WALLACE, Circuit Judge:
The government appeals from a district court judgment awarding damages in an action brought against it pursuant to the Federal Tort Claims Act (the Act), 28 U.S.C. §§ 1346(b), 2671-80, alleging that the Federal Aviation Administration (FAA) negligently inspected an aircraft which subsequently crashed. The government contends, among other things, that the Act does not provide for liability in this type of case. Because we conclude that the district judge neglected to make findings which are a prerequisite to liability pursuant to the Act under the circumstances of this case, we reverse and remand for further proceedings.
The consolidated actions that constitute this appeal arose out of an air crash which occurred on October 8, 1968, at McCarran Field at Las Vegas, Nevada. All four occupants of the aircraft, the pilot, co-pilot, and two passengers, were killed in the disaster. The plaintiffs in the district court, appellees here, are Dowdle, owner and operator of the air taxi service; Catalina-Vegas Airlines, that operated the ill-fated aircraft; the Weavers, widow and children of co-pilot Vernon Weaver; the Cearleys, widow and children of passenger Charles Cearley; the Flemings, children of passenger Katherine Fleming; and a number of insurance companies which provided liability coverage to Dowdle.
FAA regulations, 14 C.F.R. Part 21.E, required that Aerodyne acquire a Supplemental Type Certificate (STC) from the FAA for this type of installation. The parties agree that FAA regulations also required that the FAA inspect the installation prior to giving its approval for issuance of the STC. The FAA issued the STC, and the aircraft were returned to Air Wisconsin for service.
Dowdle purchased both 40B and 41B from Air Wisconsin during the winter of 1966-67. He evidently used them in various air taxi operations, and during that time, both aircraft underwent numerous annual and 100 hour inspections until October 8, 1968, when 40B crashed.
The district court found the United States liable to all plaintiffs on the basis that the FAA had negligently inspected the aircraft in 1965 prior to issuance of the STC, and that this negligent inspection proximately caused the in-flight fire aboard and crash of 40B, and thus the damages suffered by all plaintiffs.
The government asserts a number of errors, each of which it claims requires reversal of either some or all of the district court's judgment. First, the government reminds us that the Act gives district courts jurisdiction to award damages against the government only when a private individual could be held liable pursuant to state law in like circumstances. See, e. g., Thompson v. United States, 592 F.2d 1104, 1107 (9th Cir. 1979); 28 U.S.C. § 1346(b).
The government asserts a number of grounds for its belief that the district judge incorrectly found that the regulations in question could serve as the basis for liability. First, it contends that the sole authority relied upon by the district court for this proposition, Arney v. United States, 479 F.2d 653 (9th Cir. 1973), addresses this question in dicta only and, in any event, should not be relied upon. The government observes that Arney arose in admiralty and is not definitive on the question of liability pursuant to the Act. In addition, the government suggests that relevant authority both inside and outside of this circuit runs contrary to the approach taken in Arney, and that we should therefore overrule that case.
The government next contends that in Arney we relied only upon Rapp v. Eastern Air Lines, Inc., 264 F.Supp. 673 (E.D.Pa.1967), which is no longer valid authority.
The government next attempts to demonstrate why, assuming that Arney represents the law of this circuit, we should reconsider and overrule that decision. This argument is misplaced. As in other circuits, see United States v. Kirk, 528 F.2d 1057, 1063 (5th Cir. 1976), three-judge panels of the Ninth Circuit will abide by a prior Ninth Circuit panel decision until either the United States Supreme Court or the Ninth Circuit, sitting en banc, explicitly or implicitly overrules it.
While the government has cited authority from other circuits and from district courts, and even cases from this circuit in which federal laws or regulations have not been found to create a duty of due care in the government, see Harmsen v. Smith, 586 F.2d 156, 157-58 (9th Cir. 1978); Kirk v. United States, 270 F.2d 110, 117-18 (9th Cir. 1959), we do not find those cases to be persuasive on the precise issue before us. Arney did not go so far as to hold that a duty of due care would necessarily arise directly out of FAA regulations. Rather, we stated there only that the government "may be liable for negligence in improper issuance of a type airworthiness certificate." 479 F.2d at 658. Because we were reviewing summary judgments, we had no opportunity to elaborate on a fully developed record. Thus, we held only that the plaintiff's factual allegations would support a cause of action for such negligence. See id. at 661. We did not indicate what all of the elements of such a cause of action might be.
