliance with those standards, 29 U.S.C. §657; and to issue citations and impose penalties for violations of those standards, 29 U.S.C. §§658, 659.

The statute imposes two kinds of duties upon employers: (i) a general duty to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm," 29 U.S.C. §654(a)(1); and (ii) the duty to comply with OSHA standards, 29 U.S.C. §654(a)(2). Employees must be kept informed of their protections and obligations under the OSH Act through, inter alia, the posting of notices in the workplace. 29 U.S.C. §657(c)(1); 29 C.F.R. §1903.2.

Although the OSH Act itself does not specify where, when, or how OSHA is to conduct the inspections it authorizes, OSHA regulations promulgated pursuant to 29 U.S.C. §655 empower OSHA area directors and compliance officers to decide where and when to make workplace inspections, 29 C.F.R. §1903.7(a), and authorize compliance officers to employ "reasonable investigative techniques" in the conduct of inspections, 29 C.F.R. §1903.7(b). An OSHA pamphlet explains that "[e]very establishment covered by the Act is subject to inspection by OSHA compliance safety and health officers, who are chosen for their knowledge and experience in the occupational safety and health fields, and trained rigorously in OSHA standards and in recognition of the hazards they cover." See OSHA Programs and Policy Series pamphlet, "All About OSHA" (April 1976 ed.) (Pl. Exhibit 18).

Upon completing a workplace inspection, the OSHA compliance officer "shall" hold a closing conference with the employer, at which, inter alia, the officer is required to advise the employer of any violations disclosed by the inspection. 29 C.F.R. §1903.7(e). The OSHA area director "shall" review the compliance officer's inspection report, which details all the violations that were observed during the inspection. 29 C.F.R. §1903.14(a). If, based upon the officer's inspection report, the area director determines that the employer has violated an OSHA standard, she "shall" issue to the employer either a citation or a notice of a de minimis violation. 29 U.S.C. §658(a); 29 C.F.R. §1902.14(a).

29 U.S.C. §652(8) defines "occupational safety and health standard" as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." A violation is "de minimis" if it has "no direct or immediate relationship to safety or health." 29 U.S.C. §658(a); 29 C.F.R. §1903.14(a). A violation is "serious" if there is a "a substantial probability that death or serious physical harm could result from" the violative condition. 29 U.S.C. §666(k). Violations that are neither de minimis nor serious are categorized as "non-serious." 29 U.S.C. §666(c).

The OSH Act provides that OSHA "shall with reasonable promptness" issue a citation to the employer for a serious or non-serious violation of an OSHA standard, fixing a reasonable time for abatement of the condition; "shall" assess a civil penalty for each serious violation; and "may" assess a civil penalty for each non-serious violation. 29 U.S.C. §§658(a), 666(b), (c); 29 C.F.R. §§1903.14(a), (b). The employer is required to post a copy of each citation at or near the site of the violation, 29 U.S.C. §658(b); 29 C.F.R. §1903.26, and to abate cited violations within the prescribed period of time, 29 U.S.C. §658(a); 29 C.F.R. §1903.14(b).

From the face of the FTCA, it would appear that the United States has consented to Irving's suit if the challenged conduct is not exempted from the scope of the FTCA's waiver of sovereign immunity by one of the exceptions enumerated in 28 U.S.C. §2680, and that Irving states a claim under the FTCA if a private individual in like circumstances would be subject to liability under New Hampshire tort law. But the Supreme Court's reading of the FTCA "has not followed a straight line," Varig Airlines, 467 U.S. at 811, and there is little in the way of unequivocal guidance to be found in the FTCA case law of the lower federal courts. As we have observed, the law in this area is a " 'patchwork quilt,' " Dube v. Pittsburgh Corning, 870 F.2d 790, 796 (1st Cir. 1989) (quoting Blessing v. United States, 447 F.Supp. 1160, 1167 (E.D. Pa. 1978)), reflecting markedly different analytical approaches, to say nothing of the variations that arise by virtue of the application of different states' tort law to different claims.

This appeal thus requires us to construe legal principles that, although well established, have been interpreted and applied with breathtaking variety. For this reason, and because "[t]his is one of those cases that a judge is likely to leave by the same door through which [she] enters," Dalehite v. United States, 346 U.S. 15, 49 (1953) (Jackson, J., dissenting), we take considerable pains to discern and to follow the congressional commands embodied in the FTCA, lest we enter and exit through the wrong door. Foremost in our thoughts is the Supreme Court's recent admonition, " 'We should . . . have in mind that the [FTCA] waives the immunity of the United States and that . . . we should not take it upon ourselves to extend the waiver beyond that which Congress intended. Neither, however, should we assume the authority to narrow the waiver that Congress intended.' " Smith v. United States, 507 U.S. 197, 203 (1993) (quoting United States v. Kubrick, 444 U.S. 111, 117-18 (1979)).

In enacting the FTCA, Congress did not list the specific circumstances in which the United States may be held liable for the torts of its employees acting within the scope of their employment. Instead, Congress broadly an generally waived the sovereign immunity of the United States, see 28 U.S.C. §§1346(b), 2674, enumerating the circumstances in which the waiver would not apply, see 28 U.S.C. §2680, and adopting state-law causes of action as the basis for the imposition of liability based upon fault, see 28 U.S.C. §§1346(b), 2674.¹⁰ Although no statutory exception explicitly or generally bars suits based upon the negligence of government employees in the conduct of federal regulatory activities, the discretionary function exception exempts from the scope of the FTCA's waiver claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discreting involved by abused." 28 U.S.C. §2680(a).

The Supreme Court has characterized the discretionary function exception as "mark[ing] the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals, " Varig Airlines, 467 U.S. at 808, and as embodying the measures taken by Congress " ' to protect the Government from liability that would seriously handicap efficient government operations,' " id. at 814 (quoting United States v. Muniz, 374 U.S. 150, 163 (1963)).¹¹ The exception has proven to be difficult to apply, in part because Congress neither clearly defined "discretionary function" nor clearly expressed the specific policy concerns underlying the exemption of discretionary functions from the FTCA's general waiver of sovereign immunity.

The Supreme Court has analyzed the nature and scope of the discretionary function exception in a series of cases, beginning with Dalehite, 346 U.S. 15, in which the Court delineated the contours of the exception broadly, explaining that protected discretionary functions are not limited to "the initiation of programs and activities," 346 U.S. at 35; that "[w]here there is room for policy judgment and decision there is discretion," id. at 36; and that "acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable," id.

In Varig Airlines, 467 U.S. 797,¹² the Court deemed the following factors "useful" in determining when the conduct of a government employee is immunized by §2680(a). First, the Court explained, "it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." 467 U.S. at 813. Thus, the inquiry "is whether the challenged acts . . . are of the nature and quality that Congress intended to shield from tort liability." Id. Second, the Court observed,

whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals. . . . This emphasis upon protection for regulatory activities suggests an underlying basis for the inclusion of an exception for discretionary functions in the Act: Congress wished to prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.

Id. at 813-14 (footnote omitted).

In Berkovitz v. United States, 486 U.S. 531 (1988),¹³ the Court further refined the discretionary function analysis. First, reasoning that "conduct cannot be discretionary unless it involves an element of judgment or choice," the Court instructed, "[i]n examining the nature of the challenged conduct, court must first consider whether the action is a matter of choice for the acting employee." 486 U.S. at 536. thus, the Court explained,

the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect.

Id. (citation omitted).

Second, "assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield," id., because the exception "protects only governmental actions and decisions based on considerations of public policy," id. at 537 (citation omitted).

In the course of its analysis, the Berkovitz Court pointedly narrowed some of the sweeping language in Varig Airlines, and emphatically rejected the argument that the discretionary function exception is to be read as a regulatory function exception:

In restating and clarifying the scope of the discretionary function exception, we intend specifically to reject the Government's argument . . . that the exception precludes liability for any and all acts arising out of the regulatory programs of federal agencies. . . . [I]n Varig, we ignored the precise argument the Government makes in this case, focusing instead on the particular nature of the regulatory conduct at issue. To the extent we have not already put the Government's argument to rest, we do so now. The discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment.

Id. at 538-39.

In United States v. Gaubert, 499 U.S. 315 (1991), the Court - - after reaffirming the two-part test applied in Berkovitz - - concluded that "[w]hen established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion," reasoning that "the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations." 499 U.S. at 324.

The Gaubert Court emphasized, however, that, although many decisions and acts of government officials involve a large degree of choice, those that are "not the kind of conduct that can be said to be grounded in the policy of the regulatory regime" are not immunized by the exception. Id. at 325-26 & n.7. If a regulation or policy mandates particular conduct and the government employee violates it, "there will be no shelter from liability because there is no room for choice and the action will be contrary to policy." Id. at 324. As it did in Varig Airlines and Berkovitz, the Court stated that the focus of the discretionary function inquiry is "on the nature of the actions taken and on whether they are susceptible to policy analysis." Id. at 325 (footnote omitted).

Thus, in order to determine whether the discretionary function exception immunizes the conduct challenged in this case, we must focus on the conduct at the level of the particular act or omission, and ask whether that act or omission involves an element of judgment or choice. If we determine that it does, we must then inquire whether the discretionary act or omission is based upon considerations of public policy. See Kelly, 924 F.2d at 360; Ayer v. United States, 902 F.2d 1038, 1041 (1st Cir. 1990).

The district court held that the conduct of the OSHA officers in failing to observe and document the violative condition that caused Irving's injuries was not immunized by the discretionary function exception. We affirm this ruling.

As we noted in the second appeal in this case, it does not follow from the fact that the governing statute and regulations give OSHA "wide freedom at higher agency levels to make decisions and formulate programs concerning the inspection of workplaces" that "an employee who performs an inspection has the type and breadth of discretion which makes the inspection a discretionary function." 909 F.2d at 603. Rather, Berkovitz requires that we determine whether a particular function is discretionary by looking at "the range of choice the agency delegates to the employee who performs the task in question." Id. Accordingly, we concluded that, assuming an ultimate finding to the effect that the conduct challenged here was not within the range of choice accorded to OSHA compliance officers by federal law or policy, the result of the discretionary function analysis

will be controlled by the plain statement in Berkovitz that if an agency's "policy leaves no room for an official to exercise policy judgment in performing a given act, or if the act simply does not involve the exercise of such judgment, the discretionary function exception does not bar a claim that the act was negligent or wrongful."

909 F.2d at 601-02 (quoting Berkovitz, 486 U.S. at 546-47).

In the course of his discretionary function analysis, the district judge made the following findings: (i) in 1975 and 1978, the OSHA compliance officers each had been directed to perform a "wall-to-wall" safety inspection of the Somersworth plant; (ii) although the OSH Act and OSHA regulations leave many decisions regarding the conduct of workplace inspections to the discretion of the area director and compliance officers, the scope of the inspections of the Somersworth plant that the compliance officers were instructed to perform in 1975 and 1978 "was dictated by less formal, but no less binding, OSHA policy," requiring the officers to inspect each operational machine and work station in the plant, and to record every violation of OSHA safety standards that they observed - - be they de minimis, non-serious, or serious - - if there was potential employee exposure to the violative condition; (iii) the die-out motor drive shaft was not guarded by location at the time of the accident; (iv) at the time of the accident, the die-out machine was in materially the same condition, and was at or near the place it had been located during the 1975 and 1978 inspections, and, therefore, the drive shaft had not been guarded by location at the time of these inspections; (v) the die-out machine was in near-continuous operation during the relevant time period, and was in operation during both inspections; (vi) operation of the die-out machine while the drive shaft remained unguarded was in flagrant violation of OSHA safety standards; (vii) during the 1975 and 1978 inspections, the compliance officers failed to document, and OSHA failed to cite, the violative condition of the drive shaft; (viii) had the compliance officers actually inspected the bench assembly, they would have noticed and documented the violative condition of the drive shaft. 942 F. Supp. at 1492-1502.

The district court concluded from the evidence that the record would not support a finding that OSHA Compliance officers William Chase and John M. Ritchie - - both of whom the court found to be experienced workplace safety inspectors who took their jobs seriously - - were so utterly incompetent as to have inspected the bench assembly but failed to notice the unguarded condition of the drive shaft and to recognize it as a violation of OSHA standards. Instead, the preponderance of the evidence "decidedly supports the conclusion that both Chase and Ritchie would have recognized that the bench assembly violated OSHA safety standards requiring the guarding of power transmissions if they had, in fact, inspected it," and that the only realistic explanation for their failure to notice and document the unguarded drive shaft was that neither officer actually inspected the bench assembly during his inspection of the Somersworth plant. 942 F.Supp. at 1497. The district court thus determined that the challenged conduct, and the basis for Irving's state-law cause of action and FTCA claim, was the failure of the compliance officers to inspect every operational machine in the Somersworth plant in 1975 and 1978, as they were required to do by mandatory OSHA policy. Id.

Our review of the record leads us to conclude that the district court's findings are not clearly erroneous. See Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985); Johnson v. Watts Regulator Co., 63 F.3d 1129, 1138 (lst Cir. 1995). Nothing in the record indicates that the inspections ordered in 1975 and 1978 were something other than wall-to-wall inspections, or that OSHA compliance officers were at liberty to choose to conduct a spot-check inspection of only some, not all, machines or areas within the plant. In all events, the government does not now dispute the obligations of compliance officers in 1975 and 1978 in conducting wall-to-wall safety inspections; indeed, the government's attorney conceded at oral argument before the district court that "[i]f there's a requirement to look at every machine and he does not look at every machine, then I would agree that that's a violation of a mandatory regulation." See 942 F.Supp. at 1499 n.19.

Nor do we find error in the district court's application of the law. In the course of its analysis, the court stated that it was "neither here nor there" that the compliance officers were under no mandatory duty to find every violative condition. Id. at 1502. Instead, "[w]hat is important is that they were under a mandatory duty to inspect every operational machine and failed to do so. In fact, it was by inspecting every operational machine that OSHA expected to meet its goal of identifying and eliminating all workplace safety hazards to the extent humanly possible." Id.

