Evans v. Howard R. Green Co., s. 2--56401

• Decision Date: 31 July 1975
• Docket Number: 2--56402,Nos. 2--56401,s. 2--56401
• Citation: 231 N.W.2d 907
• Parties: Beverly A. EVANS, Administratrix of the Estate of Lewis E. Evans, Plaintiff-Appellee, and Dorothy Scholten, Administratrix of the Estate of Anthony Scholten, Plaintiff-Appellee, v. HOWARD R. GREEN COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. DORY BUILDERS, INC., Third-Party Defendant and Fourth-Party Plaintiff-Appellant, v. CITY OF CEDAR RAPIDS, Iowa, Fourth-Party Defendant-Appellee.
• Court: Iowa Supreme Court

Page 907

231 N.W.2d 907

Beverly A. EVANS, Administratrix of the Estate of Lewis E. Evans, Plaintiff-Appellee, and Dorothy Scholten, Administratrix of the Estate of Anthony Scholten, Plaintiff-Appellee, v. HOWARD R. GREEN COMPANY, Defendant and Third-Party Plaintiff-Appellant, v. DORY BUILDERS, INC., Third-Party Defendant and Fourth-Party Plaintiff-Appellant, v. CITY OF CEDAR RAPIDS, Iowa, Fourth-Party Defendant-Appellee.

Nos. 2--56401, 2--56402.

Supreme Court of Iowa.

July 31, 1975.

Rehearing Denied Oct. 10, 1975.

Keyes & Crawford, Cedar Rapids, and Charles T. Hvass of Hvass, Weisman & King, Chartered, Minneapolis, Minn., for Beverly A. Evans and Dorothy Scholten.

David F. McGuire, City Atty., for City of Cedar Rapids.

Donald T. Hines and John D. Randall, Cedar Rapids, for Howard R. Green Co.

Wayne C. Collins and Patrick M. Roby of Shuttleworth & Ingersoll, Cedar Rapids, for Dory Builders, Inc.

Heard before MOORE, C.J., and LeGRAND, REES, REYNOLDSON and HARRIS, JJ.

HARRIS, Justice.

Louis E. Evans and Anthony Scholten lost their lives September 21, 1967 while working as construction employees at the water pollution control plant of Cedar Rapids, Iowa. Each died as a result of poisonous hydrogen sulfide gas. Separate wrongful death suits were brought by their estates (plaintiffs) and were consolidated for trial.

Sometime prior to June 1966 Howard R. Green Company (Green), an architectural and engineering firm located in Cedar Rapids, prepared plans and specifications for the 1966 improvement to the city's water pollution control plant. Green had prepared and supervised all plans and specifications for the building of the original installation and each of its subsequent improvements.

On July 13, 1966 Dory Builders, Inc. (Dory), a construction firm located in Minneapolis, Minnesota, entered into a contract to construct the improvements. The contract price was $1,910,494. The contract was written by Green.

Plaintiffs' action was brought against the City of Cedar Rapids and Green. The city was dismissed as a defendant under the theory of governmental immunity. Green's special appearance seeking dismissal under the governmental immunity theory was overruled. There was no appeal from either of these rulings.

Plaintiffs each claim Green was negligent in the design and preparation of specifications of the final sludge pumping station. These claims and Green's responses to them can be more appropriately detailed in a later division.

Green cross-petitioned against the contractor (Dory) claiming contractual indemnity for any damage incurred to plaintiffs. Dory cross-petitioned against the city claiming it was entitled to be indemnified by the city for any indemnity recovered against Dory by Green.

The case was tried to a jury which awarded damages of $135,000.00 to the estate of Scholten and $175,000 to the estate of Evans. Over objection the issue of indemnity was also submitted to the jury which found in favor of Green on its claim of indemnity against Dory and against Dory on its claim of indemnity against the city. Green's and Dory's post-trial motions were denied. We affirm the trial court on the appeal of Green and reverse the trial court on the appeal of Dory. The question of Dory's right of indemnity becomes moot.

I. The first of Green's three assignments challenges instructions given and refused. Green's requested instructions and objections to instructions delineate Green's position on a disputed question of law. Our resolution of that question will be dispositive of Green's first assignment.

Green was found liable on a claim of negligence in designing the project. This assignment assails the trial court's view such a claim could arise as to the improvement before it was completed. It is Green's claim an architect can be charged with negligence in design only upon completion of that which he has designed. The trial court's instructions reflected its view of an earlier and broader exposure to liability.

