                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2329
                                    ___________
                                          *
Lee A. Barnes, Jr.,                       *
                                          *
             Appellant,                   * Appeal from the United States
                                          * District Court for the
      v.                                  * Western District of Missouri.
                                          *
United States of America,                 *
                                          *
             Appellee.                    *
                                    ___________

                              Submitted: January 13, 2006
                                 Filed: May 30, 2006
                                  ___________

Before WOLLMAN, LAY, and ARNOLD, Circuit Judges.
                          ___________

ARNOLD, Circuit Judge.

      Lee Barnes appeals the dismissal by the district court1 of his action filed under
the Federal Tort Claims Act (FTCA), see 28 U.S.C. §§ 1346, 2671-2680. We affirm.

      Mr. Barnes owned and operated Gammon Brothers Poultry, a business that
processed and packaged chickens in Missouri. Under the Poultry Products Inspection
Act, 21 U.S.C. §§ 451-471, Gammon Brothers was subject to inspections by the Food
Safety and Inspection Service (FSIS), an agency of the Department of Agriculture.

      1
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
Mr. Barnes brought this FTCA action against the United States. He claimed that the
FSIS negligently inspected Gammon Brothers, issued vague and misleading
noncompliance notices, failed to provide him with technical assistance, and subjected
the company to unnecessary periodic shut-downs, eventually causing him to go out
of business.

       The government moved to dismiss Mr. Barnes's complaint for lack of subject
matter jurisdiction. Federal courts generally lack jurisdiction to hear claims against
the United States because of sovereign immunity. The court may hear the case,
however, if the plaintiff shows that the government has unequivocally waived that
immunity. Cf. V S Ltd. P'ship v. HUD, 235 F.3d 1109, 1112 (8th Cir. 2000). The
FTCA waives the government's immunity in certain tort suits by providing that the
"United States shall be liable [for torts] ... in the same manner and to the same extent
as a private individual under like circumstances." 28 U.S.C. § 2674. This provision
is sometimes called the "private analogue" requirement. The district court granted the
government's motion to dismiss, holding that there is no private analogue of the
present action under Missouri law.

       The determination of whether a private analogue exists is made in accordance
with the law of the place where the relevant act or omission occurred. 28 U.S.C.
§ 1346(b)(1). Relying on Scottsdale Ins. Co. v. Ratliff, 927 S.W.2d 531 (Mo. Ct. App.
1996), Mr. Barnes contends that his FTCA action may proceed because Missouri law
recognizes a cause of action for negligent inspection and negligent advice. But for a
defendant to be liable under those theories, it must have first owed the plaintiff a duty
under Missouri law to inspect and to advise, and Missouri law imposed no such duty
on the FSIS. Although the FSIS is required to follow the inspection standards
established by its administrator, 9 C.F.R. § 381.4, this duty is imposed by the federal
government, not by the state.




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       Mr. Barnes maintains that the government is nevertheless liable under
Missouri's "good Samaritan" rule, a principle under which one who " 'undertakes ...
to render services to another' " may sometimes be held liable for a failure to exercise
reasonable care in doing so. Stanturf v. Sipes, 447 S.W.2d 558, 561-62 (Mo. 1969)
(per curiam) (quoting Restatement (Second) of Torts, § 323). He relies on Indian
Towing Co. v. United States, 350 U.S. 61, 61-62 (1955), in which the plaintiff brought
an action under the FTCA, contending that its tugboat ran aground because the Coast
Guard failed to maintain a lighthouse. The United States sought dismissal for lack of
subject matter jurisdiction; because no private person operated lighthouses, the
government argued that there was no private analogue of the government's conduct.
The district court granted the motion, and the Fifth Circuit affirmed, Indian Towing
Co. v. United States, 211 F.2d 886, 886 (5th Cir. 1954) (per curiam).

       The Supreme Court reversed the dismissal in Indian Towing, holding that the
FTCA's waiver of sovereign immunity did not turn on whether its conduct was
uniquely governmental in nature. Instead, the question was whether a private person
in like circumstances could be liable to Indian Towing. The Court found that such a
person could be liable under the "good Samaritan" law: By erecting and operating the
lighthouse, the Coast Guard had sought to protect mariners and their cargo. The tug
operators, in turn, had come to rely on that protection. The Court observed that "under
hornbook tort law ... one who undertakes to warn the public of danger and thereby
induces reliance must perform his 'good Samaritan' task in a careful manner." Indian
Towing, 350 U.S. at 64-65; see also Appley Brothers v. United States, 164 F.3d 1164,
1173-74 (8th Cir. 1999).

       Mr. Barnes is therefore eminently correct in relying on Indian Towing to show
that the United States is not immune from suits under the FTCA merely because it was
undertaking a uniquely governmental function. But as the Court recently restated in
United States v. Olson, 126 S. Ct. 510, 513 (2005), the relevant question is whether
the government's conduct was such that a private individual under like circumstances

                                         -3-
would be liable under state law. Here a private individual in the position of the FSIS
could not be liable to Mr. Barnes under Missouri's good Samaritan rule. That rule
requires that the defendant voluntarily " 'undertake[] ... to render services to' " the
plaintiff. Stanturf, 447 S.W.2d at 561 (quoting Restatement (Second) of Torts, § 323).
In other words, the good Samaritan rule comes into play only where the plaintiff is the
intended beneficiary of the defendant's action. But the FSIS conducts inspections to
ensure that the poultry sold to the public is sanitary, not to benefit chicken-processing
plants or their owners. For that reason the federal government violated no state-law
duty owed to Mr. Barnes that would permit a suit under the FTCA.

      We therefore affirm the order of the district court.
                      ______________________________




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