MAYOR & CITY COUNCIL, ETC. v. CLARK-DIETZ, ETC., EC 79-146-WK-P.

• Decision Date: 10 November 1982
• Docket Number: No. EC 79-146-WK-P.,EC 79-146-WK-P.
• Parties: The MAYOR AND CITY COUNCIL OF the CITY OF COLUMBUS, MISSISSIPPI and Columbus Utility Commission, Plaintiffs, v. CLARK-DIETZ AND ASSOCIATES-ENGINEERS, INC. and Basic Construction Company, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

550 F. Supp. 610

The MAYOR AND CITY COUNCIL OF the CITY OF COLUMBUS, MISSISSIPPI and Columbus Utility Commission, Plaintiffs, v. CLARK-DIETZ AND ASSOCIATES-ENGINEERS, INC. and Basic Construction Company, Defendants.

No. EC 79-146-WK-P.

United States District Court, N.D. Mississippi, E.D.

November 10, 1982.

COPYRIGHT MATERIAL OMITTED

DeWitt T. Hicks, Jr., Columbus, Miss., for plaintiffs.

A. James Anderson and William H. Stanhope, Atlanta, Ga., Fred M. Bush, Tupelo, Miss., and George Mackey, New York City, for Basic.

David L. Sanders, Columbus, Miss., and Ralph B. Powell, Jr., Philadelphia, Pa., for Clark-Dietz.

MEMORANDUM OPINION

KEADY, District Judge.

In this diversity action removed from the Chancery Court of Lowndes County, plaintiffs, the Mayor and City Council of the City of Columbus, Mississippi, and the Columbus Utility Commission (City), sue defendants, Clark-Dietz and Associates-Engineers, Inc. (Clark-Dietz) and Basic Construction Company (Basic), for damages resulting from the April 13, 1979, failure of a protective levee surrounding the construction site of the Columbus Waste Water Treatment Plant. Located between the Luxapalila River and McCrary Creek, the plant was 98% complete at the time of the levee break. High waters from adjoining streams flowed through the protective levee, ruptured in two locations, and totally inundated the area, causing extensive damage and delay in ultimate completion of the facility.

The City contends that Clark-Dietz, the architect-engineer, and Basic, the contractor, are jointly and severally liable to it for all resulting loss. The court granted a preliminary injunction directing the defendants to proceed with completion of the work, without prejudice to the rights of the defendants against the City or each other. Clark-Dietz, denying liability, asserts that it properly designed the structure and supervised its construction; and it counterclaims against the City for all additional expenses incurred subsequent to the levee breaks. Basic also denies liability, declaring that it constructed the project in accordance with the plans and specifications prepared by Clark-Dietz; and Basic counterclaims against the City for substantial outlays and cross-claims against Clark-Dietz charging negligent design and negligent supervision of the project.

The issues of liability and damages having been bifurcated, the court held an 18-day evidentiary hearing regarding liability. Three fundamental questions were addressed: (1) the cause of the levee failures and the responsibility therefor; (2) the need of and responsibility for an additional slurry wall installed after the failure in undamaged portions of the levee; and (3) responsibility for a slope paving problem with the McCrary Creek access bridge. All parties are involved in resolution of the first two questions. Since the court granted Basic judgment on the pleadings, after statements of counsel, as to the access bridge dispute, only the City and Clark-Dietz are concerned with that issue.

After consideration of extensive evidence adduced at trial, including oral testimony, depositions, photographs, charts and other documentary material, and study of memoranda submitted by counsel, the court makes findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P., as follows:

I. FACTS

A. INTRODUCTION

In order to comply with Environmental Protection Agency guidelines concerning the discharge of untreated sewage into streams, the City, on August 8, 1972, contracted with Clark-Dietz to perform design and engineering services for the construction of a waste water treatment plant. The presence of pre-existing sewage facilities required placement of the proposed plant at the low-lying juncture of the Luxapalila River and McCrary Creek on an abandoned sand and gravel pit. To protect the plant from the hazards of periodic flooding, Clark-Dietz designed a levee to encircle the site encompassing about 35 acres. Clark-Dietz retained Roger Lind of Ware-Lind Engineers of Jackson, Mississippi, to provide soil tests and technical assistance in formulating the levee design. Lind's tests showed the natural soils to consist primarily of sand and gravel, relatively permeable material. Lind recommended in his design report that a soil-bentonite slurry wall or trench be poured into and through the center of the earthen levee. This slurry wall was to extend from the crest of the levee downward through natural soils to the Selma Chalk, an impervious subsurface soil stratum of varying depths. The soil-bentonite slurry wall, conceived as an impermeable barrier, would prevent occurrence of water seepage in natural soil under the levee. Clark-Dietz incorporated Lind's recommended slurry wall concept in the original levee design.