Finally, the government suggests that Arney should not be determinative here because that case was brought pursuant to the admiralty jurisdiction of the district court, see 479 F.2d at 655, rather than pursuant to the Act. Although Arney is not inapplicable for this reason, the government's statement has some merit. Any action brought pursuant to the Act must meet
We first determine whether, pursuant to the Act, the record in this case will support a finding of liability. The government argues that because the United States' involvement in this case is in the nature of a safety inspection and approval, there is no analogous "private person" liability as required by section 1346(b). To the extent that the government is arguing that because "inspection and certification" of aircraft is a uniquely governmental function, liability may not be predicated upon misfeasance in such activity, the government is plainly wrong. See, e. g., Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 100 L.Ed. 48 (1955). To the extent, however, that the government is arguing that because of the nature of the activity involved in this case, the federal regulations concerning the activity should be analyzed differently from an automatic application of state negligence per se law, we conclude that the government is correct. This, we believe, is the only approach that is consistent with the Act, which dictates that the government "shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.
In a series of fairly recent cases, a number of courts have addressed questions regarding the extent of government liability pursuant to the Act, for violation of the government's own regulations when it undertakes so-called "good samaritan" activities such as inspection and certification. We believe that the best approach is summarized in Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa.1978). There, the plaintiffs alleged that the government was liable for damages arising out of machine-caused injuries because Occupational Safety and Health Administration (OSHA) employees had negligently inspected the plaintiffs' employer's machines. Responding to an argument raised by the government in defense, the court stated:
Id. at 1186 n.37.
The cases cited in Blessing support its initial conclusion that the Act was not designed to redress breaches of federal statutory duties. In Baker v. F & F Investment Co., 489 F.2d 829, 835 (7th Cir. 1973), the court held that "the attempt to vindicate a right dependent, as here, upon federal statutes is not within the ambit of the [Act]." In Devlin Lumber & Supply Corp. v. United States, 488 F.2d 88 (4th Cir. 1973) (per curiam), the Fourth Circuit held that since a violation of the Miller Act "can have no counterpart in private activity, and cannot give rise to liability under the common law," 488 F.2d at 89, it follows that "a violation of the Miller Act does not create liability . . . under the Federal Tort Claims Act." Id. (citing United States v. Smith, 324 F.2d 622, 624-25 (5th Cir. 1963)). Indeed, the Fifth Circuit in Smith found it unnecessary to consider whether the Miller Act even placed a duty upon the government to see to it that a contractor executed the proper bond, because analogous private person liability
324 F.2d at 624-25. See also Dalehite v. United States, 346 U.S. 15, 28, 73 S.Ct. 956, 964, 97 L.Ed. 1427 (1953) ("Uppermost in the collective mind of Congress were the ordinary common-law torts.").
Lack of due care in effecting the execution of a bond by another obviously is not a common-law tort; neither, it would seem, is the simple failure to inspect another's vehicles or machinery, or the failure to do so with due care. It follows that the argument advanced by the appellees in this case analogizing to a business' duty to inspect its own property or machinery is not applicable.
Finally, in Davis v. United States, 395 F.Supp. 793 (D.Neb.1975), aff'd per curiam, 536 F.2d 758 (8th Cir. 1976), which, like Blessing, involved an OSHA inspection, the court stated: "Unless the law of Nebraska [the state in question] would declare liability — including a duty — upon a private person in the same circumstances, no jurisdiction lies in this court." Id. at 795. See also Maffei v. Nieves-Reta, 412 F.Supp. 43, 44 (S.D.Cal.1976) ("proceeding under the Federal Tort Claims Act, the duty inquiry concerns the legal responsibilities imposed by state law upon its private citizens"), aff'd mem., 549 F.2d 807 (9th Cir. 1977).
An important policy underlies these holdings that a federal statutory duty does not automatically give rise to a duty of care to which a state's negligence per se doctrine would be applied. The government undertakes conduct in a variety of ways. Much of it, e.g., delivery persons driving trucks, is exactly what private corporations and persons ordinarily do. In other activities, however, such as inspecting privately owned aircraft, the government performs what may be called "good samaritan" functions. Although such functions are carried out pursuant to statute or to regulations, they do not arise from a primary duty to provide the service in question. Thus, not only would there be no potential liability if government declined to provide such services at all, but the government does not purport to relieve other actors of the primary duty to see that the underlying activity is accomplished safely or consistently with some other important public policy. If such undertakings automatically created a cause of action for negligent performance, the government might be less inclined to assume such tasks in the future. See Clemente v. United States, 567 F.2d 1140, 1150-51 (1st Cir. 1977); Blessing v. United States, supra, 447 F.Supp. at 1199-1200.