The court observed that the discretionary function exception would bar Irving's claim if it were based upon (i) a failure of OSHA inspectors to inspect the Somersworth plant at all; or (ii) a failure to notice and document the violative condition of the drive shaft if OSHA had adopted and implemented a spot-check inspection system, or if OSHA had left it to compliance officers to determine which machines within a facility to inspect; or (iii) a failure to cite the violative condition of the drive shaft if the compliance officers had inspected the bench assembly but had wrongly concluded that there was insufficient risk of employee exposure to justify proposing a citation,¹⁵ or if the compliance officers had erroneously categorized a serious violation as de minimis. Id. at 1500. The court concluded that

while the discretionary function exception would bar many, if not most, suits arising from negligent OSHA inspections, it does not bar Irving's suit. This is so because none of the scenarios advanced by the government actually occurred in this case. Instead, Chase and Ritchie failed to inspect the bench assembly at issue despite a mandatory duty to inspect it. Under Berkovitz, Irving may sue the government for that failure.

. . . While Irving cannot maintain a suit based on the government's failure to properly perform a discretionary function, she may indeed sue for breach of mandatory duties that did, in fact, occur.

Id. at 1500-01 (footnotes omitted).

We agree with the district court. While the statutory provision and regulation authorizing OSHA inspections may devolve broad discretion upon OSHA officers as to when and where to inspect, the evidence in this case permitted the court to find, by a preponderance of the evidence, that the OSHA inspectors in this case had no discretion to make independent policy judgments as to what was to be inspected, once the discretionary decision to inspect the plant had been made. Accordingly, the district court correctly concluded that the discretionary function exception does not bar this FTCA claim. See Berkovitz, 486 U.S. at 542-44; Myers v. United States, 17 F.3d 890, 897-98 (6th Cir. 1994); Irving, 909 F.2d at 601-04.16

The district court concluded that Irving's claim states a cause of action under New Hampshire law, citing the Supreme Court of New Hampshire's decision in Corson, 265 A.2d 315. The court viewed Corson as presenting "a situation that is the precise private analogue to that presented here" Irving, 942 F.Supp. at 1503, because "OSHA undertook to provide precisely the same service considered in Corson and contemplated by section 324A of the Restatement - - 'to assist accident prevention by additional inspections and advice rendered to the company primarily charged with the duty' to ensure workplace safety," id. at 1503-04 (quoting Corson, 265 A.2d at 317)(footnote omitted).

Noting that Area Director Richard Amirault had testified that OSHA inspections "'provided a lot of assistance to employers' as they strove to meet their obligation to prevent workplace accidents," the district court found that the "obvious similarity" between the inspection in Corson, performed by an insurer, and the 1975 and 1978 inspections performed by OSHA "is underscored by the testimony of Bruce Brooks," a Somersworth employee, who "never distinguished between the private inspectors and OSHA-compliance officers who periodically inspected the plant. From his point of view, both types of inspections served the single purpose of identifying and correcting unsafe working conditions." Id. at 1504 & n.25 (record citations omitted).

With this reasoning, the district court disposed of what we consider to be the most difficult question in this case; viz., does the FTCA's "analogous private liability" condition shield the United States from liability for the negligence of government employees in the course of conduct undertaken for a uniquely governmental purpose, even if a private individual could engage in similar activity? Put another way, if New Hampshire law would impose liability upon a private workplace safety inspector in circumstances similar to those presented here, is an FTCA claim based upon negligence in the conduct of an OSHA compliance inspection nevertheless rendered non-actionable because a private individual could never conduct a workplace safety inspection for"the uniquely governmental purpose of ensuring a workplace employer's compliance with federal safety regulations?

The government raises this issue in a rather oblique manner, arguing that Irving's claim is not actionable under the FTCA because it is "rooted in federal law," and because Irving has failed to establish the elements of her underlying state-law Good Samaritan claim, and therefore has failed to satisfy the analogous private liability requirement. Underlying both arguments, however, is the contention that the duties and functions involved in the performance of an OSHA compliance inspection are uniquely governmental in nature, and, for this reason, an FTCA claim alleging negligence in the conduct of such an inspection is barred as a matter of federal law. After careful consideration, we conclude for the reasons that follow that the FTCA contains no general exemption that immunizes conduct in the course of federal regulatory inspections, and that Irving has established the elements necessary to justify the imposition of liability in tort under New Hampshire law.

In considering the government's challenges to the judgment of the district court, we have in mind the following guiding principles of law.

The FTCA directs that (i) the sovereign immunity of the United States is waived where (a) in similar circumstances, a private person would be liable to the FTCA claimant under the law of the place where the challenged conduct occurred, and (b) the challenged conduct is not immunized by any of the exceptions enumerated in 28 U.S.C. §2680; and (ii) where sovereign immunity is waived, the liability of the United States for the negligence of its employees is to be determined under the law of the place where the challenged conduct occurred, as if the government actor were a private individual.

The FTCA thus instructs courts to determine under federal law the question whether Congress has preserved the sovereign immunity of the United States in the circumstances presented by exempting the challenged conduct under §2680. See Muniz, 374 U.S.at 164 ("[w]hether a discretionary function is involved is a matter to be decided under 28 U.S.C. §2680(a)"); United States v. Neustadt, 366 U.S. 696, 705-06 (1961) (the question whether a claim is outside the intended scope of the FTCA "depends solely upon what Congress meant by the language it used in §2680[]"); Hydrogen Tech. v. United States, 831 F.2d 1155, 1161 (1st Cir. 1987) ("Since the exceptions set out in section 2680 define the limits of that statutory waiver, they must be construed as a matter of federal, not state, law."). On the other hand, the question of liability under the FTCA must be decided under state law as it applies to private individuals. see 28 U.S.C. §§1346(b), 2674; Neustadt, 366 U.S. at 706 n.15 ("Under the [FTCA], when a claim is not barred by one of the Act's exclusionary provisions, the liability of the Government must be determined 'in accordance with the law of the place where the act or omission occurred.' "). As the Supreme Court has observed,

In the Tort Claims Act Congress has expressly stated that the Government's liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred, and we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used. We believe that it would be difficult to conceive of any more precise language Congress could have used to command application of the law of the place where the negligence occurred than the words it did employ in the Tort Claims Act.

Richards v. United States, 369 U.S. 1, 9 (1962) (footnote omitted).

It follows that, in adjudicating FTCA claims, the law of the state where the challenged conduct occurred is the only controlling authority as to the question of negligence, including the interpretation and application of the Good Samaritan theory of liability. As to the determination of negligence, then, we are not bound by the law of this circuit or by the case law of other circuit courts interpreting the Good Samaritan doctrine, except to the extent that these authorities correctly interpret and apply New Hampshire tort law. See Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir. 1978) ("by adopting the 'law of the place' as the source for rules of decision under the [FTCA], Congress expressly negated any possible inference that federal courts were to exercise any 'common law-making' power to fashion torts under the Act in the interest of national uniformity") (footnote and citation omitted). See also. FDIC v. Meyer, 510 U.S. 471, 478 (1994); Crider v. United States, 885 F.2d 294, 296 (5th Cir. 1989); United Scottish Ins. Co. v. United States, 614 F.2d 188, 195-96 (9th Cir. 1979).

Accordingly, having determined that Irving's suit is not barred by 28 U.S.C. & sect2680, if we find that Irving states a claim under New Hampshire law, we are not at liberty to decree that the United States nevertheless escapes liability by operation of some judicially legislated principle that reinstates sovereign immunity where the statute itself has not done so.¹⁷ See, e.g., Smith, 507 U.S. at 203 (courts should neither narrow nor extend the scope of the FTCA's waiver beyond that which Congress intended); Rayonier, Inc. v. United States, 352 U.S. 315, 320 (1957) ("There is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered that is a function for the same body that adopted it."); Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955) ("Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it as a self-appointed guardian of the Treasury import immunity back into a statute designed to limit it."); United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 383 (1949) (" 'The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.' ") (quoting Anderson v. Hayes Constr. Co., 153 N.E. 28, 29-30 (N.Y. 1926) (Cardozo, J.)).

Finally, although the duty element of the state-law negligence cause of action underlying the FTCA claim may not be defined solely by federal law, we may, consistent with the FTCA and well-established common-law tort principles, consider a duty arising solely under federal law as evidence of the scope of the duty owed to the FTCA claimant under state tort law. See Johnson v. Sawyer, 47 F.3d 716, 728 (5th Cir. 1995) (en banc); Schindler v. United States, 661 F.2d 552, 560-61 (6th Cir. 1981); Blessing, 447 F.Supp. at 1189; Murray v. Boston & Maine R.R., 224 A.2d 66, 69-71 (N.H. 1966).

The government contends that Irving's claim is barred as a matter of law because "the only context in which OSHA even arguably owed any duty to the plaintiff is under federal law," and "the only duty found to have been breached in this case was one based upon federal law." We disagree.

First, it is important to recognize that, although Irving points to the obligation of OSHA officers to follow mandatory OSHA policy for the purpose of demonstrating that the challenged conduct is not immunized by the discretionary function exception, for the purpose of establishing the elements of her underlying state-law negligence claim, Irving posits as the source of the government's duty of care, not OSHA policy or any federal law, but the New Hampshire common-law duty to use reasonable care when undertaking to act voluntarily. We find this approach to be eminently sound, if not inevitable, in view of the congressional commands embodied in sections 1346(b), 2674, and 2680 of the FTCA. See Myers, 17 F.3d at 901 n.13 (recognizing the analytical distinction between the discretionary function inquiry and the question whether liability would attach to the conduct under state law); Dube, 870 F.2d at 796 n.8 ("The regulations are relevant not in establishing a duty, but in establishing whether Navy officials' failure to take steps to protect [the plaintiff] was discretionary").

Second, the cases cited by the government in support of this argument are largely inapposite because they involve state-law tort theories of liability other than the Good Samaritan doctrine, see, e.g., Chen v. United States, 854 F.2d 622 (2d Cir. 1988); or because the existence vel non of a state-law duty is determined by a different state's law, see, e.g., Myers, 17 F.3d 890; or because the plaintiffs, in contrast to Irving, rely solely upon a duty arising under federal law, see, e.g., Atallah v. United States, 955 F.2d 776 (1st Cir. 1992).

For example, the government cites our decision in Zabala Clemente v. United States, 567 F.2d 1140 (1st Cir. 1977), in which the plaintiffs, seeking to recover damages for the deaths of passengers who died in an airplane crash, sued the United States under the FTCA for the failure of FAA employees to follow an internal FAA order requiring employees to warn the crew and passengers of chartered aircraft when an aircraft was in violation of federal regulations. There, we recognized that the "critical question" was "whether the FAA staff in Puerto Rico was under a duty to inspect the aircraft and to warn plaintiffs' decedents of any irregularities." 567 F.2d at 1143. While acknowledging that courts have consistently rejected the government's invocation of its sovereignty to distinguish its conduct from that of private persons, we noted that "this decision to ignore the government's sovereignty operates in the reverse direction as well." Id. at 1144. Thus, we stated that, "even where specific behavior of federal employees is required by federal statute, liability to the beneficiaries of that statute may not be founded on the Federal Tort Claims Act if state law recognizes no comparable private liability." Id. at 1149.

For a number of reasons, we think that Zabala Clemente presents a different situation from the instant case. Most importantly, we concluded in Zabala Clemente that the government's duty in that case - - defined as the duty to warn passengers that the aircraft was overloaded and lacked a proper crew - - was predicated, not upon state law, as required by the FTCA, but solely upon the internal FAA order requiring a warning to passengers in such circumstances, and that, even assuming that the order was mandatory, this duty "is owed by the employees to the government and is totally distinguishable from a duty owed by the government to the public on which liability could be based." Id. at 1144-45.¹⁸

The government points out that in Zabala Clemente we quoted with approval Davis v. United States, 395 F.Supp. 793, 795-96 (D. Neb. 1975), aff'd, 536 F.2d 758 (8th Cir. 1976), as follows:

The court could "find no indication that any law permits Mebraska to place upon private persons the duties cast upon federal officers by OSHA. The Act's thrust is to require designated federal officers to investigate, issue citations, and apply for enforcement orders by a federal court. Nothing resembling those duties devolves on a private person under OSHA . . . . To the extent that the complaint in the case at bar is rooted in federal law as a source of duties of the United States or its compliance officer, it must fall."

Zabala Clemente, 567 F.2d at 1149-50.

But, in contrast to the plaintiffs in Zabala Clemente and Davis, Irving bases her underlying state-law cause of action on the independently cognizable duty under New Hampshire law to use due care when undertaking to act; in particular, when undertaking to conduct workplace safety inspections. See Corson, 265 A.2d 315; Smith, 163 A.2d 564. See also Kirk v. United States, 604 F.Supp. 1474 (D.N.H. 1985) (applying New Hampshire law).

Finally, the government contends that no "non-federal relationship" existed between the plaintiff and OSHA in this case. To the extent that the government suggests this as a basis for precluding FTCA liability as a matter of law, we reject the argument. It does not follow from the fact that a "federal relationship" exists between the parties that no "non-federal relationship" exists; although a federal duty may govern the conduct of a government employee in a given circumstance, a state-law duty may very well arise as a consequence of the activity itself. See Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1158 n.12 (D.C. Cir. 1985); United Scottish, 614 F.2d at 197-98 & n.9. Moreover, New Hampshire law analyzes the duty of care required of those who undertake to act quite apart from the particular reason behind the undertaking, and focuses the inquiry upon the relationship between the parties that arises as a result of the undertaking. See Brunelle, 64 A.2d at 318 (it is "immaterial" that tort liability relates to the same subject matter as a contract between the parties; "[i]t is the fact of the parties['] relationship and not the manner in which it arises which is decisive"); Smith, 163 A.2d at 567.

Thus, even accepting, arguendo, that no FTCA claim may lie where a government official acts pursuant to a duty imposed by federal law because no such duty could ever devolve upon a private individual, we are not compelled to conclude as a matter of law that no FTCA claim lies in this case because, here, the underlying state-law claim is not predicated solely upon a duty "rooted in federal law," as the government insists, but upon a recognized and independently cognizable state-law duty to exercise due care in undertaking to act, in particular, in conducting workplace safety inspections.