When the project was first advertised for bids in the fall of 1974, the bids received substantially exceeded projected costs. To reduce costs, the City requested Clark-Dietz to redesign portions of the project. J.C. Goldman, Clark-Dietz' design engineer, consulted officials of Mitsubishi and Engineered Construction Internation, Inc. (ECI), specialty slurry contractors, about changing the levee design. At ECI's suggestion, he opted for the use of a cement-bentonite slurry wall in lieu of one composed of soil-bentonite. Goldman altered the levee design to install the slurry wall only from ground level to the Selma Chalk stratum with the levee embankment to be fashioned with an impervious clay core. The design was further modified to provide a narrowed levee slope of 2 to 1 ratio rather than 3 to 1 as originally planned. Additionally, the modified plans and specifications shifted soil testing responsibilities from the contractor to the City, which reserved the right to secure necessary tests.

After these design changes were made, the project on September 30, 1975, was again advertised for bids. Basic, in a joint venture with Bullard Construction Company, submitted the lowest bid; on December 10, it entered into a construction contract with the City. The contract, drawn by Clark-Dietz, gave Clark-Dietz general control over the work done on the project, required Clark-Dietz to determine whether Basic's work met specifications, and also conferred upon the firm the power to reject work not conforming to plans and specifications.

Inclement weather delayed the commencement of construction until March 1976, when Basic began preparing the work site. On March 23, representatives of Clark-Dietz, Basic, Ware-Lind, Bullard, and ECI met on the job site to discuss installation of the slurry wall. At this meeting Basic announced that the conduits or pipes to pass under the levee through the slurry wall were not immediately available. The design contemplated that these pipes would be laid prior to the levee and slurry wall construction. Nevertheless, Clark-Dietz's representatives, Larry Alden, project superintendent, and Robert DuChaine, project supervisor, determined that the levee construction could proceed without delay and the levee and slurry wall could later be cut for pipe installation. Because of this decision, Basic was allowed to commence pouring of the slurry wall and building of the embankment. When the pipes were later obtained, Basic made the necessary cuts in the levee and installed pipes pursuant to Clark-Dietz' instructions. Construction proceeded until April 13, 1979, when the levee failed at two points, one north and the other south of the plant, where two pipes had been installed through the levee cuts. After floodwaters receded, the pipe cuts were restored and other damages repaired.

Experts for all parties undertook numerous tests and inspections to determine the cause of the failures and evaluate the integrity of the remaining portions of the levee. Over Basic's objections, the City, on Clark-Dietz' recommendation, decided that it was necessary to install a remedial, or second, slurry wall from the crest of the levee to the top of the original slurry wall in order to strengthen the levee embankment. Although Basic constructed this second slurry wall, the work was done pursuant to federal court order under full reservation of rights against the City and Clark-Dietz for all expenditures so incurred.

To resolve the disputes as to the cause of the levee rupture, the necessity for building the second slurry wall, as well as the repairs to the McCrary Creek access bridge, we separately evaluate each controversy.

B. CAUSE OF THE LEVEE FAILURES

The parties agree that the failures in both levees occurred almost simultaneously where pipes encased by concrete seepage collars penetrated the slurry wall. It is also agreed that floodwaters did not overlap the embankment, and each failure occurred near the level of the pipes from water seepage which produced a geotechnical phenomenon known as "piping." Piping occurs when water flows along a seepage path through the soil as water exits from ground surface and soil particles are dislodged and washed away. This process gradually produces erosion at the exit location, which in turn progresses toward the source of water flow, thus steadily increasing the size of the seepage channel. At a sufficiently high water pressure and when the seepage path has increased in size to permit uninterrupted flow of water, the soil above the erosion cavity deteriorates and allows water to surge through a pervious earth barrier. Though the experts agree that "piping" caused the levee to fail, they sharply disagree as to the source of the original seepage. Therefore the central issue concerning levee failures is whether water seepage developed because of negligent and defective design by Clark-Dietz; negligent inspection, supervision and soil testing by Clark-Dietz; by negligent construction of Basic; or by a combination thereof.

1. Clark-Dietz' Design.

The levee's final design consisted of an earth embankment ascending approximately sixteen feet above natural grade with a core of...