                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11–1342


DELORICE BRAGG, as Administratrix of the Estate of; DON
ISRAEL BRAGG; FREDA HATFIELD, as Administratrix of the
Estate of; ELLERY HATFIELD,

                Plaintiffs - Appellants,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:10–cv–00683)


Argued:   May 17, 2012                     Decided:   June 11, 2013


Before AGEE, DAVIS, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED:   Bruce  E.   Stanley,  REED   SMITH,  LLP,   Pittsburgh,
Pennsylvania, for Appellants.    Benjamin Seth Kingsley, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Colin E. Wrabley, Alicia M. Schmitt, Lucas Liben, REED
SMITH, LLP, Pittsburgh, Pennsylvania, for Appellants.        Tony
West, Assistant Attorney General, Mark B. Stern, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; R. Booth Goodwin II,
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       As    representatives       of    the    estates    of    two    deceased      coal

miners, Appellants brought this negligence and wrongful death

action against the United States of America under the Federal

Tort     Claims       Act   (“FTCA”).          Appellants        alleged       that   the

negligence of the Mine Safety and Health Administration in its

safety      inspections      of    the   Aracoma    Coal    Company’s      Alma       Mine

contributed to a fire that resulted in the death of the miners.

       The FTCA waives the United States’ sovereign immunity for

torts committed by federal employees acting within the scope of

their 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)(1).

       The district court dismissed Appellants’ action because, in

its view, under West Virginia law, a private person under like

circumstances to those alleged against the United States would

not be liable in a negligence action for the wrongful death of

the miners.

       This Court, recognizing that Appellants’ challenge of the

district court’s decision turned on a question of West Virginia

state law, certified the following question to the Supreme Court

of     Appeals        of    West    Virginia       pursuant       to     the     Uniform




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Certification of Questions of Law Act, W. Va. Code § 51–1A-1 et

seq.:

       Whether a private party conducting inspections of a
       mine and mine operator for compliance with mine safety
       regulations is liable for the wrongful death of a
       miner resulting from the private party’s negligent
       inspection?

Bragg v. United States, 488 F. App’x 672, 673 (4th Cir. 2012).

       The Supreme Court of Appeals of West Virginia unambiguously

answered our question in the affirmative.                                 That court stated

that factors including “the likelihood of injury, the magnitude

of the burden of guarding against it, and the consequences of

placing that burden” on a defendant “weigh in favor of finding

that a safety inspector owes a duty of care to the employees

whose safety the inspection is intended to secure.”                                     Bragg v.

United States, __ S.E.2d __, 2013 WL 490776, at *10 (W. Va. Feb.

5, 2013) (quotation marks omitted).                             The court plainly “h[e]ld

that a private inspector who inspects a work premises for the

purpose of furthering the safety of employees who work on said

premises     owes    a     duty   of       care       to   those    employees      to    conduct

inspections         with      ordinary            skill,          care,     and         diligence

commensurate        with    that       rendered            by   members    of     his    or   her

profession.”        Id.

       In light of this helpful state law guidance, it is now

clear that the district court’s dismissal of the Appellants’

suit    on   the    basis    that      a    private         person    under     circumstances


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analogous to those alleged against the United States would not

be liable under state law was erroneous.    For this reason, we

vacate the district court’s dismissal of Appellants’ complaint

and remand the matter for further proceedings.

                                             VACATED AND REMANDED




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