Given that the FTCA grounds liability in state law as it applies to private individuals, it is true as a matter of statutory interpretation that, standing alone, a government official's violation of a federal statute, regulation guideline, or policy does not itself provide the basis for an FTCA claim, see, e.g, Art Metal-U.S.A., 753 F.2d at 1157 (collecting cases), because the federal-law-based duties of government officials do not automatically create duties under state tort law, id. at 1158.

But the obverse principle also obtains; viz., where the applicable state law imposes a duty of care upon private individuals engaged in analogous activity, the FTCA does not preclude as a matter of law claims based upon recognized state-law causes of action, simply because the alleged negligence occurred in the course of conduct authorized or mandated by federal law. See 28 U.S.C. §s1346(b), 2674, 2680 (stating no such limitation); United Scottish, 614 F.2d at 193 ("negligent performance of a federal statutory duty may give rise to a claim under the [FTCA] in circumstances in which applicable state law recognizes a private cause of action"). In other words, if the government tortfeasor would be liable to the plaintiff for failure to exercise due care in accordance with a state-law duty if she were not a government actor, liability of the United States under the FTCA is not precluded as a matter of law simply because the tortfeasor is a government actor, carrying out a duty that devolves only upon agents of the federal government.

We conclude that the question whether an FTCA claim that is not otherwise barred by §2680 is actionable does not turn on whether the government tortfeasor was acting under a duty imposed by federal law at the time of the negligent act or omission, or on whether the precise duties governing the conduct of federal employees ever devolve upon private individuals. Instead, the question turns on whether the applicable state law imposes upon private individuals a duty to use due care in analogous circumstances. See, e.g., Meyer, 510 U.S. at 477; Art Metal-U.S.A., 753 F.2d at 1158; Blessing, 447 F.Supp. at 1186 n.37.¹⁹

In the end, the government's "rooted in federal law" argument does little more than state the statutory truism that, under the FTCA, the question of negligence is to be determined under state law as applied to private individuals. As legal justification for exonerating the government from liability that would otherwise be imposed under the applicable state law, the argument goes nowhere; no such immunizing principle appears in the text of the FTCA, and none of the cited cases stands for the proposition that an FTCA claim alleging negligence on the part of a government employee for breach of a duty that is imposed upon private individuals under the applicable state law must fail, simply because the alleged negligence occurred in the course of conduct authorized or mandated by federal law.

Framing the argument slightly differently, the government contends that the failure of OSHA compliance officers to follow a mandatory OSHA directive "is not supported by or analogous to any duty owed by a private citizen on which liability can be based." This variation of the argument raises the question whether the analogous private liability language of §s1346(b) and 2674 conditions the FTCA's waiver of sovereign immunity upon the degree to which the activity undertaken by a government actor resembles an activity that may be undertaken by a private actor. To the extent that the government argues that the FTCA must be read as permitting liability to be imposed upon the United States only to the extent that a private individual engaged in identical activity would incur liability under state law, the argument is unavailing. We conclude that, where Congress has not immunized the challenged conduct under §2680, courts may not, consistent with the plain language of the FTCA and Supreme Court precedent interpreting that language, absolve the United States from liability that would otherwise attach under state tort law, solely because the tortfeasor undertook the conduct for a "uniquely governmental" purpose.

In Indian Towing, 350 U.S. 61, the plaintiffs sued the United States for the negligence of the Coast Guard in, inter alia, inspecting and maintaining the light in a lighthouse it had undertaken to operate. In this case, the government conceded that the discretionary function exception did not apply, arguing instead that "uniquely governmental functions" were exempted from the scope of the FTCA's waiver of sovereign immunity.

In explicitly rejecting the government's argument that the language of §2674, imposing liability upon the government " 'in the same manner and to the same extent as a private individual under like circumstances . . .' must read as excluding liability in the performance of activities which private persons do not perform," 350 U.S. at 64, the Court explained,

The Government reads the statute as if it imposed liability to the same extent as would be imposed on a private individual "under the same circumstances." But the statutory language is "under like circumstances," and it is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his "good Samaritan" task in a careful manner.

Id. at 64-65. In the Court's view, "we would be attributing bizarre motives to Congress were we to hold that it was predicating liability on such a completely fortuitous circumstance - - the presence of absence of identical private activity." Id. at 67 (footnote omitted). The Court also explicitly rejected a reading of the FTCA that would impose liability upon the federal government "in the same manner as if it were a municipal corporation and not as if it were a private person," a reading that would "push the courts into the 'non-governmental'-'governmental' quagmire that has long plagued the law of municipal corporations." Id. at 65.

In United States v. Union Trust Co., 350 U.S. 907 (1955), the Court, citing Indian Towing, summarily affirmed a decision of the District of Columbia Circuit permitting an FTCA suit by the survivors of airplane crash victims alleging the negligence of air traffic controllers as the cause of the collision. In so doing, the Court rejected the government's argument that "governmental functions" were excluded from liability under the FTCA, and that §2680(a) was " 'but one aspect of the broader exclusion from the statute of claims based upon the performance of acts of a uniquely governmental nature.' " Varig Airlines, 467 U.S. at 812 (quoting the government's petition for certiorari in Union Trust at 37).

In Rayonier, 352 U.S. 315, the Court held that the lower courts had erred in deciding on the basis of Dalehite that the United States could not be sued under the FTCA for the negligence of the Forest Service in fighting a fire on government land because the plain meaning of §s1346(b) and 2674 made the United States liable to the petitioners if, as alleged, "Washington law would impose liability on private persons or corporations under similar circumstances." 352 U.S. at 318.

Refusing to distinguish between "the Government's negligence when it acts in a 'proprietary' capacity and its negligence when it acts in a 'uniquely governmental' capacity," the Court rejected the government's argument that the FTCA "only imposes liability on the United States under circumstances where governmental bodies have traditionally been responsible for the misconduct of their employees," and does not waive the immunity of the United States from liability for the negligence of its employees when they act in a uniquely governmental capacity. Id. at 318-19. reasoning that "the very purpose of the Tort Claims Act was to waive the Government's traditional all-encompassing immunity from tort action and to establish novel and unprecedented governmental liability," id. at 319, the Court concluded, ''There is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered that is a function for the same body that adopted it," id. at 320 (footnote omitted).

Similarly, in Muniz, 374 U.S. 150, in which the Court considered the question whether state-law decisions holding state governments immune from liability for negligence in the care or protection of prisoners would also preclude federal government liability under the FTCA, the Court stated, "Just as we refused to import the 'casuistries of municipal liability for torts' in Indian Towing, so we think it improper to limtt suits by federal prisoners because of restrictive state rules of immunity. Whether a discretionary function is involved is a matter to be decided under 28 U.S.C. §2680(a), rather than under state rules relating to political, judicial, quasi-judicial, and ministerial functions." 374 U.S. at 164. See Indian Towing, 350 U.S. at 65 (the FTCA "cuts the ground from under" the doctrine of sovereign immunity, and "is not self-defeating by covertly embedding the casuistries of municipal liability for torts") (footnote omitted); Schindler, 661 F.2 at 560 (it is "self-defeating and illogical to hold that the United States may have waived its immunity with regard to a particular act because it is not a discretionary function, and then turn to the law of the state and incorporate the means by which it has chose to solve this same problem of preserving" governmental immunity). See also Carter v. United States, 982 F.2d 1141, 1143 (7th Cir. 1992) ("when a state distinguishes private from public liability, the liability of the United States follows the private model"); DiMella v. Gray Lines of Boston, Inc., 836 F.2d 718, 720 (1st Cir. 1988) (whatever liability the state may have chosen to assume for itself has no bearing on the liability of private persons, the standard the United States has accepted).

We conclude that, standing alone, a tortfeasor's uniquely governmental purpose in undertaking to act is insufficient to remove the challenged conduct from the scope of the FTCA's waiver of sovereign immunity, and that the pertinent inquiry under §s;1346(b) and 2674 is whether state law makes a private individual (not the state or other political entity) liable for the asserted failure to exercise due care under similar (not identical) circumstances. See also Guttridge v. United States, 927 F.2d 730, 734 (2d Cir. 1991) (when the United States is sued under the FTCA, "it stands in the shoes of a private citizen"); Goldman v. United States, 790 F.2d 181, 183 & n.1 (1st Cir. 1986).

Notwithstanding the Supreme Court's unequivocal and repeated rejection of defenses to FTCA liability based upon a purported general statutory immunity for uniquely governmental functions, and upon local rules limiting the liability of government actors - - to say nothing of the complete lack of textual support for such defenses - - lower courts have barred FTC claims on the basis of state-law rules of immunity for government actors, see, e.g., Ayala v. United States, 49 F.3d 607 (10th Cir. 1995), and the government has continued to press the uniquely governmental function defense, in one semantic variation or another.

In Varig Airlines, for example, the government argued that "the conduct of the FAA in certificating aircraft is a core governmental activity that is not actionable under the Act, because no private individual engages in analogous activity," and that the Ninth Circuit erred in applying California's Good Samaritan doctrine to the FAA certification process. 467 U.S. at 815 n.12. Because the Court rested its decision on the discretionary function exception, it found it unnecessary to address the first argument. Importantly, however, the Court stated that it declined the government's invitation to undertake its own examination of the Good Samaritan claim because "the application of the 'Good Samaritan' doctrine is at bottom a question of state law, and we generally accord great deference to the interpretation and application of state law by the Courts of Appeals." 467 U.S. at 815 n.12 (citations omitted).

And as recently as the Berkovitz decision, the Court observed that the government's argument that Congress intended to preserve immunity for core governmental functions, and that the discretionary function exception "precludes liability for any and all acts arising out of the regulatory programs of federal agencies," was a variant of the uniquely governmental function defense which "appears to replicate precisely the position expressly rejected in Indian Towing and Rayonier." 486 U.S. at 538-39 & n. 5. See United States v. Johnson, 481 U.S. 681, 694-95 (1987) (Scalia, J., dissenting).

Given that the FTCA expressly subjects the United States to liability if state law would impose liability upon a private individual under like circumstances, and in view of the Supreme Court's unequivocal interpretation of the FTCA's analogous private liability language, it simply cannot be maintained that the FTCA bars claims as a matter of law for lack of identity between activities performed by government actors and those performed by private individuals. Such a reading is contrary to Congress's intent, as expressed in the language of §s;1346(b) and 2674, and in the existence of §;2680, which expressly exempts the uniquely governmental functions that Congress though should be immunized. Moreover, such a reading of this language would render many of the FTCA's statutory exceptions superfluous because private parties typically do not engage in the uniquely governmental conduct exempted by most of the provisions of §;2680. See Johnson, 481 U.S. at 694 (Scalia, J., dissenting); Indian Towing, 350 U.S. at 67 (noting that FTCA liability is circumscribed by §;2680, and that "all Government activity is inescapably 'uniquely governmental' in that it is performed by the Government").²⁰

The government makes a number of arguments to the effect that liability in this case is barred by the OSH Act, contending that 29 U.S.C. §653(b)(4) ²¹ precludes liability for conduct in the performance of OSHA regulatory functions; that, under the OSH Act, the responsibility for providing and maintaining a safe workplace and for complying with OSHA safety standards remains at all times with the employer, see 29 U.S.C. §654; and that OSHA is not an insurer of workplace safety. These points are well taken. As we stated in Zabala Clemente, "We do not believe that the expanded role of the federal government in the safety area through such legislation as [the OSH Act] indicates an intent of Congress to make the United States a joint insurer of all activity subject to inspection under that statute or others." 567 F.2d at 1151. Nevertheless, we disagree with the government's conclusion that the OSH Act renders Irving's FTCA claim non-actionable.

In enacting the OSH Act, Congress did not., of course, intend to make the United States a joint insurer of workplace safety. Cf. Varig Airlines, 467 U.S. at 821 ("The FAA has a statutory duty to promote safety in air transportation, not to insure it."); 29 U.S.C. §653(b)(4). If it did, it likely would have included an express private right of action, which it did not. See Blessing, 447 F.Supp. at 1166 n.5. But Irving does not assert a private right of action under the OSH Act. And, if the FTCA waives sovereign immunity in this case, there is no principle of law that requires Irving to demonstrate a second waiver of immunity in the language of the OSH Act, or that compels this court to construe the OSH Act "in the manner appropriate to waivers of sovereign immunity." Mitchell, 463 U.S. at 218-19.

Moreover, it does not follow from the fact that the OSH Act places primary responsibility for workplace safety on employers that, as a matter of FTCA law, OSHA employees incur no duty of reasonable care under state tort law when they undertake to conduct a compliance inspection. Nor does it follow from the existence of the OSH Act that the United States is immunized from FTCA liability for the negligence of its employees in the conduct of inspections authorized by that statute. For, although the OSH Act (along with OSHA regulations, guidelines, and policies) defines the federal duties of OSHA employees in undertaking to conduct workplace safety inspections, it does not define the rights under the FTCA of persons injured by the negligence of OSHA employees in the performance of these inspections.

We agree that no FTCA action would lie against the United States if the only basis for Irving's claim was Somersworth's failure to maintain a safe workplace. But, having exercised its authority under the OSH Act to promulgate regulations and standards defining what constitutes workplace safety, and having undertaken the role of determining whether a workplace complies with those standards, OSHA and its employees are not thereby free to determine compliance in a negligent manner where the challenged act or omission is not immunized by §2680. If New Hampshire law would impose liability upon a private individual for negligence in the conduct of a workplace safety inspection, and if Congress has not otherwise immunized the United States from liability for such conduct in §2680, there is no statutory basis from which we may presume as a matter of law that Congress did not intend to waive sovereign immunity in these circumstances. To hold otherwise would be to subvert the clear directives of the FTCA.

