Full opinion text
MEMORANDUM DECISION McAULIFFE, District Judge. Plaintiff, Gail Merchant Irving, sues defendant, the United States, under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, seeking damages for serious injuries she suffered in a workplace accident. On October 10, 1979, Irving’s hair became caught in the unguarded rotating drive shaft of a die-out machine located near her work station at Somersworth Shoe Company. Regulations promulgated by the Occupational Safety and Health Administration (“OSHA”) required that the rotating shaft be guarded. Before the accident, in 1975 and again in 1978, OSHA compliance officers inspected the Somersworth Shoe facility for the purpose of ensuring compliance with OSHA safety standards, but in neither inspection was the unguarded drive shaft identified or cited as violating OSHA standards. Irving claims in her sole cause of action that the OSHA compliance officers breached their duty under New Hampshire’s common law “Good Samaritan” doctrine to conduct the pre-accident inspections in a non-negligent manner. She also alleges that their failure to identify and cite the unguarded drive shaft as a violation of OSHA standards caused or contributed to cause her injuries. Irving’s claim against the United States was tried to the court. PROCEDURAL HISTORY Because the procedural history of this case is unusual, a brief survey of Irving v. United States is necessary to put the issues in proper context. As mentioned, Gail Irving was severely injured in a workplace accident on October 10, 1979. Seeking to hold the United States liable for her injuries, she filed a timely administrative, claim for damages with the appropriate federal agency, the United States Department of Labor. See 28 U.S.C. § 2675(a). Her claim was denied and, on October 7, 1981, she filed suit in this court. See id. A bench trial on the merits began on February 11, and concluded on February 14, 1985. Following trial, the court took the matter under advisement and, on January 27, 1988, dismissed Irving’s suit without reaching the merits. The court determined that the discretionary function exception to the FTCA applied to OSHA inspections and, because the United States retained its sovereign immunity from suit involving such matters, the court was without subject matter jurisdiction over Irving’s sole cause of action. Irving v. United States, No. C81-501-D, slip op. (D.N.H. Jan. 27, 1988) (Devine, C.J.). Irving appealed. Shortly after the district court’s dismissal order, but before the appeal was resolved, the United States Supreme Court decided Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). The Berkovitz decision clarified the law concerning the FTCA’s discretionary function exception as it pertains to governmental regulatory activities. Accordingly, the First Circuit vacated the district court’s dismissal of Irving’s complaint and remanded the ease for further consideration in light of the new standards established in Berkovitz. Irving v. United States, 867 F.2d 606 (1st Cir.1988) (unpublished order). Responding to the First Circuit’s mandate, the district court analyzed Irving’s claim in light of a then-recent post -Berkovitz OSHA case in which the Court of Appeals for the Fifth Circuit found the discretionary function exception applicable. Irving v. United States, No. C81-501-D, slip op. at 3 (D.N.H. Feb. 14, 1989) (Devine, C.J.) (citing Galvin v. OSHA 860 F.2d 181 (5th Cir.1988)). The trial court again dismissed Irving’s suit, holding that it remained barred by the discretionary function exception. Id. at 4-5. Irving again appealed, and the First Circuit again remanded the case, insisting on a case-specific application of Berkovitz. Irving v. United States, 909 F.2d 598, 605 (1st Cir.1990) (“Irving I”). The Court of Appeals directed the district court to make explicit factual findings as to whether “the thoroughness of [OSHA] inspections was ... left up to the individual compliance officers” and whether those compliance officers, had “policy-level discretion to fail to note and tell the employer about the violation which allegedly was the cause of Ms. Irving’s injuries.” Id. (emphasis added). Four years later, the district court issued a memorandum opinion, Irving v.. United States, No. C81-501-SD, slip op., 1994 WL 287750 (D.N.H. June 6, 1994) (Devine, S.J.). Instead of resolving the discretionary function issue, however, the trial court decided the case on its merits, finding that during the 1975 and 1978 OSHA inspections the die-out machine that caused Irving’s injury was positioned “some two feet closer to the wall to its rear.” Id. at WL*3. Therefore, the court determined that the drive shaft actually did comply with OSHA regulations during the earlier inspections because it had been “guarded by location” — “it was then in such location that employees working near it would not be exposed to injury.” Id. at WL*3. And, because the drive shaft for the die-out machine was actually guarded by location during the 1975 and 1978 inspections, the court reasoned, OSHA compliance officers were not negligent in failing to identify or cite it as a violation of OSHA safety standards. Accordingly, judgment was again entered for the government, although this time on the merits. Irving appealed for a third time, arguing, inter alia, that the district court’s guarded-by-location finding was clearly erroneous and unsupported by the evidence. The government countered that the record supported the guarded by location finding and again argued that the discretionary function exception to the FTCA barred Irving’s suit in any event. Once again, the Court of Appeals found for Irving. Irving v. United States, 49 F.3d 830 (1st Cir.1995) (“Irving II”). Addressing the government’s renewed discretionary function argument first, the court of appeals reiterated its holding in Irving I: [T]he applicability of the discretionary function exception [cannot] be decided without findings as to whether OSHA policy left the thoroughness of inspections a matter of choice for individual inspectors, and whether the inspectors had policy-level discretion to fail to note and tell the employer about the violation which allegedly caused plaintiffs injuries. Irving II, 49 F.3d at 834 (citing Irving I, 909 F.2d at 605) (emphasis added). The Court of Appeals set aside the district court’s finding that the rotating shaft of the die-out machine was guarded by location during the 1975 and 1978 inspections, id. at 836, vacated the judgment of the district court, and granted Irving’s request for a trial de novo before a different district court judge, committing to the discretion of the new trial judge whether to proceed solely on the record of the 1985 trial. Id. at 837. Consistent with the First Circuit’s mandate, and with the express approval of the parties, this court proceeded on the trial record, supplemented by counsels’ oral argument on November 21, 1995. The court earlier denied the government’s motion to dismiss, rejecting an argument that the misrepresentation exception to the FTCA deprived the court of subject matter jurisdiction over Irving’s cause of action. Irving v. United