Michaels v. Ch2m Hill Inc.

Citation32 IER Cases 571,171 Wash.2d 587,257 P.3d 532
Decision Date26 May 2011
Docket NumberNo. 84168–3.,84168–3.
PartiesLarry MICHAELS and Debbie Michaels, husband and wife and the marital community comprised thereof; Dan Evans, a single person; and Kathy D. Cmos, individually and as the Administratrix and Representative of the Estate of Mike P. Cmos, Jr., Respondents,v.CH2M HILL, INC., a Florida corporation; and Kelly Irving, Appellants.
CourtUnited States State Supreme Court of Washington


Kenneth Wendell Masters, Shelby R. Frost Lemmel, Masters Law Group PLLC, Bainbridge Island, WA, Terence J. Scanlan, Skellenger Bender, P.S., Seattle, WA, for Appellants.George M. Ahrend, Matthew C. Albrecht, Ahrend Law Firm PLLC, Moses Lake, WA, John Randall Layman, Layman Layman & Robinson PLLP, Daniel Edward Huntington, Richter–Wimberley PS, Gary Neil Bloom, Harbaugh & Bloom PS, Spokane, WA, for Respondents.Douglas J. Green, Amber L. Hardwick, Green & Yalowitz, PLLC, Seattle, WA, amicus counsel for American Council of Engineering.Bryan Patrick Harnetiaux, David P. Gardner, Spokane, WA, amicus counsel for Washington State Association Fo.CHAMBERS, J.

[171 Wash.2d 593] ¶ 1 There was a catastrophic failure at the Spokane wastewater treatment plant. One man was killed, two others were severely injured. The survivors successfully sued an engineering firm that was working with the city at the time. We must decide whether that firm enjoys Industrial Insurance Act immunity under RCW 51.24.035. The appellants also challenge the trial judge's rulings on duty, cause in fact, legal cause, superseding cause, and 26 specific findings of fact. Finding no error, we affirm.


¶ 2 On May 10, 2004, a digester dome at Spokane's sewage treatment plant collapsed. The collapse dropped Mike Cmos into sewage sludge, where he drowned. The trial judge observed that Mike Cmos arguably suffered one of the most disgusting and terrible deaths imaginable.” Clerk's Papers (CP) at 3048. Cmos's body was removed from the digester days later by the Spokane Fire Department. Dan Evans was thrown from the top of the dome and drenched with sewage sludge and Larry Michaels, who was on the ground, was knocked down by the wave of cascading sludge. Evans, Michaels, and Cmos's family sued CH2M Hill Inc. for negligence.

¶ 3 The collapse took place at the Spokane Riverside Park Water Reclamation Facility. This plant was built in 1977 and had three sewage digesters. Ex. 57 (after accident report of the Spokane Fire Department). These “digesters” have been described as resembling a small domed sports stadium. Id. Digester 3, where the accident happened, had a capacity of 2.25 million gallons. Id. “The purpose of the digester is to take raw solids [and] circulate[ ] the solids for 20 to 40 days at approximately 100 degrees Fahrenheit in an anaerobic process until they are stable and able to be used as commercial fertilizer.” Id. Generally, one digester was used as a primary digester, one as a secondary digester, and one for storage for times when “the biosolids land application process is hindered by unfavorable weather conditions.” Ex. 11.

¶ 4 CH2M is an engineering firm. It had been hired by the city in 1998 as an engineering consultant for a 10–year capital improvement project to upgrade and retrofit the sewage plant. The plant was to continue operating during the improvements. Among other things, CH2M was hired to “design and manage an upgrade to and redesign of the recirculation and heating systems for the” digests. During the anticipated 10 year retrofit, CH2M also contracted to “provide ‘on-call’ services for plant operations.” CP at 3110 (Finding of Fact (FOF) 15). Kelly Irving, an engineer and CH2M employee, acted as the on site program manager for CH2M. He is also a named defendant in this action.

¶ 5 It seems that the plant had been struggling to keep the digester tanks warm enough for necessary bacterial activity, especially as the density of biosolids in the digesters increased. 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 of the digester, 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.” CP at 3113 (FOF 32). The trial court found, in a challenged finding of fact, that “Irving and CH2M accepted the suggestion.” CP at 3113 (FOF 33).1 The trial court found that the skillet performed the same essential function as a valve.