Moreover, to hold that the government may not be held liable under the FTCA where its employees act pursuant to a duty prescribed by the OSH Act (or by OSHA regulations, guidelines, or policy) would have the perverse consequence of mandating that the intended beneficiaries of a remedial and preventative statute may never recover under the FTCA if one reason for the governmental undertaking is to ensure compliance with standards that were promulgated for the very purpose of effectuating the express goals of the statute, in this case to prevent precisely the kind of workplace accident that injured Gail Irving. See Dalehite, 346 U.S. at 50 ("The Government, as a defendant, can exert an unctuous persuasiveness because it can clothe official carelessness with a public interest. Hence, one of the unanticipated consequences of the [FTCA] has been to throw the weight of government influence on the side of lax standards of care in the negligence cases which it defends.") (Jackson, J., dissenting).

Imposing liability upon the government under circumstances in which the FTCA permits it hardly equates with making the United States a joint insurer of every activity subject to government involvement. Furthermore, as the district court pointed out, the applicable law would preclude the vast majority of suits based upon negligence in the conduct of federal regulatory inspections. Under these circumstances, we do not think that an adverse effect upon the ability of regulatory agencies to conduct their respective regulatory functions is "so certain, or so certainly substantial, that we are justified in holding (if we can ever be justified in holding) that Congress did not mean what it plainly said in the statute before us," Johnson, 481 U.S. at 699 (Scalia, J., dissenting), and "[w]e also are reluctant to believe that the possible abuses stemming from [similar] suits are so serious that all chance of recovery should be denied," Muniz, 374 U.S. at 162.

We recognize that other courts have barred FTCA claims based upon conduct in the course of regulatory inspections where the statute that authorizes the inspection stipulates that the employer retains responsibility for complying with safety standards. See, e.g., Myers, 17 F.3d at 903; Taylor v. United States, 521 F.Supp. 185, 188-89 (W.D. Ky. 1981); Mercer v. United States, 460 F.Supp. 329, 332 (S.D. Ohio 1978). We also recognize that, despite the Supreme Court's refusal to read either §2680(a) or the analogous private liability requirement of §§1346(b) and 2674 as providing a blanket immunity for regulatory and other uniquely governmental functions, the interpretation of the FTCA's analogous private liability provision is not without conceptual difficulty in the context of a claim alleging negligence in the conduct of a federal regulatory enforcement inspection, for which there is no identical private analogue.

Some courts have distinguished Indian Towing and Rayonier, limiting the applicability of these cases to circumstances in which the government undertakes to act pursuant to a contractual obligation, or where the government has assumed exclusive proprietary control. See Davis, 395 F.Supp. at 796-97. See also Myers, 17 F.3d at 904 (employing an "actor/monitor dichotomy" to distinguish between actionable and non-actionable negligence under the FTCA); cf. Dube, 870 F.2d at 799 n.11; Jayvee Brand, Inc. v. United States, 721 F.2d 385, 390 (D.C. Cir. 1983).

But the Supreme Court has drawn no such distinctions, and clearly has not conditioned FTCA liability upon the degree to which the governmental activity at issue resembles an activity in which private individuals may engage. As Judge Easterbrook has explained, the federal government "is never situated identically to private parties. Our task is to find a fitting analog under private law. Thus the United States may be liable for negligence in carrying out acts that no private person performs, because there are 'like' circumstances that lead to private liability." Carter, 982 F.2d at 1144. Indeed, in Muniz, rather than look for private activity analogous to the uniquely governmental activity of running a federal prison, the Supreme Court found the analogous private liability requirement to be satisfied by the existence of "an analogous form of liability;" viz., that a number of states allowed prisoners to recover from their jailers for negligently caused injuries, and some permitted such recovery against themselves. 374 U.S. at 159-60 (emphasis supplied). In short, the terms of the United States' consent to suit under the FTCA may be satisfied where there is an analogous form of liability, even where there is no precise private analogue for the governmental activity itself. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts §;131, at 1035 n.33 (5th ed. 1984) ("The private person analogy is read broadly and it is not necessary to find that private persons carry on the activity in question.").

It is also important to recognize that the Good Samaritan cause of action was well established at the time Congress enacted the FTCA. See D. Scott Barash, Comment, The Discretionary Function Exception and Mandatory Regulations, 54 U. Chi. L. Rev. 1300, 1310-11 (1987); Neustadt, 696 U.S. at 707. Moreover, although the Supreme Court has had ample opportunity to reject the Good Samaritan doctrine as a basis for imposing liability under the FTCA, it has not done so, see Sheridan v. United States, 487 U.S. 392 (1988); Indian Towing, 350 U.S. 61, even in the context of regulatory activities, see Berkovitz, 486 U.S. 531; Varig Airlines, 467 U.S. 797; Block v. Neal, 460 U.S. 289 (1983). To the contrary, the Court has recognized that an FTCA claim is stated where theapplicable state law would subject a private individual to Good Samaritan liability, see Neal, 460 U.S. at 297-99, and has explicitly stated that the application of the doctrine is purely a matter of state law, see Varig Airlines, 467 U.S. at 815 n.12.

It is also worth noting that 'Congress has left Indian Towing undisturbed, despite taking action to limit the FTCA liability of the United States in other contexts. See Pub. L. 100-694 §4, 102 Stat. 4564 (1988) (amendment to the FTCA in response to the Supreme Court's decision in Westfall v. Erwin, 4S4 U.S. 292(1988), adding language entitling the United States to assert, with respect to any claim arising from the tortious conduct of a government employee, "any defense based upon judicial or legislative immunity which otherwise would have been available to the employee . . . as well as any other defense to which the United States is entitled").

In sum, we do not read the FTCA as conditioning the scope of the waiver of sovereign immunity under §s;1346(b) and 2674 on the basis of distinctions between "governmental activity" and "private activity," and as exonerating the United States from liability as a matter of law where it would otherwise be imposed under the applicable state law, unless a private person could engage in the precise conduct at issue for the precise reason that the government engaged in it. There is no evidence that Congress intended such a reading, and it is abundantly clear that the Supreme Court has rejected this interpretation. Instead, we think that, in §s;1346(b) and 2674, the FTCA delimits the scope of the waiver on the basis of whether or not a claim would lie against a private individual (rather than a state actor) under the applicable state law (rather than under federal law), and directs that liability be imposed if, under state law, it would be imposed if the government actor were a private actor. See, e.g., Meyer, 510 U.S. at 477-78.

We conclude that the limiting principles shielding the United States from liability for the uniquely governmental functions that Congress sought to protect are contained in §;2680, and that there is no basis in positive law for reading into §s;1346(b) and 2674 a broad and general immunity for uniquely governmental functions that Congress itself has not enacted and that the Supreme Court has expressly rejected. See Dalehite, 346 U.S. at 32 ("One only need read §;2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions."). See also United States v. Yellow Cab Co., 340 U.S. 543, 548 n.5 (1951) ("Where a statute contains a clear and sweeping waiver of immunity from suit on all claims with certain well defined exceptions, resort to that rule [of strict construction] cannot be had in order to enlarge the exceptions.") (quotation omitted) (alteration in Yellow cab).

Whatever the wisdom of a blanket exemption for regulatory activities, "its conversion into law is a proper subject for congressional action, not for any creative power of ours." United States v. Standard Oil Co. of Cal., 332 U.S. 301, 314 (1947). See Rayonier, 352 U.S. at 320; Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989) ("Even where a particular area is quite susceptible of Clear and definite rules, we judges cannot create them out of whole cloth, but must find some basis for them in the text that Congress or the Constitution has provided."); Caminetti v. United States, 242 U.S. 470, 485 (1917) ("It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is to enforce it according to its terms."). In short, we have no authority to bar a claim that Congress, the United States Supreme Court, and the Supreme Court of New Hampshire would permit.

Having determined that Irving's FTCA claim is not barred as a matter of federal law, we now consider whether the district court correctly determined that, under New Hampshire law, the United States is liable for Irving's injuries.

Under New Hampshire law, a plaintiff seeking to recover for negligence on the part of the defendant must prove the familiar elements of duty, breach, injury, and causation. See, e.g., Ronayne v. State, 632 A.2d 1210, 1212 (N.H. 1993). Here, Irving invokes as the source of the duty element of her negligence claim the Good Samaritan theory of liability, as it has been interpreted and applied under New Hampshire law.

Under the Good Samaritan doctrine as formulated in §;324A of the Restatement, in certain circumstances, liability may be imposed upon "[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things . . . ." The government argues that Irving's claim fails as a matter of law because the United States does not "render services" when it undertakes to conduct regulatory enforcement inspections.

While the "rendition of services" issue has generated controversy in the lower federal courts, the district judge in this case resolved the matter without difficulty. On the basis of the evidence and the law, he rejected the government's contention that "the 'punitive' nature of the inspection process requires finding that the 1975 and 1978 inspections were not 'services' within the meaning of New Hampshire's Good Samaritan doctrine" on the following grounds: (i) the argument ignored the weight of the evidence; ²² (ii) the reason for undertaking the inspection is not controlling under the Good Samaritan doctrine; and (iii) the argument is tantamount to a suggestion that the government may avoid FTCA liability for uniquely governmental functions. 942 F. Supp. at 1504 n.26.

Still, the argument that no Good Samaritan duty attaches when the government undertakes to conduct regulatory inspections finds ample support in the decisional law of other courts. A number of cases have held that the United States may not be held liable under the Good Samaritan doctrine to the employees of its independent contractors for the negligent performance of an inspection authorized by a federal statute, on the ground that such an inspection does not constitute a "rendition of services" for the benefit of either the contractor or its employees. See, e.g., Jeffries v. United States, 477 F.2d 52, 56 (9th Cir. 1973); Beason v. United States, 396 F.2d 2 (5th Cir. 1968); Roberson v. United States, 382 F.2d 714, 721-22 (9th Cir. 1967). Other decisions have employed similar reasoning in rejecting FTCA claims based upon negligence in the conduct of federal regulatory inspections. See Myers, 17 F.3d at 901; Trombetta v. United States, 613 F.Supp. 169, 169-70 (D. Mont. 1985); Taylor, 521 F.Supp. at 188-89; McCreary v. United States, 488 F.Supp. 538, 540 (W.D. Pa. 1980); Mercer, 460 F.Supp. at 332. See also Florida Auto Auction of Orlando, Inc. v. United States, 74 F.3d 498, 504-05 (4th Cir. 1996).

These decisions focus on the government's purpose in undertaking the inspection, and conclude that there is a material difference between inspections conducted pursuant to a statute and inspections undertaken pursuant to other legal authority, such as a contractual agreement; or that, because the government engages in regulatory activities for independent reasons - - e.g., to promote public safety or to ensure compliance with federal laws - - such undertakings do not constitute a rendition of services as contemplated by the Restatement's formulation of Good Samaritan liability. As the Taylor court put it, "comparison of private tort duties with an attempt by the government to carry out a health and safety regulatory function is similar to apples and oranges. Succinctly stated, there is none." 521 F.Supp. at 189. Thus, any analogy between sections 323 and 324A of the Restatement and a federal regulatory scheme is "simply invalid." Id. at 190.

Other courts disagree with this reasoning. See United Scottish Ins. v. United States, 692 F.2d 1209, 1211 (9th Cir. 1982) ("When voluntarily performing activities solely for the safety of the public, the F.A.A. performs a service for others."), rev'd on other grounds, United States v. Varig Airlines, 467 U.S. 797 (1984); Varig Airlines v. United States, 692 F.2d 1205, 1208 (9th Cir. 1982) ("The voluntary assumption of the inspection and certification function carries with it the duty to inspect and certify with reasonable care."), rev'd on other grounds, United States v. Varig Airlines, 467 U.S. 797 (1984); Raymer v. United States, 660 F.2d 1136, 1143-44 (6th Cir. 1981) (concluding that "the United States has undertaken to render service to others in adopting the [Federal Coal Mine Health and Safety Act of 1969], and that cases of this kind are properly resolved by applying the 'good Samaritan doctrine' as the Supreme Court did in Indian Towing"); Neal v. Bergland, 646 F.2d 1178, 1181-82 (6th Cir. 1981) (concluding that the FmHA had assumed a duty to inspect and supervise construction projects and could be held liable for breach of that duty in a state-law tort action for negligent inspection, based upon the Good Samaritan doctrine); Kirk, 604 F.Supp. at 1482 (same as Neal v. Bergland), cf. Sheridan, 487 U.S. at 401 (by voluntarily adopting regulations and undertaking to provide care, "the Government assumed responsibility to 'perform [its] "good Samaritan" task in a careful manner' ") (quoting Indian Towing, 350 U.S. at 65) (alteration in Sheridan).

While, as explained below, we need not decide the issue for purpose of this case, we think that the better view is reflected in these latter cases. First, from the fact that the government intends to further its own or certain societal goals in undertaking to conduct regulatory inspections, it does not follow that the government does not also intend to confer a benefit upon those subject to regulation and inspection, or upon those whose welfare Congress had in mind in enacting the legislation that authorizes the inspection. In enacting the OSHA Act, Congress expressly intended to benefit workers like Gail Irving, by mandating that OSHA promulgate workplace safety standards and ensure compliance with those standards.

Second, we agree With the district court that to argue that the United States is immune from Good Samaritan liability under the FTCA because the government does not undertake to render services when it conducts regulatory inspections is tantamount to arguing that the United States is immune from FTCA liability where its employees undertake to act for a uniquely governmental purpose; and, as we have shown, it is inappropriate to bar a viable state-law claim on the basis of the defendant's sovereign status simpliciter.