More factual details are necessary in order to fairly consider these conflicting views. Taking the facts in the light most favorable to the verdict it appears the project expanding the facility called for addition of (1) three new primary clarifiers, (2) one new intermediate clarifier, (3) two new intermediate filters, (4) one new final filter, (5) a new final sludge building, (6) new sludge thickeners, (7) a new sludge pumping building, and (8) miscellaneous additions including new sewer lines.

Construction was begun shortly after the contract was signed and by September 21, 1967 all the work was completed except for installation of some fixtures and attending certain final details. It was necessary during the course of construction to keep the sewage plant in operation. Accordingly periodic meetings were held between Green, Dory and the city to tailor the plant operating schedule to the construction schedule.

The accident occurred in the final sludge building. This building is divided into two parts: the wet well side and the dry well side. Door entrances for both the wet and dry well sides were at ground level.

The dry well side contained pumps capable of pumping sludge to various parts of the facility. The wet well side was divided into two parts by a wall from the bottom of the well to ground level, about 18 1/2 feet. The division of the wet well left it in two compartments. One of the two compartments in the wet well was for sludge. This sludge was removed from sewage at various points and would flow by gravity into the compartment on the wet well side. From there it could be pumped to whatever part of the facility necessary.

The other compartment in the wet well side received effluent (clear liquid) which was either circulated by pumps to other points in the system or into a nearby river.

There was one exhaust fan for both wet and dry wells. The fan was designed to exhaust the dry well by reducing pressure in the wet well. The air in the dry well side would exhaust through a duct located on the dry well side of the dividing wall. From there the air would go into the wet well side. This opening (in the dividing wall) was below ground level. There was a slotted louver on the wet well side of this opening which was designed to prevent air from backing up from the wet well side into the dry well side. Such prevention is of crucial importance because it is well known sludge under certain circumstances can form the poisonous gas hydrogen sulfide.

Additionally the design of the final sludge building called for two hinged ventilators or windows in the dividing wall. There are three ways the windows could be opened. Handles could be turned at the top of each window. If the handles were not in the closed position the windows could be opened by pushing them from the platform in the wet well section. Finally by use of an extension rod the windows could be opened from the dry well pit or by standing opposite the ventilators on the well platform.

During the six days prior to the accident the final sludge building had been in operation but some difficulties had been encountered. Concern was raised over an obvious defect in the design. The original plans had not provided for the escape of sludge entering the sludge wet well by gravity in case of pump failure or blockage in the lines. The compensate for that failure an overflow opening was decided upon between the sludge compartment and the effluent compartment of the wet well.

Green's resident engineer ordered Dory to cut such an opening in the wall between the sludge side and effluent side. This work was performed in the morning and afternoon of September 21, 1967. Because of this sludge backed up causing it to go into anaerobic decomposition which resulted in the formation of hydrogen sulfide gas. The evidence showed a low concentration of this gas has the smell of rotten eggs but at higher concentration it is odorless because it immediately paralyzes the olfactory nerve. When the work was completed September 21 the pumps were turned on and the sludge began to flow.

In accordance with the specified working arrangement between Green and Dory a conference was held after work on September 21 concerning a prefabricated stairway in the dry well. Attending this meeting were Carl Dorenkemper (president of Dory), the decedent Lewis Evans (Dory's construction superintendent), the decedent Anthony Scholten (Dory's carpenter foreman), and Patrick McGuire (Green's resident engineer and inspector). The group needed a copy of the shop drawings and Scholten went to the pit of the dry well to obtain them. When he failed to return Evans went to investigate. Evans returned to report his belief Scholten had fallen into the dry well. An ambulance was summoned and Evans and McGuire returned to help Scholten.

When Dorenkemper and the ambulance driver arrived they found all three men, Scholten, Evans and McGuire, lying at the foot of the ladder in the dry well. The windows between the wet and dry wells were open with electric lines running through them. The electric lines had been so placed in order to cut the overflow opening between the two chambers of the wet well. Although an exhaust fan was already installed it was not yet in operation since electrical hookup was not yet completed. Scholten and Evans were dead on arrival at the hospital as a result of hydrogen sulfide poisoning.

Green is wrong in suggesting an architect's duty to exercise reasonable care lies suspended during construction operations and becomes binding and enforceable only when construction is completed. We rejected such a view in McCarthy v. J. P. Cullen & Son Corp., 199 N.W.2d 362 (Iowa 1972). In McCarthy the claim was for property damages to a neighbor of the architect's client. We said:

'Plaintiffs alleged the architect furnished defective and inadequate plans and specifications which failed to provide properly for drainage of surface water. As we understand the architect's...