¶ 6 Irving made recommendations as to where the skillets were to be placed. The changes to the pipes were made over the next few days. The trial court 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. CP at 3115 (FOF 40). The installation of the skillets did not merely change some regular pattern of flow: it also necessitated a change in the valving used by plant operators to transfer sludge between the digesters. Unfortunately, neither the plant superintendent, operations supervisor, nor the maintenance supervisor was aware that the installation of the skillets would change the valving used by the city plant operators for the transfer of sludge between digesters.

¶ 7 A few days later, the sewage plant shift supervisor, Terry Headley, a city employee, “became concerned that Digester 3 was too full” and ordered his subordinates to transfer some of the sludge to Digester 2. CP at 3116 (FOF 46). Headley knew that the skillets had been installed and where. However, Headley had not been instructed on “the effects of the installation of the skillets on the valving employed by the plant operators for pumped transfers of sludge.” CP at 3117 (FOF 49). The workers on shift “twice attempted to trace the piping of the digesters to determine how to valve a pumped transfer from Digester 3 to Digester 2, checked and rechecked their work and believed they had valved correctly for such a pumped transfer in light of the installation of the skillet.” CP at 3117 (FOF 51). Unfortunately, the configuration of valves and skillets they chose created a ‘deadhead,’ and the recirculation pumps were not pumping sludge out of Digester 3.” CP at 3118 (FOF 56). Exacerbating the situation, one of Digester 3's overflow systems had been disabled, the other was off, and the internal “SCADA” 2 sensors were malfunctioning. CP at 3119 (FOF 59). There was evidence that someone had welded a metal plate over the fail-safe overflow pipe shortly after the plant became operational and that the release valves in the “supernatant tree” overflow system were all closed at the time of the accident. 14 Report of Proceedings (RP) (Sept. 29, 2008) at 2077; Ex. 71 at 65.

¶ 8 Meanwhile, it appears that foam from the sludge was beginning to leak out of pressure relief valves at the top of the dome and run down the outside of Digester 3. The superintendent of the plant, Timothy Pelton, was worried about the sludge entering the Spokane River, and asked Cmos, Evans, and Michaels to help him divert it. Cmos and Evans climbed the dome with a fire hose to siphon off the foam while Pelton and Michaels guided the other end of the hose into a drain.

¶ 9 All the while, the digester continued to fill with sewage sludge. The city employees knew that Digester 3 was getting dangerously full but believed that the fastest way to relieve the pressure was to continue to do what they were doing. Unfortunately, they were wrong, and Digester 3 continued to fill until it collapsed. The trial judge found that Cmos was alive and conscious when he dropped into the 100 degree sewage sludge and that he died in “excruciating physical pain ... in darkness, pain and utter helplessness.” CP at 3123 (FOF 81). He left behind a wife and 12–year–old daughter. Evans suffered “a fractured pelvis, fractured tibia, fractured ribs, serious back injuries including compression fractures of vertebrae, [and] sludge aspiration causing a permanent 20% reduction in lung capacity ,” and Michaels suffered serious knee and back injuries, among other things. CP at 3125 (FOF 85).

¶ 10 The city hired an engineering firm, Exponent, to investigate the disaster. Exponent concluded that the dome actually floated up on the rising sludge and rotated, fracturing the anchors that had held the dome to the digester walls and cracking the dome. It concluded that there were three main causes of the accident: the blocked overflow pipe; a malfunctioning monitoring system inside the digester; and the final, failed attempt to transfer sludge out of the digester. Exponent also concluded that [t]he pumping of liquid beyond the maximum design level and into the dome was the principal and sufficient cause of the accident.” Ex. 71, at 33.

¶ 11 The plaintiffs filed a negligence action against CH2M and Irving. The city of Spokane, as the employer of the plaintiffs, was immune under the Industrial Insurance Act. All parties agreed that the city was negligent. The issue at trial was the negligence, if any, of CH2M, not the city. After a three week bench trial, Judge Austin ruled for the plaintiffs. The Court of Appeals certified the case to this court.


¶ 12 We review de novo...

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