Moreover, We think it clear that the question whether the tortfeasor has rendered a service - - and, indeed, the question whether a "rendition of services" is, in fact, an element of a negligence claim premised upon a Good Samaritan theory of liability - - is to be resolved under state law as it applies to private individuals, and not as a matter of federal common law. See, e.g., Birnbaum, 588 F.2d at 327-28; Goldman, 790 F.2d at 183 (interpreting 28 U.S.C. §;§;1346(b), 2674 to require that the applicable state law must be applied in deciding the manner and extent to which a private person would be liable, and analyzing duty under state law). Accordingly, the relevant question is not whether the federal statute that authorizes the governmental undertaking creates a duty which is analogous to an undertaking to render services to another as contemplated by the Restatement's formulation of the Good Samaritan doctrine, but whether, under the applicable state law, a private person would incur a legal duty of care pursuant to that state's interpretation of the Good Samaritan theory of liability. See Varig Airlines, 467 U S. at 815 n.12 ("the application of the 'Good Samaritan' doctrine is at bottom a question of state law"); United Scottish, 614 F.2d at 193-94 ("The reason for undertaking the inspection is not important The crucial inquiry is whether, in undertaking the inspection, a duty arose under state law because of the relationship thereby created - - the good samaritan rule."); Blessing, 447 F.Supp. at 1186 n.37.

We think that, in this case, the "rendition of services" issue is obviated by New Hampshire's interpretation and application of the Good Samaritan doctrine; for in cases presenting the question whether one who undertakes to act voluntarily incurs a duty to exercise reasonable care in the undertaking, the Supreme Court of New Hampshire applies the doctrine in a less formalistic manner than appears to be mandated by some courts' interpretations §324A of the Restatement. See, .e.g., Williams v. O'Brien, 669 A.2d 810, 813 (N.H. 1995); Corson, 265 A.2d at 318 (collecting cases).

The liability principle outlined in §s;§s;323 and 324A of the Restatement represents n application of Judge Cardozo's classic statement, "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922). This principle is well established in New Hampshire tort law. See, e.g., Corson, 265 A.2d at 318 (collecting cases). As the district court correctly noted, however, in applying this principle, the Supreme Court of New Hampshire does not rely upon the precise formulation explicated in the Restatement, and, to the extent that the two authorities differ, New Hampshire's interpretation controls the analysis of the government's liability in this case. See 942 F. Supp. at 1503 n.24.

We find that, while the Supreme Court of New Hampshire has consistently upheld "the broad and sensible principle running throughout our tort law that one who undertakes to act must use ordinary care," it has emphasized that "[i]t is the fact of the parties['] relationship and not the manner in which it arises which is decisive," and that " '[t]he duty to use care in rendering a service arises not from a right to receive the service, but from the relation between the parties which the service makes.' " Brunelle, 64 A.2d at 318 (quoting Tullgren v. Amoskeag Mfg. Co., 133 A. 4, 5 (N.H. 1926), and collecting cases). See Smith 163 A.2d at 567. And, whereas the Restatement formulation ensures that the injured third party is a reasonably foreseeable plaintiff by requiring proof of one of the three disjunctive elements of §;324A,²⁴ New Hampshire law ensures foreseeability by requiring that the plaintiff fall within the "orbit of risk" created by the defendant's negligence. See Corson, 265 A.2d at 318; Smith, 163 A.2d at 567 ("it is a basic principle of our jurisprudence that one who undertakes to act, even gratuitously, may be liable to persons injured by his failure to use due care," and this liability "extends to all who may fairly be said to come within the orbit of risk created by the actor's negligence"). See also Corso v. Merrill, 406 A.2d 300, 303 (N.H. 1979) ("Duty and foreseeability are inextricably bound together. 'The risk reasonably to be perceived defines the duty to be obeyed.' ") (quoting Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100 (N.Y. 1928)); Derby v. Public Serv. Co. of N.H., 119 A.2d 335, 340 (N.H. 1955). Finally, in imposing a duty upon those who undertake to act voluntarily, New Hampshire has rejected pleas by defendants to bar as a matter of law a plaintiff's common-law right against a defendant, based upon the defendant's identity, see Smith, 163 A.2d at 567; Brunelle, 64 A.2d at 318, and has rejected contrary authority from other jurisdictions in imposing tort liability, see Smith, 163 A.2d at 567.

"Whether a duty exists in a particular case is a question of law." Walls v. Oxford Management Co., 633 A.2d 103, 104 (N.H. 1993). As we read New Hampshire law, the existence vel non of a duty under a Good Samaritan theory does not turn on formalisms such as the precise definition of "rendering services." Instead, the Good Samaritan duty arises as a result of the relationship between the parties that is created by the undertaking, and is independent of the identity of the actor and of the particular reason for the undertaking. See Brunelle, 64 A.2d at 318; Smith, 163 A.2d at 567, 570. See also Mehigan v. Sheehan, 51 A.2d 632, 633 (N.H. 1947).

In Corson, the Supreme Court of New Hampshire answered in the affirmative the question whether a company that "undertakes to assist accident prevention by additional inspections and advice rendered to the company primarily charged with the duty" can be liable to an injured employee for negligence in the conduct of a workplace safety inspection. 265 A.2d at 317. The court found that the relationship between the inspecting and inspected companies gave rise to a duty on the part of the inspecting company to use due care in the performance of a safety inspection, and considered it to be "beyond debate" that if the inspector was under a legal duty to use due care in the undertaking, "that duty extended to [the injured employee] who was clearly within the orbit of risk which would be created by negligent performance of the duty." Id. at 318.²⁵

In the instant case, the district court concluded that it was reasonably foreseeable that Somersworth would not guard the die-out motor drive shaft absent notice of a violation from OSHA, and that serious injury could result from this violative condition. 942 F.Supp. at 1508-09. We agree. At the time of the 1975 and 1978 inspections, it was reasonably foreseeable that an uninspected operational machine might be in a condition that violated OSHA safety standards, and that the violative condition posed a risk of serious harm. It was also reasonably foreseeable that such a violation, if not cited by OSHA, would go unabated; that the risk of harm presented by such a violation, if unabated, would lead to a serious injury of the type actually suffered by Irving; and that a facility such as the Somersworth plant, which had no safety department or trained safety personnel, would depend upon OSHA safety inspections to inform the employer and employees of violations of OSHA safety standards.

The district court held that the government's duty to exercise due care extended to Irving for the same reason it extended to the plaintiff in Corson. See 942 F.Supp. at 1504. In Corson the court concluded,

The issues presented may be aptly described in the language of Cardozo, Ch. J., in Marks v. Nambil Realty Co., Inc., 245 N.Y. 256, 259, 157 N.E. 129, 130: "His case is made out when it appears that by reason of such negligence what was wrong is still wrong, though prudence would have made it right. . . . The inference is permissible that the [defendant's conduct] cloaked the defect, dulled the call to vigilance, and so aggravated the danger."

265 A.2d at 318-19 (alteration in Corson). See also Smith, 163 A.2d at 567 (holding that the liability of the defendant workplace inspector extended to the injured plaintiff employee, who "falls squarely within the class entitled to protection").

Based upon the evidence - - including evidence that employees of Somersworth and Wood Heel (another shoe company within the same building) were aware of the existence, purpose, and scope of OSHA inspections, and that their employers were required to abate cited violations - - the district court determined that "the inference that negligence on the part of OSHA in performing its inspections increased the risk of harm to Somersworth Show employees by dulling their vigilance regarding workplace hazards is a valid one"; that the compliance officers "did, in fact, negligently make matters worse"; and that Irving was a foreseeable plaintiff to whom OSHA owed a duty of care. See F. Supp. at 1504 (internal quotation marks and citation omitted).²⁶

Although Corson did not discuss §;324A(c)'s alternative element of reliance, the district court also found that the duty of the OSHA compliance officers extended to Irving because Somersworth had reasonably relied upon OSHA inspections to inform the company of the existence of violations of OSHA safety standards, and to perform company inspections in a non-negligent manner. 942 F. Supp. at 1504.

In addition to finding that Somersworth and Wood Heel employees were aware of the OSHA inspections, the district court found that rebutted testimony established that Somersworth " 'actually depend[ed]' on the OSHA inspections to find safety problems that the company had overlooked." Id. (quoting testimony of Roger Couture, foreman of the Somersworth stock fitting room).

The court rejected the government's argument that, even if Somersworth did rely, its reliance was not reasonable because, under the OSH Act, primary responsibility for compliance with OSHA safety standards remained with Somersworth and its employees. Stating that this was the reason for his finding that OSHA did not undertake to perform a duty owed by Somersworth to its employees as contemplated by Restatement §;324A(b), the district judge concluded that the fact that Somersworth retained a statutory duty to comply with OSHA standards "does not mean that it could not reasonably expect OSHA compliance officers to use due care when they acted to assist it in meeting its obligations under the Act." The court pointed out that, in Corson, "the inspecting company owed the inspected company a duty to use due care despite the fact that the inspected company retained primary responsibility for preventing workplace accidents." 942 F. Supp. at 1504-05 n.27 (citing Corson, 265 A.2d at 317-18).

The government argues that Somersworth could not reasonably rely upon OSHA unannounced inspections, the occurrence and frequency of which it is impossible to predict. We reject this argument. The record shows that, in 1975 and 1978, the compliance officers toured the stock fitting room, were the marker/die-out bench assembly was located on a main aisle, and that the officers documented similar violative conditions of drive shafts elsewhere in the plant, which Somersworth timely abated in accordance with the terms of the citations that were issued for those violations. While it may be unreasonable to rely upon OSHA inspections that may or may not occur in the future, we think that, on these facts, it was reasonable for Somersworth and its employees to rely upon the pre-accident inspections that did take place in relatively close proximity to the accident, and to rely upon OSHA's failure to document the violative condition of the die-our motor drive shaft as indicating that, unlike other drive shafts in the plant, it was not in a violative condition.

We are aware that some courts have narrowly interpreted the "reliance" element of §;324A(c) as requiring proof that the plaintiff employee or her employer ²⁷ depended exclusively upon the federal safety inspection, foregoing all other remedies or precautions, and that some cases hold that reliance is unreasonable as a matter of law where the authorizing statute or regulation as a matter of law where the authorizing statute or regulation provides that the employer retains the burden of compliance. See Myers, 17 F.3d at 903-04; Patentas v. United States, 687 F.2d 707, 717 (3d Cir. 1982); Raymer, 660 F.2d at 1143-44. This interpretation suggests that the reliance element of §;324A(c) is not satisfied absent proof sufficient to satisfy §;324A(b), the alternative element that is established where the defendant has completely assumed the duty owed by another to the plaintiff, which the district court found and Irving concedes does not apply here.

Whatever the merits of this view of §;324A(c), we do not think that it controls the analysis here. New Hampshire law construes Good Samaritan liability more broadly than does the Restatement, predicating duty upon foreseeable harm to one within the orbit of risk posed by the actor's negligence, rather than upon exclusive reliance, and nothing in the case law suggests to us that New Hampshire would require proof of exclusive reliance in the circumstances presented here. See Spherex, Inc. v. Alexander Grant & Co., 451 A.2d 1308, 1313 (N.H. 1982) (liability of defendants is dependent upon their undertaking; "[t]hey cannot escape liability for negligence by a general statement that they disclaim . . . reliability") (internal quotation marks and citations omitted); Derby, 119 A.2d at 340 (plaintiffs who come within the orbit of risk created by the defendant's negligence are owed a duty by the defendant); Williams, 669 A.2d at 813 (New Hampshire recognizes "that a defendant may be liable to third parties for a foreseeable harm resulting from the breach of a duty of care".) See also Canipe v. National Loss Control Serv. Corp., 736 F.2d 1055, 1063 (5th Cir. 1984) (holding that an employer's partial reliance upon the defendant's undertaking is sufficient to trigger 324A(c)); United Scottish, 692 F.2d at 1211 (explaining that, "[h]aving chosen to make aircraft safety inspections and to certify the results, the government reasonably could expect that members of the public would rely on the government's certification or airworthiness," and that "[t]he careful performance of aircraft inspections is the essence of the government's duty, once the inspections are undertaken").

We find no error in the district court's findings of fact or in its application of New Hampshire law, and therefore we affirm the court's ruling that, under New Hampshire law, the government incurred a duty of care that extended to Gail Irving - -- - a foreseeable plaintiff within the orbit of risk created by the negligence of the OSHA compliance officers - -- - when it undertook to conduct wall-to-wall safety inspections of the Somersworth plant in 1975 and 1978.

Having determined that the government owed a duty of care to Irving, the district court went on to hold that the government breached this duty. The scope of duty is defined by the extent of the undertaking, see Walls, 633 A.2d at 660; Blessing, 447 F. Supp. at 1189, and "[t]he test of due care is what reasonable prudence would require under similar circumstances," Weldy v. Town of Kingston, 514 A.2d 1257, 1260 (N.H. 1986). Although we do not here consider the doctrine of negligence per se, we do note that, under New Hampshire law, a violation of rules may be considered as evidence of negligence. See Murray, 224 A.2d at 69-71 (explaining that the promulgation of rules is evidence of the reasonable necessity for the rules and that violation of a rule may be used as evidence of negligence).

Here, in addition to the testimonial evidence of the standard of care set by OSHA for the conduct of wall-to-wall safety inspections, the record contains the OSHA Field Operations Manual for 1981, which states that a compliance officer's "primary responsibility is the conduct of effective inspections to determine whether employers are: (1) complying with safety . . . standards and regulations . . . and (2) furnishing places of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to their employees." Field Operations Manual at V-1.²⁸ The district court held that a reasonably prudent inspector of workplace safety hazards in the circumstances presented here would have inspected the marker/die-out bench assembly during the 1975 and 1978 inspections, concluding from the facts that the failure of the compliance officers to inspect the bench assembly could only be explained by their failure to exercise due care in conducting the wall-to-wall inspections of the Somersworth plant. 942 F. Supp. at 1505.

We uphold the, district court's finding that the government breached its duty of care to Irving. We add that breach would be established under New Hampshire law, even if there were no mandatory OSHA policy requiring that all operational machines be inspected during a wall-to-wall safety inspection, because reasonable prudence would require this standard of care in the circumstances presented here. See Weldy, 514 A.2d at 1260.