Nevertheless, we also agree with the conclusion reached in Blessing v. United States, supra, that negligent performance of a federal statutory duty may give rise to a claim under the Act in circumstances in which applicable state law recognizes a private cause of action. Thus, we do not agree with Davis v. United States, supra, to the extent that that case may be read to preclude liability when a "government inspector for undertaking the inspection is the duty to do so under federal law." 395 F.Supp. at 797. The reason for undertaking the inspection is not important. While the existence of a federal statutory duty as the reason for undertaking the action will not automatically create liability, neither will
In Indian Towing Co. v. United States, supra, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, the Supreme Court suggested the proper basis for liability in tort for these kinds of governmental activities. In that case, the Court ruled that the government could be held liable for its negligent operation of a lighthouse pursuant to the so-called "good samaritan" doctrine. As the Court stated, "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, 76 S.Ct. at 124 (emphasis added).
The Indian Towing rule is perhaps best illustrated in those cases in which federal courts have found no basis for liability on the facts presented. For example, in Clemente v. United States, supra, 567 F.2d 1140, the First Circuit considered the possibility of basing governmental liability on the failure of FAA employees to warn flight passengers of certain dangers as required by an order of an FAA regional director. Having observed that "[t]he agency, in issuing the order, was acting entirely gratuitously and was under no obligation or duty to . . . [the] passengers," 567 F.2d at 1144,
Id. at 1145. Finding that the failure to warn had not increased the risk, and that there was no evidence of public reliance on the order of the regional director, the court found that there was no basis for liability. Id.
Similarly, in Thompson v. United States, supra, 592 F.2d 1104, we emphasized that
Blessing v. United States, supra, 447 F.Supp. 1160, also found that plaintiffs had failed to allege facts sufficient to state a cause of action under the good samaritan doctrine of the Restatement or applicable state law. In Blessing, injured employees had sued under the Act based on alleged negligent inspections of the premises of a private employer by OSHA inspectors. The court found that the plaintiffs failed to allege the necessary elements of increased risk of harm or reasonable reliance sufficient to allow the case to go to trial. Id. at 1196-99. The court pointed out that these requirements
447 F.Supp. at 1199. Even so, the court found that it had tentative jurisdiction under the Act and granted plaintiffs a 60-day period of discovery to develop evidence that might enable them to state a cause of action. Id. at 1200. See also Toppi v. United States, 327 F.Supp. 1277, 1279 (E.D.Pa.1971) (plaintiff could make out a claim by establishing "that the government in fact undertook inspection, that such undertaking was negligently performed, and that plaintiff reasonably relied on such inspection thereby causing his injuries").
We thus hold that in the absence of a demonstration that the applicable state law requirements of the good samaritan doctrine are satisfied in any given case, the government may not be held liable pursuant to the Act for negligence in inspection of private activities or property, although federal statutes or regulations direct that government employees undertake the inspection activity.
There are two general conceptualizations of the elements required by good samaritan doctrine. Some courts apparently view these elements as a necessary prerequisite to a finding of any duty at all. See, e. g., Clemente v. United States, supra, 567 F.2d at 1149. Other courts have chosen to view the undertaking itself as creating the "duty," and these elements as being necessary for a finding of proximate or legal causation. See Blessing v. United States, supra, 447 F.Supp. at 1193 & n.51, 1200 (applying Pennsylvania law). Pursuant to the mandate of the Act, a federal court must view the doctrine according to the state law which governs the particular case
The requirement of reliance or some other good samaritan prerequisite element is supported by cases involving an analogous governmental activity. In a number of instances we have found air traffic controllers liable for negligence in giving or failing to give warnings to pilots. In doing so, we, like other courts, have based our evaluation of the controllers' conduct upon relevant regulations and air traffic control manuals. See, e. g., Spaulding v. United States, 455 F.2d 222, 226 (9th Cir. 1972); Gill v. United States, 429 F.2d 1072, 1075 (5th Cir. 1970); Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 234-35 (2d Cir.), cert. denied, 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967).
In Gill, the Fifth Circuit stated that "federal regulations may impose duties and standards of conduct upon . . . actors" pursuant to the Act, 429 F.2d at 1075, and continued:
Id. (citations omitted). We indicated in Spaulding, which cited Gill, that the duty resting on the manuals arises because of expected pilot reliance, in the air traffic control situation, on published explanations of controller functions.
455 F.2d at 226 (footnotes omitted).
In a lengthy analysis, Clemente v. United States, supra, demonstrated that although "one could generalize from the air controller's duties to the responsibilities of FAA inspectors, both history and policy establish that the differences between the two are extensive and require different legal consequences." 567 F.2d at 1147 (footnote omitted). Observing that "[t]he role of control tower operators existed prior to any attempt by the federal government to regulate them," id.,
We recognize that other cases apparently have found governmental liability without considering state law beyond applying negligence per se tort doctrine.