States, No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.). In addition, the court denied Irving’s motion to increase her ad damnum to an amount in excess of the $1,000,000 she sought in her initial administrative claim in 1980. Irving v. United States, No. C81-501-M (D.N.H. March 13, 1996) (McAuliffe, J.). With all motions now disposed of, the court decides the ease on the merits in light of all the evidence introduced at trial and the arguments advanced by the parties, both orally and in their written submissions. FINDINGS OF FACT AND CONCLUSIONS OF LAW As the procedural history of this case indicates, the parties’ legal sparring over the last fifteen years has focused on two issues. First, the parties dispute whether the discretionary function exception to the FTCA preserves the government’s sovereign immunity and deprives this court of subject matter jurisdiction over Irving’s cause of action. Second, the parties dispute whether the machine on which Irving was injured was, in fact, guarded by location during the 1975 and 1978 OSHA inspections. Each issue is, by itself, potentially dispositive of Irving’s suit. Because the discretionary function question implicates the court’s subject matter jurisdiction, it would normally be addressed first. However, as Irving I and Irving II make clear, an acceptable answer to the discretionary function question depends on several, quite specific, findings of fact. Therefore, the court will first explain its factual findings related to Irving’s accident and the OSHA inspections, including the location of the die-out machine during the 1975 and 1978 inspections. Then, based on the facts found, the court will explain why the discretionary function exception does not apply here, and, finally, the court will resolve the case on its merits. I. FACTUAL BACKGROUND In October of 1979, Gail Merchant Irving was working at the Somersworth Shoe Company plant in Somersworth, New Hampshire. Although Irving had worked in different shoe factories, including Somersworth Shoe, on and off for about four years (Irving, 2/11/85, p. 4), at the time of the accident she had been steadily employed at Somersworth Shoe only since mid-September, 1979. (Irving, 2/11/85, p. 6.) A. Physical Layout of the Accident Scene in October, 1979 On October 10,1979, Irving was at work in the stock fitting room of Somersworth Shoe operating, a “marker” machine used to stamp the inner soles of shoes. The'marker was a manually operated machine attached to a workbench; it did not have an electric power source. (Irving, 2/11/85, p. 8, 67; Rothwell, 2/12/85, p. 5.) Attached to the east end of the same workbench was a die-out machine. (Ex. 6, Floor Plan; Rothwell, 2/12/85, p. 4-5; Perron, 2/11/85, p. 111.) Unlike the marker, the die-out machine was powered by a four- or five-horsepower electric motor. (Irving, 2/11/85, p. 67; Roth-well, 2/12/85, p. 5-6; Paul, 2/14/85, p. 36.) The motor was bolted to the concrete floor, directly beneath the west end of the workbench. It was connected to the die-out machine by means of a drive shaft which ran underneath the workbench. (Ex. 1, Photo of Bench Assembly; Ex. 14B, Photos 1-5.) The drive shaft ran horizontally (west to east), approximately 14 inches above the floor and was located approximately 16 inches inside (south of) the rear (north) edge of the workbench. When the motor was running, the horizontal drive shaft rotated at high, speed. (O’Connell, 2/12/85, p. 35.) The eastern-most edge of the workbench abutted the east wall of the stock fitting room, (Rothwell, 2/12/85, p. 13; O’Connell, 2/13/85, p. 18; 2/14/85, p. 45), while the western-most edge of the workbench was on a main aisle. (Ex. 6, Floor Plan; Ex. 14B, Photo 2; Rothwell, 2/12/85, p. 4-5.) Approximately 21/ to 3 feet behind (north of) the workbench was a die rack. The die rack was approximately the same length as the workbench and also extended from the east wall of the stock fitting room to the aisle. (Ex. 6, Floor Plan; Ex. 14B, Photos 2, 14, 17; O’Connell, 2/13/85, p. 34.) Stored in the die rack were patterns, dies, and ink ribbons for use on the marker and die-out machines. (Irving, 2/11/85, p. 12; O’Connell, 2/13/85, p. 42.) From time to time, Somersworth Shoe employees working on the marker were required to change the ribbon and/or the pattern on the machine. (Irving, 2/11/85, p. 8.) In order- to retrieve patterns and ribbons from the die rack, it was necessary for the marker operator to enter the 21/ to 3 foot-wide aisle between the rear edge of the workbench and the die rack. (Ex. 6, Floor Plan; Ex. 14B, Photos 16, 17; O’Connell, 2/13/85, p. 42.) Employees also used this aisle to reach the power switch for the motor that ran the die-out machine. Because the switch was mounted on the east wall of the stock fitting room between the bench assembly and the die rack, the aisle between the workbench and the die rack provided the only access to the power switch. (Ex. 14B, Photos. 13, 14; O’Connell, 2/13/85, p. 19.) B. The Accident On the afternoon of October 10, 1979, Irving needed to change the pattern and the ink ribbon on the marker machine. She picked up a pair of latex gloves that marker operators used to avoid getting ink on their hands when changing the ribbon and walked around the back of the bench assembly to retrieve a new pattern and ribbon from the die rack. While standing in the aisle between the workbench and the die rack, Irving inadvertently dropped one of her gloves. (Irving, 2/11/85, p. 12.) When Irving bent over and reached down to retrieve the glove from the floor, her hair was drawn toward the drive shaft underneath the bench by the vacuum the shaft created as it rotated at high speed. Irving’s hair became entangled in the shaft, and the force of the shaft’s rotation wrenched her entire body down toward the floor and pulled her head into contact with the shaft, tearing her scalp from her skull and rendering her unconscious. (Gosselin, 2/11/85, p. 91; Wayne Irving, 2/11/85, p. 99-100; Rothwell, 2/12/85, p. 7-8.) As Irving’s body lay over the drive shaft, with her hair still caught, the motor that powered the die-out machine continued to run. (Rothwell, 2/12/85, p. 7; Gosselin, 2/11/85, p. 90.) Two of Gail Irving’s co-workers, Joan Gosselin and Wayne Irving, extricated her from the drive shaft by turning off the motor and cutting her hair free. (Gosselin, 2/11/85, p. 85; Wayne Irving, 2/11/85, p. 99.) An ambulance crew arrived a short time later and took Irving to Wentworth-Douglass Hospital. She was later transferred to Maine Medical Center, where she was treated for severe neurological damage. (Wayne Irving, 2/11/85, p. 101-103; Ex. 23, Videotaped Testimony of Dr. McCann.) C. Post-Accident OSHA Inspection On October 16, 1979, OSHA conducted a post-accident inspection of Somersworth Shoe, before any material changes were made to the bench assembly. (Amirault, 2/12/85, p. 26.) During the post-accident inspection, senior safety engineer Paul O’Con-nell examined the marker/die-out bench assembly on which Irving was injured, taking measurements and photographs. (O’Connell, 2/12/85, p. 157; Ex. 14B, Photographs of Bench Assembly.) O’Connell found the bench assembly to be in violation of three separate but related OSHA safety standards. (Ex. 10, Citation and Notification of Penalty at 1.) First, the bench assembly was in violation of an OSHA regulation that states, “Shafting 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.” 