Under New Hampshire law, the defendant's negligent conduct is the legal or proximate cause of the plaintiff's injuries if the conduct is " 'a substantial factor in bringing about the harm.' " Weldy, 514 A.2d at 1261 (quoting Maxfield v. Maxfield, 151 A.2d 226, 230 (N.H. 1959)). The substantial factor inquiry requires a determination of whether the defendant's conduct in fact caused the plaintiff's harm, and whether the harm was reasonably foreseeable. See Weldy, 514 A.2d at 1261 (determining causation-in-fact and foreseeability in substantial factor inquiry); Maxfield, 151 A.2d at 230 (same). The question of proximate cause is for the fact-finder; the issue involves essentially no legal judgments, and we must therefore uphold the district court's finding unless it is clearly erroneous. Delta Air Lines, Inc. v. United States, 561 F.2d 381, 394 (1st Cir. 1977). See Walls, 633 A.2d at 659-60; Marshall v. Nugent, 222 F.2d 604, 611 (1st Cir. 1955) (applying New Hampshire law).

The district court found from unrebutted evidence that, had Somersworth guarded the die-out motor drive shaft, Irving would not have become entangled in it, and thereby seriously injured, and found by a preponderance of the evidence that, but for the negligence of Chase and Ritchie during the 1975 and 1978 inspections, Irving would not have suffered the injuries she sustained in the accident. The court found that if either Chase or Ritchie had documented the violative condition of the drive shaft, Somersworth would have been notified of the violation in two ways: (i) by means of the required post-inspection closing conference, during which the compliance officer must advise the employer of all identified potential violations; and (ii) by means of the citation which more likely that not would have been issued, in view of the issuance of citations in 1975 and 1978 for similarly unguarded drive shafts. 942 F.Supp. at 1507-08.

Given Somersworth's policy to abate all cited violations within the period set by OSHA, and the consistency and promptness with which Somersworth had abated all other violations for which it had been cited, the district court concluded that Somersworth would have guarded the drive shaft if this violative condition had been recognized during either the 1975 or the 1978 inspection. Id. Finally, the district court found that the risk of employee injury was a reasonably foreseeable result of the compliance officers' negligence, and that it was reasonably foreseeable that Somersworth would not guard the die-out motor drive shaft absent OSHA intervention. Id. at 1508-09. These findings are not clearly erroneous.

We hold that the district court correctly determined that, under New Hampshire law, the United States is liable to Irving for the negligent conduct of the 1975 and 1978 OSHA inspections of the Somersworth plant.²⁹ We emphasize that our holding is limited to the unique facts of this case.

In her complaint, Irving requested damages in the amount of one million dollars, the amount stated in her 1980 administrative claim. This request was consistent with the FTCA's command that, with limited exceptions, "[a]ction[s] under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency." 28 U.S.C. §;2675(b).³⁰ Twice in the sixteen-year travel of this case - - in 1983 and in 1995 - - Irving moved to amend her ad damnum clause so as to request damages in excess of one million dollars. Both motions, along with a motion for reconsideration, were denied.

As stated in her 1995 motion and in this appeal, Irving's primary justification for increasing the amount of her ad damnum is the substantial diminution in the value of her damage award caused by the extraordinary delays that have dogged this litigation, through no fault of the parties. In his memorandum decision, the district judge explained that, even though Irving. had proven damages in excess of one million dollars, and notwithstanding his finding that she has been materially prejudiced by the delays, the court simply had no authority to award damages in an amount greater than that stated in her administrative claim because 28 U.S.C. §;2674 explicitly preserves the sovereign immunity of the United States from awards of pre-judgment interest, and, under Library of Congress v. Shaw, 478 U.S. 310, 321-22 (1986), compensation for delay, and loss resulting from the effects of inflation - - the "intervening facts" alleged as justifying the increase over the amount stated in the administrative claim - - are prohibited by the no-interest rule. 942 F. Supp. at 1513. As we find no legal basis to support a contrary ruling, we affirm.

For the foregoing reasons, the judgment of the district court is affirmed. Costs on appeal awarded to the plaintiff-appellee.

SELYA, Circuit Judge (dissenting). As decided by the court, this unfortunate case is a poster child for bad law and bad policy. The analytical framework is not in dispute: the United States is liable in this instance if (1) the OSHA inspectors' negligent conduct is not exempted from the Federal Tort Claims Act's waiver of sovereign immunity, and (2) a private individual in like circumstances would incur liability. The first of these inquiries must be answered by resort to federal law, and the second by resort to state law (here, New Hampshire tort law). I doubt the correctness of the majority's rendition of both federal and state law, but the flaws in its reasoning seem more apparent as to the latter. Thus, assuming, for argument's sake, that the majority opinion correctly explicates the FTCA - - a matter on which I take no view - - it nevertheless sweeps too broadly in its interpretation of New Hampshire law. Because I believe that state law, properly applied, requires the entry of judgment in the government's favor, I write separately.

The majority holds that Corson v. Liberty Mut. Ins. Co., 265 A.2d 315 (N.H. 1970) (per curiam), settles the issue whether a private party who negligently conducts safety inspections is liable to an injured third party under New Hampshire's Good Samaritan doctrine. Corson admittedly supports application of the Good Samaritan doctrine to some safety inspections, see id. at 317, but the New Hampshire Supreme Court has not cited this 25-year-old per curiam decision on any subsequent occasion, and the Corson opinion itself is freighted with ambiguities. Contrary to my brethren, I think that Corson tells us relatively little about the case at hand.

New Hampshire's Good Samaritan doctrine, as it might be applied to an OSHA inspection, is unsettled, and thus, a federal court ought to undertake an informed prophecy about how the New Hampshire Supreme Court would rule if presented with this case. See Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1151 (1st Cir.1996). It is both my fervent hope and my strong belief that the state's highest court, mindful of the grave policy implications that would attend an extension of liability to random workplace safety inspections, would not enlarge the Good Samaritan doctrine to impose a tort-law duty of care on a private actor who conducts an inspection under circumstances like those surrounding OSHA's visits to the Somersworth Shoe factory.

The FTCA provides that the "United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances" 28 U.S.C. §;2674 (1994) (emphasis supplied). In applying this provision to the circumstances at hand, I start with Corson - - a case that my brethren deem controlling. With respect, their conclusion overlooks several salient differences between the factual setting of that case and the factual setting of the case before us First, in Corson, the defendant insurance company advertised the availability and benefits of its inspection services, visited the employer's plant four times annually for several years, and advised the employer on specific safety improvements. See Corson, 265 A.2d at 317. All in all, the interaction between the inspector and the employer approached a partnership - - a far cry from the sporadic, observational interaction between OSHA and Somersworth Shoe. Second, the Corson defendant insured the employer for all workers' compensation claims. See id. The insurer thus had a direct monetary stake in reducing the incidence of costly injuries. This, too, affords a marked contrast with the case at bar, since the United States had no direct pecuniary interest in Somersworth Shoe's safety practices.

Given these important dissimilarities, I think it fair to conclude that the New Hampshire Supreme Court has not confronted (let alone foreclosed) the specific question at issue here. Corson and the instant case share some superficial similarities, but they hardly seem "like." Indeed, Judge Coffin once provided a much closer analogy to the facts of this case than is present in Corson:

The appropriate analogy to private life seems to be that of a corporate employer who has hired a safety director to insure that the firm's business environment is free from accidents and health hazards. Acting entirely within his authority the safety director orders his staff to check that other firms in the vicinity are meeting fire regulation standards. If one such employee fails to inspect a nearby firm's building and if it burns to the ground thereafter because of unsafe conditions [that] would have been rectified had the employee carried out his assigned task, is either the employee or the employer liable for this failing? We think not.

Zabala Clemente v. United States, 567 F.2d 1140, 1145 (1st Cir. 1977). Other comparisons are imaginable - - for example, a nongovernmental public-interest group concerned with working conditions for immigrants conducts unsolicited, but tolerated, safety inspections of businesses on a sporadic basis.

As the New Hampshire Supreme Court has not determined whether the boundaries of its Good Samaritan doctrine encompass these types of inspections, a federal court must assess "analogous state court decisions, persuasive adjudications by courts of other states, and public policy considerations," Blinzler, 81 F.3d at 1151, and endeavor to predict the state court's likely ruling. A compendium of factors, including the factual context of the few relevant New Hampshire cases, the application of the Good Samaritan doctrine in other jurisdictions, public policy considerations, and the federal courts' general reluctance to expand state law, see, e.g., Carlton v. Worcester Ins. Co., 923 F.2d 1, 3 (1st Cir. 1991); Porter v. Nutter, 913 F.2d 37, 40-41 (1st Cir. 1990), militate against bringing OSHA inspections (or, at least, most OSHA inspections) within the fold of New Hampshire's Good Samaritan doctrine.

In its classic formulation, the Good Samaritan doctrine provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owned by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts §;324A (1977). Accordingly, the Good Samaritan doctrine supports tort liability in only three general scenarios. The Sixth Circuit recently suggested an "actor/monitor" dichotomy as a means of capturing the essence of all three scenarios and bypassing any need for an element-by-element analysis of the doctrine's applicability in FTCA inspection cases. See Myers v. United States, 17 F.3d 890, 904 (6th Cir. 1994). While this dichotomy's bright-line appeal may be a trifle illusory, the Sixth Circuit's central thesis - - that, for the Good Samaritan doctrine to engulf workplace inspections, the inspectors must be more than "mere observers, monitoring the actions of others," id. - - strikes me as sound. After all, under the doctrine's classic formulation a duty of care attaches to an inspection in any of the three general scenarios only when the inspector-inspectee relationship is more than "observational."

With this brief prelude, let us examine the trilogy of "Good Samaritan" scenarios as they play out on the set constructed by the district court's findings of fact.

1. Increased Risk of Harm. The majority stresses the Corson court's statement that a plaintiff's "case is made out when it appears that by reason of such negligence what was wrong is still wrong, though prudence would have made it right," thus permitting "[t]he inference . . . that the [defendant's conduct] cloaked the defect, dulled the call to vigilance and so aggravated the danger." Corson, 265 A.2d at 318-19 (quoting Marks v. Nambil Realty Co., 157 N.E. 129, 130 (N.Y. 1927)). My colleagues read this statement as excusing Irving from showing that the OSHA inspectors affirmatively increased her risk of harm. See ante at 81-82 & n.26. I disagree with this interpretation, for it contravenes the weight of authority. See, e.g., Myers, 17 F.3d at 903 ("The test is not whether the risk was increased over what it would have been if the defendant had not been negligent. Rather, a duty is imposed only if the risk is increased over what it would have been had the defendant not engaged in the undertaking at all."); Zabala Clemente, 567 F.2d at 1147 (similar); Smallwood v. United States, ___ F.Supp. ___, ___ (S.D. Ga. 1997) [1997 WL 809555, at *2] (similar); Kirk v. United States, 604 F.Supp. 1474, 1484 (D.N.H. 1985) (construing New Hampshire law and citing with approval numerous cases holding that this element requires some physical change or other material alteration of the circumstances); Restatement (Second) of Torts §;324A cmt. c, illus. 1 (imposing a duty where a repairman's negligent work renders a light fixture more dangerous).

The majority seems to say that, whatever the weight of authority may hold elsewhere, Corson's citation to Marks requires us to depart. I disagree. When considered in context, Marks fails to advance the majority's interpretation.

In Marks, a landlord negligently repaired a tenant's stairs. After the botched repair, the tenant "expressed misgivings as to the safety of the prop, but was assured by the landlord's agent that it would 'last forever.' " Marks, 127 N.E. at 129 (emphasis supplied). The landlord's affirmative assurance of safety - - not the mere fact of his inspection - - "dulled the call to vigilance, and so aggravated the danger." Id. at 130. Thus, Marks comports with the weight of authority requiring an affirmative increase in the risk of harm before a duty of care attaches. It follows that Corson's reliance on Marks is a powerful indication that, on this point, the New Hampshire Supreme Court swims within the mainstream.

There is yet another telltale. After its invocation of Marks, the Corson court string-cites a reference to section 324A(b) of the Restatement. That element of the Good Samaritan doctrine (discussed infra) deals with the situation in which a party assumes completely a duty owed by another to the injured third party. Hence, the citation strongly suggests that the Corson court believed that the inspector's relationship to the employer was far more than observational; it rose to the level of a partnership, if not an outright assumption of the employer's duty to maintain a safe workplace. Arguably, then, the Corson court rested its decision on the "assumption" prong of the doctrine, not on the "increased risk of harm" prong.

These contextual observations point up the uncertainties in the Corson court's language. If presented with an opportunity, I think it highly probable that the New Hampshire Supreme Court would resolve these ambiguities in accordance with the weight of authority elsewhere. Specifically, I believe that the state court would require a plaintiff in Irving's position to show that some affirmative action by the inspector increased the risk of harm. See, e.g., Myers, 17 F.3d at 903 n.15 ("[I]n this case, liability for increasing the risk would be proper had it been a MSHA inspector who lit a cigarette and caused the explosion, rather than a miner."); Blessing v. United States, 447 F.Supp. 1160, 1199 (E.D. Pa. 1978) ("[W]hile the inspections may not have improved matters, neither did they worsen them."). Irving has made no such showing here, and, accordingly, the United States is not liable to Irving under Restatement §;324A(a). To argue, as does the majority, that Irving prevails under the "increased risk of harm" scenario merely by proving that OSHA inspectors failed to observe and/or cite a dangerous condition created by her employer contradicts a bedrock principle of tort law - - a historical reluctance to impose on one person a duty to rescue another in danger. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts §;56, at 375 (5th ed. 1984); Marquay v. Eno, 662 A.2d 272, 278 (N.H. 1995); H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896, 898 (N.Y. 1928) (Cardozo, C.J.) ("The query always is whether the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good."); see also Myers, 17 F.3d at 903.

2. Assumption of a Duty. I need not tarry on this aspect of the Good Samaritan doctrine. The plaintiff does not argue that OSHA inspectors assumed Somersworth Shoe's duty to maintain a safe workplace. In all events, any such argument is foreclosed by the OSH Act's statutory language, which explicitly places primary responsibility for workplace safety on employers. See 29 U.S.C. §;654 (1994); see also Porter, 913 F.2d at 39 (explaining that New Hampshire law places on every employer a nondelegable duty to maintain a safe workplace). Consequently, the United States is not liable to Irving under Restatement §324A(b).

