Wash. SC upholds ruling in sewer plant collapse

Jessica M. Karmasek Jun. 3, 2011, 2:29pm


OLYMPIA, Wash. (Legal Newsline) -- The Washington State Supreme Court, in a ruling last week, upheld a trial court's conclusion that there was no "independent intervening cause" that superseded the negligence of an engineering firm at the center of a sewage treatment plant collapse.

The Court, in an appeal from the Spokane County Superior Court, said in its May 26 opinion that the trial court's decision is supported by "substantial" evidence.

The case stems from a May 10, 2004, sewage treatment plant collapse in Spokane.

When the digester dome at the Spokane Riverside Park Water Reclamation Facility collapsed, worker Mike Cmos dropped into sewage sludge and drowned. Another worker, Dan Evans, was thrown from the top of the dome and drenched with sewage sludge. Worker Larry Michaels, who was on the ground, was knocked down by the wave of cascading sludge.

Cmos, Evans and Michaels' family sued engineering firm CH2M Hill Inc. for negligence. CH2M had been hired by the city in 1998 as a consultant for a 10-year capital improvement project to upgrade and retrofit the sewage plant. During the anticipated retrofit, CH2M also contracted to provide on-call services for plant operations.

Kelly Irving, an engineer and CH2M employee, who acted as the on-site program manager for CH2M, also is a named defendant in the suit.

Before the collapse, the plant seemed to be struggling to keep the massive digester tanks warm enough for necessary bacterial activity. Instead of heating the tanks directly, sewage was circulated through heaters and back again to the tanks. Cold raw sludge was also fed directly into the digester tanks.

As an interim fix for the temperature problem, Irving suggested separating the incoming unheated sludge flow from the heated sludge flow.

On May 3, 2004, one week before the collapse, this option was discussed at a regularly scheduled meeting of sewage plant employees. Irving suggested using valves to separate the flows. These valves would redirect sludge through a previously unused pipe into a newly isolated line, which had originally been designed as a suction line for removing sludge from the digester, and to close off the intersection between the recirculation line from the heater and the incoming raw feed.

City employees suggested using "skillets" instead of valves because it would be more expedient and less expensive.

The trial court found, in a challenged finding of fact, that "Irving and CH2M accepted the suggestion." It also found that the skillet performed the same essential function as a valve.

The court also found that Irving and CH2M did not perform "any engineering analysis of the effects the flow separation and the skillets would have upon the city's operation of the digesters" and that they did not prepare a written analysis of the changes.

After a three week bench trial, the superior court judge ruled for the plaintiffs. An appeals court certified the case to the state's high court.

At issue on appeal is whether CH2M enjoys Industrial Insurance Act immunity. Under the act, injured workers may sue third party tortfeasors.

The engineering firm argues that the entire plant was a construction project, thus entitling it to immunity. It also argues that it had not prepared design plans and specifications and thus the exclusion from immunity does not apply. Meanwhile, the plaintiffs argue that a working sewage plant is not a construction site as contemplated by the Legislature and that CH2M did negligently prepare design plans and specifications.

"While the trial court made no specific, relevant finding of fact, the findings imply, and the evidence supports, that some parts of the sewage plant campus were under construction," Justice Tom Chambers wrote for the Court.

"Clearly, if no construction was occurring on the campus, the immunity provisions of RCW 51.24.035 would not be at issue."

The Court said it does not believe that the Legislature meant that when construction was performed on one building on a campus that engineers were entitled to immunity everywhere on that campus.

"Taken as a whole, it appears to us that the legislature intended to protect design engineers from the sort of liability imposed on general contractors for workplace negligence, but not to protect them from their own negligence," it wrote. "Given that the plaintiffs do not allege that CH2M failed to provide them a safe construction
site, and given that there was no construction occurring in Digester 3, we agree with the trial judge that this provision provides the defendants no immunity."

CH2M and Irving also challenged the trial judge's rulings on duty, cause in fact, legal cause, superseding cause, and 26 specific findings of fact.

However, the Court found no error on the trial court's part.

"In short, the trier of fact concluded that had CH2M not breached its duty, and had it performed the engineering analysis, the city employees would not have been confused and the collapse would not have occurred," it wrote.

"While reasonable minds may differ, this is a question of fact to be left to the trial judge except in the most extreme cases."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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