We have concluded that, pursuant to the Act, courts may not determine governmental liability without considering the liability of a private person in "like circumstances" pursuant to relevant state law. Although the pretrial conference order in this case demonstrates possible recognition of this fact, the district court's findings of fact and conclusions of law omit any reference to state law. Moreover, in response to the government's argument in its opening brief, that the appellees had not cited the district court to any state law on liability, the appellees apparently conceded this charge, responding in the following general terms:
Appellees' assumption is not necessarily correct. See Mosley v. United States, 456 F.Supp. 671, 675 (E.D.Tenn.1978) (including that Tennessee has not adopted the good samaritan rule). More importantly, in this case, neither reliance nor any other of the good samaritan doctrine's usual prerequisite elements was asserted in the appellees' complaint, nor found or discussed by the district judge in his findings of fact and conclusions of law. We cannot uphold the judgment of the district court on the basis of nonexistent allegations or findings. The district judge found the government liable to the plaintiffs without ensuring that all elements of a cause of action pursuant to relevant state law have been met. The case, therefore, must be remanded to the district court for further proceedings consistent with this opinion.
On remand, the district judge may well need to determine which state's substantive law applies, whether that state has adopted or would apply any form of good samaritan rule, and, if so, whether the appellees' case satisfies the rule, as formulated by that state. Should state law preclude liability against a private person who undertakes an inspection on behalf of others, or if the court finds that the government's activity here would not allow a finding that a duty
REVERSED AND REMANDED.
One case which adopted this "federal duty" approach illustrates the importance of distinguishing between the possibility of a federally-based actionable duty and the use of federal regulations as proof of negligent conduct. In Betesh v. United States, 400 F.Supp. 238, (D.D.C.1974), the court held that a federal regulation directing Selective Service examining physicians to advise rejected examinees who need medical attention to seek advice from a doctor could be the basis for liability under the Act. The court found that under applicable state law, "a Federal regulation presumptively establishes a standard of care" and "establishes a presumption of breach of duty." Id. at 243. In response to the argument that no analogous private liability could exist here because no private doctors were subject to the regulation, the court reasoned that although government liability is limited to "like circumstances" as private liability, this does not require that "every aspect of a cause of action be identical to an action between private parties." Id. at 244. Thus, courts could properly take into account aspects that are unique to governmental functions, such as governmental regulations. Id. The court went on, however, to demonstrate that applicable state law had found medical malpractice liability in circumstances in which private physicians had examined prospective employees for the benefit of an employer. Id. at 246. In our view, the court's analysis should have been reversed. Once the court had found an actionable duty under state law, the federal regulation may well have provided relevant evidence as to what conduct would be reasonable under all the circumstances. We, therefore, disagree with the court's analysis to the extent that it would lead to governmental liability although a private person could not be held liable under similar circumstances. We agree with the cases holding that the existence of a federal statute or regulations which implement government activity cannot, alone, create such a duty in the government for purposes of the Act.
United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), does not require a different analysis or result. In Muniz, the Supreme Court considered the possibility that state law cases holding state governments immune from liability for negligent care or protection of prisoners would also bar federal government liability under the Act. In rejecting this approach, the Court focused on the Act's purpose of waiving federal sovereign immunity and concluded that a local rule based on sovereign immunity policies should not be applied: "Just as we refused to import the `casuistries of municipal liability for torts' in Indian Towing, so we think it improper to limit suits by federal prisoners because of restrictive state rules of immunity." Id. at 164, 83 S.Ct. at 1859. Having already found that appropriate state negligence law would be applied to prisoners' claims, consistent with the nature of the claim and the activity which produced it, id. at 160-61, 83 S.Ct. 1850, the Court, nevertheless, added at this point that "the duty of care owed by the Bureau of Prisons to federal prisoners is fixed by 18 U.S.C. § 4042, independent of an inconsistent state rule." Id. at 164-65, 83 S.Ct. at 1859. We believe that this statement should be read as finding a duty inhering in the nature of the custodial relationship, which is established in part by the federal statute and in part by the activity itself. Under this interpretation, the duty stems from state tort law rather than directly from the statute. This reading alone can reconcile the statement with the Court's earlier recognition that "[w]hether a claim could be made out would depend upon whether a private individual under like circumstances would be liable under state law." Id. at 153, 83 S.Ct. at 1853. See also id. at 165 n.27, 83 S.Ct. 1850.
Thus, while a prisoner's remedy for a breach of the duties prescribed by section 4042 is an action brought pursuant to the Act, Williams v. United States, 405 F.2d 951, 954 (9th Cir. 1969), such actions still require us to discover whether a private individual responsible for the care and protection of another individual would be liable pursuant to state law in the circumstances of the particular case. This analysis, of course, is analogous to our holding here that the district court must look to state law to determine whether or not an individual who undertakes to inspect another's property could be held liable under the circumstances of this case.