29 C.F.R. § 1910.219(c)(2)(ii) (1995). O’Connell found that the horizontal drive shaft that delivered power to the die-out machine was not guarded in any fashion, He then classified the 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. § 666(k); (O’Connell, 2/12/85, p. 159.) Indeed, the violation was so severe, and the unguarded shaft,so dangerous, that O’Connell gave the violation a “severity value” of eight, the highest severity value used by OSHA at that time. (O’Con-nell, 2/12/85, p. 189; Ex. 10, OSHA Worksheet at 2.) In addition to the unguarded horizontal shaft, O’Connell found two other violations of OSHA standards. Specifically, the pulley and drive belt on the electric motor that supplied power to the shaft were also unguarded in violation of 29 C.F.R. §§ 1910.219(d)(1) and 1910.219(e)(3)(i). These violations, too, were deemed “serious” in nature. (Ex. 10, Citation and Notification of Penalty at 1.) On October 23, 1979, OSHA fined Somersworth Shoe a total of $1800 for the three violations and ordered the company to abate the violations by November 10,1979. The fine was later reduced to $1440. (Ex. 10, Penalty Modification at 1.) D. Pre-Accident OSHA Inspections OSHA compliance officers had also inspected the Somersworth Shoe facility on at least two occasions prior to Irving’s accident. Compliance officer William Chase III inspected the plant on June 26,1975 (the “1975 inspection”), and compliance officer John Rit-chie inspected the plant on April 6, 1978 (the “1978 inspection”). In order to fully understand the significance of the 1975 and 1978 inspections, it is important, first, to review the regulatory framework within which they were conducted. 1. OSHA Regulatory Framework In passing the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (thé “Act”), Congress sought to improve workplace safety by authorizing the Secretary of Labor to develop and promulgate mandatory occupational safety and health standards. 29 U.S.C. §§ 651(b)(3) & (b)(9). Employers and employees are of course duty bound to comply with all safety and health standards promulgated under the Act. 29 U.S.C. § 654. Nonetheless, in order to enforce compliance with those standards, the Secretary of Labor is authorized to “enter without delay and at reasonable times any ... workplace or environment where work is performed by an employee of an employer” and to “inspect and investigate during regular working hours and at other reasonable times ... any such place of employment and all pertinent conditions ... therein.” 29 U.S.C. § 657(a)(1) & (a)(2). Regulations promulgated pursuant to 29 U.S.C. § 655 give OSHA Area Directors and compliance officers the authority to- decide when and where workplace inspections will take place. 29 C.F.R. § 1903.7(a); Irving I, 909 F.2d at 603. In addition, OSHA regulations grant individual compliance officers significant control over the manner in which particular inspections are performed. Irving I, 909 F.2d at 603 (“[F]ormal regulations ... give the individual compliance officers discretion to decide how to conduct the inspections.”); see also 29 C.F.R. § 1903.7(b) & (d) (compliance officers may employ any “reasonable investigative techniques” as long as they do not amount to “unreasonable disruption of the operations of the employer’s establishment”). OSHA routinely conducts inspections in response to workplace accidents, employee complaints, and as part of its “programmed” enforcement efforts. (Amirault, 2/12/85, p. 26-27.) After inspecting a workplace, the compliance officer is required to informally advise the employer of any apparent safety violations disclosed by the inspection. Irving I, 909 F.2d at 604; 29 C.F.R. § 1903.7(e). The compliance officer then prepares an inspection report describing all of the violations he or she observed. See 29 C.F.R. § 1903.14(a); (Amirault, 2/12/85, p. 57.) The compliance officer’s superior, the Area Director, then reviews the inspection report. “If, on the basis of the report the Area Director believes that the employer has violated a [health or safety standard] ..., he shall issue to the employer either a citation or a notice of de minimis violations.... ” 29 C.F.R. § 1903.14(a). There are three levels of OSHA violations, categorized according to the level of risk they pose to employees. At one end of the spectrum are “de minimis” violations — violations of OSHA standards that have “no direct or immediate relationship to safety or health;” a de minimis violation cannot be the basis of a citation or monetary penalty. 29 U.S.C. § 658(a); 29 C.F.R. § 1903.14(a). At the other end of the spectrum are “serious” violations, which exist “if there is a substantial probability that death or serious physical harm could result from” the violative condition. 29 U.S.C. § 666(k). Any violations deemed neither de minimis nor serious in nature fall in the middle, and are designated as “non-serious” violations. -29 U.S.C. § 666(c); Hackney, Inc. v. McLaughlin, 895 F.2d 1298, 1299 n. 1 (10th Cir.1990). The OSHA Area Director “shall” issue a citation for a serious or non-serious violation, “shall” assess a civil penalty of up to $1,000 for each serious violation, and “may” assess a civil penalty of up to $1000 for each non-serious violation. 29 C.F.R. § 1903.14(a); 29 U.S.C. §§ 658, 666(b) & (c). In addition to subjecting the employer to citation and possible monetary penalty, conditions that constitute serious or non-serious violations of OSHA safety standards must be abated by the employer within the time period fixed by the Area Director. 29 C.F.R. § 1903.14(b). 2. OSHA Policy Governing the 1975 & 1978 Inspections While the Act and OSHA regulations generally leave many decisions regarding inspections in the hands of Area Directors and compliance officers, the scope of the Somers-worth Shoe inspections William Chase and John Ritchie performed in 1975 and 1978 was dictated by less formal, but no less binding, OSHA policy. Francis Richard Amirault, the Area Director for whom both Chase and Ritchie worked, testified extensively and with obvious candor as to what was required of the two compliance officers during their inspections of Somersworth Shoe. In addition, Chase and Ritchie testified about their own understandings of their inspection duties. Chase and Ritchie were both instructed to perform “wall-to-wall” inspections of the Somersworth Shoe facility. (Amirault, 2/12/85, p. 27; Chase, 2/12/85, p. 102; Ritchie, 2/12/85, p. 147.) In conducting wall-to-wall inspections of the plant, both compliance officers were “charged to look at the entire plant,” (Amirault, 2/12/85, p. 51), and “required” to perform a “complete inspection of the facility.” (Chase, 2/12/85, p. 138; see also Amirault, 2/12/85, p. 28; Ritchie, 2/12/85, p. 147.) As the First Circuit noted, the compliance officers “could not choose simply to spot check certain areas.” Irving I, 909 F.2d at 604. Indeed, OSHA policy dictated the