State v. Numrich

Decision Date04 February 2021
Docket NumberNo. 96365-7 (consol. w/ 96566-8),96365-7 (consol. w/ 96566-8)
Citation480 P.3d 376,197 Wash.2d 1
Parties STATE of Washington, Respondent/Cross-Petitioner, v. Phillip Scott NUMRICH, Petitioner/Cross-Respondent.
CourtWashington Supreme Court

Todd Maybrown, Cooper David Offenbecher, Allen Hansen Maybrown & Offenbecher, PS, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Petitioner.

Patrick Halpern Hinds, King County Prosecutors Office, 516 3rd Ave., Seattle, WA, 98104-2390, Eileen Alexander, King Co. Prosecuting Attorney's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

Anastasia R. Sandstrom, Attorney General's Office, Elliott S. Furst, Attorney General of Washington, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, for Amicus Curiae on behalf of Department of Labor and Industries.

Madsen, J. ¶1 At issue in this case is whether the general-specific rule applies to a second degree manslaughter charge stemming from a workplace death. The State initially charged Phillip Scott Numrich under the Washington Industrial Safety and Health Act of 1973 (WISHA), RCW 49.17.190(3), the specific statute that punishes employer conduct resulting in employee death. The State also charged the employer with second degree manslaughter. The trial court denied the employer's motion to dismiss the manslaughter charge based on the general-specific rule, and the employer sought and was granted direct review. Specifically, we are asked whether the trial court properly denied Numrich's motion to dismiss a second degree manslaughter charge when one of his employees was killed at the construction site.

¶2 While consideration of the employer's motion for direct discretionary review was pending, the State moved to amend the information to add an alternative charge of first degree manslaughter. The trial court granted the motion to amend but sua sponte imposed sanctions against the State based on the timing of the amendment. The employer sought review of the order granting the amendment and the State sought review of the order imposing sanctions. This court granted review and consolidated all the noted matters for consideration.

¶3 For the reasons discussed below, we hold that the trial court did not err in denying the employer's motion to dismiss the manslaughter charge under the general–specific rule. We further hold that the trial court did not err in granting the State's motion to amend the information to add an alternative first degree manslaughter charge. Finally, we hold that the trial court did not err in imposing sanctions on the State under the circumstances of this case. With these holdings, we remand to the trial court for further proceedings.

FACTS

¶4 Numrich is the owner and operator of Alki Construction LLC. Harold Felton was Numrich's employee. On January 16, 2016, Numrich's company began replacing a sewer line at a residence in West Seattle. Numrich employed a technique by which a trench is dug at either end of the residential sewer pipe to be replaced and then a hydraulic machine is used to pull a new pipe through the old one, which simultaneously bursts the old pipe and inserts the new one into place.

¶5 In the present case, the trench that was dug where the sewer line connected to the house was 21 inches wide, 6 feet long, and 8 to 10 feet deep. With a trench of this depth, there is a substantial risk that the excavation could cave in; several factors affect the risk of collapse, including the soil condition and type, the depth of the trench, and whether the soil was previously disturbed. All of these factors increased the likelihood of a collapse at the West Seattle project. By January 26, 2016, several other factors increased the likelihood of a collapse: the trench had been dug and left open for 10 days and the soil was saturated after several days of seasonal rain.

¶6 Washington has safety regulations that apply to jobsite excavations. For a trench as large as the one in West Seattle, these regulations require that the walls be shored to prevent a cave-in. Although Numrich placed some shoring in the trench, it was insufficient to safely stabilize the excavation.

¶7 Washington safety regulations also require that a "competent person" regularly inspect any trenches and the protective system installed in them. Clerk's Papers (CP) at 453. "Competent person" is a term defined by WAC 296-155-650(2) as someone "who can identify existing or predictable hazards in the surroundings that are unsanitary, hazardous, or dangerous to employees," and who has "authority by the nature of their position to take prompt corrective measures to eliminate [such hazards]." See also CP at 453. Inspections by the "competent person" must be made daily prior to the start of any work in a trench and must be repeated after every rainstorm or other hazard-increasing occurrence. Id . If the "competent person" observes any evidence of a situation that could result in a possible collapse, that person must remove all employees from the trench until precautions have been taken to ensure worker safety. Id . at 453-55. Numrich, as the company owner and supervisor of his employees, and who was "aware of the requirements" for the protection of workers in trenches, was the "competent person" at the jobsite during the project. Id .