3. Reasonable Reliance. The nub of the matter is the majority's determination that Somersworth Shoe reasonably relied on OSHA inspections to disclose unsafe plant conditions, thus bringing the plaintiff's case within Restatement §324A(c). To be sure, Irving adduced some evidence of actual reliance (various Somersworth Shoe executives testified self-servingly that they relied on the OSHA inspections). Nevertheless, liability cannot be predicated on section 324A(c) without reasonable reliance, measured by an objective (not a subjective) standard. See Ayala v. United States, 49 F.3d 607, 614 (10th Cir. 1995). Reasonable reliance plainly requires a more active interrelationship than is present in most inspection contexts. This intuition dries the Sixth Circuit's actor/monitor dichotomy, see Myers, 17 F.3d at 904, and is borne out in those few cases, including Corson, that impose Good Samaritan liability on an inspector.

The majority gives Myers too short shrift. I suspect that this dismissive attitude stems from a misreading of the opinion. My brethren say that the Myers court requires exclusive reliance on a federal safety inspection as a predicate to Good Samaritan liability. On that basis, they charge that the Myers court conflated the separate liability scenarios portrayed in subsections (b) and (c) ("assumption" liability and "reliance" liability). This characterization is flawed. Rather than blurring the distinction between subsections (b) and (c), the Myers test posits that some threshold degree of interaction between an inspector and an employer must exist before any reliance by the employer or its employees is objectively reasonable. According to the Myers court, achieving the threshold requires more than "mere observation but less than complete assumption of a duty. 17 F.3d at 904. This exposition of subsection (c)'s reliance requirement differs markedly from subsection (b)'s assumption requirement. Assumption liability under Restatement §;324A(b) does not necessitate any affirmative showing of reliance by the plaintiff; rather, reliance is presumed once the defendant steps into the shoes of the person primarily charge with the duty owed to the plaintiff. See Blessing, 447 F.Supp. at 1197 n.53 (explaining that subsection (b) "is much more addressed to a definition of the undertaking itself; it focuses on whether, independently of any increased risk or induced reliance, the Good Samaritan undertook to perform a duty owed by another to a third person").

Fairly read, subsection (c) asks whether a party, though not assuming the duty owed to the plaintiff, has created a sufficient relationship to induce reasonable reliance by the plaintiff. While this ad hoc approach contradicts the superficial bright-line quality of the actor/monitor dichotomy and highlights a possible weakness in the Myers court's rationale, case law confirms the soundness of the general principle upon which it rests. For example, Corson involved an active, long-standing relationship between the inspector and employer. See Corson, 265 A.2d at 317. A New Hampshire case relied on by the Corson court involved a similar relationship. See Smith v. American Employers' Ins. Co., 163 A.2d 564, 566 (N.H. 1960) (nothing that the insurer-inspector conducted monthly inspections of the plant in which the plaintiff was injured). Rare federal decisions that invoke the Good Samaritan doctrine in an inspection context likewise involve relationships that go beyond the sporadic, purely observational nature of most OSHA inspections. See, e.g., Kirk, 604 F.Supp at 1477 (noting that an FmHA inspector visited plaintiff's construction site seven times in less than a year, approved contractor selection, reviewed building plans, approved variances, and assessed the builder's compliance with contractual conditions); Pierre v. United States, 741 F.Supp 306, 309-10 (D. Mass. 1990) (noting that the EPA had taken title to, and completely renovated, a house sold to the plaintiff but had ignored its regulatory mandate to inspect for, and remove, lead-based paint); cf. Indian Towing Co. v. United States, 350 U.S. 61, 64-65 (1995) (holding the Good Samaritan doctrine applicable when the government undertook to operate a lighthouse). These cases most assuredly suggest that, at some level of involvement, a program of ongoing supervision or safety inspection can "induce [a party] to forgo other remedies or precautions against . . . risk." Restatement (Second) of Torts §;324A cmt. e. But two widely separated, unsolicited OSHA inspections, conducted without promise or expectation of future visits, do not pour a foundation on which a plaintiff can erect a claim of reasonable reliance. The OSHA inspectors who visited Somersworth Shoe were "mere observers," and transient ones at that.

Public policy concerns not present in Corson also counsel against its extension to all OSHA inspections. It is simply bad policy to penalize the government for undertaking programs that augment workplace safety measures. As Judge Coffin has observed:

The end result of attaching liability to government attempts at all levels to supplement the safety precautions of private individuals and businesses, even where there is no reliance on the government's assistance, is far more likely to increase the reluctance of the government to involve itself in such matters than it is to install a higher quality of performance in the federal employees assigned to carry such functions out.

Zabala Clemente, 567 F.2d at 1150-51; see also Blessing, 447 F.Supp at 1199. This policy concern was not implicated on the facts of Corson because the inspector and the employer had a shared financial interest. Imposing tort liability on the insurer would not discourage it from conducting safety inspections because unabated safety problems would operate to the insurer's economic detriment (substandard safety conditions mean increased accidents, which in turn mean more insurance payouts). Here, however, the financial interests of the government are not aligned with those of the employer. Thus, OSHA would have no counterbalancing incentive to stick with an inspection program despite potential tort liability.³¹

The New Hampshire legislature has acknowledged the detrimental effect of tort liability for negligent safety inspections by immunizing, post-Corson, workers' compensation insurers who conduct safety inspections. See N.H. Rev. Stat. Ann. §;281-A:8-I (Supp. 1996); see also Wise v. Kentucky Fried Chicken Corp., 555 F.Supp. 991, 996 n.4 (D.N.H. 1983) (discussing legislation). I mention this not because OSHA inspectors fall within New Hampshire's statutory immunity - - they do not, and the conferred immunity, in any event, postdates Irving's accident - - but because the same policy concerns addressed by the legislative response are present, or even magnified, in this case. If the New Hampshire Supreme Court were confronted with these facts, I think it highly probable that the Justices would consider the policy choice exemplified by this statute, note the heightened concerns that exist in cases in which random safety inspections are not tied to the sale of insurance, and limit Corson accordingly. Cf. Dawkins v. White Prods. Corp., 443 F.2d 589, 593-94 (5th Cir. 1971) (finding that a state supreme court would limit a prior decision given the legislature's subsequent enactment of a statute changing the law as stated in the decision).

I am sympathetic both to the grievous nature of the plaintiff's injuries and to the inordinate delays that have dogged her prosecution of this litigation. Nevertheless, I keep thinking of the old saw that hard cases make bad law. In my judgment, the majority's derivation of New Hampshire law significantly dilates the scope of that state's Good Samaritan doctrine. The weight of persuasive authority, public policy concerns, and the federal courts' historic reluctance to expand state law past established frontiers persuade me that Corson commands a narrower compass than that provided by my brethren.³² I must, therefore, respectfully dissent.

FOOTNOTES

¹ Previous decisions rendered in this case include, in chronological order: Irving v. United States, 532 F.Supp. 840 (D.N.H. 1982) (denying government's motion to dismiss); Irving v. United States, No. Civ. 81-501-SD (D.N.H. March 22, 1983) (denying government's renewed motion to dismiss); Irving v. United States, No. Civ. 81-501-SD (D.N.H. August 8, 1984) (denying government's renewed motion to dismiss on the basis of United States v. Varig Airlines, 467 U.S. 797 (1984); Irving v. United States, No. Civ. 81-501-SD (D.N.H. January 27, 1988) (reversing prior rulings and dismissing claim for lack of subject matter jurisdiction, citing intervening First Circuit authority); Irving v. United States, 867 F.2d 606 (1st Cir. 1988) (unpublished order vacating judgment); Irving v. United States, No. Civ. 81-501-SD (D.N.H. February 14, 1989) (dismissing claim for lack of subject matter jurisdiction on the basis of Galvin v. OSHA, 860 F.2d 181 (5th Cir. 1988)); Irving v. United States, 909 F.2d 598 (1st Cir. 1990) (vacating judgment); Irving v. United States, No. Civ. 81-501-SD, 1994 WL 287750 (D.N.H. June 23, 1994) (judgment on the merits); Irving v. United States, No. Civ. 81-501-SD, 1994 WL 392614 (D.N.H. July 28, 1994) (denying reconsideration of judgment); Irving v. United States, 49 F.3d 830 (1st Cir. 1995) (vacating judgment); Irving v. United States, 942 F.Supp. 1483 (D.N.H. 1996) (judgment on the merits from which this appeal is taken).

² In 1975, OSHA Compliance Officer William Chase recorded 39 violations (four of them for unguarded power transmission drive shafting) of nine OSHA safety standards. In 1978, OSHA Compliance Officer John M. Ritchie recorded eleven violations (three of them for unguarded power transmission belts) of eight OSHA standards, and reported that Somersworth had inadequate safety training and no safety staff. The district court found that Somersworth did, in fact, timely abate all violations cited as a result of the 1975 and 1978 inspections, and, after Irving's accident, guarded the die-out motor drive shaft within the prescribed abatement period. 942 F.Supp. at 1507-08 & n.31.

³ We follow the district court in referring to the most recent version of the regulations; as the district court pointed out, the applicable regulations have not been materially revised since 1973.

⁴ Prior to the passage of the FTCA, redress against the government for property damage or personal injury was essentially limited to the passage of a private bill by Congress. See United States v. Muniz, 374 U.S. 150, 154 (1963); Blessing v. United States, 447 F.Supp. 1160, 1169 n.11 (E.D. Pa. 1978).

⁵ Restatement §;§;323 and 324A are typically cited together as expressions of the same principle, see Blessing v. United States, 447 F. Supp. 1160, 1187 & n.39 (E.D. Pa. 1978), which is often referred to as the "Good Samaritan" doctrine. The continued use of this rubric in the case law to refer to the theory of liability embodied in §;§;323 and 324A of the Restatement is unfortunate in view of the fact that the same phrase is now also commonly used to refer to the immunity conferred by state statutes upon "Good Samaritans" who might otherwise be subject to liability for negligence in the course of rescue efforts. See Black's Law Dictionary at 694 (6th ed. 1990). Although we are reluctant to perpetuate any confusion in the case law, we follow the usage of the parties and the district court in order to avoid any confusion in the case sub judice.

Section 323 states the rule as to the liability of the actor to the person to whom she has undertaken to render services. Section 324A, invoked here, states the actor's liability to third persons as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

⁶ Because the discretionary function exception is a limitation on the FTCA's waiver of sovereign immunity, we treat it as a jurisdictional bar, dismissing for lack of subject matter jurisdiction claims to which the exception applies. See, e.g., Kelly v. United States, 924 F.2d 355, 360 (1st Cir. 1991) (citing 28 U.S.C. §;1346(b); Irving v. United States, 909 F.2d 598, 600 (1st Cir. 1990)). We note, however, that, to the extent that factual findings are required in order to determine whether the exception immunizes the challenged conduct, it effectively operates more as an affirmative defense. See Blessing v. United States, 447 F.Supp. 1160, 1186 (E.D. Pa. 1978).

⁷ The cited decisions were Shuman v. United States, 765 F.2d 283 (1st Cir. 1985); Brown v. United States, 790 F.2d 199 (1st Cir. 1986); and K.W. Thompson Tool Co. v. United States, 836 F.2d 721 (1st Cir. 1988). These pre-Berkovitz cases do not govern the analysis or the result in the case before us. To the extent that our more recent FTCA decisions, see, e.g., Dube v. Pittsburgh Corning, 870 F.2d 790 (1st Cir. 1989); Ayer v. United States, 902 F.2d 1038 (1st Cir. 1990); Kelly v. United States, 924 F.2d 355 (1st Cir. 1991); Atallah v. United States, 955 F.2d 776 (1st Cir. 1992); Sea Air Shuttle Corp. v. United States, 112 F.3d 532 (1st Cir. 1997), involve the application of the discretionary function exception, they are consistent with Berkovitz. To the extent that they address the question whether the FTCA claimant states a cause of action under the applicable state law, they have no bearing on this case because the law of the place where the challenged conduct occurred is not New Hampshire law.

⁸ If the plaintiff fails to plead facts sufficient to create liability under the applicable state law, see 28 U.S.C. §;§;1346(b), 2674, the claim may be dismissed without consideration of the exceptions enumerated in 28 U.S.C. §;2680. Where the plaintiff states a cause of action under the law of the state where the challenged conduct occurred, however, the court must inquire whether the FTCA claim is barred by the discretionary function exception because, even if the state-law claim is proven, all that would be established is negligence, which is protected by the exception if the negligence is in the permissible exercise of the tortfeasor's discretion. See 28 U.S.C. §;2680(a) (the discretionary function exception protects discretionary conduct "whether or not the discretion involved be abused"); Atallah v. United States, 955 F.2d 776, 784 n.13 (1st Cir. 1992); Ayer v. United States, 902 F.2d 1038, 1041 (1st Cir. 1990).

⁹ For this reason, we must also determine whether Irving's claim is barred by the misrepresentation exception, see 28 U.S.C. §;2680(h), as the government argued below, although not in this appeal. In the course of the de novo proceedings, the district court denied the government's motion to dismiss on this ground, holding on the basis of Supreme Court and First Circuit precedent that the misrepresentation exception does not bar Irving's claim because, "[b]y stating a claim under New Hampshire's Good Samaritan doctrine, Irving has alleged breach of a duty that is distinct from the duty recognized by the tort of negligent misrepresentation." Order of March 13, 1996. See also Irving, 942 F.Supp. at 1505 n.28. We agree with the court's analysis and are satisfied that 28 U.S.C. §;2680(h) does not remove federal court jurisdiction over the claim.

Similarly, we reject Irving's contention that the government has failed to preserve the argument that her claim is not actionable under the FTCA for failure of the analogous private liability condition. To the extent that the government argues that Irving fails to state a claim under New Hampshire law, the argument cannot be waived because, by its terms, the FTCA's waiver of sovereign immunity is conditioned upon the existence of a state-law cause of action.

¹⁰Although 28 U.S.C. §;§;1346(b) and 2674 contain parallel language, and the cases read these provisions together as defining the scope of the United States' consent to suit, it is §;1346(b) that grants federal court jurisdiction over suits falling within the scope of the waiver.