thoroughness required of the 1975 and 1978 inspections to an even greater degree. Chase and Ritchie had to do more than merely walk through each room of the Somersworth Shoe plant. Rather, OSHA policy required them to “observe any place where an employee work[ed].” (Amirault, 2/12/85, p. 30, 55.) Toward that end, compliance officers had to “look at every operation” in the facility. (Amirault, 2/12/85, p. 30.) Thus, they had no choice but to inspect every operational machine and work station in the plant. As noted earlier, OSHA regulations required the Area Director to review the compliance officers’ inspection reports for the purpose of categorizing violations and issuing notices and citations. In order to make the Area Director’s review meaningful, OSHA policy required Chase and Ritchie to document or record all of the violations they observed as they conducted their inspections, whether those violations appeared to them to be de minimis, serious, or non-serious in nature. (Amirault, 2/12/85, p. 55, 57.) As Area Director Amirault stated, Chase and Ritchie were required to “document any hazardous conditions that they would see.” (Amirault, 2/12/85, p. 28; see also 2/12/85, p. 25, 57-58.) OSHA policy did not, however, require Chase and Ritchie to record nominal violations of applicable regulations if there was no potential employee exposure to the violative condition. In order to constitute even a de minimis violation of OSHA safety standards, a workplace condition must both: (1) fail to satisfy the terms of an applicable safety regulation promulgated by the Secretary of Labor; and (2) be located in a position such that employees could potentially be exposed to it. (Amirault, 2/12/85, p. 58, 94-95.) Because potential exposure is a necessary component of a violation, the OSHA compliance officers were not required to report a condition that nominally violated OSHA regulations but posed no risk of exposure to employees. OSHA policy, then, required Chase and Ritchie to perform wall-to-wall inspections of the Somersworth Shoe plant, which included a requirement that they inspect every operational machine in the facility. In addition, the compliance officers were required to document every violation they observed, whether it appeared to be a de minimis, serious, or non-serious violation of OSHA safety standards. 3. 1975 Inspection On June 26, 1975, OSHA compliance officer William Chase III inspected the Somers-worth Shoe facility. Because Chase was not familiar with the layout of the plant, he relied on a Somersworth Shoe representative to show him every room in which employees worked. (Chase, 2/12/85, p. 124.) Chase was taken into every room in the plant, including the stock fitting room. (Chase 2/12/85, p. 124, 127; Ex. 8, OSHA Compliance Worksheet at 4, item 8.) During the course of his inspection, Chase noticed and documented a total of 39 violations of 9 separate OSHA standards, including 14 power transmission mechanisms left unguarded in contravention of 29 C.F.R. § 1910.219. (Chase, 2/12/85, p. 126,140; Ex. 8, OSHA Proposed Penalty Worksheet at col. 2.) Three of the unguarded power transmission mechanisms were horizontal drive shafts located in the cutting department. (Ex. 8, OSHA Compliance Worksheet at 3, item 6; Chase, 2/12/85, p. 126.) Chase did not, however, notice or document any violative conditions related to the bench assembly on which Irving was later injured. (Chase, 2/12/85, p. 128; Ex. 8, OSHA Compliance Worksheet.) Immediately following his inspection, Chase held a closing conference with Samuel Freedman, then the general manager of Somersworth Shoe. The two men discussed all of the violations Chase found and agreed upon an abatement schedule. (Ex. 8, OSHA Narrative at ¶ 12.) On July 7, 1975, OSHA issued a citation to Somersworth Shoe for nine separate groups of non-serious violations. OSHA did not, however, levy a monetary penalty against Somersworth Shoe for any of the cited violations. The bench assembly on which Irving was later injured was not cited. (Ex. 8, Citation at 1-3.) 4. 1978 Inspection On April 6, 1978, OSHA compliance officer John Ritchie inspected Somersworth Shoe. During the course of his inspection, Ritchie noticed and documented ten separate violations of OSHA safety standards. (Ex. 9, OSHA Worksheet at 1-10.) Three of those violations concerned unguarded drive belts. (Ex. 9, OSHA Worksheet at 7-9; Ritchie, 2/12/85, p. 150.) None of the violations Rit-chie documented was located in the stock fitting room. (Ex. 9, OSHA Worksheet at 1-10.) Ritchie also found that Somersworth Shoe had an inadequate safety training program and no health or safety staff. (Ex. 9, OSHA Narrative at ¶ 15; Ritchie, 2/12/85, p. 150.) As Chase had done three years earlier, Ritchie held a closing conference with Samuel Freedman in which the two men reviewed all of the violations Ritchie found during his inspection. On April 12, 1978, OSHA cited Somersworth Shoe for eight separate groups of violations, including three instances of unguarded drive belts. OSHA did not fine Somersworth Shoe, but ordered all violations abated by May 8,1978. The bench assembly on which Irving was later injured was not cited. (Ex. 9, Citation and Notification of Penalty at 1-2.) E. Chase and Ritchie’s Failure to Note Violation It is the failure of Ritchie and Chase to identify and document the unguarded horizontal drive shaft on the bench assembly, and OSHA’s failure to cite it, that form the basis of Irving’s cause of action. As noted earlier, the decision to cite an employer for a violation of OSHA safety standards is, according to applicable regulations, made by an OSHA Area Director after his or her review of a compliance officer’s inspection report. See 29 C.F.R. § 1903.14(a). The inspection reports of Ritchie and Chase did not in any way reference the drive shaft in question. (See Ex. 8, OSHA Compliance Worksheet, Narrative, Proposed Penalty Worksheet; Ex. 9, OSHA Worksheet, Narrative.) Therefore, the court must determine the reason or reasons why neither compliance officer identified or recorded the drive shaft as being in violation of OSHA safety standards. Both parties agree that the drive shaft was not guarded by a stationary casing or trough as required by 29 C.F.R. § 1910.219(c)(2)(ii) during the 1975 and 1978 inspections. In fact, the evidence overwhelmingly supports the conclusion that the shaft was not guarded by a casing or trough at any time prior to Irving’s accident. (Rothwell, 2/12/85, p. 14-15; Couture, 2/12/85, Supp. at 8-9; Brooks, 2/12/85, Supp. at 18-15.) While the parties agree that the shaft had no guard, the government and Irving concur on few other facts related to the 1975 and 1978 inspections. 