¶8 On January 26, 2016, Numrich and his employees Felton and Maximillion Henry were at the West Seattle jobsite. Shortly after 10:00 a.m., the new pipe had been pulled into place, and Felton was working in the trench beside the house. Felton began using a motorized saw to cut a pipe. This tool can cause vibrations in the ground, which can disturb the soil and increase the risk of a trench collapse.

¶9 Numrich noted and commented to Henry that Felton's use of the saw in the trench was " ‘vibrating the heck out of the ground.’ " Id . at 454, 465. Despite being aware of the risks, Numrich made no effort to halt Felton's use of the saw in the trench and did not reinspect the trench after Felton finished using the equipment. Id . at 454-56, 465-67. Numrich left the jobsite to buy lunch for his crew. Approximately 15 minutes after Numrich left, the trench collapsed, burying and killing Felton.

Procedural history

¶10 On January 5, 2018, the State initially charged Numrich with manslaughter in the second degree ( RCW 9A.32.070 ) (count 1) and violation of labor safety regulation with death resulting ( RCW 49.17.190(3) ) (count 2). Id . at 1-2. On April 30, 2018, Numrich moved to dismiss the manslaughter charge. He argued that under Washington's general-specific rule, the specific statute precluded prosecution under the general manslaughter statute. Over the next several months, the parties filed multiple rounds of briefing on the matter.

¶11 The hearing on the motion to dismiss occurred on July 19, 2018. At the time, King County Superior Court Judge John Chun took the matter under advisement and ultimately denied the defense motion. The parties appeared before Judge Chun again on August 23, 2018, and presented argument on certification for discretionary review. Id . at 194; Hr'g Tr. at 68-83. The court granted Numrich's motion to certify, and Numrich then filed a notice of direct discretionary review with this court. Id . at 248, 244. Numrich's motion for discretionary review and statement of grounds for direct review timely followed on September 28, 2018, and was assigned case number 96365-7.

¶12 On October 18, 2018, the day that the State's answer was due in this court, the State notified Numrich's counsel in an e-mail that the State intended to amend the charging information. The State attached a proposed amended information that added a charge of manslaughter in the first degree. Numrich's counsel objected and noted his intent to seek discovery related to the timing and circumstances of the State's tactics.

¶13 Later the same day, the State filed its answer in this court, which noted the State's intended amendment, contending that discretionary review would be a useless exercise:

Even if this Court were to accept review and rule in Numrich's favor, he will still face felony manslaughter charges. ... Here, the State intends to add a count of Manslaughter in the First Degree.

Id . at 634. The State added, "The State's motion to amend the Information is in the process of being scheduled and there is no basis to conclude that it will not be granted." Id .

¶14 On October 30, 2018, the defense filed opposition pleadings and a motion to compel discovery in the superior court. See id . at 250-274; 423-29. The next day, the parties presented oral argument on the motion to amend in front of King County Superior Court Judge James Rogers.

¶15 On November 1, 2018, Judge Rogers issued a ruling granting the motion to amend. Id . at 470. However, the court noted that this was "a highly unusual case" and sua sponte awarded attorneys’ fees against the State. Id . at 471. The court explained that it had "never awarded terms in a criminal case and they are not a remedy except in highly unusual situations." Id . Judge Rogers also certified the order on motion to amend:

The Order Granting the Amendment only is hereby certified for appeal to join the discretionary appeal currently pending in the Washington Supreme Court. Per Judge Chun's Order of 23 August 2018, this Court concludes that the Amendment adds a charge that is inextricably related to the issues of law certified by Judge Chun under RAP 2.3(b)(4).

Id . at 471-72. In addition, the court found that "the State is using this amendment to obtain dismissal of the discretionary review" and that "there are no additional facts or discovery or new legal theory." Id . at 471.

¶16 In the afternoon of November 1, 2018, the parties presented argument to Commissioner Michael Johnston on the pending motion for direct discretionary review. On November 5, 2018, Commissioner Johnston issued a ruling that recognized the new certification. Commissioner Johnston deferred ruling on the motion pending...

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