¹¹ See Blessing, 447 F.Supp. at 1170-71 (explaining that the discretionary function exception was designed to embody the traditional doctrines of separation of powers and judicial restraint, and "articulate a policy of preventing tort actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government"); Smith v. United States, 375 F.2d 243, 248 (5th Cir. 1967) (the discretionary function exception immunizes the United States from liability, not because government officials made choices, "but because the choices made affected the political (not merely the monetary) interests of the nation").

¹² In Varig Airlines, the Court consolidated for decision two cases, Varig Airlines v. United States, 692 F.2d 1205 (9th Cir. 1982), and United Scottish Ins. v. United States, 692 F.2d 1209 (9th Cir. 1982) (appeal after remand from United Scottish Ins. Co. v. United States 614 F.2D 188 (9th Cir. 1979)),. involving challenges to two actions by the Federal Aviation Administration ("FAA") in certifying for commercial use two airplanes that later caught fire in flight: (i) the FAA's decision to formulate and implement a spot-check inspection system of reviewing aircraft manufacturers' compliance with required minimum safety standards; and (ii) the spot-check inspectors' specific decisions to certify the airplanes as safe. Applying the principles outlined above, the Court held that the discretionary function exception applied to both the FAA's decision to adopt and implement a spot-check system of compliance review, and the acts of FAA employees in executing that system. See 467 U.S. at 819-20.

¹³ In Berkovitz, the plaintiffs alleged violations of federal law and policy by government employees in the course of (i) the inspection and approval of vaccines by the National Institutes of Health's Division of Biologic Standards ("DBS") in licensing Lederle Laboratories to produce a polio vaccine; and (ii) the approval and release to the public by the Bureau of Biologics of the Food and Drug Administration of the particular lot of vaccine that contained the dose that Berkovitz ingested (after which he contracted polio).

The Court held, inter alia, that, to the extent that the licensing claim was based upon a decision by the DBS to issue a license without having first received from the manufacturer test data required by the governing statute and regulations, the claim was not barred by the discretionary function exception because the DBS had no discretion to issue a license without first receiving the required data, and to do so would violate a specific statutory and regulatory directive. 486 U.S. at 542-43.

¹⁴ Four OSHA employees testified at the 1985 bench trial: Richard Amirault, the area director at the time of the 1975 and 1978 inspections; William Chase, the compliance officer who conducted the 1975 inspection; John M. Ritchie, the compliance officer who conducted the 1978 inspection; and Paul O'Connell, the senior safety engineer who conducted the 1979 post-accident inspection.

Amirault testified that OSHA compliance officers were "charged to look at the entire plant"; that, in conducting a wall-to-wall inspection, the compliance officers "were supposed to make a complete walk-through and identify and document any hazardous conditions that they would see"; and that, "[a]s far as humanly possible, [the inspectors] were supposed to cover the work place" and "observe any place where the employee works." Although Amirault repeatedly testified that the compliance officers were required only to report the violations they observed - - e.g., "If we could spot the unsafe condition, it should be cited." - - he also testified that the inspectors "should look at every operation" and "should be observing and documenting any violative condition."

Chase conceded that it would have been carelessness for a compliance officer to have missed the violative condition of the drive shaft. He testified that, in 1975, "I made. a complete inspection of the facility as I am required to do and made notes, et cetera, of everything that I observed." While acknowledging that inspectors occasionally fail to notice violative conditions, Chase testified that, if the bench assembly were in the same location at the time of his 1975 inspection as it was at the time of the accident, he could not have failed to recognize the condition of the drive shaft as a serious violation of OSHA standards. He stated, "I deny anybody to say they haven't [made a mistake] but not something that obvious." And, "I wouldn't miss something like that; it's too obvious, positively." He also stated, "[T]here's no way I'd have missed that setting right out in the wide open on a main aisle in . . . the stock fitting room. No way." According to Chase, no compliance officer who looked at the bench assembly would have failed to recognize the unguarded drive shaft as a serious violation, even on the officer's worst day. Amirault and O'Connell concurred in Chase's conclusion that the violation was both obvious and serious, with Amirault conceding that a prudent inspector who saw the bench assembly depicted in O'Connell's post-accident photographs should have noticed the unguarded condition of the drive shaft and recognized it as a violation of OSHA safety standards.

¹⁵ We note that the panel in the second appeal in this case suggested that even this might not be protected conduct in the circumstances presented here. See 909 F.2d at 605 ("the inference could be drawn that rather than being a judgment call, a violation of the type which caused Ms. Irving's injury was so obvious that failure to report it was not within a compliance officer's discretion").

¹⁶ See also Ayala v. United States, 980 F.2d 1342, 1349-51 (10th Cir. 1992); Summers v. United States, 905 F.2d 1212, 1215-16 (9th Cir. 1990); Caplan v. United States, 877 F.2d 1314, 1316 (6th Cir. 1989); Camozzi v. Roland/Miller & Hope Consulting Group, 866 F.2d 287, 289-90 (9th Cir. 1989); McMichael v. United States, 856 F.2d 1026, 1033-34 (8th Cir. 1988).

Many of the pre-Berkovitz decisions holding that FTCA suits based upon negligence in the conduct of federal regulatory inspections are barred by the discretionary function exception do not inquire into the discretionary authority of the individual inspector to engage in particular conduct, but rely upon the general discretionary authority accorded government agencies over the conduct of inspections. See Merklin v. United States, 788 F.2d 172 (3d Cir. 1986); Cunningham v. United States, 786 F.2d 1445 (9th Cir. 1986); Russell v. United States, 763 F.2d 786 (10th Cir. 1985); General Pub. Utils. Corp. v. United States, 745 F.2d 239 (3d Cir. 1984). As noted above, however, Berkovitz expressly disavowed such an approach.

In Galvin v. OSHA, 860 F.2d 181 (5th Cir. 1988) (the post Berkovitz case cited by the district court in one of the earlier orders dismissing Irving's claim), it appears that the plaintiff advanced no argument that compliance officers had negligently failed to follow a mandatory OSHA directive. See also Judy v. United States Dep't. of Labor, 864 F.2d 83 (8th Cir. 1988); Cordiero v. Brock, 698 F. Supp. 373 (D. Mass.), aff'd sub. nora. Cordiero v. Secretary of Labor, 860 F.2d 1073 (1st Cir. 1988); Silva v. Brock, 677 F. Supp. 55 (D. Mass. 1988).

¹⁷ The Supreme Court's holding in Feres v. United States, 340 U.S. 135, 146 (1950), that "the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in. the course of activity incident to service," represents the only non-statutory immunity to FTCA liability of which we are aware. Although this judicially crafted immunity has been extended to shield the United States from liability for service-related injuries resulting from the negligence of civilian employees of the federal government, see United States v. Johnson, 481 U.S. 681 (1987), and from the negligence of military contractors, see Boyle v. United Techs. Corp., 487 U.S. 500 (1988), the holding and reasoning of Feres has been limited to the military context, see Indian Towing v. United States, 350 U.S. 61, 69 (1955).

¹⁸ Although the Zabala Clemente panel did not discuss whether Puerto Rico law recognizes a Good Samaritan cause of action, or whether the plaintiffs, in fact, alleged such a claim, the panel did discuss the possibility that a claim might have been predicated upon the Good Samaritan doctrine. The panel ruled, however, that liability would not be established under that theory because the plaintiffs could not satisfy any one of the three disjunctive requirements for the imposition of liability under the doctrine as formulated in §s;323 and 324A of the Restatement. 567 F.2d at 1145. In this regard, it is important to note that, to the extent that the decision in Zabala Clemente turned on the application of the Good Samaritan doctrine, it nevertheless does not control our analysis of the merits of Irving's claim because the FTCA directs us to apply New Hampshire law in this case, not Puerto Rico law.

We add that our recent decision in Sea Air Shuttle Corp. v. United States, 112 F.3d 532 (1st Cir. 1997), does not control our analysis here for the same reasons that Zabala does not - - i.e., the claim in Sea Air Shuttle did not invoke a state-law duty and the determination of liability did not turn on New Hampshire law.

¹⁹ As we have previously stated, see Sea Air Shuttle Corp. v. United States, 112 F.3d 532, 537 n.11 (1st Cir. 1997), we agree with courts that have held that FTCA claimants may not ground liability on a state-law negligence per se theory without first establishing the existence of a duty of care under the applicable state law. As these courts point out, the doctrine of negligence per se, where applicable, defines only the standard of care required of those upon whom state law imposes a duty; it is not determinative of the existence vel non of a duty. See Myers, 17 F.3d at 899 & n.10; Art Metal-U.S.A., 753 F.2d at 1159 n.15.

²⁰ We emphasize that our analysis of the FTCA's analogous private liability requirement is limited to the question whether, in the context of a claim alleging negligence in the conduct of a federal regulatory inspection, this statutory language must be read to condition the FTCA's waiver of sovereign immunity upon identity between governmental activity mandated by federal law and private activity under state law, thereby excluding as a matter of law claims based upon conduct in which a private person could never engage.

We express no opinion as to how the analogous private liability requirement should be interpreted and applied in other contexts, such as where the plaintiff seeks to hold the United States liable under the FTCA for the intentional torts of federal law enforcement officials - - defined by the FTCA as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law" - - as permitted by a 1974 amendment to 28 U.S.C. &sec;2680(h). See, e.g., Hetzel v. United States, 43 F.3d 1500, 1503-04 (D.C. Cir. 1995) (looking to the standard of care applicable to a law enforcement official engaged in an authorized high-speed pursuit of a criminal suspect because no private individual has the authority to engage in a high-speed chase, and thus there is no readily available private analogue upon which to premise FTCA liability).

We note with interest that, in Hetzel, the United States argued against applying a municipal or state analogy in FTCA cases where a private analogue is absent. 43 F.3d at 1504 n.5.

²¹ 29 U.S.C. §;653(b)(4) provides, "Nothing in this chapter shall be construed . . . to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment."

²² The court considered, for example, Area Director Amirault's testimony that "It]he purpose of my agency . . . is to identify and document the hazards and to provide assistance to employers in meeting their obligations," and that the purpose of a wall-to-wall safety inspection is "to assist the company in getting into compliance and complying with the law which requires them to be in compliance."

²³ The Supreme Court affirmed the Sixth Circuit's decision in Neal v. Bergland on other grounds. See Block v. Neal, 460 U.S. 289 (1983). The Court did not review the Good Samaritan claim because the government argued only that the plaintiff's claim was barred by 28 U.S.C. §2680(h), the misrepresentation exception.

²⁴ Under §324A, liability. may be imposed if one of the following three alternative elements is established: "(a) [the actor's] failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to-the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking."

²⁵ The parties describe Corson as having been abrogated by an amendment to the New Hampshire workers' compensation statute that bars actions by employees against workers' compensation insurance carriers. See N.H. Rev. Star. Ann., §281:12-I (1987) (recodified after 1988 repeal and re-enactment at §281-A:8-I) (Supp. 1996). We do not find the amendment to be material to the disposition of this case. Corson's determination of liability was based upon common-law duty principles of long standing in New Hampshire law, and liability was imposed notwithstanding that there, as here, the employer, and not the inspecting entity, retained primary responsibility for workplace safety. See Corson, 265 A.2d at 317-19. That the New Hampshire legislature has chosen to further the purposes of its workers' compensation laws by immunizing compensation carriers from liability to workers by no means compels the conclusion that New Hampshire law would immunize all private workplace safety inspectors, or that New Hampshire would not impose a duty of care upon a private individual in the circumstances presented here.

²⁶ Although many courts have interpreted the "increasing the risk" alternative element of §324A(a) as requiring an affirmative act on the part of the defendant that increases the risk in a material way, beyond merely permitting an unsafe condition to continue, see Myers, 17 F.3d at 902-03; Howell v. United States, 932 F.2d 915, 918-19 (11th Cir. 1991); Patentas v. United States, 687 F.2d 707, 716-17 (3d Cir. 1982); Raymer, 660 F.2d at 1143; Zabala Clemente, 567 F.2d at 1145, the district court did not err in failing to apply the more stringent standard, as the Supreme Court of New Hampshire clearly found liability in Corson absent such a requirement. See also New England Tel. & Tel. Co. v. Reed, 336 F.2d 90, 95 (1st Cir. 1964) (explaining that two separate and distinct acts of negligence may each be regarded as the proximate cause of injury, and if one defendant had allowed a "negligent condition to continue to exist, the fact that it might not have been able to foresee the exact manner in which the injury might occur affords it no defense") (applying New Hampshire law).

²⁷ The government also contends that the record is barren of evidence that Irving herself relied upon the OSHA inspections and that this is fatal to her claim. But, in the liability-to-third-parties version of the doctrine, reliance is established if either Somersworth or its employees relied. See Restatement §324A(c).

²⁸ As we noted in the second appeal, the manual in evidence indicates that it contains revised language, but no indication of the significance of the revisions or how the version(s) in use in 1975 and 1978 read. See 909 F.2d at 604 n.5.

²⁹ The district court's determinations that "Irving has proven beyond any doubt that she suffered grievous harm when she became entangled with the unguarded rotating shaft," 942 F. Supp. at 1505-06, and that "Irving's stooping to retrieve her glove does not constitute failure to exercise due care under these circumstances," id. at 1509-10, are not challenged here; nor is there any dispute concerning the court's calculation of damages.

³⁰ Section 2675(b) provides:

Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of some intervening facts, relating to the amount of the claim.

³¹ Addressing this policy concern does not accomplish a resurrection of the late, unlamented "regulatory function" exception to FTCA liability. See Berkovitz v. United States, 486 U.S. 531, 538 (1988). The very same concern for discouraging safety augmentation would exist if Good Samaritan liability attached, say, to a nongovernmental public-interest group's campaign of unsolicited, but tolerated, safety inspections on a sporadic basis.

³² Although my position would render moot the plaintiff's cross-appeal, I find no fault with the court's resolution of that appeal. See ante Part V.