1. Guarded by Location In order to hold OSHA liable for her injuries, Irving must first prove that the drive shaft was in violation of OSHA safety standards during one or both of the pre-accident inspections. Although the government concedes that the horizontal drive shaft was not guarded by a casing or trough, it has argued vigorously from the outset of this ease that the shaft was “guarded by location” during both the 1975 and 1978 inspections. As discussed earlier, potential employee exposure is a necessary component of a doeu-mentable violation of OSHA safety standards. The government argues that during the 1975 and 1978 inspections there existed no potential exposure to the unguarded horizontal drive shaft because it was guarded by location. That is, the government contends that in 1975 and 1978 the bench assembly was located approximately two feet to the rear (north) of the position it occupied when the accident occurred. With the bench in that position, the argument continues, access to the rear of the assembly would have been blocked by the die rack. Without access to the back of the bench, employees would not have been exposed to the serious danger otherwise posed by the unguarded rotating drive shaft. Therefore, the government concludes, in 1975 and 1978 there was no viola-tive condition for Chase and Ritchie to notice and .document. Irving counters that the evidence shows that in 1975 and 1978 the bench assembly was in substantially the same location and condition it was in at the time of her accident. In support of its argument that the bench assembly was moved, the government relies heavily on the testimony of compliance officer Chase. Although Chase apparently had no independent recollection of the bench assembly (Chase, 2/12/85, p. 118), he testified that the machine must have been guarded by location during the 1975 inspection. Chase’s opinion was based largely on his belief that he simply would not have failed to notice a violation as flagrant as the unguarded shaft on which Irving was injured, had it existed during his inspection. (Chase, 2/12/85, p. 110,119.) He' stated: I wouldn’t miss something like that on inspection, not when I already found the unguarded shafts on another piece of equipment. There’s no way I missed it. Something has had to change relative to that piece of equipment [between my inspection and Irving’s accident]. (Chase, 2/12/85, p. 119.) In fact, Chase felt that the unguarded rotating shaft on which Irving was injured was such a flagrant violation of OSHA safety standards that, assuming he inspected every operation in the Som-ersworth Shoe plant, he would not have faded to note the violation even in a “careless moment” or on his “wors[t] day.” (Chase, 2/12/85, p. 134.) In essence, then, Chase testified that because he did not notice or document that the drive shaft was in violation of OSHA safety standards the machine must have been guarded by location; and the machine must have been guarded by location because he did not notice or record the violation. Reciting the argument highlights its circularity. But, to point out the circular nature of the government’s -position is not necessarily to discredit it entirely or deem it hopelessly inconsistent with what actually happened. The argument’s circularity, however, does render it suspect to the extent it is not corroborated by extrinsic evidence. In hopes of bolstering its theory that the machine was guarded by location during the 1975 and 1978 inspections, the government points to the testimony of two long-time Somersworth Shoe employees. Roger Couture worked at Somersworth Shoe from 1944 until 1979. From approximately 1974 until early 1979, he was foreman of the stock fitting room. (Couture, 2/12/85, Supp. at 3-4.) Couture testified on direct examination that the bench assembly “might have been moved, probably the whole thing, one or two feet, but that was it.” (Couture, 2/12/85, Supp. at 5.) On cross examination he added, “The only thing is it was moved ... a little back ... about maybe a foot.” (Couture, 2/12/85, Supp. at 9.) Similarly, Bruce Brooks, who worked in the stock fitting room from 1950 until early 1984 and regularly operated the die-out machine in question, noted that Somersworth Shoe “had moved a bench and they had moved a motor machine in that area at one time. Just when that was, I couldn’t tell you.” (Brooks, 2/12/85, Supp. at 18.) The government relies heavily on these inconclusive statements, but ignores a larger body of evidence that overwhelmingly supports the notion that the rotating shaft was neither guarded by location nor otherwise inaccessible at any time prior to Irving’s accident. In fact, the testimony of Couture and Brooks, viewed in its entirety, also supports the notion that the bench assembly had not been altered or moved in any material fashion in the five years before the accident. Couture stated that the machine had been in the same place and in the same condition throughout his tenure as foreman, that is, from 1974 until early 1979. (Couture, 2/12/85, Supp. at 4-5.) He further testified that in 1979 the condition of the machine was exactly the same as it had been in 1975 and 1978. (Couture, 2/12/85, Supp. at 8.) The bulk of Brooks’ testimony also strongly supports the proposition that the machine had been at or near its present position “years before Gail was on it.” (Brooks, 2/12/85, Supp. at 17; see also, 2/12/85, Supp. at 15-17.) Significantly, Brooks testified that throughout his tenure at Somersworth Shoe employees had access to the unguarded rotating shaft from both the front and rear of the bench assembly. (Brooks, 2/12/85, Supp. at 15.) In addition to the testimony of those personally familiar with the bench assembly’s condition and location during the 1975 and 1978 inspections, Irving points to physical and testimonial evidence establishing the permanence of the position the bench and motor occupied during the 1975 and 1978 inspections and through the time of the accident. The most convincing evidence came in the form of photographs taken by Paul O’Connell during his post-accident inspection. The photos were introduced at trial as plaintiff’s Exhibit 14B (O’Connell, 2/12/85, p. 157), and clearly show that the workbench, the electric motor that drove the die-out machine, and the supports for the drive shaft were all securely bolted to the concrete floor of the stock fitting room. (Ex. 14B, Photos 1, 2, 4, 5, 15, 20, 21, 22, 23.) Igor Paul, plaintiffs expert witness, also examined the bench assembly after the accident and concluded that it could only be repositioned by removing all of the bolts from the concrete floor and, presumably, reinserting them into the floor at a different location. (Paul, 2/14/85, p. 14, 30.) The photographs do not support the hypothesis that the bench had been moved between the OSHA inspections and the accident. In fact, O’Connell’s photos are convincing evidence that the bench assembly never occupied a position in the Somersworth Shoe plant other than the position it occupied in 1979. The concrete floor around the bench assembly contains no empty bolt holes or other blemishes that one would expect to find if the bench assembly had been unbolted, relocated, and rebolted to the floor, especially if it had been moved only a few feet. (Ex. 14B, Photos 1-5, 14-16, 20-24.) In addition, the wear marks beneath the foot pedal of the marker machine indicate that the bench assembly had, in 1979, occupied the same position for quite some time. (Ex. 14B, Photos 1, 2, 4, 5.) Finally, the position of the bench assembly vis-a-vis the die rack and the power switch renders it highly unlikely that the drive shaft was guarded by location as a result of its proximity to the rack or to any other workplace condition. Neither party contends, and the evidence does not show, that the die rack was moved or materially altered at any time between 1975 and 1979. The die rack had shelves extending down to the floor behind the bench assembly, and Somersworth Shoe employees required regular access to the dies and patterns kept on those shelves. (Ex. 14B, Photos 1-3, 16, 17; Irving, 2/11/85, p. 8; O’Connell, 2/13/85, p. 42.) In addition, the aisle between the bench assembly and the die rack provided the only access to the power switch for the die-out machine. (Ex. 14B, Photos 13, 14.) Because employees needed access to the dies, patterns, and power switch, and because the narrow aisle between the rack and the bench assembly provided the only access to these items, the aisle could not be eliminated without rendering both the die-out and marker machines useless. Yet, in order for the drive shaft to have been effectively guarded by location, the aisle between the bench assembly and the die rack would have to have been eliminated entirely. At trial, O’Connell implied that if the bench assembly had been positioned one or two feet to the rear of the position it occupied in 1979 the shaft would have been guarded by location yet employees still would have been able to use the aisle to reach patterns, dies, and the power switch. (O’Connell, 2/13/85, p. 34-42.) The implication is not persuasive. The drive shaft could not have been effectively guarded by location if a functional aisle existed between the bench assembly and the die rack. In fact, if the width, of the aisle had been reduced even further, but the aisle had not been eliminated, employees’ exposure to the rotating shaft would have been more, not less dangerous, because they would have had less room to maneuver between the shaft and the rack, especially if they bent over to pick up a dropped item or to retrieve a pattern from the bottom shelf. Therefore, even if the government were correct in postulating that during the 1975 and 1978 inspections the bench assembly was located one or two feet to the rear of its 1979 position, the shaft still would not have been effectively guarded by location. The court finds that Irving has demonstrated, by a decided preponderance of the evidence, that during the 1975 and 1978 inspections the bench assembly was in the same position it occupied at the time of her injury. It was not guarded by location. Operation of the die-out machine while the drive shaft remained unguarded was in flagrant violation of OSHA safety standards. The die-out machine was in operation during both inspections. 2. Failure to Inspect Every Machine Despite the flagrant nature of the OSHA violation, Chase and Ritchie did not notice or document the dangerous condition during the 1975 and 1978 inspections. The government argues, however, that those failures cannot, even if they amounted to actionable negligence under New Hampshire law, support the imposition of liability under the FTCA because OSHA inspections are discretionary functions, for which Congress has preserved the government’s immunity from suit. In order to determine whether the discretionary function exception to the FTCA’s immunity waiver applies to this suit, it is first necessary to determine why the inspectors failed to notice and document the unguarded drive shaft. The existence of the safety violation in 1975 and 1978 having been established, the evidence is arguably consistent with two plausible explanations for the compliance officers’ oversight. First, Chase and Ritchie could have inspected the bench assembly but failed to notice the unguarded drive shaft. Second, both compliance officers could have neglected to inspect this particular bench assembly and, as a result, failed to notice the obvious unguarded drive shaft. It is, of course, very difficult to determine precisely what happened during two separate inspections approximately two decades ago. But, upon careful examination of the record, the preponderance of the evidence introduced at trial supports the conclusion that both Chase and Ritchie failed to inspect the bench assembly on which Irving was subsequently injured, and the court so finds. Both Chase and Ritchie were required to examine every operation in the Somersworth Shoe plant during their respective wall-to-wall inspections and did not possess the discretion to do otherwise. Chase testified that he walked down every aisle of every floor that management indicated employees worked on. (Chase, 2/12/85, p. 134.) In addition, Chase’s inspection report shows that he inspected many machines in the stock fitting room and elsewhere in the plant. (Ex. 8, OSHA Compliance Worksheet at 1-4.) The bench assembly was located directly on a main aisle in the stock fitting room. (Ex. 6, Floor Plan.) Chase did not testify, however, that he inspected every operation in the facility. Ritchie did not testify at all regarding the thoroughness of his inspection in 1978, but his inspection report indicates that he, too, inspected many machines in the plant. (Ex. 9, OSHA Worksheet at 1-10.) Unfortunately, none of these facts, taken alone or together, is direct, probative evidence of whether or not the compliance officers actually inspected the particular bench assembly in question. There is, however, considerable circumstantial evidence regarding the scope of the inspections actually performed. Every trained person who laid eyes on the bench assembly, or saw a photograph of it after the accident, recognized the unguarded drive shaft as a blatant and very serious violation of OSHA safety standards. Chase testified that if he had, in fact, inspected the bench assembly, he could not have failed to recognize that the drive shaft was a serious violation. (Chase, 2/12/85, p. 134.) While he acknowledged that inspectors do, on occasion, fail to notice violations, he “wouldn’t miss something like that; it’s too obvious, positively.” (Chase, 2/12/85, p. 113.) Area Director Amirault concurred, stating that if a prudent inspector saw the bench assembly depicted in O’Connell’s post-accident pictures, he should have noticed the unguarded drive shaft and recognized it as a violation of OSHA safety standards. (Ami-rault, 2/12/85, p. 66-67.) O’Connell, too, confirmed the obvious nature of the violation, classifying it as “serious” and assigning it a severity value of eight. (O’Connell, 2/12/85, p. 159.) In light of that evidence, a finding that Chase and Ritchie inspected the bench assembly but failed to notice the' unguarded drive shaft or recognize it as a violation of OSHA safety standards would be tantamount to a finding that both compliance officers were not merely negligent, but utterly incompetent. As Chase stated, any compliance officer looking at the bench assembly would have recognized the unguarded drive shaft as a serious violation on his or her worst day. Of course, the record would not support a finding that Chase and Ritchie were utterly incompetent. The evidence establishes that both men were quite skilled and thorough in identifying and documenting violative conditions. Both were experienced workplace inspectors who obviously took their responsibilities seriously. (Chase, 2/12/85, p. 100-01; Ritchie, 2/12/85, 145-46.) Chase had performed approximately 180 workplace inspections prior to inspecting the Somersworth Shoe plant. (Chase, 2/12/85, p. 100-01.) During the 1975 inspection, Chase noticed and documented 39 violations of OSHA safety standards, including 14 power transmission mechanisms left unguarded in violation of 29 C.F.R. § 1910.219, the same general regulation under which Irving’s bench assembly was later cited. Similarly, Ritchie noticed and recorded 10 separate violations during his inspection of Somersworth Shoe, including three unguarded drive belts. The preponderance of the evidence, therefore, 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. Given these findings, there is but one probable, realistic explanation for Chase and Ritchie’s failure to notice and document the unguarded drive shaft: Neither compliance officer actually inspected the bench assembly during his tour of the Somersworth Shoe plant. Chase and Ritchie were not incompetent; they simply were not as comprehensive in their inspections as OSHA policy required them to be. Rather than inspect every operation in the plant, they inspected most of them, in effect spot-cheeking (albeit thoroughly) the facility for violations of OSHA safety standards. It is the inspectors’ failure to inspect every operation, as was required of them, that properly forms the basis of Irving’s cause of action under New Hampshire’s Good Samaritan doctrine and the FTCA. II. DISCRETIONARY FUNCTION EXCEPTION Irving necessarily brings her Good Samaritan action against the government under the FTCA, 28 U.S.C. §§ 1846(b), 2671-2680. The FTCA operates as a broad waiver of sovereign immunity, giving district courts jurisdiction to hear tort suits against the United States for damages caused by federal employees acting within the scope of their duties, where- the United States, if a private person, would be liable under the law of the place where the tort occurred. 28 U.S.C. §§ 1346(b), 2674; see also Irving I, 909 F.2d 598, 600 (1st Cir.1990). This broad waiver of sovereign immunity is, however, subject to several statutory exceptions, including the so-called “discretionary function exception,” which exempts: Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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). Section 2680 “marks 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.” United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 2761-62, 81 L.Ed.2d 660 (1984); see also Irving I, 909 F.2d at 600. “Because § 2680(a) is a limitation on the waiver of sovereign immunity, cases which fall within the discretionary function exception are dismissed for lack of subject matter jurisdiction.” Irving I, 909 F.2d at 600. “The determination of whether the discretionary function exception bars a suit against the Government is guided by several established principles.” Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). First, “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.” Id. (quoting Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764). The inquiry, then, focuses on the “permissible range of action available to the government employee allegedly at fault.” Irving I, 909 F.2d at 600. Specifically, “[i]n examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice.” Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958; Irving I, 909 F.2d at 600. “[T]he requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’ because ‘the employee has no rightful option but to adhere to the directive.’ ” Irving II, 49 F.3d 830, 835 (1st Cir.1995) (quoting United States v. Gaubert, 499 U:S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991)) (internal quotations omitted, emphasis supplied in Irving II). Even if the challenged conduct is the product of an employee’s permissible exercise of judgment, suit is barred only if that judgment “is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress’ desire 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.’” Berkovitz, 486 U.S. at 536-37, 108 S.Ct. at 1958 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2764-65). “The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy.” Id. 486 U.S. at 537, 108 S.Ct. at 1959. “In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.” Id. (emphasis added). The first step in deciding the discretionary function exception question presented here, then, is determining exactly what constitutes the “challenged conduct.” See, e.g., Gaubert, 499 U.S. at 327-28, 111 S.Ct. at 1276-77; Berkovitz, 486 U.S. at 539-40, 543-44, 108 S.Ct. at 1960-61, 1962-63; Varig Airlines, 467 U.S. at 814-15, 819, 104 S.Ct. at 2764-65, 2767. Irving’s complaint alleges that “[t]he [1975 and 1978] inspections of said Somers-worth Shoe Company were performed in a negligent ... manner in that the defendant failed to issue citations for violations of the said Occupational Safety and Health Act.” (Irving’s Complaint at 3, ¶ 9.) It adds that the government “breached its duty to the employees of said Somersworth Shoe Company, including the plaintiff, by negligently performing the said inspections of said shoe shop.” Id. at 3, ¶ 10. Irving’s complaint, therefore, challenges the manner in which Chase and Ritchie conducted the 1975 and 1978 inspections and is phrased broadly enough to encompass all of the discrete actions the compliance officers took, or failed to take, during those inspections. At trial, Irving’s proof established that the inspectors were negligent, if at all, in failing to inspect the marker/die-out bench assembly. As the court has found, the evidence would not support a finding that the actions of the compliance officers or any other Department of Labor employee were deficient, much less negligent, at any other stage of the 1975 and 1978 inspections or subsequent citation processes. Therefore, it is Chase’s and Ritchie’s failure to inspect the bench assembly during the 1975 and 1978 inspections that forms the basis of Irving’s cause of action and constitutes the “challenged conduct” for the purposes of applying the discretionary function exception. With the facts surrounding the 1975 and 1978 inspections found, and the challenged conduct defined, resolution of the discretionary function issue becomes relatively straightforward in light of Berkovitz: the discretionary function exception does not deprive this court of subject matter jurisdiction over Irving’s suit because OSHA policy governing the 1975 and 1978 inspections did not give inspecting compliance officers any discretion to not inspect particular operational machines within the Somersworth Shoe facility. Rather, OSHA policy prescribed a definite and mandatory course of action for the compliance officers to follow. They were required to inspect every operational machine in the plant and could not do less; anything less would amount to an unauthorized spot-cheek of the facility. Having alleged and proven the existence of that mandatory duty, Irving may maintain her suit to the extent it focuses on Chase’s and Ritchie’s failure to comply with it. Indeed, this case is strikingly similar to Berkovitz, in which the plaintiff sued the government alleging that the National Institute of Health’s Division of Biologic Standards (“DBS”) licensed a polio vaccine without first receiving test data on the safety of the vaccine. Applicable statutes and regulations required, as a precondition to licensing, that the DBS receive safety test data on the vaccine from the manufacturer. Because the DBS had no discretion to issue the license without first receiving the test data, the discretionary function exception did not bar the plaintiffs suit. Berkovitz, 486 U.S. at 540-43, 108 S.Ct. at 1960-62. Here, Irving has likewise proven that OSHA compliance officers had a duty to inspect every operational machine before they compiled the inspection reports upon which citation decisions were based. She has also proven that the compliance officers did not inspect the bench assembly before preparing their inspection reports. She may, therefore, maintain her suit challenging the compliance officers’ failure to inspect the bench assembly. In contrast, this ease is readily distinguished from Varig Airlines, in which the discretionary function exception did bar suit because FAA inspectors were “specifically empowered” to spot-check aircraft under construction for compliance with FAA regulations. Varig Airlines, 467 U.S. at 820, 104 S.Ct. at 2767-68. Here, “the compliance officers were required by OSHA to inspect the entire Somersworth Shoe plant; they could not choose simply to spot check certain areas.” Irving I, 909 F.2d at 604. Although the government concedes that the compliance officers were under a mandatory duty to inspect every operation (Tr. at 107), it points to a number of discretionary functions performed by Chase and Ritchie during the course of the 1975 and 1978 inspections in support of its argument that the discretionary function exception bars Irving’s suit entirely. It is undoubtedly true that both Chase and Ritchie did exercise policy-level discretion in performing certain of their assigned duties. For instance, the compliance officers could and did exercise discretion, informed by public policy concerns, when they made determinations regarding whether or not particular workplace conditions presented sufficient risks of employee exposure to justify documenting them as potential violations of OSHA safety standards. Similarly, the Area Director, when classifying violations as de minimis, non-serious, or serious, exercised policy-level discretion. But while the government’s premise is sound — Chase and Ritchie did perform discretionary functions during the 1975 and 1978 inspections — its conclusion that the discretionary function exception bars Irving’s suit does not follow. Irving’s suit is barred only to the extent it alleges that OSHA employees were negligent in performing any of those discretionary functions. Irving could not, for example, sue the government if OSHA had decided not to inspect the Som-ersworth Shoe plant at all. Varig Airlines, 467 U.S. at 819-20, 104 S.Ct. at 2767 (“When an agency determines the extent to which it will supervise safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.”). She also could not bring an action under the FTCA if OSHA formulated and followed a policy of spot-checking machines and, as a result, failed to find the violative condition leading to her injury. Id. at 820, 104 S.Ct. at 2767-68; Berkovitz, 486 U.S. at 546, 108 S.Ct. at 1963-64. She likewise could not sue if OSHA left it up to the assigned inspectors to determine how thorough an inspection to conduct. Nor could she sue the government if the compliance officers inspected the bench assembly but wrongly concluded that there was insufficient employee exposure to justify a citation, however gross an abuse of discretion that judgment might have been. Berkovitz, 486 U.S. at 544-45, 108 S.Ct. at 1962-63. And she could not sue if OSHA mistakenly categorized a serious violation as de minimis. Id. Each of those situations would involve, at most, an abuse of discretion, but the exercise of discretion nonetheless, and the exercise of discretion is generally immune from scrutiny under the FTCA. But 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. In light of the court’s finding that Chase and Ritchie failed to inspect the bench assembly despite a mandatory duty to do so, the government is limited to arguing, in effect, that the fact that the compliance officers performed several other discretionary functions shields their challenged conduct from suit, even though the challenged conduct implicates a mandatory duty. This argument ignores the clear lesson of both Vang Airlines and Berkovitz that the proper inquiry is whether the “challenged conduct ... is a matter of choice for the acting employee.” Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958 (emphasis added); see also Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764. 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. Finally, to avoid a decision on the merits of Irving’s suit, the government advances another version of the same argument rejected above. The government argues that Irving has not identified any statute, regulation, or policy requiring OSHA compliance officers to “notice” or “find” every safety violation that existed within the four walls of the Somers-worth Shoe plant, and, as a result, the discretionary function exception bars any suit alleging that the injury occurred as a result of OSELA’s failure to find or cite a violative condition. Once again, the government’s premise is correct: Irving has not proven the existence of a policy requiring Chase and Ritchie to find or notice every safety violation in the facility. The Court of Appeals said in Irving I, 909 F.2d at 604-05, that there is some evidence in the record suggesting the exis-fence of such a duty and perhaps it’s a plausible suggestion. For instance, in response to a question by plaintiffs counsel regarding the scope of the 1975 and 1978 inspections, Area Director Amirault stated, “[Y]ou would have to ask the compliance officer exactly how he proceeded, but he should be observing and documenting any violative condition....” (Amirault, 2/12/85, p. 29-30 (emphasis added).) But, while this and similar statements by Amirault could conceivably be interpreted as meaning that OSHA policy required Chase and Ritchie to notice every violation within the plant (a stretch this court is unwilling to make), the vast majority of the evidence presented at trial, including the bulk of Amirault’s testimony, establishes that OSHA policy imposed upon the compliance officers only the more realistic duty to document all violations that they did, in fact, notice during their inspections. OSHA policy did not (and as a practical matter could not reasonably) require them to find every single violation that existed in the facility, perfection being more aspirational than achievable. Amirault repeatedly stated that the inspectors’ job was to inspect every operation in the plant and “document any hazardous conditions that they would see.” (Amirault, 2/12/85, p. 28 (emphasis added); see also 2/12/85, p. 25, 57, 58, 88-89.) In fact, Amirault nearly always qualifie